EX-10.2






Exhibit 10.2




$300,000,000




SEVENTH AMENDED AND RESTATED

CREDIT AGREEMENT




Dated as of April 2, 2007




Among




CMS ENERGY CORPORATION

as the Borrower




THE BANKS NAMED HEREIN

as Banks




CITICORP USA, INC.

as Administrative Agent and Collateral Agent




UNION BANK OF CALIFORNIA, N.A.

as Syndication Agent




and




BARCLAYS BANK PLC

JPMORGAN CHASE BANK, N.A.

and

WACHOVIA BANK, NATIONAL ASSOCIATION

as Documentation Agents




____________________________




CITIGROUP GLOBAL MARKETS INC.

and UNION BANK OF CALIFORNIA, N.A.

as Joint Book Managers and Joint Lead Arrangers




CH1 3718772v.11



1




TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page






ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




	 	 	 
	 
	 	 
	SECTION 1.01.

	 	Certain Defined Terms
	 
	 	 
	SECTION 1.02.

	 	Computation of Time Periods; Construction.
	 
	 	 
	SECTION 1.03.

	 	Accounting Terms






ARTICLE II




COMMITMENTS, LOANS, FEES, PREPAYMENTS AND OUTSTANDINGS




	 	 	 
	 
	 	 
	SECTION 2.01.

	 	Making Loans
	 
	 	 
	SECTION 2.02.

	 	Fees.
	 
	 	 
	SECTION 2.03.

	 	Commitments; Mandatory Prepayments; Increase of Commitments.
	 
	 	 
	SECTION 2.04.

	 	Computations of Outstandings






ARTICLE III




LOANS




	 	 	 
	 
	 	 
	SECTION 3.01.

	 	Loans.
	 
	 	 
	SECTION 3.02.

	 	Conversion of Loans
	 
	 	 
	SECTION 3.03.

	 	Interest Periods
	 
	 	 
	SECTION 3.04.

	 	Other Terms Relating to the Making and Conversion of Loans.
	 
	 	 
	SECTION 3.05.

	 	Repayment of Loans; Interest






ARTICLE IV




LETTERS OF CREDIT




	 	 	 
	 
	 	 
	SECTION 4.01.

	 	Issuing Banks
	 
	 	 
	SECTION 4.02.

	 	Letters of Credit.
	 
	 	 
	SECTION 4.03.

	 	Issuing Bank Fees
	 
	 	 
	SECTION 4.04.

	 	Reimbursement to Issuing Banks.
	 
	 	 
	SECTION 4.05.

	 	Obligations Absolute
	 
	 	 
	SECTION 4.06.

	 	Indemnification; Liability of Issuing Banks and the Lenders.
	 
	 	 
	SECTION 4.07.

	 	Currency Equivalents
	 
	 	 
	SECTION 4.08.

	 	Judgment Currency
	 
	 	 
	SECTION 4.09.

	 	Cash Collateral Agreement
	 
	 	 
	SECTION 4.10.

	 	Court Order






ARTICLE V




PAYMENTS, COMPUTATIONS AND YIELD PROTECTION




	 	 	 
	 
	 	 
	SECTION 5.01.

	 	Payments and Computations.
	 
	 	 
	SECTION 5.02.

	 	Interest Rate Determination
	 
	 	 
	SECTION 5.03.

	 	Prepayments
	 
	 	 
	SECTION 5.04.

	 	Yield Protection.
	 
	 	 
	SECTION 5.05.

	 	Sharing of Payments, Etc
	 
	 	 
	SECTION 5.06.

	 	Taxes.
	 
	 	 
	SECTION 5.07.

	 	Apportionment of Payments.
	 
	 	 
	SECTION 5.08.

	 	Proceeds of Collateral






ARTICLE VI




CONDITIONS PRECEDENT




	 	 	 
	 
	 	 
	SECTION 6.01.

	 	Conditions Precedent to the Effectiveness of this Agreement
	 
	 	 
	SECTION 6.02.

	 	Conditions Precedent to Each Extension of Credit
	 
	 	 
	SECTION 6.03.

	 	Conditions Precedent to Certain Extensions of Credit
	 
	 	 
	SECTION 6.04.

	 	Reliance on Certificates






ARTICLE VII




REPRESENTATIONS AND WARRANTIES




	 	 	 
	 
	 	 
	SECTION 7.01.

	 	Representations and Warranties of the Borrower






ARTICLE VIII




COVENANTS OF THE BORROWER




	 	 	 
	 
	 	 
	SECTION 8.01.

	 	Affirmative Covenants
	 
	 	 
	SECTION 8.02.

	 	Negative Covenants
	 
	 	 
	SECTION 8.03.

	 	Reporting Obligations






ARTICLE IX




DEFAULTS




	 	 	 
	 
	 	 
	SECTION 9.01.

	 	Events of Default
	 
	 	 
	SECTION 9.02.

	 	Remedies






ARTICLE X




THE AGENTS




	 	 	 
	 
	 	 
	SECTION 10.01.

	 	Authorization and Action.
	 
	 	 
	SECTION 10.02.

	 	Indemnification
	 
	 	 
	SECTION 10.03.

	 	Concerning the Collateral and the Loan Documents.






ARTICLE XI




MISCELLANEOUS




	 	 	 
	 
	 	 
	SECTION 11.01.

	 	Amendments, Etc
	 
	 	 
	SECTION 11.02.

	 	Notices, Etc
	 
	 	 
	SECTION 11.03.

	 	No Waiver of Remedies
	 
	 	 
	SECTION 11.04.

	 	Costs, Expenses and Indemnification.
	 
	 	 
	SECTION 11.05.

	 	Right of Set-off.
	 
	 	 
	SECTION 11.06.

	 	Binding Effect
	 
	 	 
	SECTION 11.07.

	 	Assignments and Participation.
	 
	 	 
	SECTION 11.08.

	 	Confidentiality
	 
	 	 
	SECTION 11.09.

	 	Waiver of Jury Trial
	 
	 	 
	SECTION 11.10.

	 	GOVERNING LAW; SUBMISSION TO JURISDICTION
	 
	 	 
	SECTION 11.11.

	 	Relation of the Parties; No Beneficiary
	 
	 	 
	SECTION 11.12.

	 	Execution in Counterparts
	 
	 	 
	SECTION 11.13.

	 	Survival of Agreement
	 
	 	 
	SECTION 11.14.

	 	Platform.
	 
	 	 
	SECTION 11.15.

	 	USA Patriot Act






ARTICLE XII




NO NOVATION; REFERENCES TO THIS AGREEMENT IN LOAN DOCUMENTS




	 	 	 
	 
	 	 
	SECTION 12.01.

	 	No Novation
	 
	 	 
	SECTION 12.02.

	 	References to This Agreement In Loan Documents
	 
	 	 
	SECTION 12.03.

	 	Release of Enterprises
	 
	 	 






2




	 	 	 	 	 
	Exhibits	 	 	 	 
	EXHIBIT A

	 	-
	 	Form of Notice of Borrowing
	 
	 	 	 	 
	EXHIBIT B

	 	-
	 	Form of Notice of Conversion
	 
	 	 	 	 
	EXHIBIT C

	 	-
	 	Form of Opinion of James Brunner, Esq., counsel to the Borrower
	 
	 	 	 	 
	EXHIBIT D

	 	-
	 	Form of Opinion of Sidley Austin LLP, special counsel to the

Administrative Agent
	 
	 	 	 	 
	EXHIBIT E

	 	-
	 	Form of Compliance Schedule
	 
	 	 	 	 
	EXHIBIT F

	 	-
	 	Form of Lender Assignment
	 
	 	 	 	 
	EXHIBIT G

	 	-
	 	Terms of Subordination (Junior Subordinated Debt)
	 
	 	 	 	 
	EXHIBIT H

	 	-
	 	Terms of Subordination (Guaranty of Hybrid Preferred Securities)
	 
	 	 	 	 
	EXHIBIT I

	 	-
	 	Borrower Pledge Agreement
	 
	 	 	 	 
	EXHIBIT J

	 	-
	 	Cash Collateral Agreement
	 
	 	 	 	 
	EXHIBIT K

	 	-
	 	Form of Notice of Lender Addition
	 
	 	 	 	 
	EXHIBIT L

	 	-
	 	Form of Assumption and Acceptance
	 
	 	 	 	 
	Schedules

	 	

	 	

	 

	 	

	 	

	 
	 	 	 	 
	COMMITMENT SCHEDULE

	 
	 	 	 	 
	PRICING SCHEDULE

	 
	 	 	 	 
	SCHEDULE I

	 	 	 	Certain Debt
	 
	 	 	 	 
	SCHEDULE II

	 	 	 	Transitional Letters of Credit
	 
	 	 	 	 
	SCHEDULE III

	 	 	 	Asset Sales






3




SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of April 2, 2007




THIS SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT (the “Agreement”) is made by and among:




	 	(i)	 	CMS Energy Corporation, a Michigan corporation (the “Borrower”),






	 	(ii)	 	the banks (the “Banks”) listed on the signature pages hereof and the other
Lenders (as hereinafter defined) from time to time party hereto,






	 	(iii)	 	Citicorp USA, Inc. (“CUSA”), as administrative agent (the “Administrative
Agent”) for the Lenders hereunder and as collateral agent (the “Collateral Agent”) for
the Lenders hereunder, and






	 	(iv)	 	Union Bank of California, N.A., as syndication agent (the “Syndication Agent”),
and Barclays Bank plc, JPMorgan Chase Bank, N.A. and Wachovia Bank, National
Association, as documentation agents (the “Documentation Agents”).





PRELIMINARY STATEMENTS




The Borrower has requested that the Banks amend and restate the Existing Credit Agreement (as
hereafter defined) to provide the credit facility hereinafter described in the amount and on the
terms and conditions set forth herein. The Banks have so agreed on the terms and conditions set
forth herein, and the Agents have agreed to act as agents for the Lenders and the Issuing Banks on
such terms and conditions.



The parties hereto acknowledge and agree that neither Consumers (as hereinafter defined) nor
any of its Subsidiaries (as hereinafter defined) will be a party to, or will in any way be bound by
any provision of, this Agreement or any other Loan Document (as hereinafter defined), and that no
Loan Document will be enforceable against Consumers or any of its Subsidiaries or their respective
assets.



Accordingly, the parties hereto agree as follows:



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




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



“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.



“ABR Loan” means a Loan that bears interest as provided in Section 3.05(b)(i).



“Accounting Change” is defined in Section 1.03.



“Added Lender” means any Lender which becomes a Lender hereunder, or whose Commitment is
increased (to the extent of such increase), pursuant to an Assumption and Acceptance as provided in
Section 2.03(d).



“Adjusted LIBO Rate” means, for each Interest Period for each Eurodollar Rate Loan made as
part of the same Borrowing, 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 Questionnaire” means an Administrative Questionnaire in a form supplied by the
Administrative Agent.



“Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling (including but not limited to all directors and officers of such Person), controlled
by, or under direct or indirect common control with such Person. A Person shall be deemed to
control another entity if such Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such entity, whether through the ownership of
voting securities, by contract, or otherwise.



“Agent” means, as the context may require, the Administrative Agent, the Collateral Agent, the
Syndication Agent or the Documentation Agents, and “Agents” means any or all of the foregoing.



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



“Alternative Currency” means euro, Indian Rupees and Canadian Dollars; provided, that if with
respect to any of the foregoing currencies (x) currency control or other exchange regulations are
imposed in the country in which such currency is issued with the result that different types of
such currency are introduced, (y) such currency is, in the determination of the Administrative
Agent, no longer readily available or freely traded or (z) in the determination of the
Administrative Agent, a Dollar Equivalent of such currency is not readily calculable, the
Administrative Agent shall promptly notify the Lenders and the Borrower, and such currency shall no
longer be an Alternative Currency until such time as all of the Lenders agree to reinstate such
currency as an Alternative Currency.



“Applicable ABR Margin” means, on any date of determination, the rate per annum then
applicable to ABR Loans determined in accordance with the provisions of the Pricing Schedule
hereto.



“Applicable Eurodollar Margin” means, on any date of determination, the rate per annum then
applicable to Eurodollar Rate Loans determined in accordance with the provisions of the Pricing
Schedule hereto.



“Applicable Lending Office” means, with respect to each Lender, at the address specified for
such Lender on its signature page to this Agreement or in the Lender Assignment or Assignment and
Acceptance pursuant to which it became a Lender, as applicable, or at any office, branch,
subsidiary or affiliate of such Lender specified in a notice received by the Administrative Agent
and the Borrower from such Lender.




“Applicable Rate” means:




(i) in the case of each ABR Loan, a rate per annum equal at all times to the sum of the
Alternate Base Rate in effect from time to time plus the Applicable ABR Margin; and




(ii) in the case of each Eurodollar Rate Loan comprising part of the same Borrowing, a
rate per annum during each Interest Period equal at all times to the sum of the Adjusted
LIBO Rate for such Interest Period plus the Applicable Eurodollar Margin.



“Arrangers” means Citigroup Global Markets Inc. and Union Bank of California, N.A.



“Assumption and Acceptance” means an assumption and acceptance executed by an Added Lender and
the Borrower, and accepted by the Administrative Agent, in accordance with Section 2.03(d) and in
substantially the form of Exhibit L hereto.



“Available Commitment” means, for each Lender on any day, the unused portion of such Lender’s
Commitment, computed after giving effect to all Extensions of Credit or prepayments to be made on
such day and the application of proceeds therefrom. “Available Commitments” means the aggregate of
the Lenders’ Available Commitments.



“Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. §§ 101 et
seq.), as amended from time to time, and any successor statute.



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



“Borrower Pledge Agreement” mean that certain Fourth Amended and Restated Pledge and Security
Agreement, dated as of April 2, 2007, by and between the Borrower and the Collateral Agent,
attached hereto as Exhibit I, as amended, restated, supplemented or otherwise modified from time to
time.



“Borrowing” means a borrowing consisting of Loans of the same Type, having the same Interest
Period and made or Converted on the same day by the Lenders, ratably in accordance with their
respective Percentages. Any Borrowing consisting of Loans of a particular Type may be referred to
as being a Borrowing of such “Type”. All Loans of the same Type, having the same Interest Period
and made or Converted on the same day shall be deemed a single Borrowing hereunder until repaid or
next Converted.



“Business Day” means a day of the year on which banks are not required or authorized to close
in New York City or Detroit, Michigan, and, if the applicable Business Day relates to any
Eurodollar Rate Loan, on which dealings are carried on in the London interbank market and, if the
applicable Business Day relates to any Letter of Credit, a day of the year on which banks are not
required or authorized to close in the principal place of business of the related Issuing Bank.



“Canadian Dollar” means the lawful currency of Canada.



“Canadian Dollar Sublimit” means $30,000,000.



“Cash Collateral Account” means the “Account” as defined in the Cash Collateral Agreement.



“Cash Collateral Agreement” means that certain Amended and Restated Cash Collateral Agreement,
dated as of April 2, 2007, among the Borrower, the Administrative Agent and the Collateral Agent,
for the benefit of the Lenders, attached as Exhibit J, as amended, restated, supplemented or
otherwise modified from time to time.



“Cash Collateral Required Amount” means, as of any date of determination, the difference of
(i) one hundred five percent (105%) of the Dollar Equivalent of the aggregate LC Outstandings at
such time in respect of undrawn Letters of Credit less (y) the amount of cash on deposit in the
Cash Collateral Account at such time which is free and clear of all rights and claims of third
parties and has not been applied against the Obligations.



“Cash Dividend Income” means, for any period, the amount of all cash dividends received by the
Borrower from its Subsidiaries during such period that are paid out of the net income or loss
(without giving effect to: any extraordinary gains in excess of $25,000,000, the amount of any
write-off or write-down of assets, including, without limitation, write-offs or write-downs related
to the sale of assets, impairment of assets and loss on contracts, in each case in accordance with
GAAP consistently applied, and up to $200,000,000 of other non-cash write-offs) of such
Subsidiaries during such period.



“CD Rate” means the latest three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of deposit of major United States money
market banks, such three-week moving average being determined weekly on each Monday (or, if such
day is not a Business Day, on the next succeeding Business Day) for the three-week period ending on
the previous Friday by Citibank on the basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates received by Citibank from three
New York certificate of deposit dealers of recognized standing selected by Citibank, in either
case, adjusted to the nearest 1/16 of one percent or, if there is no nearest 1/16 of one percent,
to the next higher 1/16 of one percent.



“Change of Control” means (a) any “person” or “group” within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act shall become the “beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act) of more than 50% of the then outstanding voting capital stock of the Borrower, or
(b) the majority of the board of directors of the Borrower shall fail to consist of Continuing
Directors, or (c) a consolidation or merger of the Borrower shall occur after which the holders of
the outstanding voting capital stock of the Borrower immediately prior thereto hold less than 50%
of the outstanding voting capital stock of the surviving entity, or (d) more than 50% of the
outstanding voting capital stock of the Borrower shall be transferred to any entity of which the
Borrower owns less than 50% of the outstanding voting capital stock.



“Citibank” means Citibank, N.A., a national banking association.



“Citigroup Parties” means Citibank, CUSA, Citigroup Global Markets Inc. and each of their
respective Affiliates, and each of their respective officers, directors, employees, agents,
advisors, and representatives.



“Closing Date” means April 2, 2007.



“CMS ERM” means CMS Energy Resource Management Company (formerly known as CMS Marketing,
Services and Trading Company), a Michigan corporation, all of whose capital stock is on the Closing
Date owned by Enterprises, and its permitted successors.



“CMS Generation” means CMS Generation Co., a Michigan corporation, all of whose common stock
is on the Closing Date owned by Enterprises, and its permitted successors.



“Collateral” means all property and interests in property now owned or hereafter acquired by
the Borrower upon which a Lien is granted under any of the Loan Documents, including, without
limitation, all “Collateral” under (and as defined in) the Cash Collateral Agreement.



“Commitment” means, for each Lender, the obligation of such Lender to make Loans to the
Borrower and to participate in Extensions of Credit resulting from the issuance (or extension,
modification or amendment) of any Letter of Credit in an aggregate amount no greater than the
amount set forth opposite such Lender’s name on the Commitment Schedule under the heading
“Commitment” or, if such Lender has entered into one or more Lender Assignments or Assignment and
Acceptances, set forth for such Lender in the Register maintained by the Administrative Agent
pursuant to Section 11.07(h), in each case as such amount may be modified from time to time
pursuant to Section 2.03. “Commitments” means the total of the Lenders’ Commitments hereunder. As
of the Closing Date the aggregate of all of the Lenders’ Commitments equals $300,000,000.



“Commitment Fee Rate” means, on any date of determination, the rate per annum determined in
accordance with the provisions of the Pricing Schedule hereto.



“Commitment Schedule” means the Schedule identifying each Lender’s Commitment as of the
Closing Date attached hereto and identified as such.



“Commitment Termination Date” means the earlier of (i) the Maturity Date and (ii) the date of
termination or reduction in whole of the Commitments pursuant to Section 2.03 or 9.02.



“Communications” is defined in Section 11.14.



“Confidential Information” has the meaning assigned to that term in Section 11.08.



“Consolidated Debt” means, without duplication, at any date of determination, the aggregate
debt (as such term is construed in accordance with GAAP) of the Borrower and the Consolidated
Subsidiaries; provided, however, that Consolidated Debt shall not include (a) any Junior
Subordinated Debt owned by any Hybrid Preferred Securities Subsidiary, (b) any guaranty by the
Borrower of payments with respect to any Hybrid Preferred Securities (provided that such guaranty
is subordinated to the rights of the Lenders and Issuing Banks hereunder and under the other Loan
Documents pursuant to terms of subordination substantially similar to those set forth in Exhibit H,
or pursuant to other terms and conditions satisfactory to the Required Lenders), (c) any Hybrid
Equity Securities, (d) any Mandatorily Convertible Securities, (e) any Project Finance Debt of the
Borrower or any Consolidated Subsidiary or (f) the principal amount of any Securitized Bonds.



“Consolidated EBITDA” means, with reference to any period, the pretax operating income of the
Borrower and its Subsidiaries (“Pretax Operating Income”) for such period plus, to the extent
included in determining Pretax Operating Income (without duplication), (i) depreciation, depletion
and amortization, (ii) non-cash write-offs and write-downs, including, without limitation,
write-offs or write-downs related to the sale of assets, impairment of assets and loss on contracts
and (iii) non-cash gains or losses on mark-to-market valuation of contracts, in each case in
accordance with GAAP consistently applied, all calculated for the Borrower and its Subsidiaries on
a consolidated basis for such period; provided, however, that Consolidated EBITDA
shall not include any operating income attributable to that portion of the revenues of Consumers
dedicated to the repayment of the Securitized Bonds.



“Consolidated Subsidiary” means any Subsidiary whose accounts are or are required to be
consolidated with the accounts of the Borrower in accordance with GAAP.



“Consumers” means Consumers Energy Company, a Michigan corporation, all of whose common stock
is on the Closing Date owned by the Borrower.



“Consumers Credit Facility” means Consumer’s existing $500,000,000 revolving loan facility, as
in effect on the date hereof.



“Continuing Director” means, as of any date of determination, any member of the board of
directors of the Borrower who (a) was a member of such board of directors on the Closing Date, or
(b) was nominated for election or elected to such board of directors with the approval of the
Continuing Directors who were members of such board of directors at the time of such nomination or
election; provided that an individual who is so elected or nominated in connection with a merger,
consolidation, acquisition or similar transaction shall not be a Continuing Director unless such
individual was a Continuing Director prior thereto.



“Conversion”, “Convert” or “Converted” refers to a conversion of Loans of one Type into Loans
of another Type, or to the selection of a new, or the renewal of the same, Interest Period for
Loans, as the case may be, pursuant to Section 3.02 or 3.03.



“Debt” means, for any Person, without duplication, any and all indebtedness, liabilities and
other monetary obligations of such Person (whether for principal, interest, fees, costs, expenses
or otherwise, and whether contingent or otherwise) (i) for borrowed money or evidenced by bonds,
debentures, notes or other similar instruments, (ii) to pay the deferred purchase price of property
or services (except trade accounts payable arising in the ordinary course of business which are not
overdue), (iii) as lessee under leases which shall have been or should be, in accordance with GAAP,
recorded as capital leases, (iv) under reimbursement or similar agreements with respect to letters
of credit issued thereunder (except reimbursement obligations and letters of credit that are cash
collateralized), (v) under any interest rate swap, “cap”, “collar” or other hedging agreements;
provided, however, for purposes of the calculation of Debt for this clause (v) only, the actual
amount of Debt of such Person shall be determined on a net basis to the extent such agreements
permit such amounts to be calculated on a net basis, (vi) to pay rent or other amounts under leases
entered into in connection with sale and leaseback transactions involving assets of such Person
being sold in connection therewith, (vii)  arising from any accumulated funding deficiency (as
defined in Section 412(a) of the Internal Revenue Code of 1986, as amended) for a Plan, (viii)
arising in connection with any withdrawal liability under ERISA to any Multiemployer Plan and
(ix) arising from (A) direct or indirect guaranties in respect of, and obligations to purchase or
otherwise acquire, or otherwise to warrant or hold harmless, pursuant to a legally binding
agreement, a creditor against loss in respect of, Debt of others referred to in clauses (i) through
(viii) above and (B) other guaranty or similar financial obligations in respect of the performance
of others, including Support Obligations. Notwithstanding the foregoing, solely for purposes of
the calculation required under Section 8.01(j)(ii), Debt shall not include any Junior Subordinated
Debt issued by the Borrower and owned by any Hybrid Preferred Securities Subsidiary.



“Debt Rating” means the rating assigned by S&P, Moody’s or Fitch, as applicable, to the senior
unsecured long-term debt of the Borrower (without third-party credit enhancement).



“Debt Rating Condition” shall be satisfied if, as of any date of determination, two of the
following three conditions are satisfied: (i) the Debt Rating from S&P as of such date is BBB or
higher, (ii) the Debt Rating from Moody’s as of such date is Baa2 or higher and (iii) the Debt
Rating from Fitch as of such date is BBB or higher.



“Default” means an event that, with the giving of notice or lapse of time or both, would
constitute an Event of Default.



“Default Rate” means a rate per annum equal at all times to (i) in the case of any amount of
principal of any Loan that is not paid when due, 2% per annum above the Applicable Rate required to
be paid on such Loan immediately prior to the date on which such amount became due, and (ii) in the
case of any amount of interest, fees or other amounts payable hereunder that is not paid when due,
2% per annum above the Applicable Rate for an ABR Loan in effect from time to time.



“Disclosed Matters” is defined in Section 7.01(f).



“Dollar Equivalent” means, as to Dollars, the amount thereof, and as to any Alternative
Currency, the Dollar equivalent of such Alternative Currency as determined by the Administrative
Agent in accordance with the provisions of Section 4.07.



“Dollars” and the sign “$” each means the lawful currency of the United States.



“Eligible Bank” means any state or federally chartered bank or any state-licensed foreign bank
branch or agency.



“Enterprises” means CMS Enterprises Company, a Michigan corporation, all of whose common stock
is on the Closing Date owned by the Borrower and its permitted successors.



“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any
governmental agency or authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, release or threatened release of any Hazardous
Substance 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 of its Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Substances, (c) exposure to any Hazardous Substances, (d)
the release or threatened release of any Hazardous Substances into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.



“Equity Distributions” means, for any period, the aggregate amount of cash received by the
Borrower from its Subsidiaries during such period that are paid out of proceeds from the sale of
common equity of Subsidiaries of the Borrower.



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



“ERISA Affiliate” means, with respect to any Person, any trade or business (whether or not
incorporated) that is a member of a commonly controlled trade or business under Sections 414(b),
(c), (m) and (o) of the Internal Revenue Code of 1986, as amended.



“euro” means the euro referred to in Council Regulation (EC) No. 1103/97 dated June 17, 1997
passed by the Counsel of the European Union, or if different, the lawful currency of the member
states of the European Union that participate in the third stage of the Economic and Monetary
Union.



“Euro Sublimit” means $50,000,000.



“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.



“Eurodollar Rate Loan” means a Loan that bears interest as provided in Section 3.05(b)(ii).



“Event of Default” is defined in Section 9.01.



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



“Existing Credit Agreement” means that certain $300,000,000 Sixth Amended and Restated Credit
Agreement, dated as of May 18, 2005, among the Borrower, Enterprises, the lenders from time to time
parties thereto, and CUSA, as administrative agent and as collateral agent, as the same may have
been amended, restated, supplemented or otherwise modified from time to time.



“Extension of Credit” means (i) the making of a Borrowing (including any Conversion), (ii) the
issuance of a Letter of Credit, or (iii) the amendment of any Letter of Credit having the effect of
extending the stated termination date thereof, increasing the LC Outstandings thereunder, or
otherwise altering any of the material terms or conditions thereof.



“Fair Market Value” means, with respect to any asset, the value of the consideration
obtainable in a sale of such asset in the open market, assuming a sale by a willing seller to a
willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable
period of time, each having reasonable knowledge of the nature and characteristics of such asset,
neither being under any compulsion to act, and, if in excess of $50,000,000, as determined in good
faith by the Board of Directors of the Borrower.



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



“Fee Letters” is defined in Section 2.02(b).



“Fitch” means Fitch, Inc. or any successor thereto.



“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” is defined in Section 1.03.



“Governmental Approval” means any authorization, consent, approval, license, permit,
certificate, exemption of, or filing or registration with, any governmental authority or other
legal or regulatory body, required in connection with (i) the execution, delivery, or performance
of any Loan Document by the Borrower, (ii) the grant and perfection of any Lien in favor of the
Collateral Agent contemplated by the Loan Documents, or (iii) the exercise by any Agent (on behalf
of the Lenders) of any right or remedy provided for under the Loan Documents.



“Granting Lender” is defined in Section 11.07(f).



“Hazardous Substance” means any waste, substance, or material identified as hazardous,
dangerous or toxic by any office, agency, department, commission, board, bureau, or instrumentality
of the United States or of the State or locality in which the same is located having or exercising
jurisdiction over such waste, substance or material.



“Hybrid Equity Securities” means any securities issued by the Borrower or a financing vehicle
of the Borrower that (i) meet two of the following three criteria: are classified as possessing a
minimum of “intermediate equity content” by S&P, Basket C equity credit by Moody’s or 50% equity
credit by Fitch and (ii) require no repayments or prepayments and no mandatory redemptions or
repurchases, in each case, prior to at least 91 days after the later of the termination of the
Commitments and the repayment in full of the Obligations.



“Hybrid Preferred Securities” means any preferred securities issued by a Hybrid Preferred
Securities Subsidiary, where such preferred securities have the following characteristics:




(i) such Hybrid Preferred Securities Subsidiary lends substantially all of the proceeds
from the issuance of such preferred securities to the Borrower or a wholly-owned direct or
indirect Subsidiary of the Borrower in exchange for Junior Subordinated Debt issued by the
Borrower or such wholly-owned direct or indirect Subsidiary, respectively;




(ii) such preferred securities contain terms providing for the deferral of interest
payments corresponding to provisions providing for the deferral of interest payments on the
Junior Subordinated Debt; and




(iii) the Borrower or a wholly-owned direct or indirect Subsidiary of the Borrower (as
the case may be) makes periodic interest payments on the Junior Subordinated Debt, which
interest payments are in turn used by the Hybrid Preferred Securities Subsidiary to make
corresponding payments to the holders of the preferred securities.



“Hybrid Preferred Securities Subsidiary” means any Delaware statutory trust (or similar
entity) (i) all of the common equity interest of which is owned (either directly or indirectly
through one or more wholly-owned Subsidiaries of the Borrower or Consumers) at all times by the
Borrower or a wholly-owned direct or indirect Subsidiary of the Borrower, (ii) that has been formed
for the purpose of issuing Hybrid Preferred Securities and (iii) substantially all of the assets of
which consist at all times solely of Junior Subordinated Debt issued by the Borrower or a
wholly-owned direct or indirect Subsidiary of the Borrower (as the case may be) and payments made
from time to time on such Junior Subordinated Debt.



“Indemnified Person” is defined in Section 11.04(b).



“Indenture” means that certain Indenture, dated as of September 15, 1992, between the Borrower
and the Trustee, as supplemented by the Seventh Supplemental Indenture, dated as of January 25,
1999, the Tenth Supplemental Indenture, dated as of October 12, 2000, the Eleventh Supplemental
Indenture, dated as of March 29, 2001, the Twelfth Supplemental Indenture, dated as of July 2,
2001, the Thirteenth Supplemental Indenture, dated as of July 16, 2003, the Fourteenth Supplemental
Indenture, dated as of July 17, 2003, the Fifteenth Supplemental Indenture, dated as of September
29, 2004, the Sixteenth Supplemental Indenture, dated as of December 16, 2004, the Seventeenth
Supplemental Indenture, dated as of December 13, 2004, the Eighteenth Supplemental Indenture, dated
as of January 19, 2005, and the Nineteenth Supplemental Indenture, dated as of December 13, 2005,
as said Indenture may be further amended or otherwise modified from time to time in accordance with
its terms.



“Indian Rupee” means the lawful currency of India.



“Indian Rupee Sublimit” means $10,000,000.



“Interest Period” is defined in Section 3.03.



“Issuing Bank” means any Lender designated by the Borrower in accordance with Section 4.01(a)
as the issuer of a Letter of Credit pursuant to an Issuing Bank Agreement.



“Issuing Bank Agreement” means an agreement between an Issuing Bank and the Borrower, in form
and substance satisfactory to the Administrative Agent, providing for the issuance of one or more
Letters of Credit, in form and substance satisfactory to the Administrative Agent, in support of a
general corporate activity of the Borrower.



“Junior Subordinated Debt” means any unsecured Debt of the Borrower or a Subsidiary of the
Borrower (i) issued in exchange for the proceeds of Hybrid Preferred Securities and (ii)
subordinated to the rights of the Lenders hereunder and under the other Loan Documents pursuant to
terms of subordination substantially similar to those set forth in Exhibit G, or pursuant to other
terms and conditions satisfactory to the Required Lenders.



“LC Payment Notice” is defined in Section 4.04(b).



“LC Outstandings” means, for any Letter of Credit on any date of determination, the maximum
amount available to be drawn under such Letter of Credit (assuming the satisfaction of all
conditions for drawing enumerated therein) plus any amount which has been drawn on such Letter of
Credit which has neither been reimbursed by the Borrower nor converted into an ABR Loan pursuant to
the terms of Section 4.04.



“Lender Addition” is defined in Section 2.03(d).



“Lender Assignment” is defined in Section 11.07(e).



“Lenders” means the Banks listed on the signature pages hereof, together with their successors
and permitted assigns and, if and to the extent so provided in Section 4.04(c), each Issuing Bank.



“Letter of Credit” means (i) a letter of credit issued by an Issuing Bank pursuant to Section
4.02(a) or (ii) a Transitional Letter of Credit deemed issued by an Issuing Bank on the Closing
Date pursuant to Section 4.02(b), in each case as such letter of credit may from time to time be
amended, modified or extended in accordance with the terms of this Agreement and the Issuing Bank
Agreement to which it relates.



“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, the rate
appearing on Page 3750 of the Telerate 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 any lien, security interest, or other charge or encumbrance (including the lien
or retained security title of a conditional vendor) of any kind, or any other type of arrangement
intended or having the effect of conferring upon a creditor a preferential interest upon or with
respect to any of its properties of any character (including capital stock and other equity
interests, intercompany obligations and accounts).



“Loan” means a loan by a Lender to the Borrower pursuant to Section 2.01, and refers to an ABR
Loan or a Eurodollar Rate Loan (each of which shall be a “Type” of Loan). All Loans by a Lender of
the same Type having the same Interest Period and made or Converted on the same day shall be deemed
to be a single Loan by such Lender until repaid or next Converted.



“Loan Documents” means this Agreement, any Promissory Notes, the Fee Letters, the Issuing Bank
Agreement(s), the Borrower Pledge Agreement, the Cash Collateral Agreement and all other
agreements, instruments and documents now or hereafter executed and/or delivered pursuant hereto or
thereto.



“Mandatorily Convertible Securities” means any mandatorily convertible equity-linked
securities issued by the Borrower, so long as the terms of such securities require no repayments or
prepayments and no mandatory redemptions or repurchases, in each case, prior to at least 91 days
after the later of the termination of the Commitments and the repayment in full of the Obligations.



“Material Adverse Change” means any event, development or circumstance that has had or could
reasonably be expected to have a material adverse effect on (a) the business, property, financial
condition, results of operations or prospects of the Borrower and its Subsidiaries, considered as a
whole, (b) the Borrower’s ability to perform its obligations under this Agreement or any other Loan
Document or (c) the validity or enforceability of any Loan Document or the rights or remedies of
any Agent or the Lenders thereunder; provided that the occurrence of any Restatement Event shall
not constitute a Material Adverse Change.



“Maturity Date” means April 2, 2012.



“Measurement Quarter” is defined in Section 8.01(i).



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



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



“Net Proceeds” means, with respect to any sale, assignment or other disposition of (but not
the lease or license of) any property, or with respect to any sale or issuance of securities or
incurrence of Debt, by any Person, gross cash proceeds received by such Person or any Subsidiary of
such Person from such sale, assignment, disposition, issuance or incurrence (including cash
received as consideration for the assumption or incurrence of liabilities incurred in connection
with or in anticipation of such transaction) after (i) provision for all income or other taxes
measured by or resulting from such transaction, (ii) payment of all customary underwriting
commissions, auditing and legal fees, printing costs, rating agency fees and other customary and
reasonable fees and expenses incurred by such Person in connection with such transaction, (iii) all
amounts used to repay Debt (and any premium or penalty thereon) secured by a Lien on any asset
disposed of in such sale, assignment or other disposition or which is or may be required (by the
express terms of the instrument governing such Debt or by applicable law) to be repaid in
connection with such sale, assignment, or other disposition, and (iv) deduction of appropriate
amounts to be provided by such Person or a Subsidiary of such Person as a reserve, in accordance
with GAAP consistently applied, against any liabilities associated with the assets sold,
transferred or disposed of in such transaction and retained by such Person or a Subsidiary of such
Person after such transaction, provided that “Net Proceeds” shall include on a dollar-for-dollar
basis all amounts remaining in such reserve after such liability shall have been satisfied in full
or terminated; provided, however, that notwithstanding the foregoing, “Net Proceeds” shall exclude
(a) any amounts received or deemed to be received by the Borrower for the purchase of the
Borrower’s capital stock in connection with the Borrower’s dividend reinvestment program and (b)
amounts received by the Borrower or any Subsidiary of the Borrower pursuant to any transaction with
the Borrower or any Subsidiary of the Borrower otherwise permitted hereunder.



“Net Worth” means, with respect to any Person, the excess of such Person’s total assets over
its total liabilities, total assets and total liabilities each to be determined in accordance with
GAAP consistently applied, excluding, however, from the determination of total assets (i) goodwill,
organizational expenses, research and development expenses, trademarks, trade names, copyrights,
patents, patent applications, licenses and rights in any thereof, and other similar intangibles,
(ii) cash held in a sinking, escrow or other analogous fund established for the purpose of
redemption, retirement or prepayment of capital stock or Debt, and (iii) any items not included in
clauses (i) or (ii) above, that are treated as intangibles in conformity with GAAP.



“Notice of Borrowing” is defined in Section 3.01(a).



“Notice of Conversion” is defined in Section 3.02.



“Notice of Lender Addition” is defined in Section 2.03(d).



“Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all
LC Outstandings, all accrued and unpaid fees and all expenses, reimbursements, indemnities and
other obligations of the Borrower to any of the Agents, the Arrangers, the Lenders, the Issuing
Banks or any other indemnified party arising under the Loan Documents.



“OECD” means the Organization for Economic Cooperation and Development.



“Off-Balance Sheet Liability” of a Person means any of the following obligations not appearing
on such Person’s consolidated balance sheet: (i) all lease obligations, leveraged leases, sale and
leasebacks and other similar lease arrangements of such Person, (ii) any liability under any so
called “synthetic lease” or “tax ownership operating lease” transaction entered into by such
Person, and (iii) any obligation arising with respect to any other transaction if and to the extent
that such obligation is the functional equivalent of borrowing but that does not constitute a
liability on the consolidated balance sheet of such Person.



“Other Taxes” is defined in Section 5.06(b).



“Ownership Interest” of the Borrower in any Consolidated Subsidiary means, at any date of
determination, the percentage determined by dividing (i) the aggregate amount of Project Finance
Equity in such Consolidated Subsidiary owned or controlled, directly or indirectly, by the Borrower
and any other Consolidated Subsidiary on such date, by (ii) the aggregate amount of Project Finance
Equity in such Consolidated Subsidiary owned or controlled, directly or indirectly, by all Persons
(including the Borrower and the Consolidated Subsidiaries) on such date. Notwithstanding anything
to the contrary set forth above, if the “Ownership Interest,” calculated as set forth above, is 50%
or less, such percentage shall be deemed to equal 0%.



“Participant” is defined in Section 11.07(b).



“PBGC” means the Pension Benefit Guaranty Corporation (or any successor entity) established
under ERISA.



“Percentage” means, for any Lender on any date of determination (a) prior to the Commitment
Termination Date, the percentage obtained by dividing such Lender’s Commitment on such day by the
total of the Lenders’ Commitments on such date, and multiplying the quotient so obtained by 100%,
and (b) from and after the Commitment Termination Date, the percentage obtained by dividing (i) the
sum of (A) the aggregate outstanding principal amount of such Lender’s Loans on such day plus (B)
the Dollar Equivalent of such Lender’s obligation to purchase participations in LC Outstandings on
such day by (ii) the Total Outstandings on such date, and multiplying the quotient so obtained by
100%.



“Permitted Investments” means each of the following so long as no such Permitted Investment
shall have a final maturity later than six months from the date of investment therein:




(i) direct obligations of the United States, or of any agency thereof, or obligations
guaranteed as to principal and interest by the United States or any agency thereof;




(ii) certificates of deposit or bankers’ acceptances issued, or time deposits held, or
investment contracts guaranteed, by any Lender, any nationally-recognized securities dealer
or any other commercial bank, trust company, savings and loan association or savings bank
organized under the laws of the United States, or any State thereof, or of any other country
which is a member of the OECD, or a political subdivision of any such country, and in each
case having outstanding unsecured indebtedness that (on the date of acquisition thereof) is
rated AA- or better by S&P or Aa3 or better by Moody’s (or an equivalent rating by another
nationally-recognized credit rating agency of similar standing if neither of such
corporations is then in the business of rating unsecured bank indebtedness);




(iii) obligations with any Lender, any other bank or trust company described in clause
(ii), above, or any nationally-recognized securities dealer, in respect of the repurchase of
obligations of the type described in clause (i), above, provided that such repurchase
obligations shall be fully secured by obligations of the type described in said clause (i)
and the possession of such obligations shall be transferred to, and segregated from other
obligations owned by, such Lender, such other bank or trust company or such securities
dealer;




(iv) commercial paper rated (on the date of acquisition thereof) A-1 or P-1 or better
by S&P or Moody’s, respectively (or an equivalent rating by another nationally-recognized
credit rating agency of similar standing if neither of such corporations is then in the
business of rating commercial paper);




(v) any eurodollar certificate of deposit issued by any Lender or any other commercial
bank, trust company, savings and loan association or savings bank organized under the laws
of the United States, or any State thereof, or of any country which is a member of the OECD,
or a political subdivision of any such country, and in each case having outstanding
unsecured indebtedness that (on the date of acquisition thereof) is rated AA- or better by
S&P or Aa3 or better by Moody’s (or an equivalent rating by another nationally-recognized
credit rating agency of similar standing if neither of such corporations is then in the
business of rating unsecured bank indebtedness); and




(vi) interests in any money market mutual fund which at the date of investment in such
fund has the highest fund rating by each of Moody’s and S&P which has issued a rating for
such fund (which, for S&P, shall mean a rating of AAAm or AAAmg).



“Person” means an individual, partnership, corporation (including a business trust), joint
stock company, limited liability company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.



“Plan” means, with respect to any Person, an “employee benefit plan” as defined in Section
3(3) of ERISA (other than a Multiemployer Plan) maintained for employees of such Person or any
ERISA Affiliate of such Person that is subject to Title IV of ERISA and has “unfunded benefit
liabilities” as determined under Section 4001(a)(18) of ERISA.



“Plan Termination Event” means, (i) with respect to any Plan, a “reportable event” within the
meaning of Section 4043 of ERISA and the regulations issued thereunder (other than a “reportable
event” not subject to the provision for 30-day notice to the PBGC under such regulations or a
“reportable event” for which the provision for the 30-day notice to the PBGC under such regulations
has been waived), or (ii) the withdrawal by the Borrower or any of its ERISA Affiliates from a Plan
during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of
ERISA resulting in liability to the Borrower or any of its ERISA Affiliates under Section 4063 or
4064 of ERISA, or (iii) the filing of a notice of intent to terminate a Plan or the termination of
a Plan under Section 4041 of ERISA, or (iv) the institution of proceedings to terminate a Plan by
the PBGC, or (v) any other event or condition which is reasonably likely to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer,
any Plan.



“Platform” is defined in Section 11.14



“Prime Rate” means the rate of interest per annum publicly announced from time to time by
Citibank as its base 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.



“Project Finance Debt” means Debt of any Person that is non-recourse to such Person (unless
such Person is a special-purpose entity) and each Affiliate of such Person, other than with respect
to the interest of the holder of such Debt in the collateral, if any, securing such Debt.



“Project Finance Equity” means, at any date of determination, consolidated equity of the
common, preference and preferred stockholders of the Borrower and the Consolidated Subsidiaries
relating to any obligor with respect to Project Finance Debt.



“Promissory Note” means any promissory note of the Borrower payable to the order of a Lender
(and, if requested, its registered assigns) issued pursuant to Section 3.01(c); and “Promissory
Notes” means any or all of the foregoing.



“Prospective Lender” is defined in Section 3.04(d).



“Recipient” is defined in Section 11.08.



“Register” is defined in Section 11.07(h).



“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.



“Request for Issuance” is defined in Section 4.02(a).



“Required Lenders” means, on any date of determination, Lenders that, collectively, on such
date hold (i) more than 50% of the Commitments of all Lenders or (ii) if the Commitments have been
terminated, interests in the Total Outstandings in excess of 50% of the Total Outstandings. Any
determination of those Lenders constituting the Required Lenders shall be made by the
Administrative Agent and shall be conclusive and binding on all parties absent manifest error.



“Restatement” means the restatement of the financial statements of the Borrower or its
Subsidiaries for any fiscal quarter of 2001, as well as any adjustment of previously announced
quarterly results, but only if made to reflect the restatement of such quarters.



“Restatement Event” means (i) the Restatement, (ii) any lawsuit or other action previously or
hereafter brought against the Borrower, any of its Subsidiaries or any of their Affiliates or any
present or former officer or director of the Borrower, any of its Subsidiaries or any of their
Affiliates involving or arising out of the Restatement, and any settlement thereof, or other
development with respect thereto, or (iii) the occurrence of any default or event of default under
any indenture, instrument or other agreement or contract, or the exercise of any remedy in respect
thereof, that arises directly or indirectly as a result of any of the matters described in any of
the foregoing clauses (i) or (ii) or this clause (iii); provided, however, that, for purposes of
the definition of “Material Adverse Change”, (a) the foregoing clause (ii) shall be inapplicable if
such lawsuit or other action, settlement (in an amount in the aggregate together with all other
settlements of such lawsuits or actions) or other development described in such clause (ii) could
reasonably be expected, in each case, to result in liability to such Person in excess of
$10,000,000 and (b) the foregoing clause (iii) shall be inapplicable if any such event described in
such clause (iii) would constitute an Event of Default under Section 9.01(e).



“Restricted Subsidiary” means any Subsidiary of the Borrower (other than Consumers and its
Subsidiaries) that, on a consolidated basis with any of its Subsidiaries as of any date of
determination, accounts for more than 10% of the consolidated assets of the Borrower and its
Consolidated Subsidiaries.



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



“Securitized Bonds” means any nonrecourse bonds or similar asset-backed securities issued by a
special-purpose Subsidiary of Consumers which are payable solely from specialized charges
authorized by the utility commission of the relevant state in connection with the recovery of
regulatory assets, expenditures pursuant to the Clean Air Act, 42 U.S.C. § 7401 et seq., or other
qualified costs.



“Solvent”, when used with respect to any Person, means that at the time of determination:




(i) the fair market value of its assets is in excess of the total amount of its
liabilities (including, without limitation, net contingent liabilities); and




(ii) it is then able and expects to be able to pay its debts (including, without
limitation, contingent debts and other commitments) as they mature; and




(iii) it has capital sufficient to carry on its business as conducted and as proposed
to be conducted.



For purposes of this definition, the amount of contingent liabilities at any time shall be computed
as the amount that, in light of all the facts and circumstances known to such Person at such time,
represents the amount that can reasonably be expected to become an actual or matured liability.




“SPC” is defined in Section 11.07(f).



“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 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 Rate
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 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, any corporation or unincorporated entity of
which more than 50% of the outstanding capital stock (or comparable interest) having ordinary
voting power (irrespective of whether at the time capital stock (or comparable interest) of any
other class or classes of such corporation or entity shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned by said Person (whether
directly or through one or more other Subsidiaries). In the case of an unincorporated entity, a
Person shall be deemed to have more than 50% of interests having ordinary voting power only if such
Person’s vote in respect of such interests comprises more than 50% of the total voting power of all
such interests in the unincorporated entity.



“Support Obligation” means, for any Person, without duplication, any financial obligation,
contingent or otherwise, of such Person guaranteeing or otherwise supporting any Debt or other
obligation of any other Person in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect (including, but not limited to, letters of credit and
surety bonds in connection therewith), (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or to purchase (or to advance or supply funds for the purchase
of) any security for the payment of such Debt, (ii) to purchase property, securities or services
for the purpose of assuring the owner of such Debt of the payment of such Debt, (iii) to maintain
working capital, equity capital, available cash or other financial statement condition of the
primary obligor so as to enable the primary obligor to pay such Debt, (iv) to provide equity
capital under or in respect of equity subscription arrangements (to the extent that such obligation
to provide equity capital does not otherwise constitute Debt), or (v) to perform, or arrange for
the performance of, any non-monetary obligations or non-funded debt payment obligations of the
primary obligor.



“Takoradi Project” means the construction and operation of Takoradi 2, a power plant currently
consisting of two 110 megawatt simple-cycle units built near Aboadze, Ghana by one or more
Subsidiaries of the Borrower and the government of Ghana’s Volta River Authority.



“Tax Sharing Agreement” means the Amended and Restated Agreement for the Allocation of Income
Tax Liabilities and Benefits, dated as of January 1, 1994, by and among the Borrower, each of the
members of the Consolidated Group (as defined therein), and each of the corporations that become
members of the Consolidated Group.



“Taxes” is defined in Section 5.06(a).



“Total Outstandings” means, as of any date of determination, the sum of (i) the aggregate
principal amount of all Loans outstanding as of such date plus (ii) the Dollar Equivalent of the
aggregate LC Outstandings of all Letters of Credit outstanding as of such date, after giving effect
to all Extensions of Credit to be made on such date and the application of the proceeds thereof.



“Transitional Letter of Credit” is defined in Section 4.02(b).



“Trustee” has the meaning assigned to that term in the Indenture.



“Type” has the meaning assigned to such term (i) in the definition of “Loan” when used in such
context and (ii) in the definition of “Borrowing” when used in such context.



“USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001),
as amended.



SECTION 1.02. Computation of Time Periods; Construction.



(a) Unless otherwise indicated, each reference in this Agreement to a specific time of day is
a reference to New York City time. In the computation of periods of time under this Agreement, any
period of a specified number of days or months shall be computed by including the first day or
month occurring during such period and excluding the last such day or month. In the case of a
period of time “from” a specified date “to” or “until” a later specified date, the word “from”
means “from and including” and the words “to” and “until” each means “to but excluding”.



(b) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include”, “includes”, and “including” shall be
deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to
have the same meaning and effect as the word “shall”. Unless the context requires otherwise (i)
any definition of or reference to any agreement, instrument or other document 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), (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words “herein”, “hereof” and
“hereunder”, and words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (iv) 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 (v) 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 1.03. Accounting Terms. All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles consistent with those applied
in the preparation of the financial statements referred to in Section 7.01(e) (“GAAP”), it being
understood that (a) the financial covenants set forth in Sections 8.01(i) and (j) shall be
calculated exclusive of (i) all debt of any Affiliate of the Borrower (other than a Subsidiary)
that is (A) consolidated on the financial statements of the Borrower solely as a result of the
effect and application of Financial Accounting Standards Board Interpretation No. 46 and of
Accounting Research Bulletin No. 51, Consolidated Financial Statements, as modified by Statement of
Financial Accounting Standards No. 94, and (B) non-recourse to the Borrower or any Subsidiary, (ii)
all debt that is re-categorized as debt from certain lease obligations pursuant to Emerging Issues
Task Force (“EITF”) Issue No. 01-8, any subsequent EITF Issue or recommendation or any other
interpretation, bulletin or other similar document by the Financial Accounting Standards Board on
or related to such re-categorization and (iii) other amounts attributable to the disposition of the
Palisades nuclear power plant that are accounted for as one or more financings under GAAP and (b)
for the purpose of the calculation of the financial covenant set forth in Section 8.01(i), any
noncash effects resulting from adoption of the proposed “Statement of Financial Accounting
Standards dated March 31, 2006: Employers’ Accounting for Defined Pension and other Postretirement
Plans, an amendment of FASB Statements No. 87, 88, 106, and 132®” will be excluded. If any
changes in generally accepted accounting principles are hereafter required or permitted and are
adopted by the Borrower or any of its Subsidiaries, or the Borrower or any of its Subsidiaries
shall change its application of generally accepted accounting principles with respect to any
Off-Balance Sheet Liabilities, including, but not limited to, the application of Financial
Accounting Standards Board Interpretation Nos. 45 and 46 and Financial Accounting Standards Board
Statement No. 150, in each case, with the agreement of its independent certified public
accountants, and such changes result in a change in the method of calculation or the results of any
of the financial covenants, tests, restrictions or standards herein or in the related definitions
or terms used therein (“Accounting Changes”), the parties hereto agree, at the Borrower’s request,
to enter into negotiations, in good faith, in order to amend such provisions in a credit neutral
manner so as to reflect equitably such changes with the desired result that the criteria for
evaluating the Borrower’s and its Subsidiaries’ financial condition shall be the same after such
changes as if such changes had not been made; provided, however, until such provisions are amended
in a manner reasonably satisfactory to the Administrative Agent and the Required Lenders, no
Accounting Change shall be given effect in such calculations. In the event such amendment is
entered into, all references in this Agreement to GAAP means generally accepted accounting
principles as of the date of such amendment. Notwithstanding the foregoing, all financial
statements to be delivered by the Borrower pursuant to Section 8.03 shall be prepared in accordance
with generally accepted accounting principles in effect at such time.



ARTICLE II




COMMITMENTS, LOANS, FEES, PREPAYMENTS AND OUTSTANDINGS




SECTION 2.01. Making Loans. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make revolving loans in Dollars to the Borrower and to participate in the
issuance of Letters of Credit (and the LC Outstandings thereunder) denominated in Dollars or any
Alternative Currency during the period from the Closing Date until the Commitment Termination Date
in an aggregate outstanding amount not to exceed on any day such Lender’s Available Commitment
(after giving effect to all Extensions of Credit to be made on such day and the application of the
proceeds thereof). Within the limits hereinafter set forth, the Borrower may request Extensions of
Credit hereunder, prepay Loans or reduce or cancel Letters of Credit, and use the resulting
increase in the Available Commitments for further Extensions of Credit in accordance with the terms
hereof.



SECTION 2.02. Fees.



(a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender,
from the Closing Date until the date on which the Commitments shall be terminated in whole, a
commitment fee equal to the product of (i) the average daily amount of such Lender’s Available
Commitment from time to time multiplied by (ii) the Commitment Fee Rate. Such fees shall be
payable quarterly in arrears on the last day of each March, June, September and December,
commencing the first such date to occur following the Closing Date, and on the Commitment
Termination Date.



(b) In addition to the fees provided for in subsection (a) above, the Borrower shall pay to
the Administrative Agent and/or the Arrangers, as the case may be, the fees set forth in (i) that
certain letter agreement, dated March 1, 2007 among the Borrower, the Administrative Agent, the
Arrangers and the other parties thereto and (ii) that certain letter agreement, dated March 1,
2007, among the Borrower, the Administrative Agent and the other parties thereto (collectively, the
“Fee Letters”), in the amounts and at the times specified therein.



(c) The Borrower agrees to pay to the Administrative Agent, for the ratable account of the
Lenders, a letter of credit fee on the daily aggregate amount of the LC Outstandings at a rate per
annum equal to the Applicable Eurodollar Margin, payable quarterly in arrears on the last day of
each March, June, September and December, commencing on the first such date to occur following the
Closing Date, on the Commitment Termination Date and thereafter on demand.



SECTION 2.03. Commitments; Mandatory Prepayments; Increase of Commitments.



(a) Reduction of Commitments. The Borrower may (and shall provide notice thereof to the
Administrative Agent not later than 10:00 a.m. (New York City time) on the date of termination or
reduction, and the Administrative Agent shall promptly distribute copies thereof to the Lenders)
terminate in whole or reduce ratably in part the unused portions of the Commitments; provided that
any such partial reduction shall be in the aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof.



(b) Change of Control. Upon the occurrence of a Change of Control the Commitments shall be
reduced to zero, the principal amount outstanding hereunder, all interest thereon and all other
amounts payable under this Agreement and the other Loan Documents shall become and be forthwith due
and payable and all of the LC Obligations shall be cash collateralized in accordance with the terms
of Section 9.02, in each case without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower.



(c) Prepayment upon Issuance or Sale of Consumers Stock. The Borrower shall make a mandatory
prepayment promptly and in any event within 3 Business Days after the Borrower’s receipt of any Net
Proceeds from the issuance, sale, assignment or other disposition of any capital stock or other
equity interest in Consumers (other than the issuance of preferred securities of Consumers in
respect of which the Net Proceeds received by Consumers for all such securities do not exceed
$200,000,000 in the aggregate and such Net Proceeds shall not be distributed to the Borrower),
together with (i) accrued interest to the date of such prepayment on the principal amount prepaid
and (ii) in the case of Eurodollar Rate Loans, any amount payable to the Lenders pursuant to
Section 5.04(b), and the Commitments shall be reduced, pro rata, in an aggregate amount equal to
such Net Proceeds. Nothing in this Section 2.03(c) shall be construed to constitute the Lenders’
consent to any transaction referenced in this clause (c) which is not expressly permitted by
Article VIII. The Borrower shall give the Administrative Agent prior written notice or telephonic
notice promptly confirmed in writing (each of which the Administrative Agent shall promptly
transmit to each Lender) of when a prepayment required by this Section 2.03(c) will be made (which
date of prepayment shall be no later than the date on which such prepayment becomes due and payable
pursuant to this Section 2.03(c)). All such prepayments shall be applied first to repay
outstanding ABR Loans, then to repay outstanding Eurodollar Rate Loans with those Eurodollar Rate
Loans which have earlier expiring Interest Periods being repaid prior to those which have later
expiring Interest Periods and then as cash collateral pursuant to the Cash Collateral Agreement, to
secure LC Outstandings.



(d) Increase of Commitments; Additional Lenders. The Borrower shall have the right, upon at
least five (5) Business Days’ notice to the Administrative Agent, to add one or more Eligible Banks
as new Lenders hereunder, or to increase the Commitment of any existing Lender with such existing
Lender’s consent, pursuant to the terms hereof (any such addition of a new Lender or increase in
the Commitment of an existing Lender upon the request of the Borrower pursuant to this Section
2.03(d) being referred to as a “Lender Addition”); provided that (i) each such proposed
Lender, in the case of an Eligible Bank not already a Lender hereunder, is acceptable to the
Administrative Agent (the consent of the Administrative Agent not to be unreasonably withheld);
(ii) the amount of all increases to the Commitments made pursuant to this Section 2.03(d) on any
Business Day shall be equal to or greater than $25,000,000 in the aggregate; and (iii) the amount
of all increases to the Commitments made pursuant to this Section 2.03(d) during the term of this
Agreement shall not exceed $250,000,000 in the aggregate. Each notice of a proposed Lender
Addition (a “Notice of Lender Addition”) shall be by telecopy, confirmed immediately in writing, in
substantially the form of Exhibit K hereto, specifying therein (i) the name and address of the
proposed Added Lender, (ii) the date on which the Borrower wishes such Lender Addition to become
effective, and (iii) the amount of the Commitment such Added Lender would have hereunder after
giving effect to such Lender Addition. If the conditions set forth in the proviso contained in the
first sentence of this Section 2.03(d) have been satisfied, the Administrative Agent shall forward
to such Added Lender and the Borrower for execution by such Added Lender and the Borrower an
Assumption and Acceptance. The Added Bank shall, upon such execution, return the executed
Assumption and Acceptance to the Administrative Agent, for the Administrative Agent’s acceptance
thereof.



Upon such execution, delivery and acceptance, from and after the effective date specified in
each Assumption and Acceptance, the Added Lender shall, in addition to the rights and obligations
hereunder held by it immediately prior to such effective date (if any), have the rights and
obligations hereunder that have been assumed by it pursuant to such Assumption and Acceptance and,
in the case of an Eligible Bank not previously a Lender hereunder, shall become a Lender hereunder.



By executing and delivering an Assumption and Acceptance, each Added Lender confirms to and
agrees with each party hereto as follows: (i) neither the Administrative Agent nor any Lender
makes any representation or warranty, nor assumes any responsibility with respect to, any
statements, warranties or representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement
or any other instrument or document furnished pursuant hereto; and (ii) neither the Administrative
Agent nor any Lender makes any representation or warranty, nor assumes any responsibility with
respect to, the financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto.



Upon its receipt of an Assumption and Acceptance executed by an Added Lender and the Borrower,
the Administrative Agent shall, if such Assumption and Acceptance has been completed and is in
substantially the form of Exhibit L hereto, (i) accept such Assumption and Acceptance, and (ii)
give prompt notice thereof to the Borrower. If requested by an Added Lender, the Borrower, at its
own expense, shall execute and deliver to the Administrative Agent a new Promissory Note or
Promissory Notes to the order of such Added Lender in accordance with Section 3.01(c). Such new
Promissory Note or Promissory Notes shall be dated the effective date of such Assumption and
Acceptance.



(e) Reallocation Upon Lender Addition. If there are any Borrowings outstanding on the
effective date of any Assumption and Acceptance, the Added Lender shall purchase from the other
Lenders such participations in such Borrowings as shall be necessary to cause such Added Lender to
share ratably (based on the proportion that such Added Lender’s Commitment bears to the total
Commitments after giving effect to the Lender Addition) in each such Borrowing. To purchase such
participations, the Added Lender shall before 12:00 noon (New York City time) on the effective date
of its Assumption and Acceptance, make available for the account of its Applicable Lending Office
to the Agent at its address referred to in Section 11.02, in Dollars and in same day funds,
such Added Lender’s ratable portion (based on the proportion that such Added Lender’s Commitment
(or the increase in such Added Lender’s Commitment, in the case of an Added Lender which is an
existing Lender hereunder) bears to the total Commitments after giving effect to the Lender
Addition) of each Borrowing then outstanding, together with an amount equal to such ratable portion
of the interest which has accrued to such date and remains unpaid on such Borrowing. After the
Agent’s receipt of such funds, the Agent will promptly make such same day funds available to the
account of each Lender in an amount equal to such Lender’s ratable portion of such payment by the
Added Lender.



SECTION 2.04. Computations of Outstandings. Whenever reference is made in this Agreement to
the principal amount outstanding on any date under this Agreement, such reference shall refer to
the Total Outstandings. References to the unused portion of the Commitments shall refer to the
excess, if any, of the Commitments hereunder over the Total Outstandings; and references to the
unused portion of any Lender’s Commitment shall refer to such Lender’s Percentage of the unused
Commitments.



ARTICLE III




LOANS




SECTION 3.01. Loans.



(a) The Borrower may request a Borrowing (other than a Conversion) by delivering a notice (a
“Notice of Borrowing”) to the Administrative Agent no later than 12:00 noon (New York City time) on
the third Business Day prior to the proposed Borrowing or, in the case of ABR Loans, no later than
11:00 a.m. (New York City time) on the date of the proposed Borrowing. The Administrative Agent
shall give each Lender prompt notice of each Notice of Borrowing. Each Notice of Borrowing shall
be in substantially the form of Exhibit A and shall specify the requested (i) date of such
Borrowing, (ii) Type of Loans to be made in connection with such Borrowing, (iii) Interest Period,
if any, for such Loans and (iv) amount of such Borrowing. Each proposed Borrowing shall conform to
the requirements of Sections 3.03 and 3.04.



(b) Each Lender shall, before 1:00 p.m. (New York City time) on the date of such Borrowing,
make available for the account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent’s offices at 2 Penns Way, Suite 200, New Castle, DE 19270, in same day funds,
such Lender’s Percentage of such Borrowing. After the Administrative Agent’s receipt of such funds
and upon fulfillment of the applicable conditions set forth in Article VI, the Administrative Agent
will make such funds available to the Borrower at the Administrative Agent’s aforesaid address.
Notwithstanding the foregoing, unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s Percentage of such Borrowing, the Administrative Agent may
assume that such Lender has made such Percentage available to the Administrative Agent on the date
of such Borrowing in accordance with the first sentence of this subsection (b), and the
Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount.



(c) The Extensions of Credit made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Extensions of Credit made by the Lenders to
the Borrower and the interest and payments thereon. Any failure to so record or any error in doing
so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay
any amount owing with respect to the Obligations. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error. 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 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 11.07) be represented by one or more Promissory
Notes in such form payable to the order of the payee named therein, except to the extent that any
such Lender subsequently returns any such Promissory Note for cancellation and requests that such
Loans once again be evidenced as described in the first sentence of this Section 3.01(c).



SECTION 3.02. Conversion of Loans. The Borrower may from time to time Convert any of the
Loans (or portions thereof) of any Type to one or more Loans of the same or any other Type by
delivering a notice of such Conversion (a “Notice of Conversion”) to the Administrative Agent (x)
no later than 12:00 noon (New York City time) on the third Business Day prior to the date of any
proposed Conversion into a Eurodollar Rate Loan and (y) no later than 11:00 a.m. (New York City
time) on the date of any proposed Conversion into an ABR Loan. The Administrative Agent shall give
each Lender prompt notice of each Notice of Conversion. Each Notice of Conversion shall be in
substantially the form of Exhibit B and shall specify (i) the requested date of such Conversion,
(ii) the Type of, and Interest Period, if any, applicable to, the Loans (or portions thereof)
proposed to be Converted, (iii) the requested Type of Loans to which such Loans (or portions
thereof) are proposed to be Converted, (iv) the requested initial Interest Period, if any, to be
applicable to the Loans resulting from such Conversion and (v) the aggregate amount of Loans (or
portions thereof) proposed to be Converted. Each proposed Conversion shall be subject to the
provisions of Sections 3.03 and 3.04.



SECTION 3.03. Interest Periods. The period between the date of each Eurodollar Rate Loan and
the date of payment in full of such Loan shall be divided into successive periods of months
(“Interest Periods”) for purposes of computing interest applicable thereto. The initial Interest
Period for each such Loan shall begin on the day such Loan is made, and each subsequent Interest
Period shall begin on the last day of the immediately preceding Interest Period for such Loan. The
duration of each Interest Period shall be 1, 2, 3, or 6 months, as the Borrower may, in accordance
with Section 3.01 or 3.02, select; provided, however, that:




(i) the Borrower may not select any Interest Period for a Eurodollar Rate Loan that
ends after the Maturity Date;




(ii) whenever the last day of any Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest Period shall occur on the next succeeding
Business Day, provided that if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and




(iii) any Interest Period 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.



SECTION 3.04. Other Terms Relating to the Making and Conversion of Loans.



(a) Notwithstanding anything in Section 3.01 or 3.02 to the contrary:




(i) each Borrowing shall be in an aggregate amount not less than $5,000,000, or an
integral multiple of $1,000,000 in excess thereof (or such lesser amount as shall be equal
to the total amount of the Available Commitments on such date, after giving effect to all
other Extensions of Credit to be made on such date), and shall consist of Loans to the same
Borrower of the same Type, having the same Interest Period and made or Converted on the same
day by the Lenders ratably according to their respective Percentages;




(ii) at no time shall the number of Borrowings comprising Eurodollar Rate Loans
outstanding hereunder be greater than ten (10);




(iii) no Eurodollar Rate Loan may be Converted on a date other than the last day of the
Interest Period applicable to such Loan unless the corresponding amounts, if any, payable to
the Lenders pursuant to Section 5.04(b) are paid contemporaneously with such Conversion;




(iv) if the Borrower shall either fail to give a timely Notice of Conversion pursuant
to Section 3.02 in respect of any of the Loans or fail, in any Notice of Conversion that has
been timely given, to select the duration of any Interest Period for any of the Loans to be
Converted into Eurodollar Rate Loans in accordance with Section 3.03, such Loans shall, on
the last day of the then existing Interest Period therefor, automatically Convert into, or
remain as, as the case may be, ABR Loans; and




(v) if, on the date of any proposed Conversion, any Event of Default or Default shall
have occurred and be continuing, all Loans then outstanding shall, on such date,
automatically Convert into, or remain as, as the case may be, ABR Loans.



(b) If any Lender shall notify the Administrative Agent that the introduction of or any change
in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or
other governmental authority asserts that it is unlawful, for such Lender or its Applicable Lending
Office to perform its obligations hereunder to make, or to fund or maintain, Eurodollar Rate Loans
hereunder, (i) the obligation of such Lender to make, or to Convert Loans into, Eurodollar Rate
Loans for any Borrowing from such Lender shall be forthwith suspended until the earlier to occur of
the date upon which (A) such Lender shall cease to be a party hereto and (B) it is no longer
unlawful for such Lender to make, fund or maintain Eurodollar Rate Loans, and (ii) if the
maintenance of Eurodollar Rate Loans then outstanding through the last day of the Interest Period
therefor would cause such Lender to be in violation of such law, regulation or assertion, the
Borrower shall either prepay or Convert all Eurodollar Rate Loans from such Lender within five days
after such notice. Promptly upon becoming aware that the circumstances that caused such Lender to
deliver such notice no longer exist, such Lender shall deliver notice thereof to the Administrative
Agent (but the failure to do so shall impose no liability upon such Lender). Promptly upon receipt
of such notice from such Lender (or upon such Lender’s assigning all of its Commitment, Loans,
participation and other rights and obligations hereunder pursuant to Section 11.07), the
Administrative Agent shall deliver notice thereof to the Borrower and the Lenders and such
suspension shall terminate.



(c) If the Required Lenders shall, at least one Business Day before the date of any requested
Borrowing, notify the Administrative Agent that the Adjusted LIBO Rate for Eurodollar Rate Loans to
be made in connection with such Borrowing will not adequately reflect the cost to such Required
Lenders of making, funding or maintaining their respective Eurodollar Rate Loans for such
Borrowing, or that they are unable to acquire funding in a reasonable manner so as to make
available Eurodollar Rate Loans in the amount and for the Interest Period requested, or if the
Administrative Agent shall determine that adequate and reasonable means do not exist to be able to
determine the Adjusted LIBO Rate, then the right of the Borrower to select Eurodollar Rate Loans
for such Borrowing and any subsequent Borrowing shall be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer
exist, and each Loan to be made or Converted in connection with such Borrowing shall be an ABR
Loan.



(d) If any Lender shall have delivered a notice to the Administrative Agent described in
Section 3.04(b), and if and so long as such Lender shall not have withdrawn such notice in
accordance with said Section 3.04(b), the Borrower or the Administrative Agent may demand that such
Lender assign in accordance with Section 11.07, to one or more Eligible Banks designated by the
Borrower or the Administrative Agent (each a “Prospective Lender”), all (but not less than all) of
such Lender’s Commitment, Loans, participation and other rights and obligations hereunder;
provided, that any such demand by the Borrower during the continuance of an Event of Default or
Default shall be ineffective without the consent of the Required Lenders. If, within 30 days
following any such demand by the Administrative Agent or the Borrower, any such Prospective Lender
so designated shall fail to consummate such assignment on terms reasonably satisfactory to such
Lender, or the Borrower and the Administrative Agent shall have failed to designate any such
Prospective Lender, then such demand by the Borrower or the Administrative Agent shall become
ineffective, it being understood for purposes of this provision that such assignment shall be
conclusively deemed to be on terms reasonably satisfactory to such Lender, and such Lender shall be
compelled to consummate such assignment forthwith, if such Prospective Lender (i) shall agree to
such assignment in substantially the form of the Lender Assignment attached hereto as Exhibit F and
(ii) shall tender payment to such Lender in an amount equal to the full outstanding dollar amount
accrued in favor of such Lender hereunder (as computed in accordance with the records of the
Administrative Agent), including, without limitation, all accrued interest and fees and, to the
extent not paid by the Borrower, any payments required pursuant to Section 5.04(b).



(e) Each Notice of Borrowing and Notice of Conversion shall be irrevocable and binding on the
Borrower. In the case of any Borrowing which the related Notice of Borrowing or Notice of
Conversion specifies is to be comprised of Eurodollar Rate Loans, the Borrower shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a result of any failure to
fulfill, on or before the date specified in such Notice of Borrowing or Notice of Conversion for
such Borrowing, the applicable conditions (if any) set forth in this Article III (other than
failure pursuant to the provisions of Section 3.04(b) or (c) hereof) or in Article VI, including
any such loss (including loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Loan to
be made by such Lender when such Loan, as a result of such failure, is not made on such date.



SECTION 3.05. Repayment of Loans; Interest



(a) Principal. The Borrower shall repay the outstanding principal amount of the Loans on the
Maturity Date (or such earlier date as may be required pursuant to Section 2.03 or 9.02).



(b) Interest. All Loans shall bear interest on the unpaid principal amount thereof from the
date of such Loan until such principal amount shall be paid in full, at the Applicable Rate for
such Loan (except as otherwise provided in this subsection (b)), payable as follows:




(i) ABR Loans. If such Loan is an ABR Loan, interest thereon shall be payable
quarterly in arrears on the last day of each March, June, September and December, on the
date of any Conversion of such ABR Loan and on the date such ABR Loan shall become due and
payable or shall otherwise be paid in full; provided that any amount of principal that is
not paid when due (whether at stated maturity, by acceleration or otherwise) shall bear
interest, from the date on which such amount is due until such amount is paid in full,
payable on demand, at a rate per annum equal at all times to the Default Rate.




(ii) Eurodollar Rate Loans. If such Loan is a Eurodollar Rate Loan, interest thereon
shall be payable on the last day of such Interest Period and, if the Interest Period for
such Loan has a duration of more than three months, on that day of each third month during
such Interest Period that corresponds to the first day of such Interest Period (or, if any
such month does not have a corresponding day, then on the last day of such month); provided
that any amount of principal that is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on which such amount is due
until such amount is paid in full, payable on demand, at a rate per annum equal at all times
to the Default Rate.



ARTICLE IV




LETTERS OF CREDIT




SECTION 4.01. Issuing Banks. Subject to the terms and conditions hereof, the Borrower may
from time to time identify and arrange for one or more Lenders reasonably satisfactory to the
Administrative Agent to act as Issuing Banks hereunder. Any such designation by the Borrower shall
be notified to the Administrative Agent at least three (3) Business Days prior to the first date
upon which the Borrower proposes that such Issuing Bank issue its first Letter of Credit. Nothing
contained herein shall be deemed to require any Lender to agree to act as an Issuing Bank, if it
does not so desire. In the event of any conflict between any Issuing Bank Agreement and this
Agreement, the terms of this Agreement shall control.



SECTION 4.02. Letters of Credit.



(a) Each Letter of Credit shall be issued (or the stated maturity thereof extended or terms
thereof modified or amended) for the account of the Borrower or a Subsidiary of the Borrower (other
than Consumers or any Subsidiary thereof) on not less than three (3) Business Days’ prior written
notice thereof to the Administrative Agent (which shall promptly distribute copies thereof to the
Lenders) and the relevant Issuing Bank and shall be denominated in Dollars or in an Alternative
Currency. Each such notice (a “Request for Issuance”) shall be delivered no later than 12:00 noon
(New York City time) on the third Business Day prior to the proposed date of issuance, extension,
modification or amendment and shall specify (i) the date (which shall be a Business Day) of
issuance of such Letter of Credit (or the date of effectiveness of such extension, modification or
amendment) and the stated expiry date thereof (which shall be no later than the earlier of the date
that is five (5) Business Days (or, in the case of any commercial Letter of Credit, thirty (30)
Business Days) prior to the Commitment Termination Date and the date which is one year after the
requested date of issuance, provided that any Letter of Credit with a one year tenor may provide
for the renewal thereof for additional periods of up to one year which shall in no event extend
beyond the date which is five (5) Business Days (or, in the case of any commercial Letter of
Credit, thirty (30) Business Days) prior to the Commitment Termination Date), (ii) the proposed
stated amount of such Letter of Credit (which shall not be less than $100,000 (or the Dollar
Equivalent thereof in an Alternative Currency) unless otherwise agreed by the applicable Issuing
Bank), (iii) the currency in which such Letter of Credit shall be denominated (which currency shall
be Dollars or an Alternate Currency), and (iv) such other information as shall demonstrate
compliance of such Letter of Credit with the requirements specified therefor in this Agreement and
the relevant Issuing Bank Agreement. Each Request for Issuance shall be irrevocable unless
modified or rescinded by the Borrower in writing not less than two (2) Business Days prior to the
proposed date of issuance (or effectiveness) specified therein. Not later than 12:00 noon (New
York City time) on the proposed date of issuance (or effectiveness) specified in such Request for
Issuance, and upon fulfillment of the applicable conditions precedent and the other requirements
set forth herein and in the relevant Issuing Bank Agreement, such Issuing Bank shall issue (or
extend, amend or modify) such Letter of Credit and provide notice and a copy thereof to the
Administrative Agent, which shall promptly furnish notice thereof to each Lender.



(b) Schedule II contains a schedule of certain letters of credit issued for the account of the
Borrower prior to the Closing Date. Subject to the satisfaction of the applicable conditions
contained in Article VI, from and after the Closing Date such letters of credit shall be deemed to
be Letters of Credit issued pursuant to this Article IV for all purposes hereunder (each such
Letter of Credit, a “Transitional Letter of Credit”). For purposes of clarification, each term or
provision applicable to the issuance of a Letter of Credit (including conditions applicable
thereto) shall be deemed to include the deemed issuance of the Transitional Letters of Credit on
the Closing Date.



(c) Each Lender severally agrees with each Issuing Bank to participate in the Extension of
Credit resulting from the issuance or deemed issuance (or extension, modification or amendment) of
each Letter of Credit issued or deemed issued (or extended, amended or modified) pursuant to this
Section 4.02 in the manner and the amount provided in Section 4.04(b), and the issuance or deemed
issuance of such Letter of Credit shall be deemed to be a confirmation by each Issuing Bank and
each Lender of such participation in such amount.



(d) Notwithstanding anything herein to the contrary, no Issuing Bank shall have any obligation
to, and no Issuing Bank shall, issue, extend, amend or modify any Letter of Credit if on the date
of such issuance, extension, amendment or modification, before or after giving effect thereto, (i)
the Total Outstandings at such time would exceed the Commitments, (ii) the Dollar Equivalent of the
aggregate LC Outstandings with respect to Letters of Credit denominated in euros would exceed the
Euro Sublimit (iii) the Dollar Equivalent of the aggregate LC Outstandings with respect to Letters
of Credit denominated in Indian Rupees would exceed the Indian Rupee Sublimit or (iv) the Dollar
Equivalent of the aggregate LC Outstandings with respect to Letters of Credit denominated in
Canadian Dollars would exceed the Canadian Dollar Sublimit.



SECTION 4.03. Issuing Bank Fees. The Borrower shall pay directly to each Issuing Bank such
fees and expenses, if any, specified to be paid to such Issuing Bank pursuant to each Issuing Bank
Agreement to which it is a party, at the times, and in the manner, specified in such Issuing Bank
Agreement.



SECTION 4.04. Reimbursement to Issuing Banks.



(a) The Borrower hereby agrees to pay to the Administrative Agent for the account of each
Issuing Bank, on demand made by such Issuing Bank to the Borrower and the Administrative Agent, on
and after each date on which such Issuing Bank shall pay any amount under any Letter of Credit
issued by such Issuing Bank, a sum in Dollars equal to the Dollar Equivalent of the amount so paid
(calculated as of the date of such payment by such Issuing Bank) plus interest on such Dollar
Equivalent of such amount from the date so paid by such Issuing Bank until repayment to such
Issuing Bank in full at a fluctuating interest rate per annum equal at all times to the Applicable
Rate for ABR Loans.



(b) If any Issuing Bank shall not have been reimbursed in full by the Borrower for any payment
made by such Issuing Bank under a Letter of Credit issued by such Issuing Bank on the date of such
payment, such Issuing Bank shall give the Administrative Agent and each Lender prompt notice
thereof (an “LC Payment Notice”) no later than 12:00 noon (New York City time) on the Business Day
immediately succeeding the date of such payment by such Issuing Bank. Each Lender severally agrees
to purchase from each Issuing Bank a participation in the reimbursement obligation of the Borrower
to such Issuing Bank under subsection (a) above, by paying to the Administrative Agent for the
account of such Issuing Bank an amount in Dollars equal to such Lender’s Percentage of the Dollar
Equivalent of such unreimbursed amount paid by such Issuing Bank (calculated as of the date of such
payment by such Issuing Bank), plus interest on such Dollar Equivalent of such amount at a rate per
annum equal to the Federal Funds Effective Rate from the date of such payment by such Issuing Bank
to the date of payment to such Issuing Bank by such Lender. Each such payment by a Lender shall be
made not later than 3:00 p.m. (New York City time) on the later to occur of (i) the Business Day
immediately following the date of such payment by such Issuing Bank and (ii) the Business Day on
which such Lender shall have received an LC Payment Notice from such Issuing Bank. Each Lender’s
obligation to make each such payment to the Administrative Agent for the account of such Issuing
Bank shall be several and shall not be affected by the occurrence or continuance of any Default or
Event of Default or the failure of any other Lender to make any payment under this Section 4.04.
Each Lender further agrees that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.



(c) The failure of any Lender to make any payment to the Administrative Agent for the account
of an Issuing Bank in accordance with subsection (b) above, shall not relieve any other Lender of
its obligation to make payment, but no Lender shall be responsible for the failure of any other
Lender. If any Lender shall fail to make any payment to the Administrative Agent for the account
of an Issuing Bank in accordance with subsection (b) above, within five (5) Business Days after the
LC Payment Notice relating thereto, then, for so long as such failure shall continue, such Issuing
Bank shall be deemed, for purposes of Section 5.05 and Article IX hereof and the Cash Collateral
Agreement, to be a Lender hereunder owed a Loan in an outstanding principal amount equal to the
amount due and payable by such Lender to the Administrative Agent for the account of such Issuing
Bank pursuant to subsection (b) above.



(d) Each participation purchased by a Lender under subsection (b) above, shall constitute an
ABR Loan in the amount in Dollars paid by such Lender to the Administrative Agent for the account
of the applicable Issuing Bank and shall be deemed made by such Lender to the Borrower on the date
of the related payment by the relevant Issuing Bank under the applicable Letter of Credit issued by
such Issuing Bank (irrespective of the Borrower’s noncompliance, if any, with the conditions
precedent for Loans hereunder); and all such payments by the Lenders in respect of any one such
payment by such Issuing Bank shall constitute a single Borrowing hereunder.



SECTION 4.05. Obligations Absolute. The payment obligations of each Lender under Section
4.04(b) and of the Borrower under this Agreement in respect of any payment under any Letter of
Credit and any Loan made under Section 4.04(d) shall be unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all circumstances, including the
following circumstances:




(i) any lack of validity or enforceability of any Loan Document or any other agreement
or instrument relating thereto or to such Letter of Credit;




(ii) any amendment or waiver of, or any consent to departure from, all or any of the
Loan Documents;




(iii) the existence of any claim, set-off, defense or other right which the Borrower
may have at any time against any beneficiary, or any transferee, of such Letter of Credit
(or any Persons for whom any such beneficiary or any such transferee may be acting), any
Issuing Bank, or any other Person, whether in connection with this Agreement, the
transactions contemplated herein or by such Letter of Credit, or any unrelated transaction;




(iv) any statement or any other document presented under such Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect;




(v) payment in good faith by any Issuing Bank under a Letter of Credit issued by such
Issuing Bank against presentation of a draft or certificate which does not comply with the
terms of such Letter of Credit; or




(vi) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing.



SECTION 4.06. Indemnification; Liability of Issuing Banks and the Lenders.



(a) In addition to amounts payable as elsewhere provided in this Agreement, the Borrower
hereby agrees to pay and to protect, indemnify, and save harmless each Indemnified Person from and
against any and all liabilities and costs that any such Indemnified Person may incur or be subject
to as a consequence, direct or indirect, of (i) the issuance, execution and delivery or transfer of
or payment or failure to pay under any Letter of Credit or (ii) the failure of any Issuing Bank to
honor a demand for payment under any Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto government or governmental
authority, in each case other than to the extent solely as a result of the (x) gross negligence or
willful misconduct of such Indemnified Person as determined by a court of competent jurisdiction by
final and nonappealable judgment or (y) any Issuing Bank’s failure to pay under any Letter of
Credit after the presentation to it of a request strictly complying with the terms and conditions
of such Letter of Credit.



(b) The Borrower assumes all risks of the acts and omissions of any beneficiary or transferee
of any Letter of Credit. Neither the Issuing Bank that has issued such Letter of Credit, nor any
other Indemnified Person, shall be liable or responsible for (i) the use that may be made of such
Letter of Credit or any acts or omissions of any beneficiary or transferee thereof in connection
therewith; (ii) the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (iii) payment by such Issuing Bank against presentation of documents that do
not comply with the terms of such Letter of Credit, including failure of any documents to bear any
reference or adequate reference to such Letter of Credit; or (iv) any other circumstances
whatsoever in making or failing to make payment under such Letter of Credit, except that the
Borrower shall have the right to bring suit against such Issuing Bank, and such Issuing Bank shall
be liable to the Borrower and any Lender, to the extent of any direct, as opposed to consequential,
damages suffered by the Borrower or such Lender which the Borrower or such Lender proves were
caused by such Issuing Bank’s willful misconduct or gross negligence as determined by a court of
competent jurisdiction by final and nonappealable judgment, including such Issuing Bank’s willful
failure to make timely payment under such Letter of Credit following the presentation to it by the
beneficiary thereof of a draft and accompanying certificate(s) which strictly comply with the terms
and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing,
any Issuing Bank may accept sight drafts and accompanying certificates presented under any Letter
of Credit issued by such Issuing Bank that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary.
Notwithstanding the foregoing, no Lender shall be obligated to indemnify the Borrower for damages
caused by any Issuing Bank’s willful misconduct or gross negligence, and the obligation of the
Borrower to reimburse the Lenders hereunder shall be absolute and unconditional, notwithstanding
the gross negligence or willful misconduct of any Issuing Bank.



(c) The Borrower’s other obligations under this Section 4.06 shall survive the repayment of
all amounts owing to the Lenders, the Issuing Banks and the Agents under the Loan Documents and the
termination of the Commitments. If and to the extent that the obligations of the Borrower under
this Section 4.06 are unenforceable for any reason, the Borrower agrees to make the maximum
contribution to the payment and satisfaction thereof which is permissible under applicable law.



SECTION 4.07. Currency Equivalents. The Dollar Equivalent of any amount denominated in any
Alternative Currency shall be determined by the Issuing Bank in accordance with prevailing exchange
rates, as set forth in the applicable Issuing Bank Agreement, and notice of such amount shall be
provided to the Administrative Agent, in each case on the applicable date. The Dollar Equivalent of
the stated amount of each Letter of Credit outstanding made in an Alternative Currency and of the
amount of each participation purchased by a Lender under Section 4.04(b) shall be recalculated
hereunder on (i) each date that it shall be necessary to determine the unused portion of each
Lender’s Commitment, or the outstanding amount of any or all Loans, LC Outstandings or any
Extension of Credit, or (ii) on any such other date which the Administrative Agent deems such
recalculation necessary or advisable or is otherwise directed to make such recalculation by the
Required Lenders, but in any event at least monthly. The Administrative Agent agrees to provide
notice to the Lenders of the relevant Dollar Equivalent determined pursuant to each such
determination and each such recalculation as soon as practicable following such determination or
recalculation, as the case may be.



SECTION 4.08. Judgment Currency. If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder or under the Promissory Notes in any currency (the
“Original Currency”) into another currency (the “Other Currency”) the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Administrative Agent could purchase the
Original Currency with the Other Currency at the Administrative Agent’s main office in New York,
New York on the Business Day immediately preceding that on which final judgment is given. The
obligation of the Borrower in respect of any sum due in the Original Currency from it to any
Lender, any Issuing Bank, the Collateral Agent or Administrative Agent hereunder or under any other
Loan Document shall, notwithstanding any judgment in any Other Currency, be discharged only to the
extent that on the Business Day following receipt by such Lender, Issuing Bank, Collateral Agent or
the Administrative Agent (as the case may be) of any sum adjudged to be so due in such Other
Currency such Lender, Issuing Bank, Collateral Agent or Administrative Agent (as the case may be)
may in accordance with normal banking procedures purchase the Original Currency with such Other
Currency; if the amount of the Original Currency so purchased is less than the sum originally due
to such Lender, Issuing Bank, Collateral Agent or Administrative Agent (as the case may be) in the
Original Currency, the Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender, Issuing Lender, Collateral Agent or Administrative Agent (as
the case may be) against such loss, and if the amount of the Original Currency so purchased exceeds
the sum originally due in the Original Currency to any Lender, Issuing Lender, Collateral Agent or
Administrative Agent (as the case may be), such Lender, Issuing Lender, Collateral Agent or
Administrative Agent (as the case may be) agrees to remit to the Borrower such excess.



SECTION 4.09. Cash Collateral Agreement. The Borrower agrees that it will maintain pursuant
to the Cash Collateral Agreement a cash collateral account, in the name of the Borrower but under
the sole dominion and control of the Collateral Agent, for the benefit of itself, the
Administrative Agent, the LC Issuers and the Lenders. The Borrower hereby pledges, assigns and
grants to the Collateral Agent, for the benefit of itself, the Administrative Agent, the LC Issuers
and the Lenders, a security interest in all of its right, title and interest in and to all funds
which may from time to time be on deposit in such account to secure the prompt and complete payment
and performance of all reimbursement obligations of the Borrower now or hereafter existing with
respect to LC Obligations.



SECTION 4.10. Court Order. If at any time any Issuing Bank shall have been served with or
otherwise subjected to a court order, injunction, or other process or decree issued or granted at
the instance of the Borrower restraining or seeking to restrain such Issuing Bank from paying any
amount under any Letter of Credit issued by it (other than pursuant to any action or proceeding
based on Section 5-109 of the Uniform Commercial Code) and either (i) there has been a drawing
under such Letter of Credit which such Issuing Bank would otherwise be obligated to pay or (ii) the
stated expiration date or any reduction of the stated amount of such Letter of Credit has occurred
but the right of the beneficiary to draw thereunder has been extended in connection with the
pendency of the related court action or proceeding, the Borrower shall provide cash collateral
pursuant to the Cash Collateral Agreement in an amount equal to one hundred five percent (105%) of
the Dollar Equivalent of the LC Outstandings at such time in respect of such Letter of Credit.



ARTICLE V




PAYMENTS, COMPUTATIONS AND YIELD PROTECTION




SECTION 5.01. Payments and Computations.



(a) The Borrower shall make each payment hereunder and under the other Loan Documents not
later than 2:00 p.m. (New York City time) on the day when due in Dollars to the Administrative
Agent at its offices at 2 Penns Way, Suite 200, New Castle, DE 19270, in same day funds, except
payments to be made directly to any Issuing Bank as expressly provided herein; any payment received
after 3:00 p.m. (New York City time) shall be deemed to have been received at the start of business
on the next succeeding Business Day, unless the Administrative Agent shall have received from, or
on behalf of, the Borrower a Federal Reserve reference number with respect to such payment before
4:00 p.m. (New York City time). The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal, interest, fees or other amounts
payable to the Lenders, to the respective Lenders to which the same are payable, for the account of
their respective Applicable Lending Offices, in each case to be applied in accordance with the
terms of this Agreement. If and to the extent that any distribution of any payment from the
Borrower required to be made to any Lender pursuant to the preceding sentence shall not be made in
full by the Administrative Agent on the date such payment was received by the Administrative Agent,
the Administrative Agent shall pay to such Lender, upon demand, interest on the unpaid amount of
such distribution, at a rate per annum equal to the Federal Funds Effective Rate, from the date of
such payment by the Borrower to the Administrative Agent to the date of payment in full by the
Administrative Agent to such Lender of such unpaid amount. Upon the Administrative Agent’s
acceptance of a Lender Assignment and recording of the information contained therein in the
Register pursuant to Section 11.07, from and after the effective date specified in such Lender
Assignment, the Administrative Agent shall make all payments hereunder and under any Promissory
Notes in respect of the interest assigned thereby to the Lender assignee thereunder, and the
parties to such Lender Assignment shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.



(b) The Borrower hereby authorizes the Administrative Agent, each Lender and each Issuing
Bank, if and to the extent payment owed to the Administrative Agent, such Lender or such Issuing
Bank, as the case may be, is not made when due hereunder (or, in the case of a Lender, under any
Promissory Note held by such Lender), to charge from time to time against any or all of the
Borrower’s accounts with the Administrative Agent, such Lender or such Issuing Bank, as the case
may be, any amount so due.



(c) All computations of interest based on the Alternate Base Rate (when the Alternate Base
Rate is based on the Prime Rate) shall be made by the Administrative Agent on the basis of a year
of 365 or 366 days, as the case may be. All other computations of interest and fees hereunder
(including computations of interest based on the Adjusted LIBO Rate, the CD Rate and the Federal
Funds Effective Rate) shall be made by the Administrative Agent on the basis of a year of 360 days.
In each such case, such computation shall be made for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such interest or fees are
payable. Each such determination by the Administrative Agent or a Lender shall be conclusive and
binding for all purposes, absent manifest error.



(d) Whenever any payment hereunder or under any other Loan Document shall be stated to be due
on a day other than a Business Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation of payment of interest
and fees hereunder; provided, however, that if such extension would cause payment of interest on or
principal of Eurodollar Rate Loans to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day and such reduction of time shall in such case be
included in the computation of payment of interest hereunder.



(e) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Lenders hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date, and the Administrative Agent may, in reliance upon
such assumption, cause to be distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Borrower shall not have so made such payment
in full to the Administrative Agent, such Lender shall repay to the Administrative Agent forthwith
on demand such amount distributed to such Lender, together with interest thereon, for each day from
the date such amount is distributed to such Lender until the date such Lender repays such amount to
the Administrative Agent, at the Federal Funds Effective Rate.



(f) Any amount payable by the Borrower hereunder or under any of the Promissory Notes that is
not paid when due (whether at stated maturity, by acceleration or otherwise) shall (to the fullest
extent permitted by law) bear interest, from the date when due until paid in full, at a rate per
annum equal at all times to the Default Rate, payable on demand.



(g) 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, subject to Section 5.07, (i) first, toward 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, toward payment of principal then due hereunder,
ratably among the parties entitled thereto.



SECTION 5.02. Interest Rate Determination. The Administrative Agent shall give prompt notice
to the Borrower and the Lenders of the applicable interest rate determined by the Administrative
Agent for purposes of Section 3.05(b)(i) or (ii).



SECTION 5.03. Prepayments. The Borrower shall have no right to prepay any principal amount of
any Loans other than as follows:



(a) The Borrower may (and shall provide notice thereof to the Administrative Agent not later
than 10:00 a.m. (New York City time) on the date of prepayment, and the Administrative Agent shall
promptly distribute copies thereof to the Lenders), and if such notice is given, the Borrower
shall, prepay the outstanding principal amounts of the Loans made as part of the same Borrowing, in
whole or ratably in part; provided, however, that each partial prepayment shall be in an aggregate
principal amount of not less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof (or such lesser amount as shall be equal to the total amount of Loans outstanding to the
Borrower).



(b) On any date on which (i) any termination or optional or mandatory reduction of the
Commitments shall occur pursuant to Section 2.03(a) or (b) or (ii) the Total Outstandings shall
exceed the aggregate amount of the Commitments, the Borrower shall first, pay or prepay the
principal outstanding on the Loans and/or all LC Outstandings that represent amounts that have been
drawn under Letters of Credit but have neither been reimbursed by the Borrower nor converted into
ABR Loans, second, if all of the Loans and all of such unreimbursed amounts constituting LC
Outstanding shall have been paid in full, provide cash collateral pursuant to the Cash Collateral
Agreement, to secure remaining LC Outstandings, and third, cause an amount of Letters of Credit to
be cancelled (if necessary after taking into account the payments and provision of cash collateral
in the immediately preceding clauses), in each case, in an aggregate amount equal to the excess, as
applicable, of (A) the Total Outstandings over (B) the aggregate amount of the sum of the
Commitments (following such termination or reduction, if any) and any cash collateral on deposit in
the Cash Collateral Account. Any payments and prepayments required by clause “first” of this
subsection (b) shall be applied to outstanding ABR Loans up to the full amount thereof before they
are applied to outstanding Eurodollar Rate Loans.



(c) On any date on which (i) the aggregate Dollar Equivalent of all LC Outstandings
denominated in euros shall exceed the Euro Sublimit, (ii) all LC Outstandings denominated in Indian
Rupees shall exceed the Indian Rupee Sublimit, or (iii) the aggregate Dollar Equivalent of all LC
Outstandings denominated in Canadian Dollars shall exceed the Canadian Dollar Sublimit, the
Borrower shall provide cash collateral pursuant to the Cash Collateral Agreement, to secure the LC
Outstandings in an aggregate amount equal to the excess, as applicable, of (A)(1) the aggregate
Dollar Equivalent of all LC Outstandings denominated in euro, over (2) the sum of the Euro Sublimit
and, without duplication, such cash collateral, (B)(1) the aggregate Dollar Equivalent of all LC
Outstandings denominated in Indian Rupees, over (2) the sum of the Indian Rupee Sublimit and,
without duplication, such cash collateral or (C)(1) the aggregate Dollar Equivalent of all LC
Outstandings denominated in Canadian Dollars, over (2) the sum of the Canadian Dollar Sublimit and,
without duplication, such cash collateral.



(d) Any prepayment pursuant to this Section 5.03 shall be accompanied by (i) accrued interest
to the date of such prepayment on the principal amount repaid and (ii) in the case of prepayments
of Eurodollar Rate Loans, any amount payable to the Lenders pursuant to Section 5.04(b). In the
event that the Borrower requests the release of any cash collateral pursuant to the terms of the
Cash Collateral Agreement and on the date of such request or at any time prior to the time of such
release, there has become, or there becomes, due and payable any prepayment of any Loans under this
Agreement, the Borrower hereby directs the Administrative Agent to apply the proceeds of such
release of cash collateral to such prepayment of such Loans and agrees that any such request is a
confirmation of such direction.



SECTION 5.04. Yield Protection.



(a) Increased Costs. If, due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation after the Closing Date, or (ii) the compliance with any
guideline or request from any central bank or other governmental authority (whether or not having
the force of law) issued or made after the Closing Date, there shall be reasonably incurred any
increase in (A) the cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Loans, or of participating in the issuance, maintenance or funding of any Letter of
Credit, or (B) the cost to any Issuing Bank of issuing or maintaining any Letter of Credit, then
the Borrower shall from time to time, upon demand by such Lender or Issuing Bank, as the case may
be (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender or Issuing Bank, as the case may be, additional amounts sufficient to
compensate such Lender or Issuing Bank, as the case may be, for such increased cost. A certificate
as to the amount of such increased cost and giving a reasonable explanation thereof, submitted to
the Borrower and the Administrative Agent by such Lender or such Issuing Bank, as the case may be,
shall constitute such demand and shall be conclusive and binding for all purposes, absent manifest
error.



(b) Breakage. If (i) due to any prepayment pursuant to Section 2.03, an acceleration of
maturity of the Loans pursuant to Section 9.02, or any other reason, any Lender receives payments
of principal of any Eurodollar Rate Loan other than on the last day of the Interest Period relating
to such Loan, (ii) the Borrower shall Convert any Eurodollar Rate Loans on any day other than the
last day of the Interest Period therefor, (iii) the Borrower shall fail to prepay a Eurodollar Rate
Loan on the date specified in a notice of prepayment or (iv) a Eurodollar Rate Loan is not made or
continued, or an ABR Loan is not Converted to a Eurodollar Rate Loan, on the date specified by the
Borrower in the applicable Notice of Borrowing or Notice of Conversion, the Borrower shall,
promptly after demand by such Lender (with a copy of such demand to the Administrative Agent), pay
to the Administrative Agent for the account of such Lender any amounts required to compensate such
Lender for additional losses, costs, or expenses (including anticipated lost profits) that such
Lender may reasonably incur as a result of such occurrence, including any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund or maintain such Loan. For purposes of this subsection (b), a certificate setting
forth the amount of such additional losses, costs, or expenses and giving a reasonable explanation
thereof, submitted to the Borrower and the Administrative Agent by such Lender, shall constitute
such demand and shall be conclusive and binding for all purposes, absent manifest error.



(c) Capital. If any Lender or Issuing Bank determines that (i) compliance with any law or
regulation or any guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of capital required or
expected to be maintained by such Lender or Issuing Bank, whether directly, or indirectly as a
result of commitments of any Person controlling such Lender or Issuing Bank (but without
duplication), and (ii) the amount of such capital is increased by or based upon (A) the existence
of such Lender’s or such Issuing Bank’s commitment to lend or issue or participate in any Letter of
Credit hereunder, (B) the participation in or issuance or maintenance of any Letter of Credit or
Loan or (C) other similar such commitments, then, upon demand by such Lender or Issuing Bank, the
Borrower agrees immediately to pay to the Administrative Agent for the account of such Lender or
Issuing Bank from time to time as specified by such Lender or Issuing Bank additional amounts
sufficient to compensate such Lender or Issuing Bank in the light of such circumstances, to the
extent that such Lender or Issuing Bank reasonably determines such increase in capital to be
allocable to the transactions contemplated hereby. A certificate as to such amounts and giving a
reasonable explanation thereof (to the extent permitted by law), submitted to the Borrower and the
Administrative Agent by such Lender or Issuing Bank, shall be conclusive and binding for all
purposes, absent manifest error.



(d) Notices. Each Lender and Issuing Bank hereby agrees to use its best efforts to notify the
Borrower of the occurrence of any event referred to in subsection (a), (b) or (c) of this Section
5.04 promptly after becoming aware of the occurrence thereof. The failure of any Lender or any
Issuing Bank to provide such notice or to make demand for payment under said subsection shall not
constitute a waiver of such Lender’s or such Issuing Bank’s (as the case may be) rights hereunder;
provided that, notwithstanding any provision to the contrary contained in this Section 5.04, the
Borrower shall not be required to reimburse any Lender or any Issuing Bank for any amounts or costs
incurred under subsection (a), (b) or (c) of this Section 5.04 more than 90 days prior to the date
that such Lender or such Issuing Bank’s (as the case may be) notifies the Borrower in writing
thereof, in each case unless, and to the extent that, any such amounts or costs so incurred shall
relate to the retroactive application of any event notified to the Borrower which entitles such
Lender or such Issuing Bank (as the case may be) to such compensation. If any Lender or any
Issuing Bank shall subsequently determine that any amount demanded and collected under this Section
5.04 was done so in error, such Lender or such Issuing Bank (as the case may be) will promptly
return such amount to the Borrower.



(e) Survival of Obligations. Subject to subsection (d) above, the Borrower’s obligations
under this Section 5.04 shall survive the repayment of all other amounts owing to the Lenders, the
Agents and the Issuing Banks under the Loan Documents and the termination of the Commitments. If
and to the extent that the obligations of the Borrower under this Section 5.04 are unenforceable
for any reason, the Borrower agrees to make the maximum contribution to the payment and
satisfaction thereof which is permissible under applicable law.



SECTION 5.05. Sharing of Payments, Etc. If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of
the Loans owing to it (other than pursuant to Section 5.04 or Section 5.06) in excess of its
ratable share of payments obtained by all the Lenders on account of the Loans of such Lenders, such
Lender shall forthwith purchase from the other Lenders such participation in the Loans owing to
them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with
each of them; provided, however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender’s ratable share (according to the proportion of
(i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 5.05 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the Borrower in the
amount of such participation. Notwithstanding the foregoing, if any Lender shall obtain any such
excess payment involuntarily, such Lender may, in lieu of purchasing participations from the other
Lenders in accordance with this Section 5.05, on the date of receipt of such excess payment, return
such excess payment to the Administrative Agent for distribution in accordance with Section
5.01(a).



SECTION 5.06. Taxes.



(a) All payments by the Borrower hereunder and under the other Loan Documents shall be made in
accordance with Section 5.01, free and clear of and without deduction for all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender, each Issuing Bank and each Agent, taxes imposed on
its overall net income, and franchise taxes imposed on it by the jurisdiction under the laws of
which such Lender, Issuing Bank or Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it by the jurisdiction of such Lender’s Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as “Taxes”). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any
other Loan Document to any Lender, Issuing Bank or Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 5.06) such Lender, Issuing Bank or Agent (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 taxation authority or other authority in accordance with applicable law.



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



(c) The Borrower agrees to indemnify each Lender, Issuing Bank and Agent for the full amount
of Taxes and Other Taxes (including any Taxes and any Other Taxes imposed by any jurisdiction on
amounts payable under this Section 5.06) paid by such Lender, Issuing Bank or Agent (as the case
may be) and any liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within thirty (30) days from the date such Lender, Issuing Bank or
Agent (as the case may be) makes written demand therefor; provided, that such Lender, Issuing Bank
or Agent (as the case may be) shall not be entitled to demand payment under this Section 5.06 for
an amount if such demand is not made within one year following the date upon which such Lender,
Issuing Bank or Agent (as the case may be) shall have been required to pay such amount.



(d) Within thirty (30) days after the date of any payment of Taxes, the Borrower will furnish
to the Administrative Agent, at its address referred to in Section 11.02, the original or a
certified copy of a receipt evidencing payment thereof.



(e) Each Bank represents and warrants that either (i) it is organized under the laws of a
jurisdiction within the United States or (ii) it has delivered to the Borrower or the
Administrative Agent duly completed copies of such form or forms prescribed by the United States
Internal Revenue Service indicating that such Bank is entitled to receive payments without
deduction or withholding of any United States federal income taxes, as permitted by the Internal
Revenue Code of 1986, as amended. Each other Lender agrees that, on or prior to the date upon
which it shall become a party hereto, and upon the reasonable request from time to time of the
Borrower or the Administrative Agent, such Lender will deliver to the Borrower and the
Administrative Agent (to the extent that it is not prohibited by law from doing so) either (A) a
statement that it is organized under the laws of a jurisdiction within the United States or
(B) duly completed copies of such form or forms as may from time to time be prescribed by the
United States Internal Revenue Service, indicating that such Lender is entitled to receive payments
without deduction or withholding of any United States federal income taxes, as permitted by the
Internal Revenue Code of 1986, as amended. Each Bank that has delivered, and each other Lender
that hereafter delivers, to the Borrower and the Administrative Agent the form or forms referred to
in the two preceding sentences further undertakes to deliver to the Borrower and the Administrative
Agent, to the extent that it is not prohibited by law from doing so, further copies of such form or
forms, or successor applicable form or forms, as the case may be, as and when any previous form
filed by it hereunder shall expire or shall become incomplete or inaccurate in any respect. Each
Lender represents and warrants that each such form supplied by it to the Administrative Agent and
the Borrower pursuant to this subsection (e), and not superseded by another form supplied by it, is
or will be, as the case may be, complete and accurate.



SECTION 5.07. Apportionment of Payments.



(a) Subject to the provisions of Section 2.03, Section 5.03(b) and Section 5.07(b), all
payments of principal and interest in respect of outstanding Loans, all payments in respect of
unpaid reimbursement obligations under Section 4.04(a), all payments of fees and all other payments
in respect of any other Obligations hereunder, shall be allocated among such of the Lenders and the
Issuing Banks as are entitled thereto, ratably or otherwise as expressly provided herein. Except
as provided in Section 5.07(b) with respect to payments and proceeds of Collateral received after
the occurrence of an Event of Default, all such payments and any other amounts received by the
Administrative Agent from or for the benefit of the Borrower shall be applied:




(i) first, to pay principal of and interest on any portion of the Loans which the
Administrative Agent may have advanced on behalf of any Lender other than Citibank for which
the Administrative Agent has not then been reimbursed by such Lender or the Borrower;




(ii) second, to pay interest on and then the principal of the Loans then due and
payable (in the order described hereinbelow);




(iii) third to pay principal of and interest on all unpaid reimbursement obligations
under Section 4.04(a);




(iv) fourth, to the Cash Collateral Account, to secure outstanding Letters of Credit to
the extent required pursuant to this Agreement;




(v) fifth, to pay all other Obligations under any Loan Document then due and payable,
ratably; and




(vi) sixth, as the Borrower so designates.



All such principal and interest payments in respect of the Loans shall be applied first to repay
outstanding ABR Loans and then to repay outstanding Eurodollar Rate Loans with those Eurodollar
Rate Loans which have earlier expiring Interest Periods being repaid prior to those which have
later expiring Interest Periods.



(b) During the continuance of an Event of Default and after declaration thereof by written
notice from the Administrative Agent to the Borrower, the Administrative Agent shall apply all
payments in respect of Loans, unpaid reimbursement obligations under Section 4.04(a) or any other
Obligations, and the Collateral Agent shall deliver all proceeds of Collateral to the
Administrative Agent for application, in the following order:




(i) first, to pay principal of and interest on any portion of the Loans which the
Administrative Agent may have advanced on behalf of any Lender other than Citibank for which
the Administrative Agent has not then been reimbursed by such Lender or the Borrower;




(ii) second, to pay any fees, expense reimbursements or indemnities then due to the
Agents under any of the Loan Documents;




(iii) third, to the ratable payment of any fees, expense reimbursements or indemnities
then due to the Lenders and the Issuing Banks under any of the Loan Documents;




(iv) fourth, to the ratable payment of interest due in respect of the Loans, in
accordance with the Lenders’ respective Percentages;




(v) fifth, to the ratable payment or prepayment of principal outstanding on all Loans,
in accordance with the Lenders’ respective Percentages;




(vi) sixth, to pay principal of and interest on all unpaid reimbursement obligations
under Section 4.04(a);




(vii) seventh, to the Cash Collateral Account to secure LC Obligations in respect of
outstanding Letters of Credit, in an amount equal to the Cash Collateral Required Amount;
and




(viii) eighth, to the ratable payment of all other Obligations then outstanding under
the Loan Documents.



The order of priority set forth in this Section 5.07(b) and the related provisions of this
Agreement are set forth solely to determine the rights and priorities of the Agents and the Lenders
as among themselves.



SECTION 5.08. Proceeds of Collateral. During the continuance of an Event of Default and after
declaration thereof by written notice from the Administrative Agent to the Borrower, the Borrower
shall cause all proceeds of Collateral to be deposited pursuant to arrangements for the collection
of such amounts established by the Borrower and the Administrative Agent (or the Collateral Agent,
as applicable) for application pursuant to Section 5.07. All collections of proceeds of Collateral
which are received directly by the Borrower shall be deemed to have been received by the Borrower
as the Collateral Agent’s trustee and, during the continuance of an Event of Default and after
declaration thereof by written notice from the Administrative Agent to the Borrower, upon the
Borrower’s receipt thereof, the Borrower shall immediately transfer all such amounts to the
Administrative Agent for application pursuant to Section 5.07. All other proceeds of Collateral
received by the Collateral Agent and/or the Administrative Agent, whether through direct payment or
otherwise, will be deemed received by such Agent, will be the sole property of such Agent, and will
be held by such Agent, for the benefit of the Lenders for application pursuant to Section 5.07.



ARTICLE VI




CONDITIONS PRECEDENT




SECTION 6.01. Conditions Precedent to the Effectiveness of this Agreement. The effectiveness
of this Agreement is subject to the fulfillment of the following conditions precedent:



(a) The Administrative Agent shall have received, on or before the Closing Date, the
following, in form and substance satisfactory to each Lender (except where otherwise specified
below) and (except for any Promissory Notes) in sufficient copies for each Lender:




(i) Certified copies of the resolutions of the Board of Directors, or of the Executive
Committee of the Board of Directors, of the Borrower authorizing the Borrower to enter into
each Loan Document and of all documents evidencing other necessary corporate or other action
and Governmental Approvals, if any, with respect to each such Loan Document.




(ii) A certificate of the Secretary or an Assistant Secretary of the Borrower
certifying the names, true signatures and incumbency of (A) the officers of the Borrower
authorized to sign the Loan Documents and the other documents to be delivered hereunder and
thereunder and (B) the representatives of the Borrower authorized to sign notices to be
provided under the Loan Documents, which representatives shall be acceptable to the
Administrative Agent.




(iii) Copies of the Certificate of Incorporation and by-laws of the Borrower, together
with all amendments thereto, certified by the Secretary or an Assistant Secretary of the
Borrower.




(iv) Good Standing Certificate for the Borrower issued by the Secretary of State of
Michigan as of a recent date.




(v) The Cash Collateral Agreement, duly executed by the Borrower.




(vi) The Borrower Pledge Agreement, duly executed by the Borrower.




(vii) A certified copy of Schedule I hereto, in form and substance reasonably
satisfactory to the Administrative Agent setting forth:




(A) all Project Finance Debt of the Borrower and the Consolidated Subsidiaries
as of December 31, 2006; and




(B) debt (as such term is construed in accordance with GAAP) of the Borrower as
of December 31, 2006.




(viii) Favorable opinions of: (A) James Brunner, Esq., General Counsel of the Borrower,
in substantially the form of Exhibit C and as to such other matters as the Required Lenders,
through the Administrative Agent, may reasonably request and (B) Sidley Austin LLP, special
counsel to the Administrative Agent, in substantially the form of Exhibit D.



(b) The following statements shall be true and the Administrative Agent shall have received a
certificate of a duly authorized officer of the Borrower, dated the Closing Date and in sufficient
copies for each Lender stating that:




(i) the representations and warranties set forth in Section 7.01 of this Agreement are
true and correct on and as of the Closing Date as though made on and as of such date,




(ii) no event has occurred and is continuing that constitutes a Default or an Event of
Default, and




(iii) all Governmental Approvals necessary in connection with the Loan Documents and
the transactions contemplated thereby and the continuing operations of the Borrower and its
Subsidiaries have been obtained and are in full force and effect, and all third party
approvals necessary or advisable in connection with the Loan Documents and the transactions
contemplated thereby and the continuing operations of the Borrower and its Subsidiaries have
been obtained and are in full force and effect, other than filings necessary to create or
perfect security interests in the Collateral or as may be required under applicable energy,
antitrust or securities laws in connection with the exercise of remedies with respect to
certain Collateral.



(c) The Administrative Agent shall have received evidence satisfactory to it that all
financing statements relating to the Collateral have been completed for filing or recording and/or
filed, and all certificates representing capital stock or other ownership interests included in the
Collateral have been delivered to the Collateral Agent (with duly executed stock powers).



(d) The Borrower shall have paid, on or before the Closing Date, all fees under or referenced
in Section 2.02(b) and all expenses referenced in Section 11.04(a), in each case to the extent due
and payable as of the Closing Date.



(e) The Administrative Agent shall have received each of the following on or before the
Closing Date, in each case in form and substance satisfactory to it with sufficient copies for each
Lender:




(i) A certificate, executed by the chief executive officer and the chief financial
officer of the Borrower and Consumers, as applicable, in favor of the Agents and the Lenders
with respect to the financial statements described in Sections 7.01(e)(i) and (ii)
certifying that such financial statements have been prepared in accordance with GAAP and are
true and correct as of the date of such certificate;




(ii) Copies of the financial statements described in Sections 7.01(e)(i) and (ii); and




(iii) Copies of the Borrower’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2006.



(f) The Administrative Agent shall have received evidence satisfactory to it that on the
Closing Date all “Letters of Credit” under (and as defined in) the Existing Credit Agreement shall
constitute Transitional Letters of Credit hereunder and all “Loans” under (and as defined in) the
Existing Credit Agreement and all other amounts due under the Existing Credit Agreement have been
paid in full by the Borrower and Enterprises.



SECTION 6.02. Conditions Precedent to Each Extension of Credit. The obligation of each Lender
or Issuing Bank, as the case may be, to make an Extension of Credit (including the initial
Extension of Credit (including the deemed issuance of the Transitional Letters of Credit), but
excluding the Conversion of a Eurodollar Rate Loan into an ABR Loan) shall be subject to the
further conditions precedent that, on the date of such Extension of Credit and after giving effect
thereto:



(a) The following statements shall be true (and each of the giving of the applicable notice or
request with respect thereto and the making of such Extension of Credit without prior correction by
the Borrower shall (to the extent that such correction has been previously consented to by the
Lenders and the Issuing Banks) constitute a representation and warranty by the Borrower that, on
the date of such Extension of Credit, such statements are true):




(i) the representations and warranties contained in Section 7.01 of this Agreement
(other than those contained in subsections (e)(iii) and (f) thereof) are correct on and as
of the date of such Extension of Credit, before and after giving effect to such Extension of
Credit and to the application of the proceeds thereof, as though made on and as of such
date; and




(ii) no Default or Event of Default has occurred and is continuing, or would result
from such Extension of Credit or the application of the proceeds thereof.



(b) The Administrative Agent shall have received such other approvals, opinions and documents
as any Lender or Issuing Bank, through the Administrative Agent, may reasonably request as to the
legality, validity, binding effect or enforceability of the Loan Documents or the business,
property, financial condition, results of operations or prospects of the Borrower and its
Consolidated Subsidiaries.



SECTION 6.03. Conditions Precedent to Certain Extensions of Credit. The obligation of each
Lender or Issuing Bank, as the case may be, to make an Extension of Credit (including the initial
Extension of Credit (including the deemed issuance of the Transitional Letters of Credit)) that
would (after giving effect to all Extensions of Credit on such date and the application of proceeds
thereof) increase the principal amount outstanding hereunder, or to make an Extension of Credit of
the type described in clause (ii) or (iii) of the definition thereof (except any amendment of a
Letter of Credit the sole effects of which are to extend the stated termination date thereof and/or
to make nonmaterial modifications thereto), shall be subject to the further conditions precedent
that, on the date of such Extension of Credit and after giving effect thereto:



(a) the following statements shall be true (and each of the giving of the applicable notice or
request with respect thereto and the making of such Extension of Credit without prior correction by
the Borrower shall (to the extent that such correction has been previously consented to by the
Lenders) constitute a representation and warranty by the Borrower that, on the date of such
Extension of Credit, such statements are true):




(i) unless the Debt Rating Condition is satisfied on such date, the representation and
warranty contained in subsection (e)(iii) of Section 7.01 of this Agreement is correct on
and as of the date of such Extension of Credit, before and after giving effect to such
Extension of Credit and to the application of the proceeds thereof, as though made on and as
of such date;




(ii) the representations and warranties contained in subsection (f) of Section 7.01 of
this Agreement are correct on and as of the date of such Extension of Credit, before and
after giving effect to such Extension of Credit and to the application of the proceeds
thereof, as though made on and as of such date; and




(iii) no Default or Event of Default has occurred and is continuing, or would result
from such Extension of Credit or the application of the proceeds thereof;



(b) the Administrative Agent shall have received such other approvals, opinions and documents
as any Lender or Issuing Bank, through the Administrative Agent, may reasonably request.



SECTION 6.04. Reliance on Certificates. The Lenders, the Issuing Banks and each Agent shall
be entitled to rely conclusively upon the certificates delivered from time to time by officers of
the Borrower as to the names, incumbency, authority and signatures of the respective persons named
therein until such time as the Administrative Agent may receive a replacement certificate, in form
acceptable to the Administrative Agent, from an officer of the Borrower identified to the
Administrative Agent as having authority to deliver such certificate, setting forth the names and
true signatures of the officers and other representatives of the Borrower thereafter authorized to
act on behalf of the Borrower.



ARTICLE VII




REPRESENTATIONS AND WARRANTIES




SECTION 7.01. Representations and Warranties of the Borrower. The Borrower represents and
warrants as follows:



(a) Existence and Standing. Each of the Borrower, Consumers and each of the Restricted
Subsidiaries is duly organized, validly existing and in good standing under the laws of the state
of its organization and is duly qualified to do business in, and is in good standing in, all other
jurisdictions where the nature of its business or the nature of property owned or used by it makes
such qualification necessary.



(b) Authorization; No Conflicts. The execution, delivery and performance by the Borrower of
each Loan Document (i) are within the Borrower’s powers, (ii) have been duly authorized by all
necessary corporate action or proceedings and (iii) do not and will not (A) require any consent or
approval of the stockholders (or other applicable holder of equity) of the Borrower (other than
such consents and approvals which have been obtained and are in full force and effect), (B) violate
any provision of the charter or by-laws of the Borrower or of law, (C) violate any legal
restriction binding on or affecting the Borrower, (D) result in a breach of, or constitute a
default under, any indenture or loan or credit agreement or any other agreement, lease or
instrument to which the Borrower is a party or by which it or its properties may be bound or
affected, or (E) result in or require the creation of any Lien (other than pursuant to the Loan
Documents) upon or with respect to any of its respective properties.



(c) Government Consent. No Governmental Approval is required, other than filings necessary to
create or perfect security interests in the Collateral or as may be required under applicable
energy, antitrust or securities laws in connection with the exercise of remedies with respect to
certain Collateral.



(d) Security Interests; Enforceability. Each Loan Document (i) where applicable, creates
valid and, upon filing of the financing statements delivered on or prior to the Closing Date and
described in Section 6.01(c), perfected security interests in the Collateral covered thereby
securing the payment of all of the Loans and reimbursement obligations purported to be secured
thereby, which security interests shall be first priority perfected security interests, subject to
Liens permitted under Section 8.02(a), and (ii) is the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms; subject to the
qualification, however, that the enforcement of the rights and remedies herein and therein is
subject to bankruptcy and other similar laws of general application affecting rights and remedies
of creditors and the application of general principles of equity (regardless of whether considered
in a proceeding in equity or at law).



(e) Financial Statements; Material Adverse Change. (i) The consolidated balance sheets of the
Borrower and its Consolidated Subsidiaries as at December 31, 2005 and December 31, 2006, and the
related consolidated statements of income, retained earnings and cash flows of the Borrower and its
Consolidated Subsidiaries for the fiscal years then ended, included in the Borrower’s Annual Report
on Form 10-K for the fiscal year ended December 31, 2006, copies of each of which have been
furnished to the Administrative Agent for distribution to each Lender, fairly present the financial
condition of the Borrower and its Consolidated Subsidiaries as at such dates and the results of
operations of the Borrower and its Consolidated Subsidiaries for the periods ended on such dates,
all in accordance with generally accepted accounting principles consistently applied; (ii) the
consolidated balance sheets of Consumers and its consolidated Subsidiaries as at December 31, 2005
and December 31, 2006, and the related consolidated statements of income, retained earnings and
cash flows of Consumers and its consolidated Subsidiaries for the fiscal years then ended, included
in the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 2006, copies of
each of which have been furnished to the Administrative Agent for distribution to each Lender,
fairly present the financial condition of Consumers and its consolidated Subsidiaries as at such
dates and the results of operations of Consumers and its consolidated Subsidiaries for the periods
ended on such dates, all in accordance with generally accepted accounting principles consistently
applied; (iii) since December 31, 2006, except as disclosed in the Borrower’s Reports on Form 8-K
filed with the Securities and Exchange Commission since December 31, 2006 but prior to the Closing
Date, there has been no Material Adverse Change; and (iv) except as a result of any Restatement
Event (other than the Restatement itself), the Borrower has no material liabilities or obligations
except as reflected in the foregoing financial statements and in Schedule I, as evidenced by the
Loan Documents and as may be incurred, in accordance with the terms of this Agreement, in the
ordinary course of business (as presently conducted) following the Closing Date.



(f) Litigation. Except (i) as disclosed in the Borrower’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2006 and the Borrower’s Reports on Form 8-K filed with the
Securities and Exchange Commission since December 31, 2006 but prior to the Closing Date, (ii) such
other similar actions, suits and proceedings predicated on the occurrence of the same events giving
rise to any actions, suits and proceedings described in the Reports filed with the Securities and
Exchange Commission set forth in clause (i) above (all such matters in clauses (i) and (ii) being
the “Disclosed Matters”) and (iii) any Restatement Event, there are no pending or threatened
actions, suits, investigations or proceedings against or, to the knowledge of the Borrower,
affecting the Borrower or any of its Subsidiaries or the properties of the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator, that would, if adversely
determined, reasonably be expected to materially adversely affect the financial condition,
properties, business or operations of the Borrower and its Subsidiaries, considered as a whole, or
affect the legality, validity or enforceability of this Agreement or any other Loan Document.
There have been no material adverse developments with respect to the Disclosed Matters that have
had or could reasonably be expected to result in a Material Adverse Change.



(g) Insurance. All insurance required by Section 8.01(b) is in full force and effect.



(h) ERISA. No Plan Termination Event has occurred nor is reasonably expected to occur with
respect to any Plan of the Borrower or any of its ERISA Affiliates which would result in a material
liability to the Borrower, except as disclosed and consented to by the Required Lenders in writing
from time to time. Except as disclosed in the Borrower’s Annual Report on Form 10-K for the period
ended December 31, 2006, since the date of the most recent Schedule B (Actuarial Information) to
the annual report of the Borrower (Form 5500 Series), if any, there has been no material adverse
change in the funding status of the Plans referred therein and no “prohibited transaction” has
occurred with respect thereto which is reasonably expected to result in a material liability to the
Borrower. Neither the Borrower nor any of its ERISA Affiliates has incurred nor reasonably expects
to incur any material withdrawal liability under ERISA to any Multiemployer Plan, except as
disclosed and consented to by the Required Lenders in writing from time to time.



(i) Casualty. No fire, explosion, accident, strike, lockout or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (except for
any such circumstance, if any, which is covered by insurance which coverage has been confirmed and
not disputed by the relevant insurer) affecting the properties, business or operations of the
Borrower, Consumers or any Restricted Subsidiary has occurred that could reasonably be expected to
have a material adverse effect on the business, property, financial condition, results of
operations or prospects of (A) the Borrower and its Subsidiaries, considered as a whole, or
(B) Consumers and its Subsidiaries, considered as a whole.



(j) Taxes. The Borrower and its Subsidiaries have filed all tax returns (Federal, state and
local) required to be filed and paid all taxes shown thereon to be due, including interest and
penalties, or, to the extent the Borrower or any of its Subsidiaries is contesting in good faith an
assertion of liability based on such returns, has provided adequate reserves for payment thereof in
accordance with GAAP.



(k) Legal Constraints on Dividends. No extraordinary judicial, regulatory or other legal
constraints exist which limit or restrict Consumers’ ability to declare or pay cash dividends with
respect to its capital stock, other than (i) pursuant to the Consumers Credit Facility or (ii) any
such restriction enacted or imposed by the Michigan Public Service Commission.



(l) Ownership of Certain Subsidiaries. The Borrower owns (i) not less than 80% of the
outstanding shares of common stock of Enterprises and (ii) not less than 80% of the outstanding
shares of common stock of Consumers.



(m) Accuracy of Disclosures. The Consolidated 2007-2011 Projections of Consumers and the
Borrower (the “Projections”) are based upon assumptions that the Borrower believed were reasonable
at the time the Projections were delivered, it being recognized by the Administrative Agent and the
Banks that such projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ from the projected
results, and all other financial information delivered by the Borrower to the Administrative Agent
and the Banks on and after the Closing Date is true and correct in all material respects as at the
dates and for the periods indicated therein in light of the circumstances under which such
information was provided.



(n) Regulation U. (i) The Borrower is not engaged in the business of extending credit for the
purpose of buying or carrying “margin stock” (within the meaning of Regulation U issued by the
Board), (ii) and no proceeds of any Loan or any drawing under any Letter of Credit will be used to
buy or carry any margin stock or to extend credit to others for the purpose of buying or carrying
any margin stock and (iii) following application of the proceeds of each Extension of Credit, not
more than 25 percent of the value of the assets of the Borrower and its Subsidiaries on a
consolidated basis will be margin stock.



(o) Investment Company Act. The Borrower is not an “investment company” (within the meaning
of the Investment Company Act of 1940, as amended).



(p) Acquisition of Securities. No proceeds of any Loan or any drawing under any Letter of
Credit will be used to acquire any security in any transaction without the approval of the board of
directors of the Person issuing such security if (i) the acquisition of such security would cause
the Borrower to own, directly or indirectly, 5.0% or more of any outstanding class of securities
issued by such Person, or (ii) such security is being acquired in connection with a tender offer.



(q) Material Adverse Change Information. The Borrower has not withheld any fact from the
Administrative Agent, the Issuing Banks or the Lenders in regard to the occurrence of any Material
Adverse Change.



(r) Solvency. After giving effect to the Loans to be made or Letters of Credit to be issued
on the Closing Date or such other date as Loans or Extensions of Credit requested hereunder are
made, and the disbursement of the proceeds of such Loans or Extensions of Credit pursuant to the
Borrower’s instructions, the Borrower and its Subsidiaries, taken as a whole, are Solvent.



(s) Project Finance Debt. Schedule I sets forth as of December 31, 2006 (i) all Project
Finance Debt of the Borrower and the Consolidated Subsidiaries, and (ii) all debt (as such term is
construed in accordance with GAAP) of the Borrower, and, as of the Closing Date, there are no
defaults in the payment of principal or interest on any such debt and no payments thereunder have
been deferred or extended beyond their stated maturity (except as disclosed on such Schedule).



(t) OFAC. None of the Borrower or any Subsidiary or Affiliate of the Borrower is named on the
United States Department of the Treasury’s Specially Designated Nationals or Blocked Persons list
available through http://www.treas.gov/offices/eotffc/ofac/ sdn/t11sdn.pdf or as otherwise
published from time to time.



ARTICLE VIII




COVENANTS OF THE BORROWER




SECTION 8.01. Affirmative Covenants. So long as any Loan or any other amount payable
hereunder or under any Promissory Note shall remain unpaid, any Letter of Credit shall remain
outstanding or any Lender shall have any Commitment:



(a) Payment of Taxes, Etc. The Borrower shall pay and discharge, and shall cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, all taxes, assessments
and governmental charges, royalties or levies imposed upon it or upon its property except, in the
case of taxes, to the extent the Borrower or any Subsidiary thereof, as the case may be, is
contesting the same in good faith and by appropriate proceedings and has set aside adequate
reserves for the payment thereof in accordance with GAAP.



(b) Maintenance of Insurance. The Borrower shall maintain, and shall cause each of the
Restricted Subsidiaries and Consumers to maintain, insurance covering the Borrower and each of the
Restricted Subsidiaries and Consumers and their respective properties in effect at all times in
such amounts and covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general geographical area in which the
Borrower and the Restricted Subsidiaries and Consumers operate, either with reputable insurance
companies or, in whole or in part, by establishing reserves of one or more insurance funds, either
alone or with other corporations or associations.



(c) Preservation of Existence, Etc. Except as otherwise permitted by Section 8.02, the
Borrower shall preserve and maintain, and shall cause each of the Restricted Subsidiaries and
Consumers to preserve and maintain, its corporate or limited liability company existence, material
rights (statutory and otherwise) and franchises, and take such other action as may be necessary or
advisable to preserve and maintain its right to conduct its business in the states where it shall
be conducting its business.



(d) Compliance with Laws, Etc. The Borrower shall comply, and shall cause each of the
Restricted Subsidiaries and Consumers to comply, in all material respects with the requirements of
all applicable laws, rules, regulations and orders of any governmental authority, including any
such laws, rules, regulations and orders relating to zoning, environmental protection, use and
disposal of Hazardous Substances, land use, construction and building restrictions, and employee
safety and health matters relating to business operations.



(e) Inspection Rights. Subject to the requirements of laws or regulations applicable to the
Borrower or its Subsidiaries, as the case may be, and in effect at the time, at any time and from
time to time upon reasonable notice, the Borrower shall permit (i) each Agent and its agents and
representatives to examine and make copies of and abstracts from the records and books of account
of, and the properties of, the Borrower or any of its Subsidiaries and (ii) each Agent, each of the
Issuing Banks, each of the Lenders, and their respective agents and representatives to discuss the
affairs, finances and accounts of the Borrower and its Subsidiaries with the Borrower and its
Subsidiaries and their respective officers, directors and accountants. Each such visitation and
inspection described in the preceding sentence by or on behalf of any Lender or Issuing Bank shall,
unless occurring at a time when a Default or Event of Default shall be continuing, be at such
Lender’s or Issuing Bank’s, as applicable, expense; all other such inspections and visitations
shall be at the Borrower’s expense.



(f) Keeping of Books. The Borrower shall keep, and shall cause each of its Subsidiaries to
keep, proper records and books of account, in which full and correct entries shall be made of all
financial transactions of the Borrower and its Subsidiaries and the assets and business of the
Borrower and its Subsidiaries, in accordance with GAAP.



(g) Maintenance of Properties, Etc. The Borrower shall maintain, and shall cause each of the
Restricted Subsidiaries to maintain, in substantial conformity with all laws and material
contractual obligations, good and marketable title to all of its properties which are used or
useful in the conduct of its business; provided, however, that the foregoing shall not restrict the
sale or transfer of any asset of the Borrower or any Restricted Subsidiary to the extent not
otherwise prohibited by the terms of this Agreement. In addition, the Borrower shall preserve,
maintain, develop, and operate, and shall cause each of its Subsidiaries to preserve, maintain,
develop and operate, in substantial conformity with all laws and material contractual obligations,
all of its material properties which are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.



(h) Use of Proceeds. The Borrower shall use all Extensions of Credit for general corporate
purposes (subject to the terms and conditions of this Agreement).



(i) Consolidated Leverage Ratio. The Borrower shall maintain, as of the last day of each
fiscal quarter (in each case, the “Measurement Quarter”), a maximum ratio of (i) Consolidated Debt
as of such day, to (ii) Consolidated EBITDA for the immediately preceding four-fiscal-quarter
period ending on such day, of not more than 7.00 to 1.00.



(j) Cash Coverage Ratio. The Borrower shall maintain, as of the last day of each Measurement
Quarter, a minimum ratio of (i) the sum of (A) Cash Dividend Income for the four-fiscal-quarter
period ending on such day, plus (B) amounts received by the Borrower pursuant to the Tax Sharing
Agreement during such period plus (C) the lesser of (x) 25% of the Net Proceeds received by the
Borrower during such period from the sale, assignment or other disposition (but not the lease or
license) of any property, including without limitation, any sale of capital stock or other equity
interest in any of the Borrower’s direct or indirect Subsidiaries, and (y) $150,000,000 to (ii) an
amount equal to (A) interest expense (excluding (1) all arrangement, underwriting and other similar
fees payable in connection with this Agreement, (2) all arrangement, underwriting and upfront fees
paid in connection with the Existing Credit Agreement and this Agreement, (3) all interest or
dividends paid on Hybrid Preferred Securities and Hybrid Equity Securities, (4) interest expense
payable by the Borrower in respect of any Debt owing to any Subsidiary thereof and (5) all costs
(including, without limitation, any prepayment or option premium or expense) otherwise included in
interest expense recognized on early retirement of debt) accrued by the Borrower in respect of all
Debt during such period, plus (B) cash United States federal income taxes paid by the Borrower
during such period minus (C) cash interest income received by the Borrower from Persons other than
any Subsidiary of the Borrower during such period, minus (D) all amounts received by the Borrower
from its Subsidiaries and Affiliates during such period constituting reimbursement of interest
expense and commitment, guaranty and letter of credit charges of the Borrower to such Subsidiary or
Affiliate, of not less than 1.20 to 1.00; provided, that the Borrower shall be deemed not to be in
breach of the foregoing covenant if, during the Measurement Quarter, the Borrower has permanently
reduced the principal amount outstanding under this Agreement and the Promissory Notes, such that
the amount determined pursuant to clause (ii) above, when recalculated on a pro forma basis
assuming that the amount of such reduced principal amount outstanding under this Agreement and the
Promissory Notes were in effect at all times during such four-fiscal-quarter period, would result
in the Borrower being in compliance with such ratio.



(k) Further Assurances. The Borrower shall promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or that any Lender or
any Issuing Bank through the Administrative Agent may reasonably request in order to give effect to
the transactions contemplated by this Agreement and the other Loan Documents. In addition, the
Borrower will use all reasonable efforts to duly obtain or make Governmental Approvals required
from time to time on or prior to such date as the same may become legally required.



(l) Compliance with Fee Letters. The Borrower shall comply with all of its respective
obligations under the Fee Letters.



(m) Payment of Declared Dividend. The Borrower shall cause each of its direct Subsidiaries to
pay all dividends within 30 days after declaration thereof.



(n) Collateral.




(i) Subject to the following paragraph (ii), the Borrower will cause all of its right,
title and interest in, to and under the Collateral to be subject at all times to first
priority, perfected security interests in favor of the Collateral Agent for the benefit of
the Lenders to secure the Obligations, subject in any case to Liens permitted under Section
8.02(a).




(ii) If any time (i) no Default or Event of Default exists, and (ii) the Debt Rating
Condition is satisfied, the Collateral Agent shall, promptly upon the request of the
Borrower, release its Liens on the Collateral (other than the “Collateral” under (and as
defined) in the Cash Collateral Agreement) and terminate the Borrower Pledge Agreement. If
at any time after any such release the Debt Rating Condition shall not be satisfied, the
Borrower shall cause all of its right, title and interest in, to and under the property
constituting Collateral at the time of such release to be pledged to the Collateral Agent as
security for the Obligations pursuant to documentation reasonably satisfactory to the
Administrative Agent in form and substance.



SECTION 8.02. Negative Covenants. So long as any Loan or any other amount payable hereunder
or under any Promissory Note shall remain unpaid, any Letter of Credit shall remain outstanding or
any Lender shall have any Commitment, the Borrower agrees that it shall not, without the written
consent of the Required Lenders:



(a) Liens, Etc. (1) Create, incur, assume or suffer to exist, or permit any of the Restricted
Subsidiaries to create, incur, assume or suffer to exist, any Lien upon or with respect to any of
its properties of any character (including capital stock and other ownership interests of the
Borrower’s directly-owned Subsidiaries, intercompany obligations and accounts), whether now owned
or hereafter acquired, or (2) file, or permit any Restricted Subsidiary to file, under the Uniform
Commercial Code of any jurisdiction a financing statement which names the Borrower or any
Restricted Subsidiary as debtor (other than financing statements that do not evidence a Lien), or
(3) sign, or permit any Restricted Subsidiary to sign, any security agreement or other document
authorizing any secured party thereunder to file any such financing statement, or (4) assign, or
permit any Restricted Subsidiary to assign, accounts, excluding, however, from the operation of the
foregoing restrictions the Liens created under the Loan Documents and the following:




(i) Liens for taxes, assessments or governmental charges or levies to the extent not
past due;




(ii) cash pledges or deposits to secure (A) obligations under workmen’s compensation
laws or similar legislation, (B) public or statutory obligations, (C) reimbursement
obligations of Restricted Subsidiaries with respect to letters of credit permitted pursuant
to Section 8.02(b)(x), (D) Support Obligations and (E) obligations of Restricted
Subsidiaries in respect of hedging arrangements and commodity purchases and sales (including
any cash margins with respect thereto); provided, that with respect to clauses (D) and (E)
above the aggregate amount of cash pledges or deposits securing such obligations shall not
exceed $400,000,000 at any one time outstanding, and (F) obligations of (x) the Borrower in
respect of interest rate swap agreements and (y) the Borrower or any Restricted Subsidiary
in respect of foreign exchange swap agreements, provided that the aggregate amount of cash
pledges or deposits securing such obligations under this clause (F) shall not exceed
$50,000,000 at any one time outstanding;




(iii) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and
repairmen’s liens and other similar Liens arising in the ordinary course of business
securing obligations which are not overdue or which have been fully bonded and are being
contested in good faith;




(iv) Liens securing the obligations under the Loan Documents;




(v) Liens securing Off-Balance Sheet Liabilities (and all refinancings and
recharacterizations thereof permitted under Section 8.02(b)(iv)) in an aggregate amount not
to exceed $775,000,000;




(vi) purchase money Liens or purchase money security interests upon or in property
acquired or held by the Borrower or any Restricted Subsidiary in the ordinary course of
business to secure the purchase price of such property or to secure indebtedness incurred
solely for the purpose of financing the acquisition of any such property to be subject to
such Liens or security interests, or Liens or security interests existing on any such
property at the time of acquisition, or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided that no such Lien or security interest
shall extend to or cover any property other than the property being acquired and no such
extension, renewal or replacement shall extend to or cover property not theretofore subject
to the Lien or security interest being extended, renewed or replaced, and provided, further,
that the aggregate principal amount of the Debt at any one time outstanding secured by Liens
permitted by this clause (vi) shall not exceed $15,000,000;




(vii) utility easements, building restrictions and such other encumbrances or charges
against real property as are of a nature generally existing with respect to properties of a
similar character and which do not in any material way affect the marketability of the same
or interfere with the use thereof in the business of the Borrower or any Restricted
Subsidiary;




(viii) Liens existing on any capital asset of any Person at the time such Person is
merged or consolidated with or into, or otherwise acquired by, the Borrower or any
Restricted Subsidiary and not created in contemplation of such event, provided that such
Liens do not encumber any other property or assets and such merger, consolidation or
acquisition is otherwise permitted under this Agreement;




(ix) Liens existing on any capital asset prior to the acquisition thereof by the
Borrower or any Restricted Subsidiary and not created in contemplation thereof; provided
that such Liens do not encumber any other property or assets;




(x) Liens existing as of the Closing Date or, with respect to any Restricted
Subsidiary, such later date as such Person shall become a Restricted Subsidiary;




(xi) Liens securing Project Finance Debt otherwise permitted under this Agreement;




(xii) Liens arising out of the refinancing, extension, renewal or refunding of any Debt
secured by any Lien permitted by any of the foregoing clauses (v), (viii), (ix), (x) or
(xi); provided that (a) such Debt is not secured by any additional assets, and (b) the
amount of such Debt secured by any such Lien is otherwise permitted under this Agreement;
and




(xiii) Liens on the capital stock of Consumers securing Debt incurred by the Borrower
or any Subsidiary thereof (other than Consumers or any Subsidiary thereof) in an aggregate
amount not to exceed $350,000,000; provided, that (i) such Liens are pari passu with, or
subordinated in priority to, the Liens securing the Obligations, (ii) the holders of such
Debt shall have entered into an intercreditor agreement with the Collateral Agent reasonably
acceptable to the Administrative Agent as to form and substance and (iii) such Debt has
terms and conditions (including maturity, amortization, interest rates, premiums, fees,
covenants, subordination, events of default and remedies) that are reasonably acceptable to
the Administrative Agent.



(b) Debt. Permit any Subsidiary of the Borrower (other than Consumers or any Subsidiary
thereof) to create, incur, assume or suffer to exist any debt (as such term is construed in
accordance with GAAP) other than:




(i) debt arising by reason of the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of such Subsidiary’s business;




(ii) in the form of indemnities in respect of unfiled mechanics’ liens and Liens
affecting such Subsidiary’s properties permitted under Section 8.02(a)(iii);




(iii) debt arising under the Loan Documents;




(iv) debt constituting Off-Balance Sheet Liabilities (including any recharacterization
thereof as debt pursuant to any changes in generally accepted accounting principles
hereafter required or permitted and which are adopted by the Borrower or any of its
Subsidiaries with the agreement of its independent certified public accountants) to the
extent permitted by Section 8.02(n), and any extensions, renewals, refundings or
replacements thereof, provided that any such extension, renewal, refunding or replacement is
in an aggregate principal amount not greater than the principal amount of, is an obligation
of the same Person that is the obligor in respect of, and has a weighted average life to
maturity not less than the weighted average life to maturity of, the debt so extended,
renewed, refunded or replaced;




(v) other debt outstanding on the Closing Date (including the debt of the Borrower as
of December 31, 2006 as set forth on Schedule I), and any extensions, renewals, refundings
or replacements thereof, provided that any such extension, renewal, refunding or replacement
is in an aggregate principal amount not greater than the principal amount of, is an
obligation of the same Person that is the obligor in respect of, and has a weighted average
life to maturity not less than the weighted average life to maturity of, the debt so
extended, renewed, refunded or replaced;




(vi) unsecured debt (a) owed to the Borrower by any Subsidiary or (b) owed to any
Subsidiary by the Borrower or any other Subsidiary;




(vii) Project Finance Debt incurred on or after the Closing Date the proceeds of which
are used by the obligor of such Project Finance Debt for (A) working capital purposes
(including construction or other capital expenditures), (B) acquisition of additional assets
or (C) redemption of equity interests in such Person;




(viii) capital lease obligations and other Debt secured by purchase money Liens to the
extent such Liens shall be permitted under Section 8.02(a)(vi);




(ix) Project Finance Debt incurred by Takoradi International Company in respect of the
Takoradi Project (other than Project Finance Debt permitted to be incurred pursuant to
clause (vii) above) in an aggregate principal amount not to exceed $20,000,000;




(x) reimbursement obligations of Enterprises, CMS Generation or CMS ERM with respect to
letters of credit issued by Bank of America, N.A. (or any of its affiliates), in connection
with the settlement of claims related to CMS ERM’s energy trading operations in an aggregate
amount not to exceed $20,000,000; and




(xi) additional debt (as such term is construed in accordance with GAAP) not otherwise
permitted under this Section 8.02(b) in an aggregate principal amount not to exceed
$350,000,000 at any time outstanding.



(c) Lease Obligations. Create, incur, assume or suffer to exist, or permit any Restricted
Subsidiary to create, incur, assume or suffer to exist, any obligations as lessee for the rental or
hire of real or personal property of any kind under leases or agreements to lease (other than
leases which constitute Debt) having an original term of one year or more which would cause the
aggregate direct or contingent liabilities of the Borrower and the Restricted Subsidiaries in
respect of all such obligations payable in any period of 12 consecutive calendar months to exceed
$50,000,000.



(d) Investments in Other Persons. Make, or permit any Restricted Subsidiary to make, any loan
or advance to any Person, or purchase or otherwise acquire any capital stock, obligations or other
securities of, make any capital contribution to, or otherwise invest in, any Person, other than (i)
Permitted Investments, (ii) pursuant to the contractual or contingent obligations of the Borrower
or any Restricted Subsidiary as in effect as of the Closing Date (or, with respect to any
Restricted Subsidiary, such later date as such Person shall become a Restricted Subsidiary) in an
amount not to exceed such contractual or contingent obligation as in effect on such date, (iii)
investments in the capital stock or other ownership interests of any Subsidiary of the Borrower,
(iv) loans and advances to Subsidiaries of the Borrower (other than Consumers or any Subsidiary
thereof) to the extent the corresponding debt is permitted under Section 8.02(b)(vi), (v)
investments constituting non-cash consideration received in connection with the sale of any asset
not otherwise prohibited under this Agreement, (vi) additional loans, advances, purchases,
contributions and other investments in an amount not to exceed $600,000,000 in the aggregate at any
time and (vii) intercompany loans and advances by the Borrower to Consumers in an aggregate
principal amount not to exceed $300,000,000 at any time.



(e) Restricted Payments. Declare or pay, or permit any Restricted Subsidiary to declare or
pay, directly or indirectly, any dividend, payment or other distribution of assets, properties,
cash, rights, obligations or securities on account of any share of any class of common stock of the
Borrower or any share of any class of capital stock or other ownership interests of any of the
Restricted Subsidiaries (other than (1) stock splits and dividends payable solely in nonconvertible
equity securities of the Borrower (other than Redeemable Stock or Exchangeable Stock (as such terms
are defined in the Indenture on the Closing Date)) and (2) dividends and distributions made to the
Borrower or a Restricted Subsidiary), or purchase, redeem, retire, or otherwise acquire for value,
or permit any Restricted Subsidiary to purchase, redeem, retire, or otherwise acquire for value,
any shares of any class of common stock of the Borrower or any share of any class of capital stock
or other ownership interests of any Restricted Subsidiary or any warrants, rights, or options to
acquire any such shares, now or hereafter outstanding, or make, or permit any Restricted Subsidiary
to make, any distribution of assets to any of its shareholders (other than distributions to the
Borrower or any Restricted Subsidiary) (any such dividend, payment, distribution, purchase,
redemption, retirement or acquisition being hereinafter referred to as a “Restricted Payment”)
other than (i) pursuant to the terms of any class of capital stock of the Borrower issued and
outstanding (and as in effect on) the Closing Date, any purchase or redemption of capital stock of
the Borrower made by exchange for, or out of the proceeds of the substantially concurrent sale of,
capital stock of the Borrower (other than Redeemable Stock or Exchangeable Stock (as such terms are
defined in the Indenture on the Closing Date)); (ii) payments made by the Borrower or any
Restricted Subsidiary pursuant to the Tax Sharing Agreement; and (iii) any cash dividend or cash
distribution on common stock of the Borrower; provided, that no payments shall be made pursuant to
the preceding clause (iii) if an Event of Default has occurred and is continuing as of the date of
declaration or distribution thereof or would result therefrom.



(f) Compliance with ERISA. (i) Permit to exist any “accumulated funding deficiency” (as
defined in Section 412(a) of the Internal Revenue Code of 1986, as amended), (ii) terminate, or
permit any ERISA Affiliate to terminate, any Plan or withdraw from, or permit any ERISA Affiliate
to withdraw from, any Multiemployer Plan, so as to result in any material (in the opinion of the
Required Lenders) liability of the Borrower, any Restricted Subsidiary or Consumers to such Plan,
Multiemployer Plan or the PBGC, or (iii) permit to exist any occurrence of any Reportable Event (as
defined in Title IV of ERISA), or any other event or condition, which presents a material (in the
opinion of the Required Lenders) risk of such a termination by the PBGC of any Plan or withdrawal
from any Multiemployer Plan so as to result in a material liability to the Borrower, any Restricted
Subsidiary or Consumers.



(g) Transactions with Affiliates. Enter into, or permit any of its Subsidiaries to enter
into, any transaction with any of its Affiliates unless such transaction is on terms no less
favorable to the Borrower or such Subsidiary than if the transaction had been negotiated in good
faith on an arm’s-length basis with a non-Affiliate; provided that any transaction permitted under
Sections 8.02(b), 8.02(e) or 8.02(h) shall be permitted hereunder.



(h) Mergers, Etc. Merge with or into or consolidate with or into, or permit any Restricted
Subsidiary or Consumers to merge with or into or consolidate with or into, any other Person, except
that any Subsidiary (other than Consumers or any Subsidiary thereof) may merge with or into the
Borrower or any Restricted Subsidiary, provided that (a) in any such merger with or into the
Borrower, the Borrower is the surviving corporation, (b) no Default or Event of Default shall be
continuing or result therefrom and (c) neither the Borrower nor any Restricted Subsidiary shall be
liable with respect to any Debt or allow its property to be subject to any Lien which it could not
become liable with respect to or allow its property to become subject to under this Agreement or
any other Loan Document on the date of such transaction.



(i) Sales, Etc., of Assets. Sell, lease, transfer, assign, or otherwise dispose of all or
substantially all of its assets, or permit any Restricted Subsidiary to sell, lease, transfer, or
otherwise dispose of all or substantially all of its assets, except to give effect to a transaction
permitted by subsection (h) above or subsection (j) below, provided, further, that neither the
Borrower nor any Restricted Subsidiary shall sell, assign, transfer, lease, convey or otherwise
dispose of any property, whether now owned or hereafter acquired, or any income or profits
therefrom, or enter into any agreement to do so, except:




(A) the sale of property for consideration not less than the Fair Market Value thereof
so long as cash consideration resulting from such sale shall be (x) in an amount determined
by the Borrower for any sale the consideration of which is $10,000,000 or less, or, together
with all other such sales under this clause (x), $25,000,000 or less, or (y) for all other
sales, not less than 90% of the aggregate consideration resulting from such sale;




(B) the transfer of assets from (i) the Borrower to any Subsidiary or (ii) a Restricted
Subsidiary to the Borrower or any other Subsidiary;




(C) the transfer of property constituting an investment otherwise permitted under
Section 8.02(d);




(D) the sale of electricity and natural gas and other property in the ordinary course
of the Borrower’s and the Restricted Subsidiaries’ respective businesses consistent with
past practice;




(E) any transfer of an interest in receivables and related security, accounts or notes
receivable on a limited recourse basis in connection with the incurrence of Off-Balance
Sheet Liabilities, provided, that such transfer qualifies as a legal sale and as a sale
under GAAP and the incurrence of such Off-Balance Sheet Liabilities is permitted under
Section 8.02(n);




(F) the disposition of equipment if such equipment is obsolete or no longer useful in
the ordinary course of the Borrower’s or such Restricted Subsidiary’s business; and




(G) the sale of assets described on Schedule III hereto.



(j) Maintenance of Ownership of Restricted Subsidiaries. Sell, transfer, assign or otherwise
dispose of any shares of capital stock or other ownership interests of any Restricted Subsidiary or
any warrants, rights or options to acquire such capital stock or other ownership interests, or
permit any Restricted Subsidiary to issue, sell, transfer, assign or otherwise dispose of any
shares of its capital stock or other ownership interests or the capital stock or other ownership
interests of any other Restricted Subsidiary (other than CMS Generation) or any warrants, rights or
options to acquire such capital stock or other ownership interests, except to give effect to a
transaction permitted by subsection (d), (h) or (i) above.



(k) Amendment of Tax Sharing Agreement. Directly or indirectly, amend, modify, supplement,
waive compliance with, seek a waiver under, or assent to noncompliance with, any term, provision or
condition of the Tax Sharing Agreement if the effect of such amendment, modification, supplement,
waiver or assent is to (i) reduce materially any amounts otherwise payable to, or increase
materially any amounts otherwise owing or payable by, the Borrower thereunder, or (ii) change
materially the timing of any payments made by or to the Borrower thereunder.



(l) Conduct of Business. Engage, or permit any Restricted Subsidiary to engage, in any
business other than (a) the business engaged in by the Borrower and its Subsidiaries on the date
hereof, and (b) any business or activities which are substantially similar, related or incidental
thereto.



(m) Organizational Documents. Amend, modify or otherwise change, or permit any Restricted
Subsidiary to amend, modify or otherwise change any of the terms or provisions in any of their
respective certificate of incorporation and by-laws (or comparable constitutive documents) as in
effect on the Closing Date in any manner adverse to the interests of the Lenders.



(n) Off-Balance Sheet Liabilities. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries (other than Consumers and its Subsidiaries) to create, incur, assume or suffer to
exist, Off-Balance Sheet Liabilities (exclusive of lease obligations otherwise permitted under
Section 8.02(c)) in the aggregate in excess of $775,000,000 at any time.



SECTION 8.03. Reporting Obligations. So long as any Loan or any other amount payable
hereunder or under any Promissory Note shall remain unpaid, any Letter of Credit shall remain
outstanding or any Lender shall have any Commitment, the Borrower will, unless the Required Lenders
shall otherwise consent in writing, furnish to the Administrative Agent (for delivery to each
Lender), the following:



(a) as soon as possible and in any event within five days after the Borrower knows or should
have reason to know of the occurrence of each Default or Event of Default continuing on the date of
such statement, a statement of the chief financial officer or chief accounting officer of the
Borrower setting forth details of such Default or Event of Default and the action that the Borrower
proposes to take with respect thereto;



(b) as soon as available and in any event within 60 days after the end of each of the first
three quarters of each fiscal year of the Borrower, (i) a consolidated balance sheet and
consolidated statements of income and retained earnings and of cash flows of the Borrower and its
Subsidiaries as at the end of such quarter and for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter (which requirement shall be deemed satisfied by
the delivery of the Borrower’s quarterly report on Form 10-Q for such quarter), all in reasonable
detail and duly certified (subject to year-end audit adjustments) by the chief financial officer or
chief accounting officer of the Borrower as fairly presenting the financial condition of the
Borrower and its Subsidiaries as at such date and the results of the Borrower and its Subsidiaries
for such periods and having been prepared in accordance with GAAP, (ii) a consolidated balance
sheet and consolidated statements of income and retained earnings and of cash flows of Consumers
and its Subsidiaries as at the end of such quarter and for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter (which requirement shall be deemed
satisfied by the delivery of the Borrower’s quarterly report on Form 10-Q for such quarter), all in
reasonable detail and duly certified (subject to year-end audit adjustments) by the chief financial
officer or chief accounting officer of Consumers as fairly presenting the financial condition of
Consumers and its Subsidiaries as at such date and the results of Consumers and its Subsidiaries
for such periods and having been prepared in accordance with GAAP, (iii) a schedule (substantially
in the form of Exhibit E appropriately completed) of (1) the computations used by the Borrower in
determining compliance with the covenants contained in Sections 8.01(i) and 8.01(j), (2) all
Project Finance Debt of the Borrower and the Consolidated Subsidiaries, together with the
Borrower’s Ownership Interest in each such Consolidated Subsidiary and (3) all Support Obligations
of the Borrower of the types described in clauses (iv) and (v) of the definition of Support
Obligations (whether or not each such Support Obligation or the primary obligation so supported is
fixed, conclusively determined or reasonably quantifiable), to the extent such Support Obligations
have not been previously disclosed as “Consolidated Debt” pursuant to clause (1) above, and (iv) a
certificate of the chief financial officer or chief accounting officer of the Borrower stating that
no Default or Event of Default has occurred and is continuing or, if a Default or Event of Default
has occurred and is continuing, a statement as to the nature thereof and the action that the
Borrower proposes to take with respect thereto;



(c) as soon as available and in any event within 120 days after the end of each fiscal year of
the Borrower, a copy of the Annual Report on Form 10-K (or any successor form) for the Borrower and
its Subsidiaries for such year, including therein (i) a consolidated balance sheet of the Borrower
and its Subsidiaries as of the end of such fiscal year and consolidated statements of income and
retained earnings and of cash flows of the Borrower and its Subsidiaries for such fiscal year,
accompanied by a report thereon of a nationally-recognized independent public accounting firm, and
(ii) a consolidated balance sheet of Consumers and its Subsidiaries as of the end of such fiscal
year and consolidated statements of income and retained earnings and of cash flows of Consumers and
its Subsidiaries for such fiscal year, accompanied by a report thereon of a nationally-recognized
independent public accounting firm, together with (iii) a schedule (substantially in the form of
Exhibit E appropriately completed) of (1) the computations used by such accounting firm in
determining, as of the end of such fiscal year, compliance with the covenants contained in Sections
8.01(i) and 8.01(j), (2) all Project Finance Debt of the Borrower and the Consolidated
Subsidiaries, together with the Borrower’s Ownership Interest in each such Consolidated Subsidiary
and (3) all Support Obligations of the Borrower of the types described in clauses (iv) and (v) of
the definition of Support Obligations (whether or not each such Support Obligation or the primary
obligation so supported is fixed, conclusively determined or reasonably quantifiable), to the
extent such Support Obligations have not been previously disclosed as “Consolidated Debt” pursuant
to clause (1) above, and (iv) a certificate of the chief financial officer or chief accounting
officer of the Borrower stating that no Default or Event of Default has occurred and is continuing
or, if a Default or Event of Default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower proposes to take with respect thereto;



(d) as soon as possible and in any event (A) within 30 days after the Borrower knows or has
reason to know that any Plan Termination Event described in clause (i) of the definition of Plan
Termination Event with respect to any Plan of the Borrower or any ERISA Affiliate of the Borrower
has occurred and could reasonably be expected to result in a material liability to the Borrower and
(B) within 10 days after the Borrower knows or has reason to know that any other Plan Termination
Event with respect to any Plan of the Borrower or any ERISA Affiliate of the Borrower has occurred
and could reasonably be expected to result in a material liability to the Borrower, a statement of
the chief financial officer or chief accounting officer of the Borrower describing such Plan
Termination Event and the action, if any, which the Borrower proposes to take with respect thereto;



(e) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from the
PBGC, copies of each notice received by the Borrower or any such ERISA Affiliate of the PBGC’s
intention to terminate any Plan or to have a trustee appointed to administer any Plan;



(f) promptly and in any event within 30 days after the filing thereof with the Internal
Revenue Service, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500
Series) with respect to each Plan (if any) to which the Borrower is a contributing employer;



(g) promptly after receipt thereof by the Borrower or any of its ERISA Affiliates from a
Multiemployer Plan sponsor, a copy of each notice received by the Borrower or any of its ERISA
Affiliates concerning the imposition or amount of withdrawal liability in an aggregate principal
amount of at least $250,000 pursuant to Section 4202 of ERISA in respect of which the Borrower is
reasonably expected to be liable;



(h) promptly after the Borrower becomes aware of the occurrence thereof, notice of all
actions, suits, proceedings or other events of the type described in Section 7.01(f);



(i) promptly after the sending or filing thereof, notice to the Administrative Agent and each
Lender of any sending or filing of all proxy statements, financial statements and reports which the
Borrower sends to its public security holders (if any), all regular, periodic and special reports
which the Borrower files with the Securities and Exchange Commission or any governmental authority
which may be substituted therefor, or with any national securities exchange, pursuant to the
Exchange Act, and all final prospectuses with respect to any securities issued or to be issued by
the Borrower or any of its Subsidiaries;



(j) as soon as possible and in any event within five days after the occurrence of any material
default under any material agreement to which the Borrower or any of its Subsidiaries is a party,
which default would materially adversely affect the business, property, financial condition,
results of operations or prospects of the Borrower and its Subsidiaries, considered as a whole, any
of which is continuing on the date of such certificate, a certificate of the chief financial
officer of the Borrower setting forth the details of such material default and the action which the
Borrower or any such Subsidiary proposes to take with respect thereto; and



(k) promptly after requested, such other information respecting the business, properties,
condition or operations, financial or otherwise, of the Borrower and its Subsidiaries as any Agent
or the Required Lenders may from time to time reasonably request in writing.



The Borrower shall be deemed to have fulfilled its obligations pursuant to clauses (b), (c), (h)
and (i) above to the extent the Administrative Agent (and the Lenders, if applicable) receives an
electronic copy of the requisite document or documents in a format reasonably acceptable to the
Administrative Agent, provided that a tangible copy of each requisite document delivered
electronically is made available by the Borrower promptly upon request by any Agent or Lender.



ARTICLE IX




DEFAULTS




SECTION 9.01. Events of Default. If any of the following events (each an “Event of Default”)
shall occur and be continuing, the Administrative Agent and the Lenders shall be entitled to
exercise the remedies set forth in Section 9.02:



(a) The Borrower shall fail to pay (i) any principal of any Loan when due, (ii) any
reimbursement obligation under Section 4.04(a) within one (1) Business Day after such amount shall
have become due or (iii) any interest, fees or other Obligations (other than any principal of any
Loan or any reimbursement obligation under Section 4.04(a)) payable hereunder within five (5)
Business Days after such interest, fees or other amounts shall have become due; or



(b) Any representation or warranty made by or on behalf of the Borrower in any Loan Document
or certificate or other writing delivered pursuant thereto shall prove to have been incorrect in
any material respect when made or deemed made; or



(c) The Borrower or any of its Subsidiaries shall fail to perform or observe any term or
covenant on its part to be performed or observed contained in Section 8.01(c), (h), (i), (j) or (m)
or in Section 8.02 (and the Borrower, each Lender and each Agent hereby agrees that an Event of
Default under this subsection (c) shall be given effect as if the defaulting Subsidiary were a
party to this Agreement); or



(d) The Borrower or any of its Subsidiaries shall fail to perform or observe any other term or
covenant on its part to be performed or observed contained in any Loan Document and any such
failure shall remain unremedied, after written notice thereof shall have been given to the Borrower
by the Administrative Agent, for a period of 20 Business Days (and the Borrower, each Lender and
each Agent hereby agrees that an Event of Default under this subsection (d) shall be given effect
as if the defaulting Subsidiary were a party to this Agreement); or



(e) The Borrower, any Restricted Subsidiary or Consumers shall fail to pay any of its Debt
(including any interest or premium thereon but excluding Debt incurred under this Agreement)
aggregating, in the case of the Borrower and each Restricted Subsidiary, $25,000,000 or more or, in
the case of Consumers, $50,000,000 or more, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable
grace period, if any, specified in any agreement or instrument relating to such Debt; or any other
default under any agreement or instrument relating to any such Debt (including any “amortization
event” or event of like import in connection with any Off-Balance Sheet Liabilities), or any other
event, shall occur and shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such default or event is (i) to accelerate, or to permit
the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled required prepayment) prior
to the stated maturity thereof; unless in each such case the obligee under or holder of such Debt
shall have waived in writing such circumstance so that such circumstance is no longer continuing,
or (ii) with respect to any such event occurring in connection with any Off-Balance Sheet
Liabilities aggregating $25,000,000 or more, to terminate the reinvestment of collections or
proceeds of receivables and related security under any agreements or instruments related thereto
(other than a termination resulting solely from the request of the Borrower or its Subsidiaries);
or



(f) (i) The Borrower, any Restricted Subsidiary or Consumers shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay its debts generally,
or shall make an assignment for the benefit of creditors; or (ii) any proceeding shall be
instituted by or against the Borrower, any Restricted Subsidiary or Consumers seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of its debts under any law relating to bankruptcy,
insolvency, or reorganization or relief of debtors, or seeking the entry of an order for relief or
the appointment of a receiver, trustee, or other similar official for it or for any substantial
part of its property and, in the case of a proceeding instituted against the Borrower, either such
proceeding shall remain undismissed or unstayed for a period of 60 days or any of the actions
sought in such proceeding (including the entry of an order for relief against the Borrower, a
Restricted Subsidiary or Consumers or the appointment of a receiver, trustee, custodian or other
similar official for the Borrower, such Restricted Subsidiary or Consumers or any of its property)
shall occur; or (iii) the Borrower, any Restricted Subsidiary or Consumers shall take any corporate
or other action to authorize any of the actions set forth above in this subsection (f); or



(g) Any judgment or order for the payment of money in excess of $25,000,000 shall be rendered
against the Borrower or any Restricted Subsidiary or any of their respective properties and either
(i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order
or (ii) there shall be any period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or



(h) Any material provision of any Loan Document, after execution hereof or delivery thereof
under Article VI, shall for any reason other than the express terms hereof or thereof cease to be
valid and binding on any party thereto; or the Borrower shall so assert in writing; or



(i) At any time, for any reason (except to the extent permitted by the terms of the Loan
Documents or due to any failure by the Collateral Agent to take any action on its part to be
performed under applicable law in order to maintain the perfection or priority of any such Liens),
(i) the Liens intended to be created under any of the Loan Documents with respect to Collateral
having a Fair Market Value of $10,000,000 or more become, or the Borrower or any of its
Subsidiaries seeks to render such Liens, invalid or unperfected, or (ii) Liens in favor of the
Collateral Agent for the benefit of the Lenders contemplated by the Loan Documents with respect to
Collateral having a Fair Market Value of $10,000,000 or more shall, at any time, for any reason, be
invalidated or otherwise cease to be in full force and effect, or such Liens shall not have the
priority contemplated by this Agreement or the Loan Documents.



SECTION 9.02. Remedies. If any Event of Default has occurred and is continuing, then the
Administrative Agent or the Collateral Agent, as applicable, shall at the request, or may with the
consent, of the Required Lenders, upon notice to the Borrower (i) declare the Commitments and the
obligation of each Lender to make or Convert Loans (other than Loans under Section 4.04) and of any
Issuing Bank to issue Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, (ii) declare the principal amount outstanding hereunder, all interest thereon and all
other amounts payable under this Agreement and the other Loan Documents to be forthwith due and
payable, whereupon the principal amount outstanding hereunder, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the Borrower, (iii) make
demand on the Borrower to pay, and the Borrower will be obligated to, upon such demand without any
further notice or act, pay to the Administrative Agent the Cash Collateral Required Amount, which
funds shall be deposited to the Cash Collateral Account as security for the LC Outstandings and
(iv) exercise in respect of any and all Collateral, in addition to the other rights and remedies
provided for herein or otherwise available to the Administrative Agent, the Collateral Agent or the
Lenders, all the rights and remedies of a secured party on default under the Uniform Commercial
Code in effect in the State of New York and in effect in any other jurisdiction in which Collateral
is located at that time; provided, however, that in the event of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code, (A) the Commitments and
the obligation of each Lender to make or Convert Loans and of any Issuing Bank to issue Letters of
Credit shall automatically be terminated, (B) the principal amount outstanding hereunder, all such
interest and all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower, and (C) the Administrative Agent shall make demand on the Borrower to pay, and the
Borrower shall be obligated to, upon such demand without any further notice or act, pay to the
Administrative Agent the Cash Collateral Required Amount, which funds shall be deposited to the
Cash Collateral Account as security for the LC Outstandings. Notwithstanding anything to the
contrary contained herein, no notice given or declaration made by the Administrative Agent pursuant
to this Section 9.02 shall affect (i) the obligation of any Issuing Bank to make any payment under
any Letter of Credit issued by such Issuing Bank in accordance with the terms of such Letter of
Credit or (ii) the participatory interest of each Lender in each such payment. If at any time
while any Event of Default is continuing, the Administrative Agent determines that the Cash
Collateral Required Amount is greater than zero, the Administrative Agent may make demand on the
Borrower to pay, and the Borrower will be obligated to, upon such demand without any further notice
or act, pay to the Administrative Agent the Cash Collateral Required Amount, which funds shall be
deposited to the Cash Collateral Account as security for the LC Outstandings.



ARTICLE X




THE AGENTS




SECTION 10.01. Authorization and Action.



(a) Each of the Lenders and each of the Issuing Banks hereby irrevocably appoints each Agent
(other than the Syndication Agent and the Documentation Agents) as its agent and authorizes each
such Agent to take such actions on its behalf and to exercise such powers as are delegated to such
Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably
incidental thereto.



(b) Any Lender or Issuing Bank serving as an Agent hereunder shall have the same rights and
powers in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank, as
applicable, and may exercise the same as though it were not an Agent, and such Lender or Issuing
Bank, as applicable, and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any of its Subsidiaries or other Affiliate
thereof as if it were not an Agent hereunder.



(c) No Agent shall have any duties or obligations except those expressly set forth in the Loan
Documents. Without limiting the generality of the foregoing, (i) no Agent shall be subject to any
fiduciary or other implied duties, regardless of whether a Default or an Event of Default has
occurred and is continuing, (ii) no Agent shall have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers expressly contemplated by
the Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 11.01), and (iii) except as expressly set forth in the Loan Documents, no Agent
shall have any duty to disclose, or shall be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries or Affiliates that is communicated to or
obtained by the Lender serving as such Agent or any of its Affiliates in any capacity. No Agent
shall 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 11.01 or any other provision of this Agreement) or in the
absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have
knowledge of any Default or Event of Default unless and until written notice thereof is given to
such Agent by the Borrower or a Lender (in which case such Agent shall promptly give a copy of such
written notice to the Lenders and the other Agents). No Agent shall be responsible for or have any
duty to ascertain or inquire into (A) any statement, warranty or representation made in or in
connection with any Loan Document, (B) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (C) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan Document, (D) the
validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (E) the satisfaction of any condition set forth in Article VI or
elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be
delivered to such Agent. Neither the Syndication Agent nor the Documentation Agents shall have any
duties or obligations in such capacity under any of the Loan Documents.



(d) Each 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. Each 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. Each 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.



(e) Each Agent may perform any and all its duties and exercise its rights and powers by or
through one or more sub-agents appointed by such Agent. Each 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 subsections of this Section 10.01 shall apply
to any such sub-agent and to the Related Parties of each 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 an Agent.



(f) Subject to the appointment and acceptance of a successor Agent as provided in this
subsection (f), any Agent may resign at any time by notifying the Lenders, the Issuing Banks 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 Agent gives notice of its resignation, then the retiring Agent may, on behalf of the
Lenders and the Issuing Banks, appoint a successor Agent which shall be a Lender with an office in
New York, New York, or an Affiliate of any such Lender. Upon the acceptance of its appointment as
an Agent hereunder by a successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the Borrower to a
successor Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of
this Article and Section 11.04 shall continue in effect for the benefit of such retiring 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 an Agent.



(g) Each Lender acknowledges that it has independently and without reliance upon any 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 any 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 other Loan
Document or any related agreement or any document furnished hereunder or thereunder. Each Lender
agrees (except as provided in Section 11.05) that it will not take any legal action, nor institute
any actions or proceedings, against the Borrower or any other obligor hereunder or with respect to
any Collateral, without the prior written consent of the Required Lenders. Without limiting the
generality of the foregoing, no Lender may accelerate or otherwise enforce its portion of the
Loans, or unilaterally terminate its Commitment except in accordance with Section 9.02.



(h) 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 C.F.R. 103.121 (as hereafter amended or replaced, the
“CIP Regulations”), or any other applicable laws, rules, regulations or orders of any
governmental authority, including any programs involving any of the following items relating to or
in connection with any of the Borrower, its Subsidiaries, its Affiliates or their agents, the Loan
Documents or the transactions hereunder or contemplated hereby: (a) any identity verification
procedures, (b) any recordkeeping, (c) comparisons with government lists, (d) customer notices or
(e) other procedures required under the CIP Regulations or such other laws, rules, regulations or
orders.



(i) Within 10 days after the Closing Date and at such other times as are required under the
USA Patriot Act, each Lender and each of its assignees and participants that are not incorporated
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.



SECTION 10.02. Indemnification. The Lenders agree to indemnify each Agent (to the extent not
reimbursed by the Borrower), ratably according to the respective Percentages of the Lenders, from
and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against such Agent in any way relating to or arising out of this Agreement
or any action taken or omitted by such Agent under this Agreement, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse the
Agents and the Arrangers promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Agents and the Arrangers in connection with the
preparation, syndication, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement to the extent that the Agents and the
Arrangers are entitled to reimbursement for such expenses pursuant to Section 11.04 but are not
reimbursed for such expenses by the Borrower.



SECTION 10.03. Concerning the Collateral and the Loan Documents.



(a) Each Lender and Issuing Bank authorizes and directs the Collateral Agent to enter into the
Loan Documents relating to the Collateral for the benefit of the Lenders and the Issuing Banks.
Each Lender and Issuing Bank agrees that any action taken by any Agent or the Required Lenders (or,
where required by the express terms of this Agreement, a greater proportion of the Lenders) in
accordance with the provisions of this Agreement or the other Loan Documents, and the exercise by
any Agent or the Required Lenders (or, where so required, such greater proportion) of the powers
set forth herein or therein, together with such other powers as are reasonably incidental thereto,
shall be authorized and binding upon all of the Lenders and the Issuing Banks. Without limiting
the generality of the foregoing, the Collateral Agent shall have the sole and exclusive right and
authority to (i) act as the disbursing and collecting agent for the Lenders and the Issuing Banks
with respect to all payments and collections arising in connection with this Agreement and the Loan
Documents relating to the Collateral; (ii) execute and deliver each Loan Document relating to the
Collateral and accept delivery of each such agreement delivered by the Borrower, including any
intercreditor agreement referenced in Section 8.02(a)(xiii); (iii) act as collateral agent for the
Lenders and the Issuing Banks for purposes of the perfection of all Liens created by such
agreements and all other purposes stated therein; provided, however, the Collateral Agent hereby
appoints, authorizes and directs the other Agents, the Lenders and the Issuing Banks to act as
collateral sub-agent for the Collateral Agent, the Lenders and the Issuing Banks for purposes of
the perfection of all Liens with respect to any property of the Borrower or any of its Subsidiaries
at any time in the possession of such Agent, such Lender or such Issuing Bank, including, without
limitation, deposit accounts maintained with, and cash held by, such Agent, such Lender or such
Issuing Bank; (iv) manage, supervise and otherwise deal with the Collateral; (v) take such action
as is necessary or desirable to maintain the perfection and priority of the Liens created or
purported to be created by the Loan Documents; and (vi) except as may be otherwise specifically
restricted by the terms of this Agreement or any other Loan Document, exercise all remedies given
to the Collateral Agent, the Lenders or the Issuing Banks with respect to the Collateral under the
Loan Documents relating thereto, applicable law or otherwise.



(b) The Administrative Agent, each Lender and each Issuing Bank hereby directs, in accordance
with the terms of this Agreement, the Collateral Agent to release any Lien held by the Collateral
Agent for the benefit of the Lenders and the Issuing Banks:




(i) against all of the Collateral, upon payment in full of the Obligations under the
Loan Documents and termination of this Agreement;




(ii) against all of the Collateral (other than the “Collateral” under (and as defined
in) the Cash Collateral Agreement), upon satisfaction of the conditions set forth in Section
8.01(n)(ii);




(iii) against any part of the Collateral sold or disposed of by the Borrower, if such
sale or disposition is otherwise permitted under this Agreement, as certified to the
Collateral Agent by the Borrower, or is otherwise consented to by the Required Lenders;




(iv) against any part of the “Collateral” (as defined in the Cash Collateral Agreement)
to the extent required pursuant to the Cash Collateral Agreement; and/or




(v) against any of the Collateral upon the occurrence of any event described in Section
8.10 of the Borrower Pledge Agreement.



The Administrative Agent, each Lender and each Issuing Bank hereby directs the Collateral Agent to
execute and deliver or file such termination and partial release statements and do such other
things as are necessary to release Liens to be released pursuant to this Section 10.03(b) promptly
upon the effectiveness of any such release.



(c) Each Lender and each Issuing Bank hereby directs the Administrative Agent and the
Collateral Agent to, upon the satisfaction of the conditions precedent set forth in Section 6.01,
(i) release the Guarantors (as defined in the Existing Credit Agreement) from, and terminate, the
Guaranty (as defined in the Existing Credit Agreement), (ii) release Enterprises and the Grantors
(as defined in the Existing Credit Agreement) from, release all Liens granted pursuant to and
terminate the Subsidiary Pledge Agreement (as defined in the Existing Credit Agreement) and (iii)
release any Lien held by the Collateral Agent for the benefit of the Lenders and the Issuing Banks
in any assets of the Borrower other than the capital stock of Consumers and related property
pledged by the Borrower pursuant to the Borrower Pledge Agreement.



ARTICLE XI




MISCELLANEOUS




SECTION 11.01. Amendments, Etc. No amendment or waiver of any provision of any Loan Document,
nor consent to any departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and signed by all the
Lenders, do any of the following: (i) waive, modify or eliminate any of the conditions specified
in Article VI, (ii) increase the Commitments of the Lenders that may be maintained hereunder (other
than pursuant to Section 2.03(d)), (iii) reduce or forgive the principal of, or interest on, any
Loan, the commitment fee payable pursuant to Section 2.02(a) or other any fees or other amounts
payable hereunder (other than fees payable to the Administrative Agent pursuant to Section
2.02(b)), (iv) postpone any date fixed for any payment of principal of, or interest on, any Loan or
any fees or other amounts payable hereunder (other than fees payable to the Administrative Agent
pursuant to Section 2.02(b)) (except with respect to any modifications of the provisions relating
to amounts, timing or application of prepayments of Loans and other Obligations which modification
shall require only the approval of the Required Lenders), (v) change the definition of “Required
Lenders” contained in Section 1.01 or change any other provision that specifies the percentage of
the Commitments or of the aggregate unpaid principal amount of the Loans or the number of Lenders
which shall be required for the Lenders or any of them to take any action hereunder, (vi) amend,
waive or modify Section 2.03(b) or this Section 11.01, (vii) release the Collateral Agent’s Lien on
all of the Collateral or any portion of the Collateral in excess of $50,000,000 (except as provided
in Section 10.03(b)), (viii) extend the Commitment Termination Date or the Maturity Date, (ix)
amend, waive or modify any provision of Section 5.01(g), 5.05 or 5.07 that provides for or ensures
ratable distributions to the Lenders or (x) amend, waive or modify any provision of Section 4.02
that requires each Letter of Credit to have a stated expiry date no later than five (5) Business
Days (or, in the case of any commercial Letter of Credit, thirty (30) Business Days) prior to the
Commitment Termination Date; and provided, further, that no amendment, waiver or consent shall,
unless in writing and signed by each affected Agent in addition to the Lenders required above to
take such action, affect the rights or duties of any Agent under this Agreement or any other Loan
Document; and provided, further, that no amendment, waiver or consent shall, unless in writing and
signed by each Issuing Bank in addition to the Lenders required above to take such action, affect
the rights or duties of any Issuing Bank under this Agreement or any other Loan Document. Any
request from the Borrower for any amendment, waiver or consent under this Section 11.01 shall be
addressed to the Administrative Agent.



SECTION 11.02. Notices, Etc. Subject to Section 11.14, all notices and other communications
provided for hereunder and under the other Loan Documents shall be in writing and mailed, sent by
courier service, telecopied or delivered, (i) if to Borrower, at its address at One Energy Plaza,
Jackson, Michigan 49201, Attention: James E. Brunner, General Counsel, with a copy to Laura L.
Mountcastle, Vice President, Investor Relations and Treasurer, One Energy Plaza, Jackson, Michigan
49201; (ii) if to any Bank, at the address set forth on the signature page hereto with respect to
such Bank; (iii) if to any Issuing Bank, at its address specified in the Issuing Bank Agreement to
which it is a party; (iv) if to any Lender other than a Bank, at its Applicable Lending Office
specified in the Lender Assignment or Assignment and Acceptance pursuant to which it became a
Lender; (v) if to the Administrative Agent with respect to funding or payment of any amounts
hereunder, at its address at 2 Penns Way, Suite 200, New Castle, DE 19270, Attn: Dawn Conover,
Telephone No. (302) 894-6063, Telecopy No. (302) 894-6120; (vi) if to the Administrative Agent for
any other reason or to the Collateral Agent, at its address at 388 Greenwich Street, New York, New
York 10003, Attn: Nick McKee, Telephone No. (212) 816-8592, Telecopy No. (212) 816-8098; or, as to
each party, at such other address as shall be designated by such party in a written notice to the
other parties. Each such notice or other communication shall be effective (i) if given by telecopy
transmission, when transmitted to the telecopy number specified in this Section 11.02 and
confirmation of receipt is received, (ii) if given by mail, 5 days after such communication is
deposited in the mails with first class postage prepaid, addressed as aforesaid, or (iii) if given
by any other means, when delivered at the address specified in this Section 11.02, except that
notices and communications to any Agent pursuant to Article II, III, or X shall not be effective
until received by such Agent.



SECTION 11.03. No Waiver of Remedies. No failure on the part of the Borrower, any Lender, any
Issuing Bank or any Agent to exercise, and no delay in exercising, any right hereunder or under any
other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of any other right.
The remedies herein provided are cumulative and not exclusive of any remedies provided by law.



SECTION 11.04. Costs, Expenses and Indemnification.



(a) The Borrower agrees to (i) reimburse on demand all reasonable costs and expenses of each
Agent and each Arranger (including reasonable fees and expenses of counsel to the Agents) in
connection with (A) the preparation, syndication, negotiation, execution and delivery of the Loan
Documents and (B) the care and custody of any and all collateral, and any proposed modification,
amendment, or consent relating to any Loan Document, and (ii) to pay on demand all reasonable costs
and expenses of each Agent and, on and after the date upon which the principal amount outstanding
hereunder becomes or is declared to be due and payable pursuant to Section 9.02 or an Event of
Default specified in Section 9.01(a) shall have occurred and be continuing, each Lender (including
fees and expenses of counsel to the Agents, special Michigan counsel to the Lenders and, from and
after such date, counsel for each Lender (including the allocated costs and expenses of in-house
counsel)) in connection with the workout, restructuring or enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the other Loan Documents and the
other documents to be delivered hereunder.



(b) The Borrower agrees to indemnify each Agent, each Arranger, each Issuing Bank, each
Lender, and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnified Person”) against, and hold each Indemnified Person harmless from, any and all losses,
claims, damages, liabilities and related expenses, including the reasonable fees, charges and
disbursements of any counsel for any Indemnified Person, incurred by or asserted against any
Indemnified Person arising out of, in connection with, or as a result of (i) the execution or
delivery of any Loan Document or any other agreement or instrument contemplated hereby or thereby,
the performance by the parties to the Loan Documents of their respective obligations thereunder or
the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or other
Extension of Credit or the use or proposed use of the proceeds therefrom, (iii) any actual or
alleged presence or release of any Hazardous Substance 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, (iv) the use of the Platform as contemplated herein, or (v)
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
Indemnified Person is a party thereto; provided, that such indemnity shall not, as to any
Indemnified Person, be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnified
Person. The Borrower shall pay any civil penalty or fine assessed by the Office of Foreign Assets
Control against any Indemnified Person and all reasonable costs and expenses (including reasonable
fees and expenses of counsel to such Indemnified Persons) incurred in connection with defense
thereof, as a result of acts or omissions of the Borrower contrary to the representation made in
Section 7.01(t).



(c) The Borrower’s other obligations under this Section 11.04 shall survive the repayment of
all amounts owing to the Lenders, the Issuing Banks and the Agents under the Loan Documents and the
termination of the Commitments. If and to the extent that the obligations of the Borrower under
this Section 11.04 are unenforceable for any reason, the Borrower agrees to make the maximum
contribution to the payment and satisfaction thereof which is permissible under applicable law.



(d) To the extent permitted by applicable law, the Borrower shall not assert, and the Borrower
hereby waives, any claim against each Lender, each Agent and their respective Affiliates,
directors, employees, attorneys, agents or sub-agents, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or
not the claim therefor is based on contract, tort or duty imposed by any applicable legal
requirement) arising out of, in connection with, arising out of, as a result of, or in any way
related to, this Agreement or any Loan Document or any agreement or instrument contemplated hereby
or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any
Borrowing or the use of the proceeds thereof or any act or omission or event occurring in
connection therewith, and the Borrower hereby waives, releases and agrees not to sue upon any such
claim or any such damages, whether or not accrued and whether or not known or suspected to exist in
its favor.



SECTION 11.05. Right of Set-off.



(a) Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the
making of the request or the granting of the consent specified by Section 9.02 to authorize the
Administrative Agent to declare the principal amount outstanding hereunder to be due and payable
pursuant to the provisions of Section 9.02, each Lender and Issuing Bank 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 indebtedness at any time owing by such Lender or such Issuing Bank, as applicable, to or for
the credit or the account of the Borrower, against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and the Promissory Notes held by such Lender or the
Issuing Bank Agreement to which such Issuing Bank is a party, as the case may be, irrespective of
whether or not such Lender or such Issuing Bank, as applicable, shall have made any demand under
this Agreement or such Promissory Notes or such Issuing Bank Agreement, as the case may be, and
although such obligations may be unmatured. Each Lender and Issuing Bank agrees to notify promptly
the Borrower after any such set-off and application made by such Lender or Issuing Bank, as the
case may be, provided that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender and Issuing Bank under this Section 11.05 are
in addition to other rights and remedies (including other rights of set-off) which such Lender and
Issuing Bank may have.



(b) The Borrower agrees that it shall have no right of off-set, deduction or counterclaim in
respect of its obligations hereunder, and that the obligations of the Lenders hereunder are several
and not joint. Nothing contained herein shall constitute a relinquishment or waiver of the
Borrower’s rights to any independent claim that the Borrower may have against any Agent or any
Lender for such Agent’s or such Lender’s, as the case may be, gross negligence or willful
misconduct, but no Lender shall be liable for any such conduct on the part of any Agent or any
other Lender, and no Agent shall be liable for any such conduct on the part of any Lender or any
other Agent.



SECTION 11.06. Binding Effect. This Agreement shall become effective when it shall have been
executed by the Borrower and the Agents and when the Administrative Agent shall have been notified
by each Bank that such Bank has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Agents and each Lender and their respective successors and assigns,
except that, the Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.



SECTION 11.07. Assignments and Participation.



(a) Any Lender may sell participations in all or a portion of its rights and obligations under
this Agreement pursuant to subsection (b) below and any Lender may assign all or any part of its
rights and obligations under this Agreement pursuant to subsection (c) below.



(b) Any Lender may sell participations to one or more banks or other entities (each a
“Participant”) in all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment and its outstanding Loan), provided that (i)
such Lender’s obligations under this Agreement (including, without limitation, its Commitment to
the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii) such Lender shall remain
the holder of the Loans of such Lender for all purposes of this Agreement and (iv) the Borrower
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement. Each Lender shall retain the sole right to approve, without
the consent of any Participant, any amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver with respect to any Loan or Commitment
in which such Participant has an interest which would require consent of all of the Lenders
pursuant to the terms of Section 11.01 or of any other Loan Document. The Borrower agrees that
each Participant shall be deemed to have the right of set-off provided in Section 11.05 in respect
of its participating interest in amounts owing under the Loan Documents to the same extent as if
the amount of its participating interest were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right of set-off provided in Section 11.05
with respect to the amount of participating interests sold to each Participant. The Lenders agree
to share with each Participant, and each Participant, by exercising the right of set-off provided
in Section 11.05, agrees to share with each Lender, any amount received pursuant to the exercise of
its right of set-off, such amounts to be shared in accordance with Section 11.05 as if each
Participant were a Lender. The Borrower further agrees that each Participant shall be entitled to
the benefits of Sections 5.04 and 5.06 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to Section 11.07(c); provided that (i) a Participant shall not
be entitled to receive any greater payment under Section 5.04 or 5.06 than the Lender who sold the
participating interest to such Participant would have received had it retained such interest for
its own account, unless the sale of such interest to such Participant is made with the prior
written consent of the Borrower, and (ii) any Participant not incorporated under the laws of the
United States of America or any State thereof agrees to comply with the provisions of Section 5.06
to the same extent as if it were a Lender.



(c) Any Lender may, in the ordinary course of its business and in accordance with applicable
law, with the consent of the Administrative Agent and each Issuing Bank (such consent not to be
unreasonably withheld or delayed), at any time assign to any other Lender or to any Eligible Bank
all or any part of its rights and obligations under this Agreement, provided, that the aggregate of
the Commitments and the principal amount the Loans subject to any such assignment (other than
assignments to a Federal Reserve Bank, or to any other Lender, or to any direct or indirect
contractual counterparties in swap agreements relating to the Loans to the extent required in
connection with the physical settlement of any Lender’s obligations pursuant thereto) shall be
$5,000,000 (or such lesser amount consented to by the Administrative Agent); provided, that, unless
such Lender is assigning all of its rights and obligations hereunder, after giving effect to such
assignment the assigning Lender shall have Commitments and Loans in the aggregate of not less than
$5,000,000 (unless otherwise consented to by the Administrative Agent).



(d) Any Lender may, in connection with any sale or participation or proposed sale or
participation pursuant to this Section 11.07 disclose to the purchaser or Participant or proposed
purchaser or Participant any information relating to the Borrower furnished to such Lender by or on
behalf of the Borrower, provided that prior to any such disclosure of non-public information, the
purchaser or Participant or proposed purchaser or Participant (which Participant is not an
affiliate of a Lender) shall agree to preserve the confidentiality of any confidential information
(except any such disclosure as may be required by law or regulatory process) relating to the
Borrower received by it from such Lender.



(e) Assignments under this Section 11.07 shall be made pursuant to an agreement (a “Lender
Assignment”) substantially in the form of Exhibit F hereto or in such other form as may be agreed
to by the parties thereto and shall not be effective until a $3,500 fee has been paid to the
Administrative Agent by the assignee, which fee shall cover the cost of processing such assignment,
provided, that such fee shall not be incurred in the event of an assignment by any Lender of all or
a portion of its rights under this Agreement to (i) a Federal Reserve Bank, (ii) a Lender (iii) an
affiliate of the assigning Lender (which affiliate shall be an Eligible Bank) or (iv) to any direct
or indirect contractual counterparties in swap agreements relating to the Loans to the extent
required in connection with the physical settlement of any Lender’s obligations pursuant thereto.



(f) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing
from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option
to provide to the Borrower all or any part of any Loan that such Granting Lender is obligated to
make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute
a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Lender shall remain obligated
to make such Loan pursuant to the terms hereof, (iii) the Borrower shall not be required to pay any
amount under Section 5.06 that is greater than the amount which it would have been required to pay
had there been no grant to an SPC and (iv) any SPC (or assignee of an SPC) will comply, if
applicable, with the provisions contained in Section 5.06. No grant by any Granting Lender to an
SPC agreeing to provide a Loan or the making of such Loan by such SPC shall operate to relieve such
Granting Lender of its liabilities and obligations hereunder, except to the extent of the making of
such Loan by such SPC. The making of a Loan by an SPC hereunder shall utilize the Commitment of
the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender.
Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the Granting Lender).
In addition, each party hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that any SPC may (i) with notice to, but without the prior written consent of, the
Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or
a portion of its interests in any Loans to the Granting Lender or to any financial institutions
(consented to by the Administrative Agent in its sole discretion) providing liquidity and/or credit
support to or for the account of such SPC to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to the Loans to any rating
agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC. This Section 11.07(f) may not be amended without the written consent of
any SPC that holds an option to provide Loans. No recourse under any obligation, covenant, or
agreement of the SPC contained in this Agreement shall be had against any shareholder, officer,
agent or director of the SPC as such, by the enforcement of any assessment or by any proceeding, by
virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement is
a corporate obligation of the SPC and no personal liability shall attach to or be incurred by any
officer, agent or member of the SPC as such, or any of them under or by reason of any of the
obligations, covenants or agreements of the SPC contained in this Agreement, or implied therefrom,
and that any and all personal liability for breaches by the SPC of any such obligations, covenants
or agreements, either at law or by statute or constitution, of every such shareholder, officer,
agent or director is hereby expressly waived by all parties to this Agreement as a condition of and
consideration for the SPC entering into this Agreement; provided, however, that the foregoing shall
not relieve any such person or entity of any liability they might otherwise have as a result of
fraudulent actions or omissions taken by them. All parties to this Agreement acknowledge and agree
that the SPC shall only be liable for any claims that each of them may have against the SPC only to
the extent of the SPC’s assets. The provisions of this clause shall survive the termination of
this Agreement.



(g) 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 without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank; provided, that no such
pledge or assignment shall release such Lender from any of its obligations hereunder or substitute
any such pledgee or assignee for such Lender as a party hereto.



(h) The Administrative Agent shall maintain at its address referred to in Section 11.02 a copy
of each Lender Assignment and each Assumption and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Loans owing to, each Lender from time to time (the “Register”). The
entries in the Register shall be conclusive and binding for all purposes, absent manifest error,
and the Borrower, the Agents, the Issuing Banks and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrower, any Issuing Bank or any Lender at any reasonable
time and from time to time upon reasonable prior notice.



SECTION 11.08. Confidentiality. In connection with the negotiation and administration of this
Agreement and the other Loan Documents, the Borrower has furnished and will from time to time
furnish to the Agents, the Issuing Banks and the Lenders (each, a “Recipient”) written information
which is identified to the Recipient when delivered as confidential (such information, other than
any such information which (i) was publicly available, or otherwise known to the Recipient, at the
time of disclosure, (ii) subsequently becomes publicly available other than through any act or
omission by the Recipient or (iii) otherwise subsequently becomes known to the Recipient other than
through a Person whom the Recipient knows to be acting in violation of his or its obligations to
the Borrower, being hereinafter referred to as “Confidential Information”). The Recipient will not
knowingly disclose any such Confidential Information to any third party (other than to those
persons who have a confidential relationship with the Recipient), and will take all reasonable
steps to restrict access to such information in a manner designed to maintain the confidential
nature of such information, in each case until such time as the same ceases to be Confidential
Information or as the Borrower may otherwise instruct. It is understood, however, that the
foregoing will not restrict the Recipient’s ability to freely exchange such Confidential
Information with its Affiliates, prospective Participants in or assignees of the Recipient’s
position herein or direct or indirect counterparties (or their advisors) to any swap,
securitization or derivative transaction relating to the Obligations, but the Recipient’s ability
to so exchange Confidential Information shall be conditioned upon any such Person entering into an
agreement as to confidentiality similar to this Section 11.08. It is further understood that the
foregoing will not prohibit the disclosure of any or all Confidential Information if and to the
extent that such disclosure may be required (1) by a regulatory agency, self-regulatory body or
otherwise in connection with an examination of the Recipient’s records by appropriate authorities,
(2) pursuant to court order, subpoena or other legal process or in connection with any proceeding,
suit or other action relating to any Loan Document or (3) otherwise, as required by law; in the
event of any required disclosure under clause (2) or (3), above, the Recipient agrees to use
reasonable efforts to inform the Borrower as promptly as practicable to the extent not prohibited
by law. Notwithstanding any other provision of this Agreement, each party (and each Participant
pursuant to Section 11.07) (and each employee, representative or other agent of such party (or
Participant)) may disclose to any and all persons, without limitation of any kind, the U.S. tax
treatment and U.S. tax structure of the transactions contemplated by the Loan Documents and all
materials of any kind (including opinions or other tax analyses) that are provided to such party
relating to such U.S. tax treatment and U.S. tax structure, other than any information for which
nondisclosure is reasonably necessary in order to comply with applicable securities laws.



SECTION 11.09. Waiver of Jury Trial. THE BORROWER, THE AGENTS, THE ISSUING BANKS AND THE
LENDERS EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OTHER
INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR THEREUNDER.



SECTION 11.10. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT AND THE PROMISSORY
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW YORK, BUT OTHERWISE
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES). THE BORROWER, THE LENDERS, THE ISSUING BANKS AND
THE AGENTS, EACH (I) IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL
COURT SITTING IN NEW YORK CITY IN ANY ACTION ARISING OUT OF ANY LOAN DOCUMENT, (II) AGREES THAT ALL
CLAIMS IN SUCH ACTION MAY BE DECIDED IN SUCH COURT, (III) WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM AND (IV) CONSENTS TO THE SERVICE OF PROCESS
BY MAIL. A FINAL JUDGMENT IN ANY SUCH ACTION SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY
MANNER PERMITTED BY LAW OR AFFECT ITS RIGHT TO BRING ANY ACTION IN ANY OTHER COURT. THE BORROWER
AGREES THAT THE AGENTS SHALL HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A
COURT IN ANY LOCATION TO ENABLE THE AGENTS, THE ISSUING BANKS AND THE LENDERS TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF ANY AGENT, ANY ISSUING BANK OR ANY LENDER. THE BORROWER AGREES THAT IT WILL
NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY ANY AGENT, ANY ISSUING BANK OR
ANY LENDER TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF ANY AGENT, ANY ISSUING BANK OR ANY LENDER. THE BORROWER
WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH ANY AGENT, ANY ISSUING
BANK OR ANY LENDER MAY COMMENCE A PROCEEDING DESCRIBED IN THIS SECTION.



SECTION 11.11. Relation of the Parties; No Beneficiary. No term, provision or requirement,
whether express or implied, of any Loan Document, or actions taken or to be taken by any party
thereunder, shall be construed to create a partnership, association, or joint venture between such
parties or any of them. No term or provision of this Agreement or any other Loan Document shall be
construed to confer a benefit upon, or grant a right or privilege to, any Person other than the
parties hereto or thereto. The Borrower hereby acknowledges that none of the Agents, the Lenders
or the Issuing Banks has any fiduciary relationship with or fiduciary duty to the Borrower arising
out of or in connection with this Agreement or any of the other Loan Documents, and the
relationship between the Agents, the Lenders and the Issuing Banks, on the one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely that of debtor and
creditor.



SECTION 11.12. Execution in Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same Agreement.



SECTION 11.13. Survival of Agreement. All covenants, agreements, representations and
warranties made herein and in the certificates pursuant hereto shall be considered to have been
relied upon by the Agents, the Lenders and the Issuing Banks and shall survive the making by the
Lenders and the Issuing Banks of the Extensions of Credit and the execution and delivery to the
Lenders of any Promissory Notes evidencing the Extensions of Credit and shall continue in full
force and effect so long as any Promissory Note or any amount due hereunder is outstanding and
unpaid, any Letter of Credit remains outstanding or any Commitment of any Lender has not been
terminated.



SECTION 11.14. Platform.



(a) The Borrower shall use its commercially reasonable best efforts to transmit to the
Administrative Agent all information, documents and other materials that it is obligated to furnish
to the Administrative Agent pursuant to this Agreement and the other Loan Documents, including,
without limitation, all notices, requests, financial statements, financial and other reports,
certificates and other information materials, but excluding any such communication that (i) relates
to a notice of borrowing or other extension of credit or a conversion of an existing interest rate
on any Loan or Borrowing (including, without limitation, any Notice of Conversion), (ii) relates to
the payment of any principal or other amount due hereunder prior to the scheduled date therefor,
(iii) provides notice of any Default or Event of Default hereunder or (iv) is required to be
delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any
Extension of Credit hereunder (all such non-excluded communications being referred to herein
collectively as “Communications”), in an electronic/soft medium in a format reasonably acceptable
to the Administrative Agent to oploanswebadmin@citigroup.com (or such other e-mail address
designated by the Administrative Agent from time to time). In addition, the Borrower shall
continue to provide the Communications to the Administrative Agent in the manner specified in this
Agreement but only to the extent requested by the Administrative Agent. Each Lender, each Issuing
Bank and the Borrower further agrees that the Administrative Agent may make the Communications
available to the Lenders and the Issuing Banks by posting the Communications on IntraLinks or a
substantially similar electronic transmission system (the “Platform”); provided, however, that upon
written notice to the Administrative Agent and the Borrower, any Lender or any Issuing Bank (such
lender a “Declining Lender”) may decline to receive Communications via the Platform and shall
direct the Borrower to provide, and the Borrower shall so provide, such Communications to such
Declining Lender by delivery to such Declining Lender’s address set forth on the signature pages
hereto, or as specified in the Lender Assignment or Assignment and Acceptance pursuant to which it
became a Lender or as otherwise directed in such notice. Subject to the conditions set forth in
the proviso in the immediately preceding sentence, nothing in this Section 11.14 shall prejudice
the right of the Administrative Agent to make the Communications available to the Lenders in any
other manner specified herein.



(b) Each Lender and Issuing Bank (other than a Declining Lender) agrees that e-mail notice to
it (at the address provided pursuant to the next sentence and deemed delivered as provided in the
next paragraph) specifying that Communications have been posted to the Platform shall constitute
effective delivery of such Communications to such Lender or such Issuing Bank, as applicable, for
purposes of this Agreement. Each Lender and Issuing Bank (other than a Declining Lender) agrees
(i) to notify the Administrative Agent in writing (including by electronic communication) from time
to time to ensure that the Administrative Agent has on record an effective e-mail address for such
Lender or such Issuing Bank, as applicable, to which the foregoing notice may be sent by electronic
transmission and (ii) that the foregoing notice may be sent to such e-mail address.



(c) Each party hereto (other than a Declining Lender) agrees that any electronic communication
referred to in this Section 11.14 shall be deemed delivered upon the posting of a record of such
communication as “sent” in the e-mail system of the sending party or, in the case of any such
communication to the Administrative Agent, upon the posting of a record of such communication as
“received” in the e-mail system of the Administrative Agent, provided that if such communication is
not so received by the Administrative Agent during the normal business hours of the Administrative
Agent, such communication shall be deemed delivered at the opening of business on the next business
day for the Administrative Agent.



(d) Each party hereto acknowledges that the distribution of material through an electronic
medium is not necessarily secure and there are confidentiality and other risks associated with such
distribution.



(e) EACH PARTY HERETO FURTHER ACKNOWLEDGES AND AGREES THAT:




(i) NONE OF THE ADMINISTRATIVE AGENT, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, THE
“CITIGROUP PARTIES”) WARRANTS THE ADEQUACY OF THE PLATFORM OR THE ACCURACY OR COMPLETENESS
OF ANY COMMUNICATIONS, AND EACH CITIGROUP PARTY EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR
OMISSIONS IN ANY COMMUNICATIONS, AND




(ii) NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS
MADE BY ANY CITIGROUP PARTY IN CONNECTION WITH ANY COMMUNICATIONS OR THE PLATFORM.



(f) This Section 11.14 shall terminate on the date that neither CUSA nor any of the Citigroup
Parties is the Administrative Agent under this Agreement.



SECTION 11.15. USA Patriot Act. Each Lender hereby notifies the Borrower that pursuant to
requirements of the USA Patriot Act , it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance with the USA Patriot
Act.



ARTICLE XII




NO NOVATION; REFERENCES TO THIS AGREEMENT IN LOAN DOCUMENTS




SECTION 12.01. No Novation. It is the express intent of the parties hereto that this
Agreement (i) shall re-evidence, in part, the Borrower’s indebtedness under the Existing Credit
Agreement, (ii) is entered into in substitution for, and not in payment of, the obligations of the
Borrower under the Existing Credit Agreement, and (iii) is in no way intended to constitute a
novation of any of the Borrower’s indebtedness which was evidenced by the Existing Credit Agreement
or any of the other Loan Documents.



SECTION 12.02. References to This Agreement In Loan Documents. Upon the effectiveness of this
Agreement, on and after the date hereof, each reference in any other Loan Document to the Existing
Credit Agreement (including any reference therein to “the Credit Agreement,” “thereunder,”
“thereof,” “therein” or words of like import referring thereto) means and be a reference to this
Agreement.



SECTION 12.03. Release of Enterprises. Each of the parties hereto agrees that, upon the
effectiveness of this Agreement (including the satisfaction of the condition precedent set forth in
Section 6.01(f)), Enterprises shall be released from all of its obligations as a “Borrower” under
(and as defined in) the Existing Credit Agreement.



[Signature pages follow.] 




	 	 	 	 	 	 	 	 	 	 	 	 	 
	   

	 	 
	 	       
	 	           
	 	      
	 	CMS ENE
	 	RGY CORPORATION, as Borrower

 

By: /s/ Laura L. Mountcastle                  
	
 
	 	 	 	 	 	 	 	 	 	 	 	 
	
 
	 	 	 	 	 	 	 	 	 	 	 	      Name: Laura L. Mountcastle

      Title:   Vice President and Treasurer
	 
	 	 	 	 	 	 	 	 	 	 	 	 






4




5




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	CITICORP USA, INC., as Collateral Agent and as
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Administrative Agent
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Amit Vasani                  
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Amit Vasani
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Vice President
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	CITIBANK, N.A., as a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Amit Vasani                  
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Amit Vasani
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Vice President
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Address:   388 Greenwich St.
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	                 New York, NY 10013
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Attn:        Amit Vasani
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Telephone: (212) 816-4166
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Fax:  (646) 291-1685





6




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	UNION BANK OF CALIFORNIA, N.A.,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	as Syndication Agent and a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Bryan P. Read                  
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Bryan P. Read
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Vice President
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Address:   445 S. Figueroa St., 15th Floor
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	                 Los Angeles, CA 90071
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Attn:        Robert J. Olson
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Telephone: (213) 236-7407
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Fax:  (213) 236-4096





7




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	BARCLAYS BANK PLC, as a Documentation
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Agent and a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Gary Wenslow                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Gary Wenslow
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Associate Director
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Address:   200 Park Avenue
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	                 New York, NY 10166
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Attn:        Sydney G. Dennis
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Telephone: (212) 412-2470
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Fax:  (212) 412-2844





8




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	JPMORGAN CHASE BANK, N.A.,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	as a Documentation Agent and a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Thomas Casey                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Thomas Casey
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Vice President
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Address:   200 Park Avenue / 4
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	                 New York, NY 10017
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Attn:        Thomas L. Casey
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Telephone: (212) 270-5305
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Fax:  (212) 270-3089





9




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	as a Documentation Agent and a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Lawrence P. Sullivan                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Lawrence P. Sullivan
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Managing Director
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Address:   191 Peachtree Street NE, 28th Floor
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	                 MC GA8050
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	                 Atlanta, GA 30303
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Attn:        Larry N. Gross
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Telephone: (404) 332-4158
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Fax:  (404) 332-4058





10




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	MERRILL LYNCH BANK USA, as a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Derek Befus                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Derek Befus
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Vice President
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Address:   15 West South Temple, Ste. 300
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	                 Salt Lake City, UT 84101
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Attn:        Frank Stepan
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Telephone: (801) 526-8316
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Fax:  (801) 531-7470





11




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	BNP PARIBAS, as a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Dan Dozine                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Dan Dozine
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Managing Director
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Leonardo Osorio                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Leonardo Osorio
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:    Director
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Address:   787 Seventh Avenue, 31st Floor
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	                 New York, NY 10019
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Attn:        Mark Renaud
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Telephone: (212) 841-2807
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Fax:  (212) 841-2052





12




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	SUNTRUST BANK, as a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Yann Pirio                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Yann Pirio
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Vice President
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Address:   303 Peachtree Street, 10th Floor
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	                 Mail Code 1929
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	                 Atlanta GA 30308
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Attn:        Yann Pirio
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Telephone: (404) 813-5498
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Fax:  (404) 827-6270





13




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	UBS LOAN FINANCE LLC, as a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Richard L Tavrow                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Richard L. Tavrow
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Director
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Irja R. Otsa                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Irja R. Otsa
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Associate Director
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Address:   677 Washington Boulevard
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	                 Stamford, CT 06901
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Attn:        Shaneequa Thomas
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Telephone: (203) 719-3385
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Fax:  (203) 719-3888





14




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	DEUTSCHE BANK TRUST COMPANY AMERICAS,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	as a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Marcus M. Tarkington                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Marcus M. Tarkington
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Director
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Paul O’Leary                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Paul O’Leary
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Vice President
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Address:   60 Wall Street
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	                 NYC 60-4405
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	                 New York, NY 10005
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Attn:        Marcus Tarkington
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Telephone: (212) 250-6153
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Fax:  (212) 797-0070





15




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	KEYBANK NATIONAL ASSOCIATION, as a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Sherrie I Manson                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Sherrie I Manson
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Sr. Vice President
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Address:   127 Public Square
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	                 Mailcode: OH-01-27-0623
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	                 Cleveland, OH 44114
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Attn:        Sherrie I. Manson
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Telephone: (216) 689-3443
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Fax:  (216) 689-4981





16




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	COMERICA BANK, as a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Blake Arnett                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Blake Arnett
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Assistant Vice President





17




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	LASALLE BANK, NATIONAL ASSOCIATION, as a
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Gregory E. Castle                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Gregory E. Castle
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   First Vice President





18




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Cassandra Droogan                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Cassandra Droogan
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Vice President
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Nupur Kumar                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Nupur Kumar
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Associate





19




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	FIFTH THIRD BANK, as a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Randall S. Wolffis                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Randall S. Wolffis
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Vice President





20




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	as a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Scott Bjelde                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Scott Bjelde
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Senior Vice President





21




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	THE BANK OF NOVA SCOTIA, as a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Thane Rattew                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Thane Rattew
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Managing Director





22




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	BAYERISCHE LANDESBANK, as a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ John Gregory                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: John Gregory
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Vice President
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Annette Schmidt                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Annette Schmidt
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   First Vice President





23




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	HUNTINGTON NATIONAL BANK, as a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Mark Wilson                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Mark Wilson
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Senior Vice President





24




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	GOLDMAN SACHS CREDIT PARTNERS, L.P., as
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Mark Walton                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Mark Walton
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Authorized Signatory





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	             	 	 	    	 	 	      	 	 	SUMITOMO MITSUI BANKING CORP., as a Lender
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	By: /s/ Masakazu Hasegawa n                 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Name: Masakazu Hasegawa
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	      Title:   Joint General Manager





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COMMITMENT SCHEDULE




	 	 	 	 	 
	Lender
	 	Commitment

	 
	 	 	 	 
	CITIBANK, N.A.
	 	$	19,125,000	
	 
	 		 	
	UNION BANK OF CALIFORNIA, N.A.
	 	$	19,125,000	
	 
	 		 	
	BARCLAYS BANK PLC
	 	$	19,125,000	
	 
	 		 	
	JPMORGAN CHASE BANK, N.A.
	 	$	19,125,000	
	 
	 		 	
	WACHOVIA BANK, NATIONAL ASSOCIATION
	 	$	19,125,000	
	 
	 		 	
	MERRILL LYNCH BANK USA
	 	$	19,125,000	
	 
	 		 	
	BNP PARIBAS
	 	$	15,375,000	
	 
	 		 	
	SUNTRUST BANK
	 	$	15,375,000	
	 
	 		 	
	UBS LOAN FINANCE LLC
	 	$	15,375,000	
	 
	 		 	
	DEUTSCHE BANK TRUST COMPANY AMERICAS
	 	$	15,375,000	
	 
	 		 	
	KEYBANK NATIONAL ASSOCIATION
	 	$	11,250,000	
	 
	 		 	
	COMERICA BANK
	 	$	11,250,000	
	 
	 		 	
	LASALLE BANK MIDWEST, N.A.
	 	$	11,250,000	
	 
	 		 	
	CREDIT SUISSE, CAYMAN ISLANDS BRANCH
	 	$	11,250,000	
	 
	 		 	
	FIFTH THIRD BANK
	 	$	11,250,000	
	 
	 		 	
	WELLS FARGO BANK, NATIONAL ASSOCIATION
	 	$	11,250,000	
	 
	 		 	
	THE BANK OF NOVA SCOTIA
	 	$	11,250,000	
	 
	 		 	
	BAYERISCHE LANDESBANK
	 	$	11,250,000	
	 
	 		 	
	HUNTINGTON NATIONAL BANK
	 	$	11,250,000	
	 
	 		 	
	GOLDMAN SACHS CREDIT PARTNERS L.P.
	 	$	11,250,000	
	 
	 		 	
	SUMITOMO MITSUI BANKING CORP.
	 	$	11,250,000	
	 
	 		 	






26




PRICING SCHEDULE




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Applicable ABR	 	Applicable	 	Commitment
	Specified Rating	 	Margin	 	Eurodollar Margin	 	Fee Rate
	Baa2/BBB/BBB
or higher
	 	 	0.00	%	 	 	0.50	%	 	 	0.15	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Baa3/BBB-/BBB-
	 	 	0.00	%	 	 	0.75	%	 	 	0.175	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Ba1/BB+/BB+
	 	 	0.00	%	 	 	1.00	%	 	 	0.20	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Ba2/BB/BB
	 	 	0.25	%	 	 	1.25	%	 	 	0.25	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Ba3/BB-/BB-
	 	 	0.50	%	 	 	1.50	%	 	 	0.30	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Below Ba3/BB-/BB-
	 	 	1.00	%	 	 	2.00	%	 	 	0.50	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 






“Specified Rating” shall be determined as follows:




	(a)	 	If each of Moody’s, S&P or Fitch shall issue a rating (a “Facility Rating”) of the
obligations of the Borrower under the Facility, the Specified Rating shall be:






(i) If all such Facility Ratings are the same, such Facility Ratings;




(ii) If two of such Facility Ratings are the same, such Facility Ratings; and




(ii) If all such Facility Ratings are different, the middle of such Facility Ratings.




	(b)	 	If only two of Moody’s, S&P or Fitch shall issue a Facility Rating, the Specified Rating
shall be the higher of such Facility Ratings; provided, that if a split of greater
than one ratings category occurs between such Facility Ratings, the Specified Rating shall be
the ratings category that is one category below the higher of such Facility Ratings.






	(c)	 	If only one of Moody’s, S&P or Fitch shall issue a Facility Rating, the Specified Rating
shall be such Facility Rating.






	(d)	 	If (I) none of Moody’s, S&P or Fitch shall issue a Facility Rating and (II) any of Moody’s,
S&P or Fitch shall issue a Debt Rating, the Specified Rating shall be the ratings category
that is one category above the Specified Rating determined pursuant to the clauses (a)-(c)
above as if such Debt Rating were a Facility Rating.






	(c)	 	If none of Moody’s, S&P or Fitch shall issue either a Facility Rating or a Debt Rating, the
Specified Rating shall be Ba3/BB-/BB-.






27