CREDIT AGREEMENT Dated as of December 14, 2004 among TEXAS GENCO LLC, as Borrower The Several Lenders from Time to Time Parties Hereto GOLDMAN SACHS CREDIT PARTNERS L.P., as Administrative Agent, Joint Lead Arranger and Joint Bookrunner MORGAN STANLEY...

EXHIBIT 10.3

CREDIT AGREEMENT

Dated as of December 14, 2004

among

TEXAS GENCO LLC,
as Borrower

The Several Lenders
from Time to Time Parties Hereto

▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
as Administrative Agent, Joint Lead Arranger and Joint Bookrunner

▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING INC.,
as Syndication Agent, Joint Lead Arranger and Joint Bookrunner

DEUTSCHE BANK AG, CAYMAN ISLANDS BRANCH,
as Co-Documentation Agent and Joint Bookrunner

CITICORP USA, INC.,
as Co-Documentation Agent and Joint Bookrunner

and

DEUTSCHE BANK SECURITIES INC.,

as Joint Lead Arranger for the Special Letter of Credit Facility

TABLE OF CONTENTS

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CREDIT AGREEMENT, dated as of December 14, 2004, among TEXAS GENCO LLC, a Delaware limited liability company (the “Borrower”), the lending institutions from time to time parties hereto (each a “Lender” and, collectively, the “Lenders”), ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P., as Administrative Agent, Joint Lead Arranger and Joint Bookrunner, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING INC., as Syndication Agent, Joint Lead Arranger and Joint Bookrunner, DEUTSCHE BANK AG, CAYMAN ISLANDS BRANCH, as Co-Documentation Agent and Joint Bookrunner, CITICORP USA, INC., as Co-Documentation Agent and Joint Bookrunner, and DEUTSCHE BANK SECURITIES INC., as Joint Lead Arranger for the Special Letter of Credit Facility (such term and each other capitalized term used but not defined in this introductory statement having the meaning provided in Section 1).

RECITALS:

WHEREAS, prior to the date hereof, Texas Genco Holdings, Inc. (“Genco Holdings”), a Delaware corporation wholly owned by CenterPoint Energy, Inc. (“CenterPoint”), divided its Nuclear Assets and its Non-Nuclear Assets;

WHEREAS, on the Credit Agreement Closing Date, NN Houston Sub, Inc. (“NN Houston Sub”), a Texas corporation indirectly wholly owned by CenterPoint, will merge with and into Genco Holdings (the “Public Company Merger”) and, as a result of the Public Company Merger, the shareholders of Genco Holdings, other than CenterPoint, will receive consideration in exchange for their shares of Capital Stock of Genco Holdings;

WHEREAS, on or about the day following the Public Company Merger, the Borrower will acquire all of the Non-Nuclear Assets of Genco Holdings (other than cash on the balance sheet of Genco Holdings) pursuant to (i) a merger of New Genco II L.P. (“Newco 1”), a Texas limited partnership indirectly wholly owned by the Borrower, with and into Texas Genco II, LP (“Genco II LP”), a Texas limited partnership wholly owned by Genco Holdings, and (ii) a merger of New Genco Services L.P. (“Newco 2”), a Texas limited partnership indirectly wholly owned by the Borrower, with and into Texas Genco Services, LP (“Genco Services”), a Texas limited partnership wholly owned by Genco Holdings, in each case in accordance with the terms of the Transaction Agreement (the transactions described in clauses (i) and (ii), together, the “Initial Transaction”);

WHEREAS, following the consummation of the Initial Transaction, the Borrower intends to acquire all of the Capital Stock of Genco Holdings (which, at the date of such acquisition, will own only the Nuclear Assets and cash on its balance sheet) pursuant to a merger of HPC Merger Sub, Inc. (“HPC Merger Sub”), a Texas corporation wholly owned by the Borrower, with and into Genco Holdings, in accordance with the terms of the Transaction Agreement (the “Subsequent Transaction” and, together with the Initial Transaction, the “Acquisition Transactions”);

WHEREAS, in connection with the Acquisition Transactions, (i) the Borrower will issue not less than $1,125,000,000 in aggregate principal amount of its senior unsecured notes (the “Senior Unsecured Notes”) pursuant to a Rule 144A offering (the “Notes Offering”) and (ii) the Sponsors and the Management Investors will contribute an amount in cash and

common equity to the Borrower that is equal to or greater than $898,100,000 (the “Equity Investment”);

WHEREAS, in connection with the foregoing, the Borrower has requested that the Lenders extend credit to the Borrower in the form of (i) $1,150,000,000 in aggregate principal amount of term loans to be borrowed on the Credit Agreement Closing Date (the “Initial Term Loan Facility”), (ii) $475,000,000 in aggregate principal amount of term loans to be borrowed on the earlier of the Subsequent Transaction Closing Date and the Call Transaction Closing Date (the “Delayed Draw Term Loan Facility”), provided that no more than $200,000,000 of the Delayed Draw Term Loan Facility may be used to fund the Call Transaction, (iii) up to $325,000,000 in aggregate principal amount of Revolving Credit Commitments (the “Revolving Credit Facility”), (iv) up to $200,000,000 in aggregate Stated Amount of letters of credit (the “Base Letter of Credit Facility”) and (v) up to $344,352,000 in aggregate Stated Amount of letters of credit (the “Special Letter of Credit Facility”).  The proceeds of the Initial Term Loan Facility will be used to fund the Initial Transaction and related Transaction Expenses.  The proceeds of the Delayed Draw Term Loan Facility will be used to fund the Subsequent Transaction and related Transaction Expenses or the Call Transaction and related expenses (but not both).  Revolving Credit Loans available under the Revolving Credit Facility will be used for working capital requirements and general corporate purposes of the Borrower and the Restricted Subsidiaries, including the financing of a portion of the Subsequent Transaction.  The Borrower will use the letters of credit issued under the Revolving Credit Facility for general corporate purposes, including supporting the obligations of the Borrower and the Restricted Subsidiaries under Commodity Hedging Agreements.  The letters of credit issued under the Base Letter of Credit Facility will be used to support the obligations of the Borrower and the Restricted Subsidiaries under Eligible Commodity Hedging Agreements.  The letters of credit issued under the Special Letter of Credit Facility will be used to support the obligations of the Borrower and the Restricted Subsidiaries under the GS Commodity Hedging Agreement, the MS Commodity Hedging Agreement and other Special Commodity Hedging Agreements;

WHEREAS, the Borrower has agreed to secure all of its Obligations under this Agreement by granting to the Collateral Trustee, for the benefit of Secured Parties, a first priority lien on its assets, including a pledge of all of the Capital Stock of each of its Domestic Subsidiaries and 65% of the Capital Stock of each of its “first tier” Foreign Subsidiaries; and

WHEREAS, the Guarantors have agreed to guarantee the Obligations under this Agreement and to secure their respective guarantees by granting to the Collateral Trustee, for the benefit of Secured Parties, a first priority lien on their respective assets, including a pledge of all of the Capital Stock of each of their Domestic Subsidiaries and 65% of the Capital Stock of each of their “first tier” Foreign Subsidiaries.

AGREEMENT:

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

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SECTION 1.   Definitions

1.1.                              Defined Terms.  (a)  As used herein, the following terms shall have the meanings specified in this Section 1.1 unless the context otherwise requires (it being understood that defined terms in this Agreement shall include in the singular number the plural and in the plural the singular):

“ABR” shall mean, for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1%.  Any change in the ABR due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.

“ABR Loan” shall mean each Loan bearing interest at the rate provided in Section 2.8 and, in any event, shall include all Swingline Loans.

“Acceptable Reinvestment Commitment” shall mean a binding commitment of the Borrower or any Restricted Subsidiary entered into at any time prior to the end of the Reinvestment Period to reinvest proceeds of an Asset Sale Prepayment Event, Permitted Sale Leaseback or Recovery Prepayment Event; provided that such reinvestment is made within 365 days after the date on which such commitment is entered into by the Borrower or such Restricted Subsidiary.

“Acquired EBITDA” shall mean, with respect to any Acquired Entity or Business, any Converted Restricted Subsidiary, any Sold Entity or Business or any Converted Unrestricted Subsidiary (any of the foregoing, a “Pro Forma Entity”) for any period, the amount for such period of Consolidated EBITDA of such Pro Forma Entity (determined using such definitions as if references to the Borrower and its Subsidiaries therein were to such Pro Forma Entity and its Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity in accordance with GAAP.

“Acquired Entity or Business” shall have the meaning provided in the definition of the term “Consolidated EBITDA”.

“Acquisition Transactions” shall have the meaning provided in the recitals to this Agreement.

“Adjusted Total Base Letter of Credit Commitment” shall mean, at any time, the Total Base Letter of Credit Commitment less the aggregate Base Letter of Credit Commitments of all Defaulting Lenders.

“Adjusted Total Delayed Draw Term Loan Commitment” shall mean, at any time, the Total Delayed Draw Term Loan Commitment less the aggregate Delayed Draw Term Loan Commitments of all Defaulting Lenders.

“Adjusted Total New Term Loan Commitment” shall mean, at any time with respect to New Term Loans of any Series, the Total New Term Loan Commitment for such Series less the aggregate New Term Loan Commitments for such Series of all Defaulting Lenders.

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“Adjusted Total Revolving Credit Commitment” shall mean, at any time, the Total Revolving Credit Commitment less the aggregate Revolving Credit Commitments of all Defaulting Lenders.

“Adjusted Total Special Letter of Credit Commitment” shall mean, at any time, the Total Special Letter of Credit Commitment less the aggregate Special Letter of Credit Commitments of all Defaulting Lenders.

“Administrative Agent” shall mean GSCP, together with its affiliates, as the administrative agent for the Lenders under this Agreement and the other Credit Documents.

“Administrative Agent’s Office” shall mean the office of the Administrative Agent located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, or such other office as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.

“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person.  A Person shall be deemed to control a corporation if such Person possesses, directly or indirectly, the power (a) to vote 10% or more of the securities having ordinary voting power for the election of directors of such corporation or (b) to direct or cause the direction of the management and policies of such corporation, whether through the ownership of voting securities, by contract or otherwise.

“Agents” shall mean the Joint Lead Arrangers, the Administrative Agent, the Syndication Agent and the Co-Documentation Agents.

“Agreement” shall mean this Credit Agreement, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof and of the other Credit Documents.

“Applicable ABR Margin” shall mean, at any date, (a) with respect to Initial Term Loans, Delayed Draw Term Loans and Special Letters of Credit, (i) if the Initial Term Loans and Delayed Draw Term Loans are rated at least Ba1 by ▇▇▇▇▇’▇ on such date, 0.75% per annum or (ii) otherwise, 1.00% per annum, and (b) with respect to Revolving Credit Loans, Swingline Loans, Revolving Letters of Credit and Base Letters of Credit, (i) during the period from the Credit Agreement Closing Date to but excluding the Initial Financial Statement Delivery Date, 1.25% per annum, and (ii) thereafter, the applicable percentage per annum set forth below based upon the Status in effect on such date.

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“Applicable Eurodollar Margin” shall mean, at any date, (a) with respect to Initial Term Loans, Delayed Draw Term Loans and Special Letters of Credit, (i) if the Initial Term Loans and Delayed Draw Term Loans are rated at least Ba1 by ▇▇▇▇▇’▇ on such date, 1.75% per annum or (ii) otherwise, 2.00% per annum, and (b) with respect to Revolving Credit Loans, Swingline Loans, Revolving Letters of Credit and Base Letters of Credit, (i) during the period from the Credit Agreement Closing Date to but excluding the Initial Financial Statement Delivery Date, 2.25% per annum, and (ii) thereafter, the applicable percentage per annum set forth below based upon the Status in effect on such date.

“Applicable Laws” shall mean, as to any Person, any law, rule, regulation, ordinance or treaty, or any determination, ruling or other directive by or from a court, arbitrator or other Governmental Authority, including ERCOT, in each case applicable to or binding on such Person or any of its property or assets or to which such Person or any of its property or assets is subject.

“Applicable Margin” shall mean the Applicable ABR Margin or the Applicable Eurodollar Margin, as applicable .

“Approved Fund” shall have the meaning provided in Section 15.6(b).

“Asset Sale Prepayment Event” shall mean any sale, transfer or other disposition of any business unit, asset or property of the Borrower or any Restricted Subsidiary (including any sale, transfer or other disposition of any Capital Stock of any Subsidiary of the Borrower owned by the Borrower or any Restricted Subsidiary); provided that the term “Asset Sale Prepayment Event” shall not include (a) any Recovery Event or (b) any sale, transfer or other disposition permitted under clauses (a), (b), (g) and (h) of Section 12.4.

“Assignment and Acceptance” shall mean an assignment and acceptance substantially in the form of Exhibit A.

“Authorized Officer” shall mean the Chairman of the Board, the President, the Chief Financial Officer, the Treasurer or any other senior officer of the Borrower designated as such in writing to the Administrative Agent by the Borrower.

“Available Amount” shall mean, on any date (the “Reference Date”), an amount equal at such time to (a) the sum of, without duplication:

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(i)                                     (x) for the purposes of Sections 12.5(j), 12.5(m), 12.5(o) and 12.11(b), $250,000,000 in aggregate, and (y) for the purposes of clause (ii) of the proviso to Section 12.7(a) and clause (i) of the proviso to Section 12.7(b), $125,000,000 in aggregate;

(ii)                                  an amount equal to (x) the cumulative amount of Excess Cash Flow for all fiscal years completed after the Credit Agreement Closing Date and prior to the Reference Date minus (y) the portion of such Excess Cash Flow that has been after the Credit Agreement Closing Date and on or prior to the Reference Date (or will be) applied to the prepayment of Loans in accordance with Section 5.2(a)(iii) (calculated after giving pro forma effect to any investment actually made pursuant to Section 12.5(j), 12.5(m) or 12.5(o), any prepayment, reduction or repurchase actually made pursuant to clause (ii) of the proviso to Section 12.7(a) or clause (i) of the proviso to Section 12.7(b), or any Capital Expenditure actually made pursuant to Section 12.11(b));

(iii)                               the amount of any capital contributions or other equity issuances (other than the Equity Investment) made or received by the Borrower during the period from and including the Business Day immediately following the Credit Agreement Closing Date through and including the Reference Date;

(iv)                              the aggregate amount of all cash dividends and other cash distributions received by the Borrower or any Guarantor from any Minority Investments or Unrestricted Subsidiaries after the Credit Agreement Closing Date and on or prior to the Reference Date (other than the portion of any such dividends and other distributions that is used by the Borrower or any Guarantor to pay taxes or to pay Tax Distributions);

(v)                                 the aggregate amount of all cash repayments of principal received by the Borrower or any Guarantor from any Minority Investments or Unrestricted Subsidiaries after the Credit Agreement Closing Date and on or prior to the Reference Date in respect of loans made by the Borrower or any Guarantor to such Minority Investments or Unrestricted Subsidiaries; and

(vi)                              the aggregate amount of all net cash proceeds received by the Borrower or any Guarantor in connection with the sale, transfer or other disposition of its ownership interest in any Minority Investment or Unrestricted Subsidiary after the Credit Agreement Closing Date and on or prior to the Reference Date,

minus (b) the sum of:

(i)                                     the aggregate amount of any investments (including loans) made by the Borrower or any Restricted Subsidiary pursuant to Section 12.5(j), 12.5(m) or 12.5(o) after the Credit Agreement Closing Date and on or prior to the Reference Date;

(ii)                                  the aggregate amount of prepayments, repurchases and redemptions made by the Borrower or any Restricted Subsidiary pursuant to clause (ii) of the proviso to Section 12.7(a) and clause (i) of the proviso to Section 12.7(b) after the Credit Agreement Closing Date and on or prior to the Reference Date; and

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(iii)                               the aggregate amount of Capital Expenditures made by the Borrower or any Restricted Subsidiary pursuant to Section 12.11(b) after the Credit Agreement Closing Date and on or prior to the Reference Date.

“Available Capacity” shall mean the net generation capacity of any Baseload Asset less scheduled maintenance outages.

“Bankruptcy Code” shall have the meaning provided in Section 13.5.

“Base Letter of Credit” shall have the meaning provided in Section 3.1(b).

“Base Letter of Credit Commitment” shall mean, (a) with respect to each Lender that is a Lender on the date hereof, the amount set forth opposite such Lender’s name on Schedule 1.1(b) as such Lender’s “Base Letter of Credit Commitment” and (b) in the case of any Lender that becomes a Lender after the date hereof, the amount specified as such Lender’s “Base Letter of Credit Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Base Letter of Credit Commitment, in each case as the same may be changed from time to time pursuant to terms hereof.  The aggregate amount of the Base Letter of Credit Commitments as of the date hereof is $200,000,000.

“Base Letter of Credit Commitment Percentage” shall mean at any time, for each Lender, the percentage obtained by dividing (a) such Lender’s Base Letter of Credit Commitment by (b) the aggregate amount of the Base Letter of Credit Commitments, provided that at any time when the Total Base Letter of Credit Commitment shall have been terminated pursuant to Section 13, each Lender’s Base Letter of Credit Commitment Percentage shall be its Base Letter of Credit Commitment Percentage as in effect immediately prior to such termination.

“Base Letter of Credit Exposure” shall mean, with respect to any Lender, at any time, the sum of (a) the amount of any Unpaid Drawings in respect of which such Lender has made (or is required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(c) at such time and (b) such Lender’s Base Letter of Credit Commitment Percentage of the Base Letters of Credit Outstanding at such time (excluding the portion thereof consisting of Unpaid Drawings in respect of which the Lenders have made (or are required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(c)).

“Base Letter of Credit Facility” shall have the meaning provided in the recitals to this Agreement.

“Base Letter of Credit Fee” shall have the meaning provided in Section 4.1(d).

“Base Letter of Credit Maturity Date” shall mean the date that is five years after the Credit Agreement Closing Date, or, if such date is not a Business Day, the next preceding Business Day.

“Base Letter of Credit Participant” shall have the meaning provided in Section 3.3(b).

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“Base Letter of Credit Participation” shall have the meaning provided in Section 3.3(b).

“Base Letters of Credit Outstanding” shall mean, at any time, the sum of, without duplication, (a) the aggregate Stated Amount of all outstanding Base Letters of Credit and (b) the aggregate amount of all Unpaid Drawings in respect of all Base Letters of Credit.

“Baseload Assets” shall mean (a) any Initial Baseload Assets and (b) any other assets comprising an electric generating facility or unit acquired, constructed or redesignated as such, in each such case after the Initial Transaction Closing Date that is certified by an Authorized Officer of the Borrower to be a baseload asset.

“Board” shall mean the Board of Governors of the Federal Reserve System of the United States (or any successor).

“Borrower” shall have the meaning provided in the preamble to this Agreement.

“Borrowing” shall mean and include (a) the incurrence of Swingline Loans from the Swingline Lender on a given date, (b) the incurrence of one Type of Initial Term Loan on the Credit Agreement Closing Date (or resulting from conversions on a given date after the Credit Agreement Closing Date) having, in the case of Eurodollar Term Loans, the same Interest Period (provided that ABR Loans incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of Eurodollar Term Loans), (c) the incurrence of one Type of Delayed Draw Term Loan on the Subsequent Transaction Closing Date or the Call Transaction Closing Date, as applicable (or resulting from conversions on a given date after the Subsequent Transaction Closing Date or the Call Transaction Closing Date, as applicable), having, in the case of Eurodollar Term Loans, the same Interest Period (provided that ABR Loans incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of Eurodollar Term Loans), (d) the incurrence of one Type of New Term Loan on the applicable Increased Amount Date (or resulting from conversions on a given date after the applicable Increased Amount Date) having, in the case of Eurodollar Term Loans, the same Interest Period (provided that ABR Loans incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of Eurodollar Term Loans), and (e) the incurrence of one Type of Revolving Credit Loan on a given date (or resulting from conversions on a given date) having, in the case of Eurodollar Revolving Credit Loans, the same Interest Period (provided that ABR Loans incurred pursuant to Section 2.10(b) shall be considered part of any related Borrowing of Eurodollar Revolving Credit Loans).

“Business Day” shall mean any day excluding Saturday, Sunday and any day that shall be in The City of New York a legal holiday or a day on which banking institutions are authorized by law or other governmental actions to close.

“Call Transaction” shall mean the right of the Borrower to redeem up to $200,000,000 in aggregate principal amount of the Senior Unsecured Notes pursuant to Section 3.07(c) of the Senior Unsecured Note Indenture if the Subsequent Transaction is not consummated.

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“Call Transaction Closing Date” shall mean the date on which the Borrower consummates the Call Transaction.

“Capital Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases, but excluding any amount representing capitalized interest) by the Borrower and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as additions during such period to property, plant or equipment reflected in the consolidated balance sheet of the Borrower and its Subsidiaries, provided that the term “Capital Expenditures” shall not include (a) expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed from insurance proceeds or compensation awards paid on account of a Recovery Event, (b) the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time, (c) the purchase of plant, property or equipment made within two years of the sale of any asset to the extent purchased with the proceeds of such sale, (d) expenditures that constitute any part of Consolidated Lease Expense or (e) expenditures relating to the acquisition of nuclear fuel.

“Capital Lease” shall mean, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is or is required to be accounted for as a capital lease on the balance sheet of that Person.

“Capital Stock” shall mean any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.

“Capitalized Lease Obligations” shall mean, as applied to any Person, all obligations under Capital Leases of such Person or any of its Subsidiaries, in each case taken at the amount thereof accounted for as liabilities in accordance with GAAP.

“CenterPoint” shall have the meaning provided in the recitals to this Agreement.

“Change of Control” shall mean and be deemed to have occurred if (a) (i) the Sponsors and the Management Investors shall at any time not own, in the aggregate, directly or indirectly, beneficially and of record, at least 35% of the outstanding Voting Stock of the Borrower (other than as the result of one or more widely distributed offerings of common stock of the Borrower whether by the Borrower, the Sponsors or the Management Investors) and/or (ii) any person, entity or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended), other than the Sponsors, shall at any time have acquired direct or indirect beneficial ownership of a percentage of the outstanding Voting Stock of the Borrower that exceeds the percentage of such Voting Stock then beneficially owned, in the aggregate, by the Sponsors and the Management Group, unless, in the case of either clause (i) or (ii) above, the Sponsors and the Management Investors have, at such time, the right or the ability by voting power, contract or otherwise to elect or designate for election at least majority of the Board of Managers of the Borrower; and/or (b) at any time Continuing Managers shall not

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constitute at least majority of the Board of Managers of the Borrower; and/or (c) a Change of Control (as defined in the Senior Unsecured Note Indenture) shall have occurred.

“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Credit Loans, New Revolving Credit Loans, Initial Term Loans, Delayed Draw Term Loans, New Term Loans or Swingline Loans and, when used in reference to any Commitment, refers to whether such Commitment is an Initial Term Loan Commitment, a Delayed Draw Term Loan Commitment, a New Term Loan Commitment, a Revolving Credit Commitment, a New Revolving Credit Commitment, a Swingline Commitment, a Base Letter of Credit Commitment or a Special Letter of Credit Commitment.

“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.  Section references to the Code are to the Code, as in effect at the date of this Agreement, and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.

“Co-Documentation Agents” shall mean Citicorp USA, Inc. and Deutsche Bank AG, Cayman Islands Branch, together with their affiliates, as the co-documentation agents for the Lenders under this Agreement and the other Credit Documents.

“Collateral” shall have the meaning provided in the Security Agreement, the Pledge Agreement or any Deed of Trust, as applicable.

“Collateral Trust Agreement” shall mean the Collateral Trust Agreement, dated as of the Credit Agreement Closing Date, among the Borrower, the Guarantors, the Collateral Trustee and the Secured Parties named therein, substantially in the form of Exhibit E-3, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and of the other Credit Documents.

“Collateral Trustee” shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P., as collateral trustee for the Secured Parties under the Collateral Trust Agreement.

“Commitment” shall mean, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Delayed Draw Term Loan Commitment, New Term Loan Commitment, Revolving Credit Commitment, New Revolving Credit Commitment, Swingline Commitment, Base Letter of Credit Commitment or Special Letter of Credit Commitment.

“Commodity Hedging Agreement” shall mean the GS Commodity Hedging Agreement, the MS Commodity Hedging Agreement or any other swap, cap, collar, floor, future, option, spot, forward, power purchase and sale agreement, fuel purchase and sale agreement, power transmission agreement, fuel transportation agreement, fuel storage agreement, netting agreement or similar agreement entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business in order to protect the Borrower or such Restricted Subsidiary against fluctuations in the price or availability of any commodity.

“Confidential Information” shall have the meaning provided in Section 15.16.

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“Confidential Information Memorandum” shall mean the Confidential Information Memorandum of the Borrower dated November 2004, delivered to the Lenders in connection with this Agreement.

“Consolidated Earnings” shall mean, for any period, “income (loss) before the deduction of income and franchise taxes” of the Borrower and the Restricted Subsidiaries, excluding (a) extraordinary items for such period, determined in a manner consistent with the manner in which such amount was determined in accordance with the audited financial statements referred to in Section 11.1(a) and (b) the cumulative effect of a change in accounting principles during such period, whether effected through a cumulative effect adjustment or a retroactive application, in each case in accordance with GAAP.

“Consolidated EBITDA” shall mean, for any period:

(a) the sum, without duplication, of the amounts for such period of (x) Consolidated Earnings and (y) to the extent already deducted in arriving at Consolidated Earnings:

(i)                                     Consolidated Interest Expense;

(ii)                                  depreciation expense;

(iii)                               amortization expense, including the amortization of deferred financing fees and nuclear fuel costs (not to be reduced by any non-cash amortization relating to above market fuel contracts and off market power contracts);

(iv)                              extraordinary losses and unusual or non-recurring charges (including any writeoffs, writedowns or other non-cash charges reducing Consolidated Earnings for such period, but excluding any such charge that represents an accrual or reserve for a cash expenditure for a future period);

(v)                                 any non-cash loss attributable to the ▇▇▇▇ to market movement in the valuation of Hedging Obligations (to the extent the cash impact resulting from such loss has not been realized) or other derivative instruments pursuant to Financial Accounting Standards Board Statement No. 133-”Accounting for Derivative Instruments and Hedging Activities”;

(vi)                              any loss relating to amounts paid in cash prior to the stated settlement date of any Hedging Obligation that has been reflected in Consolidated Earnings in the current period;

(vii)                           any gain relating to Hedging Obligations associated with transactions recorded in the current period that has been reflected in Consolidated Earnings in prior periods and excluded from Consolidated EBITDA pursuant to clauses (b)(iii) and (b)(iv) below;

(viii)                        losses on asset sales;

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(ix)                                restructuring charges, including any one-time costs incurred in connection with acquisitions after the Initial Transaction Closing Date;

(x)                                   in the case of any period that includes a period ending on or prior to December 31, 2005, Transaction Expenses;

(xi)                                any expenses or charges incurred in connection with any issuance of debt or equity securities, any refinancing transaction or any amendment or other modification of any debt instrument (whether or not successful);

(xii)                             any fees and expenses related to Permitted Acquisitions;

(xiii)                          any deduction for minority interest expense;

(xiv)                         the amount of management, monitoring, consulting and advisory fees and related expenses paid to the Sponsors (including any amortization thereof);

(xv)                            up to $100,000,000 per fiscal year of the Borrower of expenses or charges incurred as a result of any planned or unplanned outage of any unit at the South Texas Project by reason of any action by any regulatory body or other Governmental Authority or to comply with any Applicable Law;

(xvi)                         any impairment charge or asset write-off pursuant to Financial Accounting Standards Board Statement No. 142-”Goodwill and Other Intangible Assets” or Financial Accounting Standards Board Statement No. 144-”Accounting for the Impairment or Disposal of Long-Lived Assets” and the amortization of intangibles arising pursuant to Financial Accounting Standards Board Statement No. 141-”Business Combinations”;

(xvii)                      the amount of cost savings in respect of cost reduction efforts, calculated on a pro forma basis as though such cost savings had been achieved on the first day of such period, pursuant to specified actions taken during such period minus the amount of actual benefits realized for such period from such actions (provided that (1) such actions are commenced within 36 months after the Credit Agreement Closing Date, (2) the amount of cost savings added pursuant to this clause (xvii) shall not exceed $60,000,000 during such period, (3) no amount shall be added pursuant to this clause (xvii) to the extent such amount is included in clause (ix) above with respect to such period and (4) any such cost savings shall be certified to the Administrative Agent in writing in reasonable detail by the chief financial officer of the Borrower and, if such cost savings exceed $15,000,000, by the Board of Managers of the Borrower);

(xviii)                   any losses from the early extinguishment of Indebtedness or Hedging Agreements or other derivative instruments (other than Commodity Hedging Agreements);

(xix)                           up to $30,000,000 per fiscal year of the Borrower of expenses or charges incurred as a result of any planned outage of any unit of a Baseload Asset for purposes of upgrading or expanding such unit;

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(xx)                              expenses related to the implementation of enterprise resource planning systems; and

(xxi)                           any non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights to officers, directors or employees;

less (b) the sum of the amounts for such period of:

(i)                                     extraordinary gains and non-recurring gains;

(ii)                                  non-cash gains (excluding any such non-cash gain to the extent it represents the reversal of an accrual or reserve for potential cash item in any prior period, excluding non-cash gains relating to above market fuel contracts and including non-cash gains relating to off market power contracts) increasing Consolidated Earnings for such period, other than the accrual of revenues in the ordinary course of business;

(iii)                               any non-cash gain attributable to the ▇▇▇▇ to market movement in the valuation of Hedging Obligations (to the extent the cash impact resulting from such gain has not been realized) or other derivative instruments pursuant to Financial Accounting Standards Board Statement No. 133-”Accounting for Derivative Instruments and Hedging Activities”;

(iv)                              any gain relating to amounts received in cash prior to the stated settlement date of any Hedging Obligation that has been reflected in Consolidated Earnings in the current period;

(v)                                 any loss relating to Hedging Obligations associated with transactions recorded in the current period that has been reflected in Consolidated Earnings in prior periods and excluded from Consolidated EBITDA pursuant to clauses (a)(v) and (a)(vi) above;

(vi)                              any gains from the early extinguishment of Indebtedness or Hedging Agreements or other derivative instruments (other than Commodity Hedging Agreements); and

(vii)                           gains on asset sales;

all as determined on a consolidated basis for the Borrower and the Restricted Subsidiaries in accordance with GAAP; provided that (A) except as provided in clause (C) below, there shall be excluded from Consolidated Earnings for any period the income from continuing operations before income and franchise taxes and extraordinary items of all Unrestricted Subsidiaries for such period to the extent otherwise included in Consolidated Earnings, except to the extent actually received in cash by the Borrower or the Restricted Subsidiaries during such period through dividends or other distributions, (B) there shall be excluded in determining Consolidated EBITDA non-operating currency transaction gains and losses and (C) (x) there shall be included in determining Consolidated EBITDA for any period (1) the Acquired EBITDA of any Person, property, business or asset (other than an Unrestricted Subsidiary) acquired to the extent not

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subsequently sold, transferred or otherwise disposed of (but not including the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired) by the Borrower or any Restricted Subsidiary during such period (each such Person, property, business or asset acquired, including pursuant to the Initial Transaction, the Subsequent Transaction and the ROFR, and not subsequently so disposed of, an “Acquired Entity or Business”), and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), in each case based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such acquisition or conversion) and (2) for the purposes of the definition of the term “Permitted Acquisition” and Sections 12.3, 12.9 and 12.10, an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition or conversion) as specified in the Pro Forma Adjustment Certificate delivered to the Lenders and the Administrative Agent and (y) for purposes of determining the Consolidated Total Debt to Consolidated EBITDA Ratio only, there shall be excluded in determining Consolidated EBITDA for any period the Acquired EBITDA of any Person, property, business or asset (other than an Unrestricted Subsidiary) sold, transferred or otherwise disposed of by the Borrower or any Restricted Subsidiary during such period (each such Person, property, business or asset so sold, transferred or otherwise disposed of, a “Sold Entity or Business”), and the Acquired EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”), in each case based on the actual Acquired EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer, disposition or conversion).  Notwithstanding anything to the contrary contained herein, Consolidated EBITDA shall include any benefit from any above market fuel contracts and shall exclude any benefit from any off market power contracts, each as recorded on the balance sheet of the Borrower and the Restricted Subsidiaries at the time of the Acquisition Transactions.

“Consolidated EBITDA to Consolidated Interest Expense Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated EBITDA for the relevant Test Period to (b) Consolidated Interest Expense for such Test Period.

“Consolidated Interest Expense” shall mean, for any period, the cash interest expense (including that attributable to Capital Leases and Synthetic Leases in accordance with GAAP), net of cash interest income, of the Borrower and the Restricted Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of the Borrower and the Restricted Subsidiaries, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under Interest Rate Hedging Agreements, but excluding, however, amortization of deferred financing costs and any other amounts of non-cash interest, all as calculated on a consolidated basis in accordance with GAAP, and excluding, for the avoidance of doubt, any interest in respect of items excluded from Indebtedness in the proviso to the definition thereof, any non-cash interest expense attributable to the movement in the ▇▇▇▇ to market valuation of Hedging Obligations or other derivative instruments pursuant to Financial Accounting Standards Board Statement No. 133 and any one-time cash costs associated with breakage costs in respect of Interest Rate Hedging Agreements; provided that (a) except as provided in clause (b) below, there shall be excluded

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from Consolidated Interest Expense for any period the cash interest expense (or income) of all Unrestricted Subsidiaries for such period to the extent otherwise included in Consolidated Interest Expense and (b) for purposes of the definition of the term “Permitted Acquisition” and Sections 12.3, 12.9 and 12.10, there shall be included in determining Consolidated Interest Expense for any period the cash interest expense (or income) of any Acquired Entity or Business acquired during such period and of any Converted Restricted Subsidiary converted during such period, in each case based on the cash interest expense (or income) relating to any debt incurred or assumed as part of an acquisition of an Acquired Entity or Business or as part of the conversion of a Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such acquisition or conversion) assuming any Indebtedness incurred or repaid in connection with any such acquisition or conversion had been incurred or repaid on the first day of such period.  Notwithstanding anything to the contrary contained herein, for purposes of determining Consolidated Interest Expense for any period ending prior to the first anniversary of the Credit Agreement Closing Date, Consolidated Interest Expense shall be an amount equal to actual Consolidated Interest Expense from the Credit Agreement Closing Date through the date of determination multiplied by a fraction the numerator of which is 365 and the denominator of which is the number of days from the Credit Agreement Closing Date through the date of determination.

“Consolidated Lease Expense” shall mean, for any period, all rental expenses of the Borrower and the Restricted Subsidiaries during such period under operating leases for real or personal property (including in connection with Permitted Sale Leasebacks), excluding real estate taxes, insurance costs and common area maintenance charges and net of sublease income, other than (a) obligations under vehicle leases entered into in the ordinary course of business, (b) all such rental expenses associated with assets acquired pursuant to a Permitted Acquisition to the extent that such rental expenses relate to operating leases in effect at the time of (and immediately prior to) such acquisition and (c) Capitalized Lease Obligations and Synthetic Lease Obligations, all as determined on a consolidated basis in accordance with GAAP, provided that there shall be excluded from Consolidated Lease Expense for any period the rental expenses of all Unrestricted Subsidiaries for such period to the extent otherwise included in Consolidated Lease Expense.

“Consolidated Net Income” shall mean, for any period, the consolidated net income (or loss) after the deduction of income taxes of the Borrower and the Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that Consolidated Net Income shall include any benefit from any above market fuel contracts and shall exclude any benefit from any off market power contracts, each as recorded on the balance sheet of the Borrower and the Restricted Subsidiaries at the time of the Acquisition Transactions.

“Consolidated Total Assets” shall mean, as of any date of determination, the total amount of all assets of the Borrower and the Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP as of such date.

“Consolidated Total Debt” shall mean, as of any date of determination, (a) the sum of (i) all indebtedness of the Borrower and the Restricted Subsidiaries for borrowed money outstanding on such date and (ii) all Capitalized Lease Obligations and Synthetic Lease Obligations of the Borrower and the Restricted Subsidiaries outstanding on such date, all

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calculated on a consolidated basis in accordance with GAAP minus (b) the aggregate amount of cash, to the extent exceeding $50,000,000, included in the cash accounts listed on the consolidated balance sheet of the Borrower and the Restricted Subsidiaries as at such date to the extent the use thereof for application to payment of Indebtedness is not prohibited by law or any contract to which the Borrower or any of the Restricted Subsidiaries is a party.

“Consolidated Total Debt to Consolidated EBITDA Ratio” shall mean, as of any date of determination, the ratio of (a) Consolidated Total Debt as of the last day of the relevant Test Period to (b) Consolidated EBITDA for such Test Period.

“Consolidated Working Capital” shall mean, at any date, the excess of (a) the sum of all amounts (other than cash, cash equivalents and bank overdrafts) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries at such date over (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries on such date, but excluding (i) the current portion of any Funded Debt, (ii) without duplication of clause (i) above, all Indebtedness consisting of Loans and Letter of Credit Exposure to the extent otherwise included therein and (iii) the current portion of deferred income taxes.

“Continuing Manager” shall mean, at any date, an individual (a) who is a member of the Board of Managers of the Borrower on the Credit Agreement Closing Date, (b) who, as at such date, has been a member of such Board of Managers for at least the 12 preceding months, (c) who has been nominated to be a member of such Board of Managers, directly or indirectly, by one or more Sponsors or Persons nominated by one or more Sponsors or (d) who has been nominated to be a member of such Board of Managers by a majority of the other Continuing Managers then in office.

“Control Account” shall mean an account maintained under the sole dominion and control of, and on terms and conditions reasonably satisfactory to, the Collateral Trustee.

“Converted Restricted Subsidiary” shall have the meaning provided in the definition of the term “Consolidated EBITDA”.

“Converted Unrestricted Subsidiary” shall have the meaning provided in the definition of the term “Consolidated EBITDA”.

“Credit Agreement Closing Date” shall mean the date of the initial Credit Event hereunder.

“Credit Documents” shall mean this Agreement, the Escrow Agreement, the Security Documents, each Letter of Credit and any promissory notes issued by the Borrower hereunder.

“Credit Event” shall mean and include the making (but not the conversion or continuation) of a Loan, the issuance of a Letter of Credit and the Escrow Release.

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“Credit Facility” shall mean any of the Initial Term Loan Facility, the Delayed Draw Term Loan Facility, any New Term Loan Facility, the Revolving Credit Facility, the Base Letter of Credit Facility or the Special Letter of Credit Facility, as applicable.

“Credit Party” shall mean each of the Borrower, the Guarantors and each other Subsidiary of the Borrower that is a party to a Credit Document.

“Cure Amount” shall have the meaning provided in Section 13.14(a).

“Cure Right” shall have the meaning provided in Section 13.14(a).

“Currency Hedging Agreement” shall mean any swap, cap, collar, future, option or similar agreement entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business and not for speculative purposes in order to protect the Borrower or such Restricted Subsidiary against fluctuations in currency exchange rates.

“Debt Incurrence Prepayment Event” shall mean any issuance or incurrence by the Borrower or any of the Restricted Subsidiaries of any Indebtedness (including any issuance by the Borrower of Permitted Additional Notes), excluding any Indebtedness permitted to be issued or incurred under Section 12.1 (other than clause (i)(ii) thereof).

“Deed of Trust” shall mean a Deed of Trust, Assignment of Leases and Rents, Security Agreement and Financing Statement or other security document entered into by the owner of a Mortgaged Property and the Collateral Trustee for the benefit of the Secured Parties in respect of that Mortgaged Property, substantially in the form of Exhibit C or, in the case of any Mortgaged Property located outside the United States of America, in such form as agreed between the Borrower and the Collateral Trustee, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and of the other Credit Documents.

“Default” shall mean any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.

“Defaulting Lender” shall mean any Lender with respect to which a Lender Default is in effect.

“Delayed Draw Term Loan” shall have the meaning provided in Section 2.1(b).

“Delayed Draw Term Loan Commitment” shall mean, (a) in the case of each Lender that is a Lender on the date hereof, the amount set forth opposite such Lender’s name on Schedule 1.1(b) as such Lender’s “Delayed Draw Term Loan Commitment” and (b) in the case of any Lender that becomes a Lender after the date hereof, the amount specified as such Lender’s “Delayed Draw Term Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Delayed Draw Term Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Delayed Draw Term Loan Commitments as of the date hereof is $475,000,000; provided that no more than $200,000,000 of the Delayed Draw Term Loan Commitment may be used to fund the Call Transaction.

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“Delayed Draw Term Loan Facility” shall have the meaning provided in the recitals to this Agreement.

“Delayed Draw Term Loan Maturity Date” shall mean the date that is seven years after the Credit Agreement Closing Date, or, if such date is not a Business Day, the next preceding Business Day.

“Delayed Draw Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(c).

“Delayed Draw Term Loan Repayment Date” shall have the meaning provided in Section 2.5(c).

“Distributable Scheduled Asset Proceeds” shall mean up to $100,000,000 of Net Cash Proceeds received in connection with Scheduled Asset Events, which excess Net Cash Proceeds are offered for prepayment pursuant to Section 5.2(a)(ii) and refused by any Lender pursuant to Section 5.2(c).

“Dividends” shall have the meaning provided in Section 12.6.

“Dollars” and “$” shall mean dollars in lawful currency of the United States of America.

“Domestic Subsidiary” shall mean each Subsidiary of the Borrower that is organized under the laws of the United States, any state or territory thereof, or the District of Columbia.

“Drawing” shall have the meaning provided in Section 3.4(b).

“Eligible Commodity Hedging Agreement” shall mean (a) the GS Commodity Hedging Agreement and the MS Commodity Hedging Agreement and (b) any other Commodity Hedging Agreement entered into by the Borrower or any Restricted Subsidiary that has both of the following characteristics: (i) the purpose of such Commodity Hedging Agreement is to protect the Borrower or such Restricted Subsidiary against fluctuations in power and/or gas prices; and (ii) such Commodity Hedging Agreement is structured such that the counterparty’s credit exposure and actual or projected ▇▇▇▇-to-market exposure to the Borrower or such Restricted Subsidiary is positively correlated with power and/or gas prices.

“Environmental Capital Expenditures” shall mean Capital Expenditures deemed necessary by the Borrower or any Restricted Subsidiary to comply with Environmental Laws.

“Environmental Claims” shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations (other than internal reports prepared by the Borrower or any of its Subsidiaries (a) in the ordinary course of such Person’s business or (b) as required in connection with a financing transaction or an acquisition or disposition of real estate) or proceedings relating in any way to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereinafter, “Claims”), including (i) any and all Claims by

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governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the environment.

“Environmental Law” shall mean any applicable Federal, state, foreign or local statute, law, rule, regulation, ordinance, code and rule of common law now or hereafter in effect and in each case as amended, and any binding judicial or administrative interpretation thereof, including any binding judicial or administrative order, consent decree or judgment, relating to the environment, human health or safety or Hazardous Materials.

“Equity Commitment Letter” shall mean the Commitment Letter, dated July 21, 2004, among the Borrower and the Sponsors.

“Equity Investment” shall have the meaning provided in the recitals to this Agreement.

“ERCOT” shall mean the Electric Reliability Council of Texas or any other entity succeeding thereto.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.  Section references to ERISA are to ERISA as in effect at the date of this Agreement and any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted therefor.

“ERISA Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) that together with the Borrower or a Subsidiary thereof would be deemed to be a “single employer” within the meaning of Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

“Escrow Agent” shall mean JPMorgan Chase Bank, National Association, in such capacity under the Escrow Agreement.

“Escrow Agreement” shall mean the Escrow Agreement, dated as of the Closing Date, among the Escrow Agent, the Borrower, the Administrative Agent and ▇▇▇▇▇ Fargo Bank, National Association, as trustee under the Senior Unsecured Note Indenture, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and of the other Credit Documents.

“Escrow Release” shall mean the release of the proceeds of the Initial Term Loans from escrow to the Borrower in accordance with the Escrow Agreement to fund the Initial Transaction and related Transaction Expenses.

“Escrow Return Date” shall mean the earlier of (a) the date that is 10 Business Days after the Credit Agreement Closing Date and (b) the date of termination of the Transaction

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Agreement; provided that the Escrow Return Date shall not occur if the Initial Transaction Closing Date shall have occurred on or prior to the earlier of such dates.

“Estimation Period” shall mean each tax period ending on a quarterly estimated tax payment date for U.S. Federal income tax purposes for a corporation that is taxed on a calendar year basis.

“Eurodollar Delayed Draw Term Loan” shall mean any Delayed Draw Term Loan bearing interest at a rate determined by reference to the Eurodollar Rate.

“Eurodollar Initial Term Loan” shall mean any Initial Term Loan bearing interest at a rate determined by reference to the Eurodollar Rate.

“Eurodollar Loan” shall mean any Eurodollar Term Loan or Eurodollar Revolving Credit Loan.

“Eurodollar Rate” shall mean, in the case of any Eurodollar Loan, with respect to each day during each Interest Period pertaining to such Eurodollar Loan, (a) the rate of interest determined on the basis of the rate for deposits in Dollars for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on Page 3750 of the Telerate screen as of 11:00 a.m. (London time) two Business Days prior to the beginning of such Interest Period multiplied by (b) the Statutory Reserve Rate.  In the event that any such rate does not appear on the applicable Page of the Telerate Service (or otherwise on such service), the “Eurodollar Rate” for the purposes of this paragraph shall be determined by reference to such other publicly available service for displaying Eurodollar rates as may be agreed upon by the Administrative Agent and the Borrower or, in the absence of such agreement, the “Eurodollar Rate” for the purposes of this paragraph shall instead be the rate per annum notified to the Administrative Agent by the Reference Lender as the rate at which the Reference Lender is offered Dollar deposits at or about 11:00 a.m. (London time) two Business Days prior to the beginning of such Interest Period in the interbank Eurodollar market where the Eurodollar and foreign currency and exchange operations in respect of its Eurodollar Loans are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to the amount of its Eurodollar Loan to be outstanding during such Interest Period.

“Eurodollar Revolving Credit Loan” shall mean any Revolving Credit Loan bearing interest at a rate determined by reference to the Eurodollar Rate.

“Eurodollar Term Loan” shall mean any Eurodollar Initial Term Loan or Eurodollar Delayed Draw Term Loan, as applicable.

“Event of Default” shall have the meaning provided in Section 13.

“Excepted Distributable Scheduled Asset Proceeds” shall mean up to $100,000,000 of net cash proceeds received in connection with Scheduled Asset Events.

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“Excess Cash Flow” shall mean, for any period, an amount equal to the excess of (a) the sum, without duplication, of:

(i)                                     Consolidated Net Income for such period;

(ii)                                  an amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income;

(iii)                               decreases in Consolidated Working Capital for such period;

(iv)                              an amount equal to the aggregate net non-cash loss on the sale, lease, transfer or other disposition of assets by the Borrower and the Restricted Subsidiaries during such period (other than sales in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; and

(v)                                 any termination payments or similar payments received by the Borrower or any Restricted Subsidiary during such period in connection with the termination, partial termination or other reduction of any Commodity Hedging Agreement;

over (b) the sum, without duplication, of:

(i)                                     an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income;

(ii)                                  the aggregate amount actually paid by the Borrower and the Restricted Subsidiaries in cash during such period on account of Capital Expenditures (excluding the principal amount of Indebtedness incurred in connection with such Capital Expenditures, whether incurred in such period or in a subsequent period);

(iii)                               the aggregate amount of all prepayments of Revolving Credit Loans and Swingline Loans made during such period to the extent accompanying reductions of the Total Revolving Credit Commitment except to the extent financed with the proceeds of other Indebtedness of the Borrower or the Restricted Subsidiaries;

(iv)                              the aggregate amount of all principal payments of Indebtedness of the Borrower or the Restricted Subsidiaries (including any Term Loans and the principal component of payments in respect of Capitalized Lease Obligations but excluding Revolving Credit Loans, Swingline Loans and voluntary prepayments of Term Loans pursuant to Section 5.1) made during such period (other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments thereunder) except to the extent financed with the proceeds of other Indebtedness of the Borrower or the Restricted Subsidiaries;

(v)                                 an amount equal to the aggregate net non-cash gain on the sale, lease, transfer or other disposition of assets by the Borrower and the Restricted Subsidiaries during such period (other than sales in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income;

(vi)                              increases in Consolidated Working Capital for such period;

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(vii)                           payments by the Borrower and the Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness;

(viii)                        the amount of investments made during such period pursuant to Section 12.5 to the extent that such investments were financed with internally generated cash flow of the Borrower and the Restricted Subsidiaries;

(ix)                                the amount of dividends or distributions paid during such period pursuant to clause (b), (c) (to the extent financed with internally generated cash flow of the Borrower and the Restricted Subsidiaries), (d), (f), (g) or (i) of the proviso to Section 12.6 to the extent such dividends or distributions were paid with the proceeds of any amount referred to in paragraph (a) of this definition;

(x)                                   the aggregate amount of expenditures actually made by the Borrower and the Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period;

(xi)                                the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and the Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness and that are accounted for as extraordinary items;

(xii)                             any termination payments or similar payments made by the Borrower or any Restricted Subsidiary during such period in connection with the termination, partial termination or other reduction of any Commodity Hedging Agreement; and

(xiii)                          the aggregate amount of expenditures actually made by the Borrower and the Restricted Subsidiaries relating to the acquisition of nuclear fuel.

“Excess Cash On Hand” shall have the meaning provided in Section 12.6(h).

“Federal Funds Effective Rate” shall mean, for any day, the weighted average of the per annum 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 of the quotations for the day of such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“Fees” shall mean all amounts payable pursuant to, or referred to in, Section 4.1.

“Final Date” shall mean (a) with respect to Revolving Credit Commitments and Revolving Letters of Credit, the date on which the Revolving Credit Commitments shall have terminated, no Revolving Credit Loans shall be outstanding and the Revolving Letters of Credit Outstanding shall have been reduced to zero, (b) with respect to Base Letter of Credit Commitments and Base Letters of Credit, the date on which the Base Letter of Credit

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Commitments shall have terminated and the Base Letters of Credit Outstanding shall have been reduced to zero, and (c) with respect to Special Letter of Credit Commitments and Special Letters of Credit, the date on which the Special Letter of Credit Commitments shall have terminated and the Special Letter of Credit Outstandings shall have been reduced to zero.

“Financial Performance Covenants” shall mean the covenants of the Borrower set forth in Sections 12.9 and 12.10.

“First Lien” shall mean a Lien that is pari passu with the Liens securing the Obligations; provided that the holder of such Lien agrees to be bound by the Collateral Trust Agreement with respect thereto.

“Foreign Subsidiary” shall mean each Subsidiary of the Borrower that is not a Domestic Subsidiary.

“Fronting Fee” shall have the meaning provided in Section 4.1(b).

“Funded Debt” shall mean all indebtedness of the Borrower and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of the Borrower or one of the Restricted Subsidiaries, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including all amounts of Funded Debt required to be paid or prepaid within one year from the date of its creation and, in the case of the Borrower, Indebtedness in respect of the Loans.

“GAAP” shall mean generally accepted accounting principles in the United States of America as in effect from time to time; provided, however, that if there occurs after the date hereof any change in GAAP that affects in any respect the calculation of any covenant contained in Section 12, the Lenders and the Borrower shall negotiate in good faith amendments to the provisions of this Agreement that relate to the calculation of such covenant with the intent of having the respective positions of the Lenders and the Borrower after such change in GAAP conform as nearly as possible to their respective positions as of the date of this Agreement and, until any such amendments have been agreed upon, the covenants in Section 12 shall be calculated as if no such change in GAAP has occurred.

“Genco Holdings” shall have the meaning provided in the recitals to this Agreement.

“Genco Services” shall have the meaning provided in the recitals to this Agreement.

“Genco II LP” shall have the meaning provided in the recitals to this Agreement.

“Governmental Authority” shall mean any nation or government, any state, province, territory or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including ERCOT.

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“GS Commodity Hedging Agreement” shall mean the Master Power Purchase and Sale Agreement and Cover Sheet dated as of July 21, 2004, the Confirmation thereunder dated as of July 21, 2004 and the Confirmation thereunder dated as of November 30, 2004, each between the GS Counterparty and Texas Genco II, LP (as successor by merger), as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof and thereof.

“GS Counterparty” shall mean ▇. ▇▇▇▇ & Company or any other subsidiary of The ▇▇▇▇▇▇▇ Sachs Group, Inc. that succeeds to ▇. ▇▇▇▇ & Company under the GS Commodity Hedging Agreement.

“GS Letters of Credit” shall mean the $300,000,000 and $18,000,000 Special Letter of Credit issued in favor of the GS Counterparty on the Initial Transaction Closing Date to support the obligations of Texas Genco II, LP under the GS Commodity Hedging Agreement.

“GSCP” shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.

“Guarantee” shall mean the Guarantee, made by each Guarantor in favor of the Administrative Agent for the benefit of the Agents and the Lenders, substantially in the form of Exhibit B, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and of the other Credit Documents.

“Guarantee and Collateral Exception Amount” shall mean, at any time: (a) $250,000,000 minus (b) the sum of (i) the aggregate amount of Indebtedness incurred or assumed prior to such time pursuant to Section 12.1(j) or (k) that is outstanding at such time and that was used to acquire, or was assumed in connection with the acquisition of, Capital Stock and/or assets in respect of which guarantees, pledges and security have not been given pursuant to Sections 11.11 and 11.12 and (ii) the lesser of (x) the aggregate Increased Commitment Amount at such time and (y) $125,000,000.

“Guarantee Obligations” shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting direct or indirect security therefor (b) to advance or supply funds (i) for the purchase or payment of any such Indebtedness or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor to make payment of such Indebtedness or (d) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof; provided, however, that the term “Guarantee Obligations” shall not include endorsements of instruments for deposit or collection in the ordinary course of business.  The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

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“Guarantors” shall mean (a) each Domestic Subsidiary (other than an Unrestricted Subsidiary or, if applicable, STP Nuclear Operating Company) on the Credit Agreement Closing Date and (b) each Domestic Subsidiary (other than an Unrestricted Subsidiary) that becomes a party to the Guarantee after the Credit Agreement Closing Date pursuant to Section 11.11.

“Hazardous Materials” shall mean (a) any petroleum or petroleum products, radioactive materials, friable asbestos, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing regulated levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous waste”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, or “pollutants”, or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, which is prohibited, limited or regulated by any Environmental Law.

“Hedge Outstanding Amount” shall mean, with respect to obligations under a Commodity Hedging Agreement, the amount that would be payable in the reasonable judgment of the counterparty under such Commodity Hedging Agreement if such Commodity Hedging Agreement were terminated as the result of an event of default with respect to the Borrower or any of its Subsidiaries under such Commodity Hedging Agreement on the Business Day prior to the date of such determination or, if such Commodity Hedging Agreement was previously terminated, the termination amount which remains unpaid as of the Business Day preceding such date.  For the avoidance of doubt, any calculation of a Hedge Outstanding Amount in respect of a Commodity Hedging Agreement involving the purchase of fuel or the sale of power shall include, without limitation, consideration of the contractual value of any fuel or power, as applicable, which has been delivered on or before the date of the relevant calculation, but for which payment has not been made by the buyer of such fuel or power.

“Hedging Agreement” shall mean any Commodity Hedging Agreement, Currency Hedging Agreement or Interest Rate Hedging Agreement, as applicable.

“Hedging Credit Support Facility” shall mean any letter of credit facility or similar credit support facility entered into by the Borrower or any Restricted Subsidiary for the issuance of letters of credit or other support instruments to support the obligations of the Borrower or any Restricted Subsidiary under Commodity Hedging Agreements.

“Hedging Obligations” shall mean, with respect to any Person, the obligations of such Person under Hedging Agreements.

“Historical Financial Statements” shall mean, as of the Credit Agreement Closing Date, (a) the audited financial statements of the Borrower and its Subsidiaries for the immediately preceding two fiscal years, and (b) to the extent reasonably available, the unaudited quarterly financial statements of the Borrower and its Subsidiaries for each fiscal quarter following the latest date for which audited financial statements are available, in each case consisting of balance sheets and the related consolidated statements of income, stockholders’ equity and cash flows for such periods.

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“HPC Merger Sub” shall have the meaning provided in the recitals to this Agreement.

“Increased Amount Date” shall have the meaning provided in Section 2.14(a).

“Increased Commitment Amount” shall have the meaning given to that term in Section 15.1.

“Indebtedness” of any Person shall mean (a) all indebtedness of such Person for borrowed money, (b) the deferred purchase price of assets or services that in accordance with GAAP would be included as liabilities in the balance sheet of such Person, (c) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder, (d) all Indebtedness of a second Person secured by any Lien on any property owned by such first Person, whether or not such Indebtedness has been assumed, (e) all Capitalized Lease Obligations and Synthetic Lease Obligations of such Person, (f) all obligations of such Person under interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts, commodity price protection agreements or other commodity price hedging agreements and other similar agreements (including Hedging Agreements) and (g) without duplication, all Guarantee Obligations of such Person; provided that Indebtedness shall not include (i) trade payables and accrued expenses, in each case payable directly or through a bank clearing arrangement and arising in the ordinary course of business, (ii) prepaid or deferred revenue arising in the ordinary course of business and (iii) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warrants or other unperformed obligations of the seller of such asset.

“Initial Baseload Assets” shall mean the assets comprising the Limestone Project, the South Texas Project and the Parish Project, each owned by the Borrower on the Initial Transaction Closing Date.

“Initial Financial Statement Delivery Date” shall mean the date on which Section 11.1 Financials are delivered to the Lenders under Section 11.1 for the first full fiscal quarter commencing after the Credit Agreement Closing Date.

“Initial Term Loan” shall have the meaning provided in Section 2.1(a).

“Initial Term Loan Commitment” shall mean, (a) in the case of each Lender that is a Lender on the date hereof, the amount set forth opposite such Lender’s name on Schedule 1.1(b) as such Lender’s “Initial Term Loan Commitment” and (b) in the case of any Lender that becomes a Lender after the date hereof, the amount specified as such Lender’s “Initial Term Loan Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Initial Term Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof.  The aggregate amount of the Initial Term Loan Commitments as of the date hereof is $1,150,000,000.

“Initial Term Loan Facility” shall have the meaning provided in the recitals to this Agreement.

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“Initial Term Loan Maturity Date” shall mean the earlier of (a) the Escrow Return Date and (b) the date that is seven years after the Credit Agreement Closing Date; provided that, in either case, if such date is not a Business Day, the “Initial Term Loan Maturity Date” will be the next preceding Business Day.

“Initial Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b).

“Initial Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).

“Initial Transaction” shall have the meaning provided in the recitals to this Agreement.

“Initial Transaction Closing Date” shall mean the date on which the conditions precedent set forth in Section 7 are satisfied and the Escrow Release occurs.

“Initial Transaction Closing Date Indebtedness” shall mean Indebtedness described on Schedule 12.1 under the caption “Initial Transaction Closing Date”.

“Initial Transaction Option Plan” shall mean the option plan to be entered into by the Borrower or any of its direct or indirect parent entities within 12 months after the Credit Agreement Closing Date.

“Interest Period” shall mean, with respect to any Term Loan or Revolving Credit Loan, the interest period applicable thereto, as determined pursuant to Section 2.9.

“Interest Rate Hedging Agreement” shall mean any swap, cap, collar, future, option or similar agreement entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business and not for speculative purposes in order to protect the Borrower or such Restricted Subsidiary against fluctuations in interest rates.

“Joinder Agreement” shall mean an agreement substantially in the form of Exhibit J.

“Joint Lead Arrangers” shall mean (a) ▇▇▇▇▇▇▇, Sachs & Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc., together with their affiliates, as arrangers of the Initial Term Loan Commitments, Delayed Draw Term Loan Commitments, Revolving Credit Commitments and Base Letter of Credit Commitments, and (b) ▇▇▇▇▇▇▇, Sachs & Co. and Deutsche Bank Securities Inc., together with their affiliates, as arrangers of the Special Letter of Credit Commitments.

“Lender” shall have the meaning provided in the preamble to this Agreement.

“Lender Default” shall mean (a) the failure (which has not been cured) of a Lender to make available its portion of any Borrowing or to fund its portion of any unreimbursed payment under Section 3.4 or (b) a Lender having notified the Administrative Agent and/or the Borrower that it does not intend to comply with the obligations under Section 2.1, 3.3 or 3.4, in

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the case of either clause (a) or clause (b) above, as a result of the appointment of a receiver or conservator with respect to such Lender at the direction or request of any regulatory agency or authority.

“Letter of Credit” shall mean a Revolving Letter of Credit, a Base Letter of Credit or a Special Letter of Credit, as applicable.

“Letter of Credit Commitment” shall mean the Revolving Letter of Credit Commitment, a Base Letter of Credit Commitment or a Special Letter of Credit Commitment, as applicable.

“Letter of Credit Issuer” shall mean (a) in the context of the Revolving Letter of Credit Facility and the Base Letter of Credit Facility, the Revolving/Base Letter of Credit Issuer, and (b) in the context of the Special Letter of Credit Facility, the Special Letter of Credit Issuer.  The Letter of Credit Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Letter of Credit Issuer, and in each such case the term “Letter of Credit Issuer” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.  In the event that there is more than one Letter of Credit Issuer at any time, references herein and in the other Credit Documents to the Letter of Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in respect of the applicable Letter of Credit or to all Letter of Credit Issuers, as the context requires.

“Letters of Credit Outstanding” shall mean Revolving Letters of Credit Outstanding, Base Letters of Credit Outstanding or Special Letters of Credit Outstanding, as applicable.

“Letter of Credit Participant” shall mean a Revolving Letter of Credit Participant, a Base Letter of Credit Participant or a Special Letter of Credit Participant, as applicable.

“Letter of Credit Participation” shall mean a Revolving Letter of Credit Participation, a Base Letter of Credit Participation or a Special Letter of Credit Participation, as applicable.

“Letter of Credit Percentage” shall mean a Revolving Credit Percentage, a Base Letter of Credit Percentage or a Special Letter of Credit Percentage, as applicable.

“Letter of Credit Request” shall have the meaning provided in Section 3.2(a).

“Level I Status” shall mean, on any date, the Term Loan Repayment Amount as of such date is at least (x) if the Subsequent Transaction Closing Date has occurred, $400,000,000, or (y) if the Subsequent Transaction Closing Date has not occurred, $320,000,000.

“Level II Status” shall mean, on any date, the Term Loan Repayment Amount as of such date is at least (x) if the Subsequent Transaction Closing Date has occurred, $750,000,000, or (y) if the Subsequent Transaction Closing Date has not occurred, $600,000,000.

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“Lien” shall mean any mortgage, pledge, security interest, hypothecation, assignment, lien (statutory or other) or similar encumbrance, and any easement, right-of-way, license, restriction (including zoning restrictions), defect, exception or irregularity in title or similar change or encumbrance (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof).

“Limestone Project” shall mean the Limestone Electric Generating Station located in Limestone, ▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Counties in the State of Texas, consisting of two coal-fired baseload generating units with an approximate net generating capacity, as of the Initial Acquisition Closing Date, of 1,621 megawatts.

“Loan” shall mean any Revolving Credit Loan, New Revolving Credit Loan, Swingline Loan, Initial Term Loan, Delayed Draw Term Loan or New Term Loan made by any Lender hereunder.

“Management Group” shall mean, at any time, the Chairman of the Board, any President, any Executive Vice President or Vice President, any Managing Director, any Treasurer and any Secretary of the Borrower or any Restricted Subsidiary at such time.

“Management Investors” shall mean the management officers and employees of the Borrower and the Restricted Subsidiaries who become investors in the Borrower or any of its direct or indirect parent entities pursuant to the Initial Acquisition Option Plan within 12 months after the Credit Agreement Closing Date, not to exceed 10% of the Capital Stock of the Borrower.

“Mandatory Borrowing” shall have the meaning provided in Section 2.1(e)(ii).

“▇▇▇▇-to-Market Exposure” shall mean (a) with respect to any Business Day (other than any Business Day that is within three Business Days prior to any date on which Special Letter of Credit Fees are due) for which the GS Counterparty or the MS Counterparty, as applicable, has provided the Special Letter of Credit Issuer with written notice of the aggregate positive ▇▇▇▇-to-market exposure of the GS Counterparty or the MS Counterparty, as applicable, to the Borrower and the Restricted Subsidiaries on such Business Day, the aggregate positive ▇▇▇▇-to-market exposure set forth in such notice, (b) with respect to any Business Day that is within three Business Days prior to any date on which Special Letter of Credit Fees are due or any day other than a Business Day, the aggregate positive ▇▇▇▇-to-market exposure described in the most recent notice provided as described in clause (a), and (c) with respect to any day for which no notice has been provided as described in clause (a) (including for purposes of clause (b), the most recent day prior to the three Business Day period referenced therein on which a notice should have been provided), the aggregate Stated Amount of the applicable GS Letter of Credit or MS Letter of Credit (provided that for purposes of this clause (c), until the MS Initial LOC Reduction Date, the Stated Amount of the MS Letter of Credit shall be deemed to be $26,352,000), as the case may be; provided that for purposes of calculating the ▇▇▇▇-to-Market Exposure, any negative ▇▇▇▇-to-market exposure of the GS Counterparty or the MS Counterparty, as applicable, to the Borrower and the Restricted Subsidiaries shall be deemed to be $0.

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“Material Adverse Change” shall mean any change in the business, assets, operations, properties or financial condition of the Borrower and its Subsidiaries, taken as a whole, that would materially adversely affect the ability of the Borrower and the other Credit Parties, taken as a whole, to perform their obligations under this Agreement or any of the other Credit Documents.

“Material Adverse Effect” shall mean a circumstance or condition affecting the business, assets, operations, properties or financial condition of the Borrower and its Subsidiaries, taken as a whole, that would materially adversely affect (a) the ability of the Borrower and the other Credit Parties, taken as a whole, to perform their obligations under this Agreement or any of the other Credit Documents or (b) the rights and remedies of the Administrative Agent and the Lenders under this Agreement or any of the other Credit Documents.

“Material Subsidiary” shall mean, at any date of determination, each Restricted Subsidiary of the Borrower (a) whose total assets at the last day of the Test Period ending on the last day of the most recent fiscal period for which Section 11.1 Financials have been delivered were equal to or greater than 5% of the Consolidated Total Assets of the Borrower and the Restricted Subsidiaries at such date or (b) whose gross revenues for such Test Period were equal to or greater than 5% of the consolidated gross revenues of the Borrower and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP.

“Maturity Date” shall mean the Initial Term Loan Maturity Date, the Delayed Draw Term Loan Maturity Date, any New Term Loan Maturity Date, the Revolving Credit Maturity Date, the Swingline Maturity Date, the Base Letter of Credit Maturity Date or the Special Letter of Credit Maturity Date, as applicable.

“Minimum Borrowing Amount” shall mean (a) with respect to a Borrowing of Term Loans or Revolving Credit Loans, $1,000,000, and (b) with respect to a Borrowing of Swingline Loans, $100,000.

“Minority Investment” shall mean any Person (other than a Subsidiary) in which the Borrower or any Restricted Subsidiary owns Capital Stock.

“Moody’s” shall mean ▇▇▇▇▇’▇ Investors Service, Inc. or any successor by merger or consolidation to its business.

“Mortgaged Property” shall mean, initially, each parcel of real estate and the improvements thereto owned by a Credit Party and identified on Schedule 1.1(a), and includes each other parcel of real property and improvements thereto with respect to which a Deed of Trust is granted pursuant to Section 11.15.

“MS Commodity Hedging Agreement” shall mean the Master Power Purchase and Sale Agreement and Cover Sheet dated as of December 1, 2004 and the Confirmation thereunder dated as of December 2, 2004, each between the MS Counterparty and Texas Genco II, LP (as successor by merger), as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof and thereof.

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“MS Counterparty” shall mean ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Group Inc. or any other subsidiary of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated that succeeds to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Group Inc. under the MS Commodity Hedging Agreement.

“MS Letter of Credit” shall mean the $26,352,000 Special Letter of Credit issued in favor of the MS Counterparty on the Initial Transaction Closing Date to support the obligations of Texas Genco II, LP under the MS Commodity Hedging Agreement.

“MS Initial LOC Reduction Date” shall mean the first date after July 15, 2008 on which the Special Letter of Credit Issuer receives a copy (certified by an Authorized Officer of the Borrower) of the first request to reduce the Stated Amount of the MS Letter of Credit.

“Necessary Capital Expenditures” shall mean Capital Expenditures that are required by Applicable Law (other than Environmental Laws) or undertaken for health and safety reasons.  The term “Necessary Capital Expenditures” shall not include any Capital Expenditures undertaken primarily to increase the efficiency of, expand or re-power any power generation facility.

“Net Cash Proceeds” shall mean, with respect to any Prepayment Event, (a) the gross cash proceeds (including payments from time to time in respect of installment obligations, if applicable) received by or on behalf of the Borrower or any of the Restricted Subsidiaries in respect of such Prepayment Event, less (b) the sum of:

(i)                                     in the case of any Prepayment Event, the amount, if any, of all taxes and Tax Distributions paid or estimated to be payable by the Borrower or any of the Restricted Subsidiaries in connection with such Prepayment Event,

(ii)                                  in the case of any Prepayment Event, the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes or Tax Distributions deducted pursuant to clause (i) above) (x) associated with the assets that are the subject of such Prepayment Event and (y) retained by the Borrower or any of the Restricted Subsidiaries, provided that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such Prepayment Event occurring on the date of such reduction,

(iii)                               in the case of any Prepayment Event, the amount of any Indebtedness secured by a Lien on the assets that are the subject of such Prepayment Event to the extent that the instrument creating or evidencing such Indebtedness requires that such Indebtedness be repaid upon consummation of such Prepayment Event and such Indebtedness is actually so repaid,

(iv)                              in the case of any Asset Sale Prepayment Event (other than a transaction permitted by Section 12.4(e)) or Permitted Sale Leaseback, the amount of any proceeds of such Asset Sale Prepayment Event or Permitted Sale Leaseback that the Borrower or the applicable Restricted Subsidiary has reinvested (or intends to reinvest), or has entered into an Acceptable Reinvestment Commitment to reinvest, within the Reinvestment Period, in the business of the Borrower or any of the Restricted Subsidiaries (subject to Section 11.14), provided that:

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(A)                              the Borrower or the applicable Restricted Subsidiary shall comply with Sections 11.11, 11.12 and 11.15 with respect to such reinvestment;

(B)                                if such Asset Sale Prepayment Event or Permitted Sale Leaseback is in respect of any Baseload Asset and the amount of such proceeds exceeds $25,000,000, the Borrower or the applicable Restricted Subsidiary shall deposit such proceeds in a Control Account pending reinvestment;

(C)                                if such Asset Sale Prepayment Event (but not a Permitted Sale Leaseback) is in respect of the Limestone Project, the Parish Project or any Baseload Asset in which proceeds have previously been reinvested pursuant to this clause (C), such proceeds shall be reinvested in other Baseload Assets;

(D)                               if such Asset Sale Prepayment Event (but not a Permitted Sale Leaseback) is in respect of the South Texas Project or any asset in which proceeds have previously been reinvested pursuant to this clause (D), such proceeds shall be reinvested in (x) other Baseload Assets or (y) other assets such that the Consolidated Total Debt to Consolidated EBITDA Ratio as of the most recently ended Test Period at the time such reinvestment is announced by the Borrower, calculated on a pro forma basis after giving effect to such reinvestment, is equal to or less than the Consolidated Total Debt to Consolidated EBITDA Ratio as of the most recently ended Test Period at the time of such Asset Sale Prepayment Event; provided that the pro forma change in Consolidated EBITDA projected by the Borrower in good faith as a result of reasonably identifiable and factually supportable cost savings and costs (excluding one-time transition, transaction and restructuring costs), as the case may be, expected to be realized during the consecutive four quarter period commencing after such reinvestment shall be included in such calculation of the pro forma Consolidated Total Debt to Consolidated EBITDA Ratio; provided, however, that any such pro forma change to Consolidated EBITDA shall be without duplication for cost savings and costs (excluding one-time transition, transaction and restructuring costs) actually realized and already included in Consolidated EBITDA;

(E)                                 if such Permitted Sale Leaseback is in respect of Baseload Assets, the property rented or leased back shall consist of such Baseload Assets;

(F)                                 any portion of such proceeds that has not been so reinvested or made subject to an Acceptable Reinvestment Commitment within the Reinvestment Period shall (x) be deemed to be Net Cash Proceeds of an Asset Sale Prepayment Event or a Permitted Sale Leaseback occurring on the last day of the Reinvestment Period and (y) be applied to the repayment of Term Loans in accordance with Section 5.2(a)(i) or 5.2(a)(ii), as applicable; and

(G)                                any proceeds subject to an Acceptable Reinvestment Commitment that is later canceled or terminated for any reason before such proceeds are applied in accordance therewith shall be applied to the repayment of Term Loans in accordance with Section 5.2(a)(i) or 5.2(a)(ii), as applicable, unless the Borrower or the applicable Restricted Subsidiary enters into another Acceptable Reinvestment Commitment with

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respect to such proceeds prior to the later of (x) nine months after such cancellation or termination or (y) the end of the Reinvestment Period,

(v)                                 in the case of any Recovery Prepayment Event, the amount of any proceeds of such Recovery Prepayment Event (x) that the Borrower or the applicable Restricted Subsidiary has reinvested (or intends to reinvest), or has entered into an Acceptable Reinvestment Commitment to reinvest, within the Reinvestment Period, in the business of the Borrower or any of the Restricted Subsidiaries (subject to Section 11.14), including for the repair, restoration or replacement of the asset or assets subject to such Recovery Prepayment Event, or (y) for which the Borrower or the applicable Restricted Subsidiary has provided a Restoration Certification; provided that:

(A)                              the Borrower or the applicable Restricted Subsidiary shall comply with Sections 11.11, 11.12 and 11.15 with respect to such reinvestment;

(B)                                if such Recovery Prepayment Event is in respect of any Baseload Asset and the amount of such proceeds exceeds $25,000,000, the Borrower or the applicable Restricted Subsidiary shall deposit such proceeds in a Control Account pending reinvestment;

(C)                                if such Recovery Prepayment Event is in respect of the Limestone Project, the Parish Project or any Baseload Asset in which proceeds have previously been reinvested pursuant to this clause (C), such proceeds shall be reinvested in other Baseload Assets;

(D)                               if such Recovery Prepayment Event is in respect of the South Texas Project or any asset in which proceeds have previously been reinvested pursuant to this clause (D), such proceeds shall be reinvested in (x) other Baseload Assets or (y) other assets such that the Consolidated Total Debt to Consolidated EBITDA Ratio as of the most recently ended Test Period at the time such reinvestment is announced by the Borrower, calculated on a pro forma basis after giving effect to such reinvestment, is equal to or less than the Consolidated Total Debt to Consolidated EBITDA Ratio as of the most recently ended Test Period at the time of such Recovery Prepayment Event; provided that the pro forma change in Consolidated EBITDA projected by the Borrower in good faith as a result of reasonably identifiable and factually supportable cost savings and costs (excluding one-time transition, transaction and restructuring costs), as the case may be, expected to be realized during the consecutive four quarter period commencing after such reinvestment shall be included in such calculation of the pro forma Consolidated Total Debt to Consolidated EBITDA Ratio; provided, however, that any such pro forma change to Consolidated EBITDA shall be without duplication for cost savings and costs (excluding one-time transition, transaction and restructuring costs) actually realized and already included in Consolidated EBITDA;

(E)                                 any portion of such proceeds that has not been so reinvested or made subject to an Acceptable Reinvestment Commitment or Restoration Certification within the Reinvestment Period shall (x) be deemed to be Net Cash Proceeds of a Recovery Prepayment Event occurring on the last day of the Reinvestment Period and (y) be

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applied to the repayment of Term Loans in accordance with Section 5.2(a)(i) or 5.2(a)(ii), as applicable; and

(F)                                 any proceeds subject to an Acceptable Reinvestment Commitment that is later canceled or terminated for any reason before such proceeds are applied in accordance therewith shall be applied to the repayment of Term Loans in accordance with Section 5.2(a)(i) or 5.2(a)(ii), as applicable, unless the Borrower or the applicable Restricted Subsidiary enters into another Acceptable Reinvestment Commitment with respect to such proceeds prior to the later of (x) nine months after such cancellation or termination or (y) the end of the Reinvestment Period,

(vi)                              in the case of any Scheduled Asset Event (but not any other Asset Sale Prepayment Event, Permitted Sale Leaseback or Recovery Prepayment Event), the Excepted Distributable Scheduled Asset Proceeds received in connection therewith, and

(vii)                           in the case of any Prepayment Event, reasonable and customary fees, commissions, expenses, issuance costs, discounts and other costs paid by the Borrower or any of the Restricted Subsidiaries, as applicable, in connection with such Prepayment Event (other than those payable to the Borrower or any Subsidiary of the Borrower), in each case only to the extent not already deducted in arriving at the amount referred to in clause (a) above.

“New Loan Commitments” shall have the meaning provided in Section 2.14(a).

“New Revolving Credit Commitments” shall have the meaning provided in Section 2.14(a).

“New Revolving Credit Lender” shall have the meaning provided in Section 2.14(b).

“New Revolving Credit Loans” shall have the meaning provided in Section 2.14(b).

“New Term Loan Commitments” shall have the meaning provided in Section 2.14(a).

“New Term Loan Facility” shall mean any credit facility constituting New Term Loan Commitments and New Term Loans.

“New Term Loan Lender” shall have the meaning provided in Section 2.14(c).

“New Term Loans” shall have the meaning provided in Section 2.14(c).

“New Term Loan Maturity Date” shall mean the date on which a New Term Loan matures.

“Newco 1” shall have the meaning provided in the recitals to this Agreement.

“Newco 2” shall have the meaning provided in the recitals to this Agreement.

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“NN Houston Sub” shall have the meaning provided in the recitals to this Agreement.

“Non-Defaulting Lender” shall mean and include each Lender other than a Defaulting Lender.

“Non-Excluded Taxes” shall have the meaning provided in Section 5.4(a).

“Non-Nuclear Assets” shall mean all assets owned by Genco Holdings and its Subsidiaries as of the Initial Transaction Closing Date other than the Nuclear Assets.

“Notes Offering” shall have the meaning provided in the recitals to this Agreement.

“Notice of Borrowing” shall have the meaning provided in Section 2.3.

“Notice of Conversion or Continuation” shall have the meaning provided in Section 2.6.

“Nuclear Assets” shall mean Genco Holdings’ indirect undivided ownership interest in the South Texas Project.

“Obligations” shall mean the collective reference to (a) the due and punctual payment of (i) the principal of and premium, if any, and interest at the applicable rate provided in this Agreement (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrower under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral, and (iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Borrower or any other Credit Party to any of the Secured Parties under this Agreement and the other Credit Documents, (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrower under or pursuant to this Agreement and the other Credit Documents, (c) the due and punctual payment and performance of all the covenants, agreements, and liabilities of each other Credit Party under or pursuant to this Agreement or the other Credit Documents, (d) the due and punctual payment and performance of all obligations of each Credit Party under each Interest Rate Hedging Agreement and each Currency Hedging Agreement that (x) is in effect on the Credit Agreement Closing Date with a counterparty that is an Agent, a Lender or an affiliate of an Agent or a Lender as of the Credit Agreement Closing Date or (e) is entered into after the Credit Agreement Closing Date with any counterparty that is an Agent, a Lender or an affiliate of an Agent or a Lender at the time such Interest Rate Hedging Agreement or Currency Hedging Agreement, as the case may be, is entered into and (f) the due and punctual payment and performance of all obligations in respect of overdrafts and related liabilities owed to the Administrative Agent or its affiliates arising from or in connection with

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treasury, depositary or cash management services or in connection with any automated clearinghouse transfer of funds.

“Parish Project” shall mean Units 5, 6, 7 and 8 of the W.A. Parish Electric Generating Station, located in Fort Bend County in the State of Texas, consisting of four coal-fired baseload generating units with an approximate net generation capacity, as of the Initial Transaction Closing Date, of 2,501 megawatts.

“Participant” shall have the meaning provided in Section 15.6(c)(i).

“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.

“Perfection Certificate” shall mean a certificate of the Borrower in the form of Exhibit D or any other form approved by the Administrative Agent.

“Permitted Acquisition” shall mean (a) the Acquisition Transactions and the ROFR and (b) any other acquisition, by merger or otherwise, by the Borrower or any of the Restricted Subsidiaries of assets or Capital Stock, so long as, in case of clause (b), (i) such acquisition and all transactions related thereto shall be consummated in accordance with all Applicable Laws; (ii) such acquisition shall result in the issuer of such Capital Stock becoming a Restricted Subsidiary and, to the extent required by Section 11.11, a Guarantor; (iii) such acquisition shall result in the Administrative Agent, for the benefit of the applicable Lenders, being granted a security interest in any Capital Stock or any assets so acquired to the extent required by Sections 11.11, 11.12 and/or 11.15; (iv) after giving effect to such acquisition, no Default or Event of Default shall have occurred and be continuing; and (v) the Borrower shall be in compliance, on a pro forma basis after giving effect to such acquisition (including any Indebtedness assumed or permitted to exist or incurred pursuant to Sections 12.1(j) and 12.1(k), respectively, and any related Pro Forma Adjustment), with the covenants set forth in Sections 12.9 and 12.10, as such covenants are recomputed as at the last day of the most recently ended Test Period under such Sections as if such acquisition had occurred on the first day of such Test Period.

“Permitted Additional Notes” shall mean senior or senior subordinated notes issued by the Borrower; provided that (a) the terms of such notes do not provide for any scheduled repayment, mandatory redemption, sinking fund obligation or other payment prior to the Senior Unsecured Note Maturity Date, other than customary offers to purchase upon a change of control, asset sale or casualty or condemnation event and customary acceleration rights upon an event of default, (b) the covenants, events of default, Subsidiary guarantees and other terms for such notes (provided that such notes shall have interest rates and redemption premiums determined by the Board of Managers of the Borrower to be market rates and premiums at the time of issuance of such notes), taken as a whole, are not more restrictive on the Borrower and its Subsidiaries, or less favorable to the Lenders, than the terms of the Senior Unsecured Notes (as in effect on the Credit Agreement Closing Date), (c) if such notes are senior subordinated notes, the terms of such notes provide for customary subordination of such notes to the Obligations and (d) no Subsidiary of the Borrower (other than a Guarantor) is an obligor under such notes that is not an obligor under the Senior Unsecured Notes.

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“Permitted Capital Expenditure Amount” shall have the meaning given to such term in Section 12.11.

“Permitted Cure Security” shall mean an equity security of the Borrower having no mandatory redemption, repurchase or similar requirements prior to 91 days after the latest maturity date for any of the Loans, and upon which all dividends or distributions (if any) shall be payable solely in additional shares of such equity security.

“Permitted Investments” shall mean (a) securities issued or unconditionally guaranteed by the United States government or any agency or instrumentality thereof, in each case having maturities of not more than 24 months from the date of acquisition thereof; (b) securities issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than 24 months from the date of acquisition thereof and, at the time of acquisition, having an investment grade rating generally obtainable from either S&P or ▇▇▇▇▇’▇ (or, if at any time neither S&P nor ▇▇▇▇▇’▇ shall be rating such obligations, then from another nationally recognized rating service); (c) commercial paper issued by any Lender or any bank holding company owning any Lender; (d) commercial paper maturing no more than 12 months after the date of creation thereof and, at the time of acquisition, having a rating of at least A-2 or P-2 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service); (e) domestic and Eurodollar certificates of deposit or bankers’ acceptances maturing no more than two years after the date of acquisition thereof issued by any Lender or any other bank having combined capital and surplus of not less than $250,000,000 in the case of domestic banks and $100,000,000 (or the dollar equivalent thereof) in the case of foreign banks; (f) repurchase agreements with a term of not more than 30 days for underlying securities of the type described in clauses (a), (b) and (e) above entered into with any bank meeting the qualifications specified in clause (e) above or securities dealers of recognized national standing; (g) marketable short-term money market and similar securities having a rating of at least A-2 or P-2 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service); (h) shares of investment companies that are registered under the Investment Company Act of 1940 and invest solely in one or more of the types of securities described in clauses (a) through (g) above; and (i) in the case of investments by any Restricted Foreign Subsidiary or investments made in a country outside the United States of America, other customarily utilized high-quality investments in the country where such Restricted Foreign Subsidiary is located or in which such investment is made.

“Permitted Liens” shall mean (a) Liens for taxes, assessments or other governmental charges or claims that are either (i) not yet due and payable and not subject to penalties for nonpayment or (ii) being contested in good faith by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP; (b) Liens in respect of property or assets of the Borrower or any of its Subsidiaries imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens and other similar Liens, in each case so long as such Liens arise in the ordinary course of business and do not individually or in the aggregate have a Material Adverse Effect; (c) Liens arising from judgments or decrees in circumstances not constituting an Event of Default under Section 13.10; (d) Liens incurred or pledges or deposits

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made in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business; (e) ground leases or subleases in respect of real property on which facilities owned or leased by the Borrower or any of its Subsidiaries are located; (f) easements, rights-of-way, licenses, restrictions (including zoning restrictions), minor defects, exceptions or irregularities in title and other similar charges or encumbrances, in each case not interfering in any material respect with the business of the Borrower and its Subsidiaries, taken as a whole; (g) any interest or title of a lessor or secured by a lessor’s interest under any lease permitted by this Agreement; (h) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; (i) Liens on goods or inventory the purchase, shipment or storage price of which is financed by a documentary letter of credit or bankers’ acceptance issued or created for the account of the Borrower or any of its Subsidiaries, provided that such Lien secures only the obligations of the Borrower or such Subsidiaries in respect of such letter of credit to the extent permitted under Section 12.1; (j) leases or subleases granted to others not interfering in any material respect with the business of the Borrower and its Subsidiaries, taken as a whole; (k) Liens created in the ordinary course of business in favor of banks and other financial institutions over credit balances of any bank accounts of the Borrower and the Restricted Subsidiaries held at such banks or financial institutions, as the case may be, to facilitate the operation of cash pooling and/or interest set-off arrangements in respect of such bank accounts in the ordinary course of business; and (l) Liens arising from precautionary Uniform Commercial Code financing statement or similar filings made in respect of operating leases entered into by the Borrower or any of its Subsidiaries.

“Permitted Quarterly Tax Distributions” shall mean quarterly distributions of Tax Amounts determined on the basis of the estimated taxable income of the Borrower (in each case, including any such taxable income attributable to the Borrower’s ownership of interest in any other pass-through entity for Federal income tax purposes) for the related Estimation Period, as set forth in a statement filed with the Administrative Agent; provided, however, that at the time of such distributions, the most recent audited financial statements of the Borrower reflect that the Borrower was treated as a partnership for Federal income tax purposes for the period covered by such financial statements; provided, further, that, for an Estimation Period that includes a True-up Determination Date, (i) for any True-Up Amount due to the members (as defined in the definition of the term “True-up Amount”), the Permitted Quarterly Tax Distribution payable by the Borrower for such Estimation Period shall be increased by such True-up Amount, and (ii) for any True-up Amount due to the Borrower (as defined in the definition of the term “True-up Amount”), the Permitted Quarterly Tax Distribution payable by the Borrower for such Estimation Period shall be reduced by such True-up Amount and the excess, if any, of such True-up Amount over such Permitted Quarterly Tax Distribution shall be applied to reduce the immediately following Permitted Quarterly Tax Distribution(s) until such True-up Amount is entirely offset.  The amount of Permitted Quarterly Tax Distributions relating to an Estimation Period including a True-up Determination Date shall be determined by a Tax Amounts CPA, and the amount of Permitted Quarterly Tax Distributions relating to all other Estimation Periods shall be determined by the Borrower.

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“Permitted Sale Leaseback” shall mean any Sale Leaseback consummated by the Borrower or any of the Restricted Subsidiaries after the Credit Agreement Closing Date, provided that any such Sale Leaseback not between the Borrower and any Guarantor or any Guarantor and another Guarantor is consummated for fair value as determined at the time of consummation in good faith by the Borrower and, in the case of any Sale Leaseback (or series of related Sales Leasebacks) the aggregate proceeds of which exceed $50,000,000, the Board of Managers of the Borrower (which such determination may take into account any retained interest or other investment of the Borrower or such Restricted Subsidiary in connection with, and any other material economic terms of, such Sale Leaseback).

“Person” shall mean any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust or other enterprise or any Governmental Authority.

“Plan” shall mean any multiemployer or single-employer plan, as defined in Section 4001 of ERISA and subject to Title IV of ERISA, that is or was within any of the preceding five plan years maintained or contributed to by (or to which there is or was an obligation to contribute or to make payments to) the Borrower, a Subsidiary or an ERISA Affiliate.

“Pledge Agreement” shall mean the Pledge Agreement, entered into by the Borrower, the other pledgors party thereto and the Collateral Trustee for the benefit of the Secured Parties (as defined therein), substantially in the form of Exhibit E-2, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and of the other Credit Documents.

“Prepayment Event” shall mean any Asset Sale Prepayment Event, Recovery Prepayment Event, Debt Incurrence Prepayment Event or Permitted Sale Leaseback.

“Prime Rate” shall mean the rate of interest per annum publicly announced from time to time by the Administrative Agent as its reference rate in effect at its principal office in New York City (the Prime Rate not being intended to be the lowest rate of interest charged by GSCP in connection with extensions of credit to debtors).

“Pro Forma Adjustment” shall mean, for any Test Period that includes any of the six consecutive fiscal quarters first ending following any Permitted Acquisition, with respect to the Acquired EBITDA of the applicable Acquired Entity or Business or the Consolidated EBITDA of the Borrower affected by such acquisition, the pro forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected by the Borrower in good faith as a result of reasonably identifiable and factually supportable cost savings and costs (excluding one-time transition, transaction and restructuring costs), as the case may be, expected to be realized during such period by combining the operations of such Acquired Entity or Business with the operations of the Borrower and its Subsidiaries; provided further that any such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be without duplication for cost savings and costs (excluding one-time transition, transaction and restructuring costs) actually realized during such period and already included in such Acquired EBITDA or such Consolidated EBITDA, as the case may be.

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“Pro Forma Adjustment Certificate” shall mean any certificate of an Authorized Officer of the Borrower delivered pursuant to Section 11.1(h) or setting forth the information described in clause (iv) to Section 11.1(d).

“Project Finance Subsidiary” shall mean any Unrestricted Subsidiary of the Borrower that is formed or acquired after the Initial Transaction Closing Date for purposes of financing the development, construction or acquisition by such Subsidiary of an electric generation facility, electric transmission or distribution facility or fuel supply or transportation facility and fixed or capital assets, working capital or spare parts related thereto.

“Public Company Merger” shall have the meaning provided in the recitals to this Agreement.

“Quarterly Payment Period” shall mean the period commencing on the tenth day and ending on and including the twentieth day of each month in which Federal estimated tax payments are due for a corporation taxed on a calendar year basis (provided that payments in respect of estimated state income taxes due in January may instead, at the option of the Borrower, be paid during the last five days of the immediately preceding December).

“Real Estate” shall have the meaning provided in Section 11.1(f).

“Recovery Event” shall mean (a) any damage to, destruction of or other casualty or loss involving any property or asset or (b) any seizure, condemnation, confiscation or taking under the power of eminent domain of, or any requisition of title or use of or relating to, or any similar event in respect of, any property or asset.

“Recovery Prepayment Event” shall mean the receipt of cash proceeds with respect to any settlement or payment in connection with any Recovery Event in respect of any property or asset of the Borrower or any Restricted Subsidiary; provided that the term “Recovery Prepayment Event” shall not include any Asset Sale Prepayment Event or any Permitted Sale Leaseback.

“Reference Lender” shall mean GSCP.

“Refinanced Senior Unsecured Notes” shall have the meaning provided in Section 12.1(i)(i).

“Register” shall have the meaning provided in Section 15.6(b)(iv).

“Regulation D” shall mean Regulation D of the Board as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.

“Regulation T” shall mean Regulation T of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.

“Regulation U” shall mean Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.

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“Regulation X” shall mean Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.

“Reinvestment Period” shall mean, with respect to any Asset Sale Prepayment Event, Permitted Sale Leaseback or Recovery Prepayment Event, the day which is 365 days after such Asset Sale Prepayment Event, Permitted Sale Leaseback or Recovery Prepayment Event; provided that in the event approval of any Governmental Authority is required to be procured in connection with the reinvestment of proceeds of such Asset Sale Prepayment Event, Permitted Sale Leaseback or Recovery Prepayment Event, the Reinvestment Period with respect to such reinvestment shall be extended for an additional period (not to exceed 180 days) as necessary to obtain such approval.

“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the directors, officers, employees, agents, trustees, advisors of such Person and any Person that possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise.

“Repayment Amount” shall mean any Initial Term Loan Repayment Amount or Delayed Draw Term Loan Repayment Amount, as applicable.

“Repayment Date” shall mean any Initial Term Loan Repayment Date or Delayed Draw Term Loan Repayment Date, as applicable.

“Reportable Event” shall mean an event described in Section 4043 of ERISA and the regulations thereunder.

“Required Base Letter of Credit Participants” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of (a) the Adjusted Total Base Letter of Credit Commitment at such date or (b) if the Total Base Letter of Credit Commitment has been terminated or for the purposes of acceleration pursuant to Section 13, the aggregate amount of Base Letter of Credit Exposures outstanding at such date.

“Required Delayed Draw Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of (a) until the Subsequent Transaction Closing Date or the Call Transaction Closing Date, as applicable, the Adjusted Total Delayed Draw Term Loan Commitment at such date and (b) thereafter, the outstanding principal amount of the Delayed Draw Term Loans in the aggregate at such date.

“Required Initial Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of (a) until the Credit Agreement Closing Date, the Adjusted Total Initial Term Loan Commitment and (b) thereafter, the outstanding principal amount of the Initial Term Loans in the aggregate at such date.

“Required Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of the sum of (a) (i) until the Credit Agreement Closing Date, the Adjusted Total Initial Term Loan Commitment and (ii) thereafter, the outstanding principal amount of the Initial Term Loans in the aggregate at such date, (b) (i) until the Subsequent Transaction Closing

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Date or the Call Transaction Closing Date, as applicable, the Adjusted Total Delayed Draw Term Loan Commitment at such date and (ii) thereafter, the outstanding principal amount of the Delayed Draw Term Loans in the aggregate at such date, (c) (i) until the Increased Amount Date for any Series, the Adjusted Total New Term Loan Commitment for such Series and (ii) thereafter, the outstanding principal amount of the New Term Loans of such Series in the aggregate at such date, (d) (i) the Adjusted Total Revolving Credit Commitment at such date or (ii) if the Total Revolving Credit Commitment has been terminated or for the purposes of acceleration pursuant to Section 13, the outstanding principal amount of the Revolving Credit Loans and Revolving Letter of Credit Exposures in the aggregate at such date, (e) (i) the Adjusted Total Base Letter of Credit Commitment at such date or (ii) if the Total Base Letter of Credit Commitment has been terminated or for the purposes of acceleration pursuant to Section 13, the aggregate amount of Base Letter of Credit Exposures outstanding at such date, and (f) (i) the Adjusted Total Special Letter of Credit Commitment at such date or (ii) if the Total Special Letter of Credit Commitment has been terminated or for the purposes of acceleration pursuant to Section 13, the aggregate amount of Special Letter of Credit Exposures outstanding at such date.

“Required New Term Loan Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of (a) until the Increased Amount Date for any Series, the Adjusted Total New Term Loan Commitment for such Series and (b) thereafter, the outstanding principal amount of the New Term Loans of such Series in the aggregate at such date.

“Required Revolving Credit Lenders” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of (a) the Adjusted Total Revolving Credit Commitment at such date or (b) if the Total Revolving Credit Commitment has been terminated or for the purposes of acceleration pursuant to Section 13, the outstanding principal amount of the Revolving Credit Exposures in the aggregate at such date.

“Required Special Letter of Credit Participants” shall mean, at any date, Non-Defaulting Lenders having or holding a majority of (a) the Adjusted Total Special Letter of Credit Commitment at such date or (b) if the Total Special Letter of Credit Commitment has been terminated or for the purposes of acceleration pursuant to Section 13, the aggregate amount of Special Letter of Credit Exposures outstanding at such date.

“Restoration Certification” shall mean, with respect to any Recovery Prepayment Event, a certification made by an Authorized Officer of the Borrower or a Restricted Subsidiary, as applicable, to the Administrative Agent prior to the end of the Reinvestment Period certifying (a) that the Borrower or such Restricted Subsidiary intends to use the proceeds received in connection with such Recovery Prepayment Event to repair, restore or replace the property or assets in respect of which such Recovery Prepayment Event occurred, (b) the approximate costs of completion of such repair, restoration or replacement and (c) that such repair, restoration or replacement will be completed within 365 days after the date on which such Recovery Prepayment Event occurred.

“Restricted Domestic Subsidiary” shall mean each Restricted Subsidiary that is also a Domestic Subsidiary.

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“Restricted Foreign Subsidiary” shall mean each Restricted Subsidiary that is also a Foreign Subsidiary.

“Restricted Subsidiary” shall mean any Subsidiary of the Borrower other than an Unrestricted Subsidiary.

“Revolving/Base Letter of Credit Issuer” shall mean any one or more Lenders reasonably acceptable to the Borrower and the Administrative Agent, any of its Affiliates or any successor pursuant to Section 3.6.

“Revolving Credit Commitment” shall mean, (a) with respect to each Lender that is a Lender on the date hereof, the amount set forth opposite such Lender’s name on Schedule 1.1(b) as such Lender’s “Revolving Credit Commitment” and (b) in the case of any Lender that becomes a Lender after the date hereof, the amount specified as such Lender’s “Revolving Credit Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Revolving Credit Commitment, in each case as the same may be changed from time to time pursuant to terms hereof.  The aggregate amount of the Revolving Credit Commitments as of the date hereof is $325,000,000.

“Revolving Credit Commitment Percentage” shall mean at any time, for each Lender, the percentage obtained by dividing (a) such Lender’s Revolving Credit Commitment by (b) the aggregate amount of the Revolving Credit Commitments, provided that at any time when the Total Revolving Credit Commitment shall have been terminated, each Lender’s Revolving Credit Commitment Percentage shall be its Revolving Credit Commitment Percentage as in effect immediately prior to such termination.

“Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the sum of (a) the aggregate principal amount of the Revolving Credit Loans of such Lender then outstanding and (b) such Lender’s Revolving Letter of Credit Exposure at such time.

“Revolving Credit Facility” shall have the meaning provided in the recitals to this Agreement.

“Revolving Credit Loan” shall have the meaning provided in Section 2.1(c).

“Revolving Credit Maturity Date” shall mean the date that is five years after the Credit Agreement Closing Date, or, if such date is not a Business Day, the next preceding Business Day.

“Revolving Letter of Credit” shall have the meaning provided in Section 3.1(a).

“Revolving Letter of Credit Commitment” shall mean $325,000,000, as the same may be reduced from time to time pursuant to Section 4.2.

“Revolving Letter of Credit Exposure” shall mean, with respect to any Lender, at any time, the sum of (a) the amount of any Unpaid Drawings in respect of which such Lender has made (or is required to have made) Revolving Credit Loans pursuant to Section 3.4(a) at such time and (b) such Lender’s Revolving Credit Commitment Percentage of the Revolving

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Letters of Credit Outstanding at such time (excluding the portion thereof consisting of Unpaid Drawings in respect of which the Lenders have made (or are required to have made) Revolving Credit Loans pursuant to Section 3.4(a)).

“Revolving Letter of Credit Fee” shall have the meaning provided in Section 4.1(c).

“Revolving Letter of Credit Participant” shall have the meaning provided in Section 3.3(a).

“Revolving Letter of Credit Participation” shall have the meaning provided in Section 3.3(a).

“Revolving Letters of Credit Outstanding” shall mean, at any time, the sum of, without duplication, (a) the aggregate Stated Amount of all outstanding Revolving Letters of Credit and (b) the aggregate amount of all Unpaid Drawings in respect of all Revolving Letters of Credit.

“ROFR” shall mean the purchase of an additional 13.2% undivided ownership interest in the South Texas Project pursuant to the Amended and Restated South Texas Project Participation Agreement, dated as of November 17, 1997, among City of San Antonio, Central Power and Light Company, Houston Lighting & Power Company and City of Austin.

“Sale Leaseback” shall mean any transaction or series of related transactions pursuant to which the Borrower or any of the Restricted Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed of.

“S&P” shall mean Standard & Poor’s Ratings Services or any successor by merger or consolidation to its business.

“Scheduled Asset Event” shall mean any Asset Sale Prepayment Event, Permitted Sale Leaseback or Recovery Prepayment Event with respect to a Scheduled Asset (a) that occurs within 15 months after the Credit Agreement Closing Date or (b) for which a binding commitment to sell, transfer, lease or otherwise dispose a Scheduled Asset is entered into within 15 months after the Credit Agreement Closing Date, provided that the sale, transfer, lease or other disposition thereunder is completed within 27 months after the Credit Agreement Closing Date.

“Scheduled Assets” shall mean the assets and properties of the Borrower and its Subsidiaries listed on Schedule 1.1(c).

“SEC” shall mean the Securities and Exchange Commission or any successor thereto.

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“Second Lien” shall mean a Lien that is subordinated to the Liens securing the Obligations; provided that the holder of such Lien agrees to be bound by the Collateral Trust Agreement with respect thereto.

“Section 11.1 Financials” shall mean the financial statements delivered, or required to be delivered, pursuant to Section 11.1(a) or (b) together with the accompanying officer’s certificate delivered, or required to be delivered, pursuant to Section 11.1(e).

“Secured Parties” shall have the meaning assigned to such term in the Collateral Trust Agreement.

“Security Agreement” shall mean the Security Agreement, entered into by the Borrower, the other grantors party thereto and the Collateral Trustee for the benefit of the Secured Parties, substantially in the form of Exhibit E-1, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and of the other Credit Documents.

“Security Documents” shall mean, collectively, the Guarantee, the Security Agreement, the Pledge Agreement, the Deeds of Trust, the Collateral Trust Agreement and each other security agreement or other instrument or document executed and delivered pursuant to Section 11.11, 11.12 or 11.15 or pursuant to any of the Security Documents to secure any of the Obligations.

“Senior Unsecured Note Indenture” shall mean the Indenture, dated as of December 14, 2004, among the Borrower, Texas Genco Financing Corp., the guarantors party thereto and ▇▇▇▇▇ Fargo Bank, National Association, as trustee, pursuant to which the Senior Unsecured Notes are issued, as the same may be amended, supplemented or otherwise modified from time to time to the extent permitted by Section 12.7(c).

“Senior Unsecured Note Maturity Date” shall mean December 15, 2014.

“Senior Unsecured Notes” shall have the meaning provided in the recitals to this Agreement.

“Series” shall have the meaning provided in Section 2.14(a).

“Sold Entity or Business” shall have the meaning provided in the definition of the term “Consolidated EBITDA”.

“Solvent” shall mean, with respect to any Person, at any date, that (a) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets, (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on such date, (c) such Person has not incurred and does not intend to incur, or believe that it will incur, debts including current obligations beyond its ability to pay such debts as they become due (whether at maturity or otherwise), and (d) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the

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facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).

“South Texas Project” shall mean the South Texas Electric Generating Station, located in Matagorda County, Texas, consisting of two nuclear powered baseload generating units.  After giving effect to the Subsequent Transaction and the ROFR, the Borrower will, indirectly, own a 44% undivided ownership interest in the South Texas Project or, if the Subsequent Transaction closes, but the ROFR does not, the Borrower will, indirectly, own a 30.7% undivided ownership interest in the South Texas Project.  For the avoidance of doubt, whenever this Agreement or any other Credit Document refers to an agreement, condition, representation, warranty or covenant of the Borrower or any of its Subsidiaries in respect of the South Texas Project, such agreement, condition, representation, warranty or covenant shall apply only to the Borrower’s indirect undivided ownership interest in the South Texas Project and shall not include the ownership interest held by any other participant in the South Texas Project.

“Special Commodity Hedging Agreement” shall mean any Commodity Hedging Agreement that (a) is an Eligible Commodity Hedging Agreement and (b) is approved by the Special Letter of Credit Issuer, such approval not to be unreasonably withheld or delayed.

“Special Letter of Credit” shall have the meaning provided in Section 3.1(c).

“Special Letter of Credit Commitment” shall mean, (a) with respect to each Lender that is a Lender on the date hereof, the amount set forth opposite such Lender’s name on Schedule 1.1(b) as such Lender’s “Special Letter of Credit Commitment” and (b) in the case of any Lender that becomes a Lender after the date hereof, the amount specified as such Lender’s “Special Letter of Credit Commitment” in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Special Letter of Credit Commitment, in each case as the same may be changed from time to time pursuant to terms hereof.  The aggregate amount of the Special Letter of Credit Commitments as of the date hereof is $344,352,000.

“Special Letter of Credit Commitment Percentage” shall mean at any time, for each Lender, the percentage obtained by dividing (a) such Lender’s Special Letter of Credit Commitment by (b) the aggregate amount of the Special Letter of Credit Commitments, provided that at any time when the Total Special Letter of Credit Commitment shall have been terminated pursuant to Section 13, each Lender’s Special Letter of Credit Commitment Percentage shall be its Special Letter of Credit Commitment Percentage as in effect immediately prior to such termination.

“Special Letter of Credit Draw Conditions” shall mean, with respect to any Special Letter of Credit:

(a)                                  to the extent agreed between the applicable Special LOC Counterparty and the Letter of Credit Issuer, such Special LOC Counterparty may only draw upon such Special Letter of Credit in an amount up to the Stated Amount thereof by delivering a draw certificate to the Letter of Credit Issuer, certifying (i) in the case of the GS Commodity Hedging Agreement, that an event of default has occurred thereunder and the

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amount being drawn is equal to or less than the amount then due to the GS Counterparty, or (ii) in the case of any other Special Commodity Hedging Agreement, to such customary draw conditions as are mutually agreed upon among the Letter of Credit Issuer, the Borrower and such Special LOC Counterparty; and

(b)                                 (i) in the case of the GS Commodity Hedging Agreement, the GS Counterparty’s right to draw on such Special Letter of Credit will expire if the GS Counterparty has not terminated all transactions under the GS Commodity Hedging Agreement on or prior to the date which is 10 Business Days after the filing of a bankruptcy petition by or against the Borrower or the applicable Restricted Subsidiary, unless the GS Counterparty reasonably determines that it would be prevented by Applicable Law or court order from exercising its right to terminate within such 10 Business Day period, or (ii) in the case of any other Special Commodity Hedging Agreement, the applicable Special LOC Counterparty’s right to draw on such Special Letter of Credit will expire on, or be conditioned upon, terms substantially similar, but mutually agreed, to those described in clause (b)(i) above, within a mutually agreed reasonable period of time following the filing of a bankruptcy petition by or against the Borrower or the applicable Restricted Subsidiary.

“Special Letter of Credit Exposure” shall mean, with respect to any Lender, at any time, the sum of (a) the amount of any Unpaid Drawings in respect of which such Lender has made (or is required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(d) at such time and (b) such Lender’s Special Letter of Credit Commitment Percentage of the Special Letters of Credit Outstanding at such time (excluding the portion thereof consisting of Unpaid Drawings in respect of which the Lenders have made (or are required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(d)).

“Special Letter of Credit Facility” shall have the meaning provided in the recitals to this Agreement.

“Special Letter of Credit Fees” shall have the meaning provided in Section 4.1(e).

“Special Letter of Credit Issuer” shall mean Deutsche Bank AG New York Branch, any of its Affiliates or any successor pursuant to Section 3.6.

“Special Letter of Credit Maturity Date” shall mean the date that is five years after the Credit Agreement Closing Date (or any longer period approved in writing by the Special Letter of Credit Issuer and each Special Letter of Credit Participant), or, if such date is not a Business Day, the next preceding Business Day.

“Special Letter of Credit Participant” shall have the meaning provided in Section 3.3(c).

“Special Letter of Credit Participation” shall have the meaning provided in Section 3.3(c).

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“Special Letters of Credit Outstanding” shall mean, at any time, the sum of, without duplication, (a) the aggregate Stated Amount of all outstanding Special Letters of Credit and (b) the aggregate amount of all Unpaid Drawings in respect of all Special Letters of Credit.

“Special LOC Counterparty” shall mean, with respect to any Special Letter of Credit, the beneficiary under such Special Letter of Credit.

“Specified Obligations” shall mean Obligations consisting of (a) the principal of and interest on Loans and (b) reimbursement obligations in respect of Letters of Credit.

“Specified Subsidiary” shall mean, at any date of determination, (a) any Material Subsidiary or (b) any Unrestricted Subsidiary (i) whose total assets at the last day of the Test Period ending on the last day of the most recent fiscal period for which Section 11.1 Financials have been delivered were equal to or greater than 15% of the consolidated total assets of the Borrower and its Subsidiaries at such date or (ii) whose gross revenues for such Test Period were equal to or greater than 15% of the consolidated gross revenues of the Borrower and its Subsidiaries for such period, in each case determined in accordance with GAAP.

“Sponsors” shall mean, collectively, Blackstone Capital Partners, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLC, ▇▇▇▇▇▇▇▇ Kravis ▇▇▇▇▇▇▇ & Co. L.P. and Texas Pacific Group and/or their respective Affiliates.

“Stated Amount” of any Letter of Credit shall mean the maximum amount from time to time available to be drawn thereunder, determined without regard to whether any conditions to drawing could then be met.

“Status” shall mean, as to the Borrower as of any date, the existence of Level I Status or Level II Status, as the case may be, on such date.  Changes in Status resulting from changes in the Term Loan Repayment Amount shall become effective as of the first Business Day following the date on which the applicable payment of Initial Term Loans or Delayed Draw Term Loans is made.

“Statutory Reserve Rate” shall mean for any day as applied to any Eurodollar Loan, 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 that are in effect on that day (including any marginal, special, emergency or supplemental reserves), expressed as a decimal, as prescribed by the Board and 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 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.

“Subsequent Transaction Closing Date” shall mean the date of the Borrowing of Delayed Draw Term Loans hereunder to fund the Subsequent Transaction.

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“Subsequent Transaction” shall have the meaning provided in the recitals to this Agreement.

“Subsidiary” of any Person shall mean and include (a) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries and (b) any partnership, association, joint venture or other entity in which such Person directly or indirectly through Subsidiaries has more than a 50% equity interest at the time.  Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of the Borrower.

“Swingline Commitment” shall mean $50,000,000.

“Swingline Lender” shall mean GSCP in its capacity as lender of Swingline Loans hereunder.

“Swingline Loan” shall have the meaning provided in Section 2.1(e)(i).

“Swingline Maturity Date” shall mean, with respect to any Swingline Loan, the date that is five Business Days prior to the Revolving Credit Maturity Date.

“Syndication Agent” shall mean ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc., together with its affiliates, as the syndication agent for the Lenders under this Agreement and the other Credit Documents.

“Synthetic Lease” shall mean, with respect to any Person, (a) a so-called synthetic, off-balance sheet or tax retention lease or (b) an agreement for the use or possession of any property (whether real, personal or mixed) creating obligations which do not appear on the balance sheet of such Person, but upon the bankruptcy or insolvency of such Person and which obligations would be characterized as Indebtedness of such Person (without regard to accounting treatment).

“Synthetic Lease Obligations” shall mean, as applied to any Person, all obligations under Synthetic Leases of such Person or any of its Subsidiaries.

“Tax Amount” shall mean, with respect to an Estimation Period or a taxable year, as the case may be, an amount equal to the product of (a) the United States Federal taxable income (determined by including all separately stated items of income and deduction) of the Borrower for such Estimation Period or a taxable year, as the case may be, reduced (but not below zero) by (to the extent not previously taken into account) any United States Federal taxable loss (determined by including all separately stated items of income and deduction) of the Borrower for any prior period, multiplied by (b) 45%.

“Tax Amounts CPA” shall mean a nationally recognized certified public accounting firm reasonably acceptable to the Administrative Agent.

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“Tax Distributions” shall mean distributions made pursuant to Section 12.6(f).

“Term Loan” shall mean an Initial Term Loan, a Delayed Draw Term Loan or a New Term Loan, as applicable.

“Term Loan Repayment Amount” shall mean the aggregate principal amount of Initial Term Loans and Delayed Draw Term Loans actually repaid or prepaid since the Credit Agreement Closing Date pursuant to Section 2.5(b), 2.5(c), 5.1, 5.2(a)(i) (other than with respect to a Debt Incurrence Prepayment Event), 5.2(a)(ii) or 5.2(a)(iii).

“Test Period” shall mean, for any determination under this Agreement, the four consecutive fiscal quarters of the Borrower then last ended.

“Total Base Letter of Credit Commitment” shall mean the sum of the Base Letter of Credit Commitments of all the Lenders.

“Total Commitment” shall mean the sum of the Total Initial Term Loan Commitment, the Total Delayed Draw Term Loan Commitment, the Total Revolving Credit Commitment, the Total Base Letter of Credit Commitment and the Total Special Letter of Credit Commitment.

“Total Credit Exposure” shall mean, at any date, the sum of the Total Commitment at such date and the outstanding principal amount of all Term Loans at such date.

“Total Delayed Draw Term Loan Commitment” shall mean the sum of the Delayed Draw Term Loan Commitments of all the Lenders.

“Total Initial Term Loan Commitment” shall mean the sum of the Initial Term Loan Commitments of all the Lenders.

“Total New Term Loan Commitment” shall mean the sum of the New Term Loan Commitments of all the New Term Lenders.

“Total Revolving Credit Commitment” shall mean the sum of the Revolving Credit Commitments of all the Lenders.

“Total Special Letter of Credit Commitment” shall mean the sum of the Special Letter of Credit Commitments of all the Lenders.

“Transaction Agreement” shall mean the Transaction Agreement, dated as of July 21, 2004, among CenterPoint, Utility Holding, LLC, NN Houston Sub, Genco Holdings, the Borrower and HPC Merger Sub, as amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.

“Transaction Expenses” shall mean any fees or expenses incurred or paid by the Borrower or any of its Subsidiaries in connection with the Acquisition Transactions, this Agreement and the other Credit Documents, the Notes Offering and the transactions contemplated hereby and thereby.

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“Transferee” shall have the meaning provided in Section 15.6(e).

“True-up Amount” shall mean, in respect of a particular taxable year, an amount determined by the Tax Amounts CPA equal to the difference between (a) the aggregate Permitted Quarterly Tax Distributions actually distributed in respect of such taxable year, without taking into account any adjustment to such Permitted Quarterly Tax Distributions made with respect to any other taxable year (including any adjustment to take into account a True-up Amount for the immediately preceding taxable year) and (b) the Tax Amount in respect of such taxable year as determined by reference to the Borrower’s IRS Form 1065 filed for such year; provided, however, that if there is an audit or other adjustment with respect to a return filed by the Borrower (including a filing of an amended return), upon a final determination or resolution of such audit or other adjustment, the Tax Amounts CPA shall redetermine the True-up Amount for the relevant taxable year.  The amount equal to the excess, if any, of the amount described in clause (a) above over the amount described in clause (b) above shall be referred to as the “True-up Amount due to the Borrower” and the excess, if any, of the amount described in clause (b) over the amount described in clause (a) shall be referred to as the “True-up Amount due to the members.”

“True-up Determination Date” shall mean the date on which the Tax Amounts CPA delivers a statement to the Administrative Agent indicating the True-up Amount; provided, however, that the True-up Determination Date shall not be later than 30 days after the occurrence of an event requiring the determination of the True-up Amount (including, the filing of the Federal and state tax returns or the final determination or resolution of an audit or other adjustment, as the case may be).

“Type” shall mean (a) as to any Term Loan, its nature as an ABR Loan or a Eurodollar Term Loan, and (b) as to any Revolving Credit Loan, its nature as an ABR Loan or a Eurodollar Revolving Credit Loan.

“Unfunded Current Liability” of any Plan shall mean the amount, if any, by which the present value of the accrued benefits under the Plan as of the close of its most recent plan year, determined in accordance with Statement of Financial Accounting Standards No. 87 as in effect on the date hereof, based upon the actuarial assumptions that would be used by the Plan’s actuary in a termination of the Plan, exceeds the fair market value of the assets allocable thereto.

“Unpaid Drawing” shall have the meaning provided in Section 3.4(a).

“Unrestricted Subsidiary” shall mean (a) any Subsidiary of the Borrower (including any Project Finance Subsidiary) that is formed or acquired after the Credit Agreement Closing Date and is designated as an Unrestricted Subsidiary by the Borrower at such time (or promptly thereafter) in a written notice to the Administrative Agent, (b) any Restricted Subsidiary subsequently re-designated as an Unrestricted Subsidiary by the Borrower in a written notice to the Administrative Agent, provided that (x) such designation or re-designation shall be deemed to be an investment (and thus must be made in accordance with Section 12.5) on the date of such designation or re-designation in an Unrestricted Subsidiary in an amount equal to the sum of (i) the Borrower’s direct or indirect equity ownership percentage of the net worth of such designated or re-designated Subsidiary immediately prior to such designation or re-designation

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(such net worth to be calculated without regard to any guarantee provided by such designated or re-designated Subsidiary) and (ii) the aggregate principal amount of any Indebtedness owed by such designated or re-designated Subsidiary to the Borrower or any other Restricted Subsidiary immediately prior to such designation or re-designation, all calculated, except as set forth in the parenthetical to clause (i), on a consolidated basis in accordance with GAAP and (y) no Default or Event of Default would result from such designation or re-designation, and (c) each Subsidiary of an Unrestricted Subsidiary; provided, however, that at the time of any written designation or re-designation by the Borrower to the Administrative Agent that any Unrestricted Subsidiary shall no longer constitute an Unrestricted Subsidiary, such Unrestricted Subsidiary shall cease to be an Unrestricted Subsidiary to the extent no Default or Event of Default would result from such designation or re-designation.  On or promptly after the date of its formation, acquisition, designation or re-designation, as applicable, each Unrestricted Subsidiary (other than an Unrestricted Subsidiary that is a Foreign Subsidiary) shall have entered into a tax sharing agreement containing terms that, in the reasonable judgment of the Administrative Agent, provide for an appropriate allocation of tax liabilities and benefits.

“Voting Stock” shall mean, with respect to any Person, shares of such Person’s Capital Stock having the right to vote for the election of directors of such Person under ordinary circumstances.

(b)                                 The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section references are to Sections of this Agreement unless otherwise specified.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.

(c)                                  Unless otherwise indicated, any reference to any agreement or instrument will be deemed to include a reference to that agreement or instrument as assigned, amended, supplemented, amended and restated, or otherwise modified and in effect from time to time or replaced in accordance with the terms of this Agreement (if applicable).

SECTION 2.   Amount and Terms of Credit Facilities

2.1.                              Loans  (a).  (a)  Subject to and upon the terms and conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees to make a loan or loans (each, an “Initial Term Loan”) to the Borrower, which Initial Term Loans (i) shall not exceed, for any such Lender, the Initial Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Initial Term Loan Commitment, (iii) shall be made on the Credit Agreement Closing Date, (iv) shall be funded into escrow on the Credit Agreement Closing Date in accordance with the Escrow Agreement, (v) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Initial Term Loans, provided that all such Initial Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Initial Term Loans of the same Type and (vi) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed.  The proceeds of the Initial Term Loans shall be funded into escrow on the Credit Agreement Closing Date in accordance with the terms of the Escrow Agreement and held in escrow until the earlier of the Initial Transaction Closing Date and the

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Escrow Return Date.  If the Initial Transaction Closing Date occurs prior to the Escrow Return Date, the Administrative Agent shall instruct the Escrow Agent to release such escrowed proceeds in accordance with the terms of the Escrow Agreement and pay such proceeds to or as directed by the Borrower in accordance with written instructions provided by the Borrower to the Administrative Agent.  If the Escrow Return Date occurs prior to the Initial Transaction Closing Date, the Administrative Agent shall instruct the Escrow Agent to apply such escrowed proceeds to the payment of Initial Term Loans in accordance with the terms hereof.  On the Initial Term Loan Maturity Date, all outstanding Initial Term Loans shall be repaid in full.

(b)                                 Subject to and upon the terms and conditions herein set forth, each Lender having a Delayed Draw Term Loan Commitment severally agrees to make a loan or loans (each, a “Delayed Draw Term Loan”) to the Borrower, which Delayed Draw Term Loans (i) shall not exceed, for any such Lender, the Delayed Draw Term Loan Commitment of such Lender, (ii) shall not exceed, in the aggregate, the Total Delayed Draw Term Loan Commitment, provided that not more than $200,000,000 of Delayed Draw Term Loans may be used to fund the Call Transaction, (iii) shall be made on the Subsequent Transaction Closing Date or the Call Transaction Closing Date, as applicable (but not both), but in any event not after April 30, 2006, (iv) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Delayed Draw Term Loans, provided that all such Delayed Draw Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Delayed Draw Term Loans of the same Type and (v) may be repaid or prepaid in accordance with the provisions hereof, but once repaid or prepaid may not be reborrowed.  On the Delayed Draw Term Loan Maturity Date, all outstanding Delayed Draw Term Loans shall be repaid in full.

(c)                                  Subject to and upon the terms and conditions herein set forth, each Lender having a Revolving Credit Commitment severally agrees to make a loan or loans (each, a “Revolving Credit Loan”) to the Borrower, which Revolving Credit Loans (i) shall not exceed, for any such Lender, the Revolving Credit Commitment of such Lender, (ii) shall not, after giving effect thereto and to the application of the proceeds thereof, result in such Lender’s Revolving Credit Exposure at such time exceeding such Lender’s Revolving Credit Commitment at such time, (iii) shall not, after giving effect thereto and to the application of the proceeds thereof, at any time result in the aggregate amount of all Lenders’ Revolving Credit Exposures plus the aggregate principal amount outstanding of all Swingline Loans at such time exceeding the Total Revolving Credit Commitment then in effect, (iv) shall be made at any time and from time to time after the Credit Agreement Closing Date and prior to the Revolving Credit Maturity Date, (v) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Revolving Credit Loans, provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type and (vi) may be repaid and reborrowed in accordance with the provisions hereof.  On the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans shall be repaid in full.

(d)                                 Each Lender may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan, provided that (i) any exercise of such option shall not affect the obligation of the Borrower, as the case may be, to repay such Loan and (ii) in exercising such option, such Lender shall use its reasonable efforts to

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minimize any increased costs to the Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 3.5 shall apply).

(e)                                  (i)  Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its individual capacity agrees, at any time and from time to time on and after the Credit Agreement Closing Date and prior to the Swingline Maturity Date, to make a loan or loans (each, a “Swingline Loan”) to the Borrower, which Swingline Loans (A) shall be ABR Loans, (B) shall have the benefit of the provisions of Section 2.1(e)(ii), (C) shall not exceed at any time outstanding the Swingline Commitment, (D) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of all Lenders’ Revolving Credit Exposures plus the aggregate principal amount outstanding of all Swingline Loans at such time exceeding the Total Revolving Credit Commitment then in effect and (E) may be repaid and reborrowed in accordance with the provisions hereof.  On the Swingline Maturity Date, all outstanding Swingline Loans shall be repaid in full.  The Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Borrower or any Lender stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice of (x) rescission of all such notices from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 15.1.

(ii)                                  On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders with Revolving Credit Commitments that all then-outstanding Swingline Loans shall be funded with a Borrowing of Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by all Lenders with Revolving Credit Commitments pro rata based on each such Lender’s Revolving Credit Commitment Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans.  Each Lender with a Revolving Credit Commitment hereby irrevocably agrees to make such Revolving Credit Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in Section 2.2, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in the Total Commitment after any such Swingline Loans were made.  In the event that, in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of the Borrower), each Lender with a Revolving Credit Commitment hereby agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment Percentages, provided that all principal and interest payable on such Swingline Loans shall be for the account of the Swingline Lender until

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the date the respective participation is purchased and, to the extent attributable to the purchased participation, shall be payable to the Lender purchasing same from and after such date of purchase.

2.2.                              Minimum Amount of Each Borrowing; Maximum Number of Borrowings.  The aggregate principal amount of each Borrowing of Term Loans or Revolving Credit Loans shall be in a multiple of $1,000,000 and Swingline Loans shall be in a multiple of $100,000 and, in each case, shall not be less than the Minimum Borrowing Amount with respect thereto (except that Mandatory Borrowings shall be made in the amounts required by Section 2.1(e)).  More than one Borrowing may be incurred on any date, provided that at no time shall there be outstanding more than 20 Borrowings of Eurodollar Loans under this Agreement.

2.3.                              Notice of Borrowing.  (a)  The Borrower shall give the Administrative Agent at the Administrative Agent’s Office (i) prior to 12:00 Noon (New York time) at least three Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of Term Loans if all or any of such Term Loans are to be initially Eurodollar Loans, and (ii) prior written notice (or telephonic notice promptly confirmed in writing) prior to 10:00 a.m. (New York time) on the date of each Borrowing of Term Loans if all such Term Loans are to be ABR Loans.  Such notice (together with each notice of a Borrowing of Revolving Credit Loans pursuant to Section 2.3(b) and each notice of a Borrowing of Swingline Loans pursuant to Section 2.3(d), a “Notice of Borrowing”) shall be irrevocable and shall specify (i) the aggregate principal amount of the Term Loans to be made, (ii) the date of the Borrowing (which shall be, in the case of Initial Term Loans, the Credit Agreement Closing Date and, in the case of Delayed Draw Term Loans, the Subsequent Transaction Closing Date or the Call Transaction Closing Date, as applicable, and, in the case of each Series of New Term Loans, the Increased Amount Date in respect of such Series) and (iii) whether the Term Loans shall consist of ABR Loans and/or Eurodollar Term Loans and, if the Term Loans are to include Eurodollar Term Loans, the Interest Period to be initially applicable thereto.  The Administrative Agent shall promptly give each Lender written notice (or telephonic notice promptly confirmed in writing) of each proposed Borrowing of Term Loans, of such Lender’s proportionate share thereof and of the other matters covered by the related Notice of Borrowing.

(b)                                 Whenever the Borrower desires to incur Revolving Credit Loans hereunder (other than Mandatory Borrowings or borrowings to repay Unpaid Drawings under Revolving Letters of Credit), it shall give the Administrative Agent at the Administrative Agent’s Office, (i) prior to 12:00 Noon (New York Time) at least three Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of Eurodollar Revolving Credit Loans, and (ii) prior to 12:00 Noon (New York time) at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of Revolving Credit Loans that are to be ABR Loans.  Each such Notice of Borrowing, except as otherwise expressly provided in Section 2.10, shall be irrevocable and shall specify (i) the aggregate principal amount of the Revolving Credit Loans to be made pursuant to such Borrowing, (ii) the date of Borrowing (which shall be a Business Day) and (iii) whether the respective Borrowing shall consist of ABR Loans or Eurodollar Revolving Credit Loans and, if Eurodollar Revolving Credit Loans, the Interest Period to be initially applicable thereto.  The Administrative Agent shall promptly give each Lender written notice (or telephonic notice promptly confirmed in writing) of each proposed Borrowing of Revolving Credit Loans, of such

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Lender’s proportionate share thereof and of the other matters covered by the related Notice of Borrowing.

(c)                                  Whenever the Borrower desires to incur Swingline Loans hereunder, it shall give the Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of each Borrowing of Swingline Loans prior to 2:30 p.m. (New York time) on the date of such Borrowing.  Each such notice shall be irrevocable and shall specify (i) the aggregate principal amount of the Swingline Loans to be made pursuant to such Borrowing and (ii) the date of Borrowing (which shall be a Business Day).  The Administrative Agent shall promptly give the Swingline Lender written notice (or telephonic notice promptly confirmed in writing) of each proposed Borrowing of Swingline Loans and of the other matters covered by the related Notice of Borrowing.

(d)                                 Mandatory Borrowings shall be made upon the notice specified in Section 2.1(e)(ii), with the Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of Mandatory Borrowings as set forth in such Section.

(e)                                  Borrowings of Revolving Credit Loans to reimburse Unpaid Drawings under Revolving Letters of Credit shall be made upon the notice specified in Section 3.4(a).

(f)                                    Without in any way limiting the obligation of the Borrower to confirm in writing any notice it may give hereunder by telephone, the Administrative Agent may act prior to receipt of written confirmation without liability upon the basis of such telephonic notice believed by the Administrative Agent in good faith to be from an Authorized Officer of the Borrower.  In each such case, the Borrower hereby waives the right to dispute the Administrative Agent’s record of the terms of any such telephonic notice.

2.4.                              Disbursement of Funds  (a)  No later than 12:00 Noon (New York time) on the date specified in each Notice of Borrowing (including Mandatory Borrowings), each Lender will make available its pro rata portion, if any, of each Borrowing requested to be made on such date in the manner provided below, provided that all Swingline Loans shall be made available in the full amount thereof by the Swingline Lender no later than 3:00 p.m. (New York time) on the date requested.

(b)                                 Each Lender shall make available all amounts it is to fund to the Borrower under any Borrowing in immediately available funds to the Administrative Agent at the Administrative Agent’s Office and the Administrative Agent will (except in the case of Mandatory Borrowings and Borrowings to repay Unpaid Drawings under Revolving Credit Loans) make available to the Borrower, by depositing to an account designated by the Borrower to the Administrative Agent in writing, the aggregate of the amounts so made available in Dollars.  Unless the Administrative Agent shall have been notified by any Lender prior to the date of any such Borrowing that such Lender does not intend to make available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon such assumption, may (in its sole discretion and without any obligation to do so) make available to the Borrower, as the case may be, a corresponding amount.  If such corresponding amount is

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not in fact made available to the Administrative Agent by such Lender and the Administrative Agent has made available same to the Borrower, the Administrative Agent shall be entitled to recover such corresponding amount from such Lender.  If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Administrative Agent.  The Administrative Agent shall also be entitled to recover from such Lender or the Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower, to the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if paid by such Lender, the Federal Funds Effective Rate or (ii) if paid by the Borrower, the then-applicable rate of interest or fees, calculated in accordance with Section 2.8, for the respective Loans.

(c)                                  Nothing in this Section 2.4 shall be deemed to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to fulfill its commitments hereunder).

2.5.                              Repayment of Loans; Evidence of Debt.    (a)  The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Lenders, (i) on the Initial Term Loan Maturity Date, all then outstanding Initial Term Loans, (ii) on the Delayed Draw Term Loan Maturity Date, all then outstanding Delayed Draw Term Loans, (iii) on the New Term Loan Maturity Date for New Term Loans of any Series, any then outstanding New Term Loans of such Series, (iv) on the Revolving Credit Maturity Date, all then outstanding Revolving Credit Loans and (v) on the Swingline Maturity Date, all then outstanding Swingline Loans.

(b)                                 The Borrower shall repay to the Administrative Agent, for the benefit of the Lenders of Initial Term Loans, on each date set forth below (each, an “Initial Term Loan Repayment Date”), a principal amount of the Initial Term Loans equal to (x) the principal amount of Initial Term Loans outstanding immediately after the Borrowing of Initial Term Loans on the Credit Agreement Closing Date multiplied by (y) the percentage set forth below opposite such Initial Term Loan Repayment Date (each, a “Initial Term Loan Repayment Amount”):

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(c)                                  The Borrower shall repay to the Administrative Agent, for the benefit of the Lenders of Delayed Draw Term Loans, on each date set forth on Schedule 2.5(c) (each, a “Delayed Draw Repayment Date”), a principal amount of the Delayed Draw Term Loans equal to (x) the principal amount of Delayed Draw Term Loans outstanding immediately after the Borrowing of Delayed Draw Term Loans on the Subsequent Transaction Closing Date or the Call Transaction Closing Date, as applicable, multiplied by (y) the percentage set forth on Schedule 2.5(c) opposite such Delayed Draw Repayment Date (each, a “Delayed Draw Repayment Amount”).  Each Delayed Draw Repayment Date and each Delayed Draw Repayment Amount shall be determined on the Subsequent Transaction Closing Date or the Call Transaction Closing Date, as applicable, by the Borrower and the Administrative Agent and set forth on Schedule 2.5(c) in a manner such that the Delayed Draw Term Loans are repaid in consecutive equal quarterly installments on the last day of each March, June, September and December in an aggregate annual amount equal to 1.0% of the principal amount of Delayed Draw Term Loans borrowed on the Subsequent Transaction Closing Date or the Call Transaction

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Closing Date, as applicable, with the remaining principal amount thereof payable on the Delayed Draw Term Loan Maturity Date.

(d)                                 In the event any New Term Loans are made, such New Term Loans shall be repaid on each Initial Term Loan Repayment Date occurring on or after the applicable Increased Amount Date in the amounts set forth in the applicable Joinder Agreement, subject to the requirements set forth in Section 2.14.

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

(f)                                    The Administrative Agent shall maintain the Register pursuant to Section 15.6(b), and a subaccount for each Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount of each Loan made hereunder, whether such Loan is an Initial Term Loan, a Delayed Draw Term Loan, a New Term Loan, a Revolving Credit Loan, a New Revolving Credit Loan or a Swingline Loan, the Type of each Loan made and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender or the Swingline Lender hereunder and (iii) the amount of any sum received by the Administrative Agent from the Borrower and each Lender’s share thereof.

(g)                                 The entries made in the Register and accounts and subaccounts maintained pursuant to paragraphs (e) and (f) of this Section 2.5 shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain such account, such Register or such subaccount, as applicable, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.

2.6.                              Conversions and Continuations.  (a)  The Borrower shall have the option on any Business Day to convert all or a portion equal to at least the Minimum Borrowing Amount of the outstanding principal amount of Initial Term Loans, Delayed Draw Term Loans, New Term Loans or Revolving Credit Loans of one Type into a Borrowing or Borrowings of another Type and the Borrower shall have the option on any Business Day to continue the outstanding principal amount of any Eurodollar Initial Term Loans, Eurodollar Delayed Draw Term Loans, Eurodollar New Term Loans or Eurodollar Revolving Credit Loans as Eurodollar Initial Term Loans, Eurodollar Delayed Draw Term Loans, Eurodollar New Term Loans or Eurodollar Revolving Credit Loans, as the case may be, for an additional Interest Period, provided that (i) no partial conversion of Eurodollar Initial Term Loans, Eurodollar Delayed Draw Term Loans, Eurodollar New Term Loans or Eurodollar Revolving Credit Loans shall reduce the outstanding principal amount of Eurodollar Initial Term Loans, Eurodollar Delayed Draw Term Loans, Eurodollar New Term Loans or Eurodollar Revolving Credit Loans made pursuant to a single Borrowing to less than the Minimum Borrowing Amount, (ii) ABR Loans may not be converted into Eurodollar Loans if a Default or an Event of Default is in existence on

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the date of the conversion and the Administrative Agent has, or the Required Lenders in respect of the Credit Facility that is the subject of such conversion have, determined in its or their sole discretion not to permit such conversion, (iii) Eurodollar Loans may not be continued as Eurodollar Loans for an additional Interest Period if a Default or an Event of Default is in existence on the date of the proposed continuation and the Administrative Agent has, or the Required Lenders in respect of the Credit Facility that is the subject of such conversion have, determined in its or their sole discretion not to permit such continuation and (iv) Borrowings resulting from conversions pursuant to this Section 2.6 shall be limited in number as provided in Section 2.2.  Each such conversion or continuation shall be effected by the Borrower by giving the Administrative Agent at the applicable Administrative Agent’s Office prior to 12:00 Noon (New York time) at least three Business Days’ (or one Business Day’s notice in the case of a conversion into ABR Loans) prior written notice (or telephonic notice promptly confirmed in writing) (each, a “Notice of Conversion or Continuation”) specifying the Loans to be so converted or continued, the Type of Loans to be converted or continued into and, if such Loans are to be converted into or continued as Eurodollar Loans, the Interest Period to be initially applicable thereto.  The Administrative Agent shall give each Lender notice as promptly as practicable of any such proposed conversion or continuation affecting any of its Loans.

(b)                                 If any Default or Event of Default is in existence at the time of any proposed continuation of any Eurodollar Loans and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuation, Eurodollar Loans shall be automatically converted on the last day of the current Interest Period into ABR Loans.  If upon the expiration of any Interest Period in respect of Eurodollar Loans, the Borrower has failed to elect a new Interest Period to be applicable thereto as provided in paragraph (a) above, the Borrower, shall be deemed to have elected to convert such Borrowing of Eurodollar Loans into a Borrowing of ABR Loans, effective as of the expiration date of such current Interest Period.

2.7.                              Pro Rata Borrowings.  Each Borrowing of Initial Term Loans under this Agreement shall be granted by the Lenders pro rata on the basis of their then-applicable Initial Term Loan Commitments.  Each Borrowing of Delayed Draw Term Loans under this Agreement shall be granted by the Lenders pro rata on the basis of their then-applicable Delayed Draw Term Loan Commitments.  Each Borrowing of Revolving Credit Loans under this Agreement shall be granted by the Lenders pro rata on the basis of their then-applicable Revolving Credit Commitments.  Each Borrowing of New Term Loans under this Agreement shall be granted by the Lenders pro rata on the basis of their then applicable New Term Loan Commitments.  It is understood that no Lender shall be responsible for any default by any other Lender in its obligation to make Loans hereunder and that each Lender shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to fulfill its commitments hereunder.

2.8.                              Interest.  (a)  The unpaid principal amount of each ABR Loan shall bear interest from the date of the Borrowing thereof until maturity (whether by acceleration or otherwise) at a rate per annum that shall at all times be the Applicable ABR Margin plus the ABR in effect from time to time.

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(b)                                 The unpaid principal amount of each Eurodollar Loan shall bear interest from the date of the Borrowing thereof until maturity thereof (whether by acceleration or otherwise) at a rate per annum that shall at all times be the Applicable Eurodollar Margin in effect from time to time plus the relevant Eurodollar Rate.

(c)                                  If all or a portion of the principal amount of any Loan or any interest payable thereon or fees or other amounts due hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) at a rate per annum that is (i) in the case of overdue principal, the rate that would otherwise be applicable thereto plus 2% or (ii) in the case of overdue interest, fees or other amounts due hereunder, to the extent permitted by Applicable Law, the rate described in Section 2.8(a) plus 2% from and including the date of such non-payment to but excluding the date on which such amount is paid in full (after as well as before judgment).  All such interest shall be payable on demand.

(d)                                 Interest on each Loan shall accrue from and including the date of any Borrowing to but excluding the date of any repayment thereof and shall be payable (i) in respect of each ABR Loan, quarterly in arrears on the last day of each March, June, September and December, (ii) in respect of each Eurodollar Loan, on the last day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on each date occurring at three-month intervals after the first day of such Interest Period, and (iii) in respect of each Loan (except, other than in the case of prepayments, any ABR Loan), on any prepayment (on the amount prepaid), at maturity (whether by acceleration or otherwise) and, after such maturity, on demand.

(e)                                  All computations of interest hereunder shall be made in accordance with Section 5.5.

(f)                                    The Administrative Agent, upon determining the interest rate for any Borrowing of Eurodollar Loans, shall promptly notify the Borrower and the relevant Lenders thereof.  Each such determination shall, absent clearly demonstrable error, be final and conclusive and binding on all parties hereto.

2.9.                              Interest Periods.  At the time the Borrower gives a Notice of Borrowing or Notice of Conversion or Continuation in respect of the making of, or conversion into or continuation as, a Borrowing of Eurodollar Loans (in the case of the initial Interest Period applicable thereto) or prior to 10:00 a.m. (New York time) on the third Business Day prior to the expiration of an Interest Period applicable to a Borrowing of Eurodollar Loans, the Borrower shall have the right to elect by giving the Administrative Agent written notice (or telephonic notice promptly confirmed in writing) the Interest Period applicable to such Borrowing, which Interest Period shall, at the option of the Borrower, be a one, two, three, six or (if available to all the Lenders making such Loans as determined by such Lenders in good faith based on prevailing market conditions) a nine or twelve month period, provided that the initial Interest Period may be for a period less than one month if agreed upon by the Borrower and the Agents.  Notwithstanding anything to the contrary contained above:

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(i)                                     the initial Interest Period for any Borrowing of Eurodollar Loans shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of ABR Loans) and each Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding Interest Period expires;

(ii)                                  if any Interest Period relating to a Borrowing of Eurodollar Loans begins on the last Business Day of a calendar month or begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period;

(iii)                               if any Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day, provided that if any Interest Period in respect of a Eurodollar Loan would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day; and

(iv)                              the Borrower shall not be entitled to elect any Interest Period in respect of any Eurodollar Loan if such Interest Period would extend beyond the applicable Maturity Date of such Loan.

2.10.                        Increased Costs, Illegality, etc.  (a)  In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in the case of clauses (ii) and (iii) below, any Lender shall have reasonably determined (which determination shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto):

(i)                                     on any date for determining the Eurodollar Rate for any Interest Period that (x) deposits in the principal amounts of the Loans comprising any Eurodollar Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Credit Agreement Closing Date affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurodollar Rate; or

(ii)                                  at any time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder with respect to any Eurodollar Loans (other than any such increase or reduction attributable to taxes) because of (x) any change since the date hereof in any applicable law, governmental rule, regulation, guideline or order (or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, guideline or order), such as, for example, without limitation, a change in official reserve requirements, and/or (y) other circumstances affecting the interbank Eurodollar market or the position of such Lender in such market; or

(iii)                               at any time, that the making or continuance of any Eurodollar Loan has become unlawful by compliance by such Lender in good faith with any law,

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governmental rule, regulation, guideline or order (or would conflict with any such governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the date hereof that materially and adversely affects the interbank Eurodollar market;

then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i) above) shall within a reasonable time thereafter give notice (if by telephone, confirmed in writing) to the Borrower and the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders).  Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion given by the Borrower with respect to Eurodollar Loans that have not yet been incurred shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to such Lender, promptly after receipt of written demand therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its reasonable discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lender shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in Section 2.10(b) as promptly as possible and, in any event, within the time period required by law.

(b)                                 At any time that any Eurodollar Loan is affected by the circumstances described in Section 2.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurodollar Loan affected pursuant to Section 2.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then being made pursuant to a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date that the Borrower was notified by a Lender pursuant to Section 2.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then outstanding, upon at least three Business Days’ notice to the Administrative Agent, require the affected Lender to convert each such Eurodollar Loan into an ABR Loan, if applicable, provided that if more than one Lender is affected at any time, then all affected Lenders must be treated in the same manner pursuant to this Section 2.10(b).

(c)                                  If, after the date hereof, the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, the National Association of Insurance Commissioners, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by a Lender or its parent with any request or directive made or adopted after the date hereof regarding capital adequacy (whether or not having the force of law) of any such authority, association, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lender’s or its parent’s capital or assets as a consequence of such Lender’s commitments or obligations hereunder to a level below that which

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such Lender or its parent could have achieved but for such adoption, effectiveness, change or compliance (taking into consideration such Lender’s or its parent’s policies with respect to capital adequacy), then from time to time, promptly after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or its parent for such reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any such law, rule or regulation as in effect on the date hereof.  Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 2.10(d), will give prompt written notice thereof to the Borrower (on its own behalf) which notice shall set forth in reasonable detail the basis of the calculation of such additional amounts, although the failure to give any such notice shall not, subject to Section 2.13, release or diminish any of the Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(d) upon receipt of such notice.

(d)                                 This Section 2.10 shall not apply to taxes to the extent duplicative of Section 5.4.

2.11.                        Compensation.  If (a) any payment of principal of a Eurodollar Loan is made by the Borrower to or for the account of a Lender other than on the last day of the Interest Period for such Eurodollar Loan as a result of a payment or conversion pursuant to Section 2.5, 2.6, 2.10, 5.1, 5.2 or 15.7, as a result of acceleration of the maturity of the Loans pursuant to Section 13 or for any other reason, (b) any Borrowing of Eurodollar Loans is not made as a result of a withdrawn Notice of Borrowing, (c) any ABR Loan is not converted into a Eurodollar Loan as a result of a withdrawn Notice of Conversion or Continuation, (d) any Eurodollar Loan is not continued as a Eurodollar Loan as a result of a withdrawn Notice of Conversion or Continuation or (e) any prepayment of principal of a Eurodollar Loan is not made as a result of a withdrawn notice of prepayment pursuant to Section 5.1 or 5.2, the Borrower shall, after receipt of a written request by such Lender (which request shall set forth in reasonable detail the basis for requesting such amount), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that such Lender may reasonably incur as a result of such payment, failure to convert, failure to continue, failure to prepay, reduction or failure to reduce, including any loss, cost or expense (excluding loss of anticipated profits) actually incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Eurodollar Loan.

2.12.                        Change of Lending Office.  Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii), 2.10(a)(iii), 2.10(b), 3.5 or 5.4 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event, provided that such designation is made on such terms that such Lender and its lending office suffer no economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of any such Section.  Nothing in this Section 2.12 shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided in Section 2.10, 3.5 or 5.4.

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2.13.                        Notice of Certain Costs.  Notwithstanding anything in this Agreement to the contrary, to the extent any notice required by Section 2.10, 2.11, 3.5 or 5.4 is given by any Lender more than 180 days after such Lender has knowledge (or should have had knowledge) of the occurrence of the event giving rise to the additional cost, reduction in amounts, loss, tax or other additional amounts described in such Sections, such Lender shall not be entitled to compensation under Section 2.10, 2.11, 3.5 or 5.4, as the case may be, for any such amounts incurred or accruing prior to the giving of such notice to the Borrower.

2.14.                        Incremental Facilities.  (a) The Borrower may, by written notice to the Administrative Agent, elect to request (x) the establishment of one or more new term loan commitments (the “New Term Loan Commitments”) and/or (y) prior to the Revolving Credit Maturity Date, an increase to the existing Revolving Credit Commitments (any such increase, the “New Revolving Credit Commitments” and, together with the New Term Loan Commitments, the “New Loan Commitments”), in each case to effect the incurrence of Indebtedness permitted to be incurred pursuant to Sections 12.1(h)(ii) and 12.1(q) in an amount not in excess of (and not in duplication of) the amount of Indebtedness permitted to be incurred pursuant to Sections 12.1(h)(ii) and/or 12.1(q), as applicable, in the aggregate and not less than $50,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between the amount of Indebtedness permitted to be incurred pursuant to Sections 12.1(h)(ii) and/or 12.1(q), as applicable, and all such New Loan Commitments obtained prior to such date), and integral multiples of $5,000,000 in excess of that amount (it being understood that any Indebtedness incurred pursuant to this Section 2.14 shall correspondingly reduce the amount of Indebtedness permitted to be incurred pursuant to such Sections, and vice versa).  Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent; provided that the Borrower shall first offer the Lenders, on a pro rata basis, the opportunity to provide all of the New Loan Commitments prior to offering such opportunity to any other Person that is an eligible assignee pursuant to Section 15.6(b); provided, further, that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment.  Such New Loan Commitments shall become effective, as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans or New Revolving Credit Loans, each of the conditions set forth in Section 9 shall be satisfied; (iii) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Sections 12.9 and 12.10 as of the last day of the most recently ended fiscal quarter after giving effect to such New Loan Commitments and any investment to be consummated in connection therewith; (iv) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (v) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable; and (vi) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.  Any New Term Loans made on

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an Increased Amount Date shall be designated as a separate series (a “Series”) of New Term Loans for all purposes of this Agreement and the other Credit Documents.

(b)                                 On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the Lenders with Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Credit Lender”) and each of the New Revolving Credit Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Lenders with Revolving Credit Loans and New Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (ii) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made thereunder (a “New Revolving Credit Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (iii) each New Revolving Credit Lender shall become a Lender with respect to its New Revolving Credit Commitment and all matters relating thereto.

(c)                                  On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to its New Term Loan Commitment of such Series and the New Term Loans of such Series made by such Lender pursuant thereto.

(d)                                 The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the Series of New Term Loan Commitments and New Term Loan Lenders of such Series or the New Revolving Credit Commitments and New Revolving Credit Lenders, as applicable, and (ii) in the case of each notice to any Lender with Revolving Credit Loans, the respective interests in such Lender’s Revolving Credit Loans subject to the assignments contemplated by clause (b) of this Section 2.14.

(e)                                  The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, identical to the Initial Term Loans and the Delayed Draw Term Loans; provided, however, that (i) the New Term Loan Maturity Date for any Series shall be determined by the Borrower and the applicable New Term Loan Lenders and shall be set forth in the applicable Joinder Agreement, provided that (x) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Initial Term Loans, the Delayed Draw Term Loans and the Revolving Credit Loans and (y) the applicable New Term Loan Maturity Date of each Series shall be no shorter than the final maturity of the Initial Term Loans, the Delayed Draw Term Loans and the Revolving Credit Loans and (ii) the rate of interest applicable to the New Term Loans of each Series shall be

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determined by the Borrower and the applicable New Term Loan Lenders and shall be set forth in the applicable Joinder Agreement.  The terms and provisions of the New Revolving Credit Loans and New Revolving Credit Commitments shall be identical to the Revolving Credit Loans and the Revolving Credit Commitments.

(f)                                    Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14.

SECTION 3.                                Letters of Credit

3.1.                              Issuance of Letters of Credit.  (a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time after the Credit Agreement Closing Date and prior to the Revolving Credit Maturity Date, the Borrower may request that the Letter of Credit Issuer issue for the account of the Borrower or a Restricted Subsidiary a standby letter of credit or letters of credit (each, a “Revolving Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion, provided that the Borrower shall be a co-applicant, and be jointly and severally liable, with respect to each Revolving Letter of Credit issued for the account of a Restricted Subsidiary.  Notwithstanding the foregoing, (i) no Revolving Letter of Credit shall be issued the Stated Amount of which, when added to the Revolving Letters of Credit Outstanding at such time, would exceed the Revolving Letter of Credit Commitment then in effect, (ii) no Revolving Letter of Credit shall be issued the Stated Amount of which, when added to the Revolving Letters of Credit Outstanding and the Revolving Credit Loans and Swingline Loans outstanding at such time, would exceed the Total Revolving Credit Commitment then in effect and (iii) each Revolving Letter of Credit shall have an expiration date occurring no later than the earlier of (x) one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, and (y) the Revolving Credit Maturity Date.

(b)                                 Subject to and upon the terms and conditions herein set forth, at any time and from time to time on or after the Credit Agreement Closing Date and prior to the Base Letter of Credit Maturity Date, the Borrower may request that the Letter of Credit Issuer issue for the account of the Borrower or a Restricted Subsidiary a standby letter of credit or letters of credit (each, a “Base Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion, provided that (i) each Base Letter of Credit shall be used by the Borrower solely to support the obligations of the Borrower and the Restricted Subsidiaries under Eligible Commodity Hedging Agreements and (ii) the Borrower shall be a co-applicant, and be jointly and severally liable, with respect to each Base Letter of Credit issued for the account of a Restricted Subsidiary.  Notwithstanding the foregoing, (i) no Base Letter of Credit shall be issued the Stated Amount of which, when added to the Base Letters of Credit Outstanding at such time, would exceed the Total Base Letter of Credit Commitment then in effect and (ii) each Base Letter of Credit shall have an expiration date occurring no later than the earlier of (x) one year after the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer, and (y) the Base Letter of Credit Maturity Date.

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(c)                                  Subject to and upon the terms and conditions herein set forth, at any time and from time to time on or after the Credit Agreement Closing Date and prior to the Special Letter of Credit Maturity Date, the Borrower may request that the Letter of Credit Issuer issue for the account of the Borrower or a Restricted Subsidiary a standby letter of credit or letters of credit (each, a “Special Letter of Credit”) in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion, provided that (i) each Special Letter of Credit shall be used by the Borrower solely to support the obligations of the Borrower and the Restricted Subsidiaries under the GS Commodity Hedging Agreement, the MS Commodity Hedging Agreement and other Special Commodity Hedging Agreements and (ii) the Borrower shall be a co-applicant, and be jointly and severally liable, with respect to each Special Letter of Credit issued for the account of a Restricted Subsidiary.  Notwithstanding the foregoing, (i) no Special Letter of Credit shall be issued the Stated Amount of which, when added to the Special Letters of Credit Outstanding at such time, would exceed the Total Special Letter of Credit Commitment then in effect, (ii) each Special Letter of Credit shall have an expiration date occurring no later than the earlier of (x) one year after the date of issuance thereof, unless otherwise agreed upon by the Letter of Credit Issuer, and (y) the Special Letter of Credit Maturity Date, (iii) unless otherwise agreed upon by the Letter of Credit Issuer and the Borrower, no Special Letter of Credit shall be issued to support the obligations of the Borrower and the Restricted Subsidiaries under a Special Commodity Hedging Agreement that expires, pursuant to its terms, after the Special Letter of Credit Maturity Date unless such Special Commodity Hedging Agreement provides that any Special Letter of Credit issued with respect thereto cannot be drawn based on the failure of the Borrower or the applicable Restricted Subsidiary to provide substitute collateral at or prior to the expiration of such Special Letter of Credit, (iv) unless otherwise agreed upon by the Letter of Credit Issuer and the Borrower, each Special Letter of Credit shall comply with each of the applicable Special Letter of Credit Draw Conditions (provided that in no event shall the Borrower be obligated to cause the applicable Special LOC Counterparty to agree to such draw conditions), (v) each GS Letter of Credit shall provide that, upon delivery by the GS Counterparty of a reduction notice to the Letter of Credit Issuer, the Stated Amount thereof will be reduced on each LOC Reduction Date (as defined in the GS Commodity Hedging Agreement) to an amount equal to the Maximum Expected Exposure (as defined in the GS Commodity Hedging Agreement) and (vi) the MS Letter of Credit shall provide that, upon delivery by the MS Counterparty of a reduction or increase notice to the Letter of Credit Issuer, the Stated Amount thereof will be reduced or increased, as applicable, on each LOC Reduction Determination Date (as defined in the MS Commodity Hedging Agreement) to the amount specified in such reduction or increase notice.

(d)                                 (i) Each Letter of Credit shall be denominated in Dollars, (ii) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor, and (iii) no Letter of Credit shall be issued after the Letter of Credit Issuer has received a written notice from the Borrower or any Lender stating that a Default or an Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of Section 15.1.

3.2.                              Letter of Credit Requests.  (a)  Whenever the Borrower desires that a Letter of Credit be issued for its account, it shall give the Administrative Agent and the Letter of

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Credit Issuer at least two (or such lesser number as may be agreed upon by the Administrative Agent and the Letter of Credit Issuer) Business Days’ written notice thereof; provided that with respect to any request for a Special Letter of Credit, the Special Letter of Credit Issuer shall have previously approved the Special Commodity Hedging Agreement to be covered thereby and the form of such Special Letter of Credit.  Each notice shall be executed by the Borrower and shall be in the form of Exhibit F (each, a “Letter of Credit Request”).  The Administrative Agent shall promptly transmit copies of each Letter of Credit Request to each Lender.

(b)                                 The making of each Letter of Credit Request shall be deemed to be a representation and warranty by the Borrower that the Letter of Credit may be issued in accordance with, and will not violate the requirements of, Section 3.1.

(c)                                  Each Letter of Credit Request for a Special Letter of Credit (other than the GS Letters of Credit and the MS Letter of Credit) shall be accompanied by (i) a certificate of an Authorized Officer of the Borrower certifying that, to the best of such Authorized Officer’s knowledge as of the date of such certification, the Borrower and the Restricted Subsidiaries are capable of meeting their obligations under all of their Commodity Hedging Agreements in place as of the date of the certification (including the Special Commodity Hedging Agreement to be supported by the proposed Special Letter of Credit) and (ii) written notification of the aggregate estimated positive ▇▇▇▇-to-market exposure of the proposed Special LOC Counterparty to the Borrower and the Restricted Subsidiaries calculated as of the date of such Letter of Credit Request.

3.3.                              Letter of Credit Participations.  (a) Immediately upon the issuance by the Revolving/Base Letter of Credit Issuer of any Revolving Letter of Credit, the Revolving/Base Letter of Credit Issuer shall be deemed to have sold and transferred to each other Lender that has a Revolving Letter of Credit Commitment (each such other Lender, in its capacity under this Section 3.3(a), a “Revolving Letter of Credit Participant”), and each such Revolving Letter of Credit Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Revolving/Base Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each, a “Revolving Letter of Credit Participation”), to the extent of such Revolving Letter of Credit Participant’s Revolving Credit Commitment Percentage in such Revolving Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Revolving Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the Revolving Letter of Credit Participants as provided in Section 4.1(c) and the Revolving Letter of Credit Participants shall have no right to receive any portion of any Fronting Fees).

(b)                                 Immediately upon the issuance by the Revolving/Base Letter of Credit Issuer of any Base Letter of Credit, the Revolving/Base Letter of Credit Issuer shall be deemed to have sold and transferred to each other Lender that has a Base Letter of Credit Commitment (each such other Lender, in its capacity under this Section 3.3(b), a “Base Letter of Credit Participant”), and each such Base Letter of Credit Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Revolving/Base Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each, a “Base Letter of Credit Participation”), to the extent of such Base Letter of Credit Participant’s Base Letter of

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Credit Commitment Percentage in such Base Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Base Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the Base Letter of Credit Participants as provided in Section 4.1(d) and the Base Letter of Credit Participants shall have no right to receive any portion of any Fronting Fees).

(c)                                  Immediately upon the issuance by the Special Letter of Credit Issuer of any Special Letter of Credit, the Special Letter of Credit Issuer shall be deemed to have sold and transferred to each other Lender that has a Special Letter of Credit Commitment (each such other Lender, in its capacity under this Section 3.3(c), a “Special Letter of Credit Participant”), and each such Special Letter of Credit Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Special Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each, a “Special Letter of Credit Participation”), to the extent of such Special Letter of Credit Participant’s Special Letter of Credit Commitment Percentage in such Special Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto (although Special Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the Special Letter of Credit Participants as provided in Section 4.1(e) and the Special Letter of Credit Participants shall have no right to receive any portion of any Fronting Fees).

(d)                                 In determining whether to pay under any Letter of Credit, the Letter of Credit Issuer shall have no obligation relative to the Letter of Credit Participants other than to confirm that any documents required to be delivered under such Letter of Credit have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit.  Any action taken or omitted to be taken by the Letter of Credit Issuer under or in connection with any Letter of Credit issued by it, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for the Letter of Credit Issuer any resulting liability.

(e)                                  Whenever the Letter of Credit Issuer receives a payment in respect of an unpaid reimbursement obligation as to which the Administrative Agent has received for the account of the Letter of Credit Issuer any payments from the Letter of Credit Participants pursuant to Section 3.4(c) or 3.4(d), the Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Letter of Credit Participant that has paid its Letter of Credit Commitment Percentage of such reimbursement obligation, in Dollars and in immediately available funds, an amount equal to such Letter of Credit Participant’s share (based upon the proportionate aggregate amount originally funded or deposited by such Letter of Credit Participant to the aggregate amount funded or deposited by all Letter of Credit Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective Letter of Credit Participations.

(f)                                    The obligations of the Letter of Credit Participants to make payments to the Administrative Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and

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conditions of this Agreement under all circumstances, including under any of the following circumstances:

(i)                                     any lack of validity or enforceability of this Agreement or any of the other Credit Documents;

(ii)                                  the existence of any claim, set-off, defense or other right that the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, the Letter of Credit Issuer, any Lender or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit);

(iii)                               any draft, certificate or any other document presented under any 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;

(iv)                              the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or

(v)                                 the occurrence of any Default or Event of Default;

provided, however, that no Letter of Credit Participant shall be obligated to pay to the Administrative Agent for the account of the Letter of Credit Issuer its Letter of Credit Commitment Percentage of any unreimbursed amount arising from any wrongful payment made by the Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer.

3.4.                              Agreement to Repay Letter of Credit Drawings.  (a) The Borrower hereby agrees to reimburse the Letter of Credit Issuer, by making payment to the Administrative Agent in immediately available funds for any payment or disbursement made by the Letter of Credit Issuer under any Letter of Credit (each such amount so paid until reimbursed, an “Unpaid Drawing”) immediately after, and in any event on the date of, such payment, with interest on the amount so paid or disbursed by the Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York time) on the date of such payment or disbursement, from and including the date paid or disbursed to but excluding the date the Letter of Credit Issuer is reimbursed therefor at a rate per annum that shall at all times be the rate described in Section 2.8(c)(ii);  provided that, notwithstanding anything contained in this Agreement to the contrary, with respect to any Revolving Letter of Credit, (i) unless the Borrower shall have notified the Administrative Agent and the Letter of Credit Issuer prior to 10:00 a.m. (New York time) on the date of such drawing that the Borrower intends to reimburse the Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Revolving Credit Loans, the Borrower shall be deemed to have given a Notice of Borrowing requesting that the Lenders with Revolving Credit Commitments make Revolving Credit Loans (which shall be ABR Loans) on the date on which such drawing is honored in an amount equal to the amount of such drawing, and (ii) the Administrative Agent shall promptly notify each Revolving Letter of Credit Participant of such

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drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each Revolving Letter of Credit Participant shall be irrevocably obligated to make a Revolving Credit Loan to the Borrower in the manner deemed to have been requested in the amount of its Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 12:00 noon (New York time) on such Business Day by making the amount of such Revolving Credit Loan available to the Administrative Agent.  Such Revolving Credit Loans shall be made without regard to the Minimum Borrowing Amount.  The Administrative Agent shall use the proceeds of such Revolving Credit Loans solely for purpose of reimbursing the Letter of Credit Issuer for the related Unpaid Drawing.

(b)                                 The obligations of the Borrower under this Section 3.4 to reimburse the Letter of Credit Issuer with respect to Unpaid Drawings (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any set-off, counterclaim or defense to payment that the Borrower or any other Person may have or have had against the Letter of Credit Issuer, the Administrative Agent or any Lender (including in its capacity as a Letter of Credit Participant), including any defense based upon the failure of any drawing under a Letter of Credit (each a “Drawing”) to conform to the terms of the Letter of Credit or any non-application or misapplication by the beneficiary of the proceeds of such Drawing, provided that the Borrower shall not be obligated to reimburse the Letter of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under the Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer.

(c)                                  In the event that the Letter of Credit Issuer makes any payment under any Base Letter of Credit and the Borrower shall not have repaid such amount in full to the Letter of Credit Issuer pursuant to Section 3.4(a), the Letter of Credit Issuer shall promptly notify the Administrative Agent and each applicable Base Letter of Credit Participant of such failure, and each such Base Letter of Credit Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of the Letter of Credit Issuer, the amount of such Base Letter of Credit Participant’s applicable Base Letter of Credit Commitment Percentage of such unreimbursed payment and in immediately available funds; provided, however, that no Base Letter of Credit Participant shall be obligated to pay to the Administrative Agent for the account of the Letter of Credit Issuer its Base Letter of Credit Commitment Percentage of such unreimbursed amount arising from any wrongful payment made by the Letter of Credit Issuer under a Base Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer.  If the Letter of Credit Issuer so notifies, prior to 11:00 a.m. (New York time) on any Business Day, any Base Letter of Credit Participant required to fund a payment under a Base Letter of Credit, such Base Letter of Credit Participant shall make available to the Administrative Agent for the account of the Letter of Credit Issuer such Base Letter of Credit Participant’s Base Letter of Credit Commitment Percentage of the amount of such payment on such Business Day in immediately available funds.  If and to the extent such Base Letter of Credit Participant shall not have so made its Base Letter of Credit Commitment Percentage of the amount of such payment available to the Administrative Agent for the account of the Letter of Credit Issuer, such Base Letter of Credit Participant agrees to pay to the Administrative Agent for the account of the Letter of Credit Issuer, forthwith on demand, such amount, together with interest thereon for each day from such date until the date such amount is paid to the Administrative Agent for the account of the Letter

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of Credit Issuer at the Federal Funds Effective Rate.  The failure of any Base Letter of Credit Participant to make available to the Administrative Agent for the account of the Letter of Credit Issuer its Base Letter of Credit Commitment Percentage of any payment under any Base Letter of Credit shall not relieve any other Base Letter of Credit Participant of its obligation hereunder to make available to the Administrative Agent for the account of the Letter of Credit Issuer its Base Letter of Credit Commitment Percentage of any payment under such Base Letter of Credit on the date required, as specified above, but no Base Letter of Credit Participant shall be responsible for the failure of any other Base Letter of Credit Participant to make available to the Administrative Agent such other Base Letter of Credit Participant’s Base Letter of Credit Commitment Percentage of any such payment.

(d)                                 In the event that the Letter of Credit Issuer makes any payment under any Special Letter of Credit and the Borrower shall not have repaid such amount in full to the Letter of Credit Issuer pursuant to Section 3.4(a), the Letter of Credit Issuer shall promptly notify the Administrative Agent and each applicable Special Letter of Credit Participant of such failure, and each such Special Letter of Credit Participant shall promptly and unconditionally pay to the Administrative Agent, for the account of the Letter of Credit Issuer, the amount of such Special Letter of Credit Participant’s applicable Special Letter of Credit Commitment Percentage of such unreimbursed payment and in immediately available funds; provided, however, that no Special Letter of Credit Participant shall be obligated to pay to the Administrative Agent for the account of the Letter of Credit Issuer its Special Letter of Credit Commitment Percentage of such unreimbursed amount arising from any wrongful payment made by the Letter of Credit Issuer under a Special Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer.  If the Letter of Credit Issuer so notifies, prior to 11:00 a.m. (New York time) on any Business Day, any Special Letter of Credit Participant required to fund a payment under a Special Letter of Credit, such Special Letter of Credit Participant shall make available to the Administrative Agent for the account of the Letter of Credit Issuer such Special Letter of Credit Participant’s Special Letter of Credit Commitment Percentage of the amount of such payment on such Business Day in immediately available funds.  If and to the extent such Special Letter of Credit Participant shall not have so made its Special Letter of Credit Commitment Percentage of the amount of such payment available to the Administrative Agent for the account of the Letter of Credit Issuer, such Special Letter of Credit Participant agrees to pay to the Administrative Agent for the account of the Letter of Credit Issuer, forthwith on demand, such amount, together with interest thereon for each day from such date until the date such amount is paid to the Administrative Agent for the account of the Letter of Credit Issuer at the Federal Funds Effective Rate.  The failure of any Special Letter of Credit Participant to make available to the Administrative Agent for the account of the Letter of Credit Issuer its Special Letter of Credit Commitment Percentage of any payment under any Special Letter of Credit shall not relieve any other Special Letter of Credit Participant of its obligation hereunder to make available to the Administrative Agent for the account of the Letter of Credit Issuer its Special Letter of Credit Commitment Percentage of any payment under such Special Letter of Credit on the date required, as specified above, but no Special Letter of Credit Participant shall be responsible for the failure of any other Special Letter of Credit Participant to make available to the Administrative Agent such other Special Letter of Credit Participant’s Special Letter of Credit Commitment Percentage of any such payment.

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3.5.                              Increased Costs.  If after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or actual compliance by the Letter of Credit Issuer or any Letter of Credit Participant with any request or directive made or adopted after the date hereof (whether or not having the force of law), by any such authority, central bank or comparable agency shall either (a) impose, modify or make applicable any reserve, deposit, capital adequacy or similar requirement against letters of credit issued by the Letter of Credit Issuer, or any Letter of Credit Participant’s Letter of Credit Participation therein, or (b) impose on the Letter of Credit Issuer or any Letter of Credit Participant any other conditions affecting its obligations under this Agreement in respect of Letters of Credit or Letter of Credit Participations therein or any Letter of Credit or such Letter of Credit Participant’s Letter of Credit Participation therein, and the result of any of the foregoing is to increase the cost to the Letter of Credit Issuer or such Letter of Credit Participant of issuing, maintaining or participating in any Letter of Credit, or to reduce the amount of any sum received or receivable by the Letter of Credit Issuer or such Letter of Credit Participant hereunder (other than any such increase or reduction attributable to taxes) in respect of Letters of Credit or Letter of Credit Participations therein, then, promptly after receipt of written demand to the Borrower by the Letter of Credit Issuer or such Letter of Credit Participant, as the case may be (a copy of which notice shall be sent by the Letter of Credit Issuer or such Letter of Credit Participant to the Administrative Agent), the Borrower shall pay to the Letter of Credit Issuer or such Letter of Credit Participant such additional amount or amounts as will compensate the Letter of Credit Issuer or such Letter of Credit Participant for such increased cost or reduction, it being understood and agreed, however, that the Letter of Credit Issuer or a Letter of Credit Participant shall not be entitled to such compensation as a result of such Person’s compliance with, or pursuant to any request or directive to comply with, any such law, rule or regulation as in effect on the date hereof.  A certificate submitted to the Borrower by the Letter of Credit Issuer or a Letter of Credit Participant, as the case may be (a copy of which certificate shall be sent by the Letter of Credit Issuer or such Letter of Credit Participant to the Administrative Agent) setting forth in reasonable detail the basis for the determination of such additional amount or amounts necessary to compensate the Letter of Credit Issuer or such Letter of Credit Participant as aforesaid shall be conclusive and binding on the Borrower absent clearly demonstrable error.

3.6.                              Successor Letter of Credit Issuer.  The Letter of Credit Issuer may resign as Letter of Credit Issuer upon 60 days’ prior written notice to the Administrative Agent, the Lenders and the Borrower.  If the Letter of Credit Issuer shall resign as Letter of Credit Issuer under this Agreement, then the Borrower shall appoint from among the Lenders with Letter of Credit Commitments a successor issuer of Letters of Credit, whereupon such successor issuer shall succeed to the rights, powers and duties of the Letter of Credit Issuer, and the term “Letter of Credit Issuer” shall mean such successor issuer effective upon such appointment.  At the time such resignation shall become effective, the Borrower shall pay to the resigning Letter of Credit Issuer all accrued and unpaid fees pursuant to Sections 4.1(b) and (f).  The acceptance of any appointment as the Letter of Credit Issuer hereunder by a successor Lender shall be evidenced by an agreement entered into by such successor, in a form satisfactory to the Borrower and the Administrative Agent and, from and after the effective date of such agreement, such successor Lender shall have all the rights and obligations of the previous Letter of Credit Issuer under this Agreement and the other Credit Documents.  After the resignation of the Letter of Credit Issuer

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hereunder, the resigning Letter of Credit Issuer shall remain a party hereto and shall continue to have all the rights and obligations of a Letter of Credit Issuer under this Agreement and the other Credit Documents with respect to Letters of Credit issued by it prior to such resignation, but shall not be required to issue additional Letters of Credit.  After any retiring Letter of Credit Issuer’s resignation as Letter of Credit Issuer, the provisions of this Agreement relating to the Letter of Credit Issuer shall inure to its benefit as to any actions taken or omitted to be taken by it (a) while it was Letter of Credit Issuer under this Agreement or (b) at any time with respect to Letters of Credit issued by such Letter of Credit Issuer.

SECTION 4.                                Fees; Commitment Reductions and Terminations

4.1.                              Fees.  (a)  (i)  The Borrower agrees to pay to the Administrative Agent for the account of:

(A)                              each Lender having a Delayed Draw Term Loan Commitment, a commitment fee which shall accrue from and including the Credit Agreement Closing Date to but excluding the day on which the Total Delayed Draw Term Loan Commitment terminates in accordance with Section 4.3(b) at a rate per annum equal to (x) from the Credit Agreement Closing Date to but excluding October 29, 2005, 1.25% and (y) thereafter, 1.50%, in each case of the Delayed Draw Term Loan Commitment of such Lender and which shall be payable quarterly in arrears on the last day of each March, June, September and December and on the day on which the Total Delayed Draw Term Loan Commitment terminates in accordance with Section 4.3(b) (in each case pro rata according to the respective Commitments of all such Lenders);

(B)                                each Lender having a Revolving Credit Commitment, a commitment fee which shall accrue from and including the Credit Agreement Closing Date to but excluding the applicable Final Date at a rate per annum equal to 0.50% of the daily average unused portion of the Revolving Credit Commitment of such Lender, and which shall be payable quarterly in arrears on the last day of each March, June, September and December and on the applicable Final Date;

(C)                                each Lender having a Base Letter of Credit Commitment, a commitment fee which shall accrue from and including the Credit Agreement Closing Date to but excluding the applicable Final Date at a rate per annum equal to 0.50% of the daily average unused portion of the Base Letter of Credit Commitment of such Lender and which shall be payable quarterly in arrears on the last day of each March, June, September and December and on the applicable Final Date; and

(D)                               each Lender having a Special Letter of Credit Commitment, a commitment fee which shall accrue from and including the Credit Agreement Closing Date to but excluding the applicable Final Date at a rate per annum equal to (x) in the case of any portion of the Special Letter of Credit Commitment that is unused as of 5:00 p.m. (New York time) on the Initial Transaction Closing Date, 1.25% or (y) in the case of any portion of the Special Letter of Credit Commitment that was used as of 5:00 p.m. (New York time) on the Initial Transaction Closing Date and becomes unused thereafter, 0.50%, in each case of the daily average unused portion of the Special Letter of Credit

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Commitment of such Lender (provided that for purposes of this clause (D), until the MS Initial LOC Reduction Date, the Stated Amount of the MS Letter of Credit shall be deemed to be $26,352,000) and which shall be payable quarterly in arrears on the last day of each March, June, September and December and on the applicable Final Date.

(b)                                 The Borrower agrees to pay to the Administrative Agent for the account of the Letter of Credit Issuer a fee in respect of each Letter of Credit issued hereunder (the “Fronting Fee”), for the period from and including the date of issuance of such Letter of Credit to but excluding the termination or expiration date of such Letter of Credit, computed at the rate for each day equal to (i) in the case of each Revolving Letter of Credit and Base Letter of Credit, 0.125% per annum and (ii) in the case of each Special Letter of Credit, 0.20% per annum, in each case on the average daily Stated Amount of such Letter of Credit (provided that for purposes of this clause (b)(ii), until the MS Initial LOC Reduction Date, the Stated Amount of the MS Letter of Credit shall be deemed to be $26,352,000).  The Fronting Fee shall be due and payable quarterly in arrears on the last day of each March, June, September and December and on each Final Date.

(c)                                  The Borrower agrees to pay to the Administrative Agent for the account of each Lender having a Revolving Credit Commitment, pro rata according to the Revolving Letter of Credit Exposure of such Lender, a fee in respect of each Revolving Letter of Credit (the “Revolving Letter of Credit Fee”), for the period from and including the date of issuance of such Revolving Letter of Credit to but excluding the termination or expiration date of such Revolving Letter of Credit, computed at the per annum rate for each day equal to (x) the Applicable Eurodollar Margin then in effect for Revolving Letters of Credit times (y) the average daily Stated Amount of such Revolving Letter of Credit.  The Revolving Letter of Credit Fee shall be payable quarterly in arrears on the last day of each March, June, September and December and on the applicable Final Date.

(d)                                 The Borrower agrees to pay to the Administrative Agent for the account of each Lender having a Base Letter of Credit Commitment, pro rata according to the Base Letter of Credit Exposure of such Lender, a fee in respect of each Base Letter of Credit (the “Base Letter of Credit Fee”), for the period from and including the date of issuance of such Base Letter of Credit to but excluding the termination or expiration date of such Base Letter of Credit, computed at the per annum rate for each day equal to (x) the Applicable Eurodollar Margin then in effect for Base Letters of Credit times (y) the average daily Stated Amount of such Base Letter of Credit.  The Base Letter of Credit Fee shall be payable quarterly in arrears on the last day of each March, June, September and December and on the applicable Final Date.

(e)                                  The Borrower agrees to pay to the Administrative Agent for the account of each Lender having a Special Letter of Credit Commitment, pro rata according to the Special Letter of Credit Exposure of such Lender:

(i)                                     a fee in respect of each Special Letter of Credit (other than the GS Letters of Credit and the MS Letter of Credit), for the period from and including the date of issuance of such Special Letter of Credit to but excluding the termination or expiration date of such Special Letter of Credit, computed at the per annum rate for each day equal

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to (x) the Applicable Eurodollar Margin then in effect for Special Letters of Credit times (y) the average daily Stated Amount of such Special Letter of Credit;

(ii)                                  a fee in respect of each GS Letter of Credit, for the period from and including the date of issuance of such GS Letter of Credit to but excluding the termination or expiration date of such GS Letter of Credit, computed at the rate per annum for each day equal to (x) 1.00% times (y) the average daily Stated Amount of such GS Letter of Credit;

(iii)                               a fee in respect of each GS Letter of Credit, for the period from and including the date of issuance of such GS Letter of Credit to but excluding the termination or expiration date of such GS Letter of Credit, computed at a rate per annum for each day equal to (x) 1.00% times (y) the lesser of (1) the average daily Stated Amount of such GS Letter of Credit and (2) the average daily ▇▇▇▇-to-Market Exposure of the GS Counterparty to the Borrower under the GS Commodity Hedging Agreement;

(iv)                              a fee in respect of the MS Letter of Credit, for the period from and including the date of issuance of such MS Letter of Credit to but excluding the termination or expiration date of such MS Letter of Credit, computed at the rate per annum for each day equal to (x) 1.00% times (y) the average daily Stated Amount of such MS Letter of Credit (provided that for purposes of this clause (iv), until the MS Initial LOC Reduction Date, the Stated Amount of the MS Letter of Credit shall be deemed to be $26,352,000); and

(v)                                 a fee in respect of the MS Letter of Credit, for the period from and including the date of issuance of such MS Letter of Credit to but excluding the termination or expiration date of such MS Letter of Credit, computed at a rate per annum for each day equal to (x) 1.00% times (y) the lesser of (1) the average daily Stated Amount of such MS Letter of Credit (provided that for purposes of this clause (v), until the MS Initial LOC Reduction Date, the Stated Amount of the MS Letter of Credit shall be deemed to be $26,352,000) and (2) the average daily ▇▇▇▇-to-Market Exposure of the MS Counterparty to the Borrower under the MS Commodity Hedging Agreement (the fees described in clauses (i) through (v) of this clause (e), the “Special Letter of Credit Fees”).

The Special Letter of Credit Fees shall be payable quarterly in arrears on the last day of each March, June, September and December and on the applicable Final Date.

(f)                                    The Borrower agrees to pay directly to the Letter of Credit Issuer upon each issuance of, drawing under and/or amendment of a Letter of Credit issued by it such amount as the Letter of Credit Issuer and the Borrower shall have agreed upon for issuances of, drawings under or amendments of, letters of credit issued by it.

(g)                                 Notwithstanding the foregoing, the Borrower shall not be obligated to pay any amounts to any Defaulting Lender pursuant to this Section 4.1 until the event or circumstances giving rise to such Lender being designated as a Defaulting Lender have been cured.

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4.2.                              Voluntary Reduction of Commitments.  (a) Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent at the Administrative Agent’s Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right, without premium or penalty, on any day prior to the date on which the Total Delayed Draw Term Loan Commitment terminates pursuant to Section 4.3(b), permanently to terminate or reduce the Delayed Draw Term Loan Commitments in whole or in part, provided that (i) any partial reduction pursuant to this Section 4.2(a) shall be in the amount of at least $1,000,000 and (ii) after giving effect to such termination or reduction and to any prepayments of Delayed Draw Term Loans made on the date thereof in accordance with this Agreement, the aggregate principal amount of Delayed Draw Term Loans shall not exceed the Total Delayed Draw Term Loan Commitment.

(b)                                 Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent at the Administrative Agent’s Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right, without premium or penalty, on any day, permanently to terminate or reduce the Revolving Credit Commitments in whole or in part, provided that (i) any partial reduction pursuant to this Section 4.2(b) shall be in the amount of at least $1,000,000 and (ii) after giving effect to such termination or reduction and to any prepayments of Revolving Credit Loans or cancellation or cash collateralization of Revolving Letters of Credit made on the date thereof in accordance with this Agreement, the aggregate amount of the Lenders’ Revolving Credit Exposures shall not exceed the Total Revolving Credit Commitment.

(c)                                  Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent at the Administrative Agent’s Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right, without premium or penalty, on any day, permanently to terminate or reduce the Base Letter of Credit Commitments in whole or in part, provided that (i) any partial reduction pursuant to this Section 4.2(c) shall be in the amount of at least $1,000,000 and (ii) after giving effect to such termination or reduction and to any cancellation or cash collateralization of Base Letters of Credit made on the date thereof in accordance with this Agreement, the aggregate amount of the Lenders’ Base Letter of Credit Exposures shall not exceed the Total Base Letter of Credit Commitment.

(d)                                 Upon at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative Agent at the Administrative Agent’s Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right, without premium or penalty, on any day, permanently to terminate or reduce the Special Letter of Credit Commitments in whole or in part, provided that (i) any partial reduction pursuant to this Section 4.2(d) shall be in the amount of at least $1,000,000 and (ii) after giving effect to such termination or reduction and to any cancellation or cash collateralization of Special Letters of Credit made on the date thereof in accordance with this Agreement, the aggregate amount of the Lenders’ Special Letter of Credit Exposures shall not exceed the Total Special Letter of Credit Commitment.

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4.3.                              Mandatory Termination of Commitments.  (a)  The Total Initial Term Loan Commitment shall terminate on the earlier of (i) at 5:00 p.m. (New York time) on October 28, 2005 and (ii) 5:00 p.m. (New York time) on the Credit Agreement Closing Date.

(b)                                 The Total Delayed Draw Term Loan Commitment shall terminate on the earliest of (i) at 5:00 p.m. (New York time) on April 30, 2006, (ii) at 5:00 p.m. (New York time) on the earlier of the Subsequent Transaction Closing Date or the Call Transaction Closing Date and (iii) the date on which the Borrower notifies the Administrative Agent in writing that the Borrower intends to consummate neither the Subsequent Transaction nor the Call Transaction.

(c)                                  The Total Revolving Credit Commitment shall terminate at 5:00 p.m. (New York time) on the Revolving Credit Maturity Date.

(d)                                 The Total Base Letter of Credit Commitment shall terminate at 5:00 p.m. (New York time) on the Base Letter of Credit Maturity Date.

(e)                                  The Total Special Letter of Credit Commitment shall terminate at 5:00 p.m. (New York time) on the Special Letter of Credit Maturity Date.

(f)                                    The Swingline Commitment shall terminate at 5:00 p.m. (New York time) on the Swingline Maturity Date.

(g)                                 The New Term Loan Commitment for any Series shall terminate at 5:00 p.m. (New York time) on the Increased Amount Date for such Series.

SECTION 5.                                Payments

5.1.                              Voluntary Prepayments.  The Borrower shall have the right to prepay Term Loans, Revolving Credit Loans and Swingline Loans, without premium or penalty, in whole or in part from time to time on the following terms and conditions:  (a) the Borrower shall give the Administrative Agent at the Administrative Agent’s Office written notice (or telephonic notice promptly confirmed in writing) of its intent to make such prepayment, the amount of such prepayment and in the case of Eurodollar Loans, the specific Borrowing(s) pursuant to which made, which notice shall be given by the Borrower no later than (i) in the case of Term Loans or Revolving Credit Loans, 10:00 a.m. (New York time) one Business Day prior to, or (ii) in the case of Swingline Loans, 10:00 a.m. (New York time) on, the date of such prepayment and shall promptly be transmitted by the Administrative Agent to each of the Lenders or the Swingline Lender, as the case may be; (b) each partial prepayment of any Borrowing of Term Loans or Revolving Credit Loans shall be in a multiple of $100,000 and in an aggregate principal amount of at least $1,000,000 and each partial prepayment of Swingline Loans shall be in a multiple of $100,000 and in an aggregate principal amount of at least $100,000, provided that no partial prepayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount for Eurodollar Loans; (c) any prepayment of Eurodollar Loans pursuant to this Section 5.1 on any day other than the last day of an Interest Period applicable thereto shall be subject to compliance by the Borrower with the applicable provisions of Section 2.11.  Each prepayment in respect of any tranche of Term Loans pursuant to this Section 5.1 shall be (a) applied to Term Loans in such manner as the Borrower may determine

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and (b) applied to reduce Repayment Amounts in such order as the Borrower may determine.  At the Borrower’s election in connection with any prepayment pursuant to this Section 5.1, such prepayment shall not be applied to any Loan of a Defaulting Lender.

5.2.                              Mandatory Prepayments.  (a)  Term Loan Prepayments.  (i)  On each occasion that a Prepayment Event (other than a Scheduled Asset Event) occurs, the Borrower shall, within one Business Day after the occurrence of a Debt Incurrence Prepayment Event and within five Business Days after the receipt of Net Cash Proceeds in connection with the occurrence of any other Prepayment Event (other than a Scheduled Asset Event), prepay, in accordance with paragraphs (c) and (d) below, a principal amount of Term Loans in an amount equal to 100% of the Net Cash Proceeds from such Prepayment Event.

(ii)                                  On each occasion that a Scheduled Asset Event occurs, the Borrower shall, within five Business Days after the receipt of Distributable Scheduled Asset Proceeds (other than any Excepted Distributable Scheduled Asset Proceeds) in connection with the occurrence of such Scheduled Asset Event, prepay, in accordance with paragraphs (c) and (d) below, a principal amount of Term Loans in an amount equal to 100% of any Distributable Scheduled Asset Proceeds (other than any Excepted Distributable Scheduled Asset Proceeds) from such Scheduled Asset Event.

(iii)                               Not later than the date that is ninety days after the last day of any fiscal year (commencing with the fiscal year ending December 31, 2005), the Borrower shall prepay, in accordance with paragraphs (c) and (d) below, a principal of Term Loans in an amount equal to (x) 75% of Excess Cash Flow for such fiscal year (provided such percentage shall be reduced to (i) 50% for any period in which the Term Loan Repayment Amount is at least (x) if the Subsequent Transaction Closing Date has occurred, $625,000,000 or (y) if the Subsequent Transaction Closing Date has not occurred, $500,000,000 or (ii) 25% for any period in which the Term Loan Repayment Amount is at least (x) if the Subsequent Transaction Closing Date has occurred, $950,000,000 or (y) if the Subsequent Transaction Closing Date has not occurred, $760,000,000, minus (y) the amount of any such Excess Cash Flow that the Borrower has, after the end of such fiscal year, and prior to such date, reinvested in the Business of the Borrower and the Restricted Subsidiaries (subject to Section 11.14), minus (z) the principal amount of Term Loans voluntarily prepaid pursuant to Section 5.1 during such fiscal year.

(b)                                 Repayment of Revolving Credit Loans.  If on any date the aggregate amount of the Lenders’ Revolving Credit Exposures plus the aggregate principal amount of all Swingline Loans exceeds the Total Revolving Credit Commitment as then in effect, the Borrower shall forthwith repay on such date the principal amount of Swingline Loans and, after all Swingline Loans have been paid in full, Revolving Credit Loans in an amount equal to such excess.  If, after giving effect to the prepayment of all outstanding Swingline Loans and Revolving Credit Loans, the aggregate amount of the Lenders’ Revolving Credit Exposures exceed the Total Revolving Credit Commitment then in effect, the Borrower shall pay to the Administrative Agent an amount in cash equal to such excess and the Administrative Agent shall hold such payment for the benefit of the Lenders as security for the obligations of the Borrower hereunder (including obligations in respect of Revolving Letter of Credit Outstandings) pursuant to a cash collateral agreement to be entered into in form and substance satisfactory to the Administrative Agent (which shall permit certain investments in Permitted Investments

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satisfactory to the Administrative Agent, until the proceeds are applied to the secured obligations).

(c)                                  Application to Repayment Amounts.  Each prepayment of Term Loans required by Section 5.2(a) shall be applied to reduce Repayment Amounts, pro rata between Initial Term Loan Repayment Amounts and Delayed Draw Term Loan Repayment Amounts, if any, (i) first to the Repayment Amounts due within the 12 month period following the date on which the applicable Prepayment Event occurred and (ii) second to the remaining Repayment Amounts on a pro rata basis.  With respect to each such prepayment, (i) the Borrower will, not later than the date specified in Section 5.2(a) for offering to make such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent provide notice of such prepayment to each Lender of Term Loans, (ii) each Lender of Term Loans will have the right to refuse any such prepayment by giving written notice of such refusal to the Borrower within fifteen Business Days after such Lender’s receipt of notice from the Administrative Agent of such prepayment (and the Borrower shall not prepay any such Term Loans until the date that is specified in the immediately following clause), (iii) the Borrower will make all such prepayments not so refused upon the earlier of (x) such fifteenth Business Day and (y) such time as the Borrower has received notice from each Lender that it consents to or refuses such prepayment and (iv) any prepayment so refused may be retained by the Borrower or, in the case of the refusal of prepayment by any Lender in respect of Distributable Scheduled Asset Proceeds, any such prepayment so refused may be distributed by the Borrower pursuant to Section 12.6(e); provided that any prepayment so refused that relates to Net Cash Proceeds from a Debt Incurrence Prepayment Event in respect of the issuance of Permitted Additional Notes shall be allocated to the then outstanding Term Loans and shall be applied as set forth above in this paragraph (c).

(d)                                 Application to Term Loans.  With respect to each prepayment of Term Loans required by Section 5.2(a), the Borrower may designate the Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant to which made, provided that (i) the Borrower pays any amounts, if any, required to be paid pursuant to Section 2.11 with respect to prepayments of Eurodollar Term Loans made on any date other than the last day of the applicable Interest Period and (ii) Eurodollar Term Loans made pursuant to a single Borrowing shall reduce the outstanding Term Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount for Eurodollar Loans such Borrowing shall immediately be converted into ABR Loans .  In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion with a view, but no obligation, to minimize breakage costs owing under Section 2.11.

(e)                                  Application to Revolving Credit Loans.  With respect to each prepayment of Revolving Credit Loans elected by the Borrower pursuant to Section 5.1 or required by Section 5.2(b), the Borrower may designate (i) the Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant to which made and (ii) the Revolving Credit Loans to be prepaid, provided that (w) Eurodollar Revolving Credit Loans may be designated for prepayment pursuant to this Section 5.2 only on the last day of an Interest Period applicable thereto unless all Eurodollar Loans with Interest Periods ending on such date of required prepayment and all ABR Loans have been paid in full; (x) if any prepayment by the Borrower of Eurodollar Revolving

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Credit Loans made pursuant to a single Borrowing shall reduce the outstanding Revolving Credit Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount for Eurodollar Revolving Credit Loans, such Borrowing shall immediately be converted into ABR Loans; (y) each prepayment of any Loans made pursuant to a Borrowing shall be applied pro rata among such Loans; and (z) notwithstanding the provisions of the preceding clause (y), no prepayment made pursuant to Section 5.1 or Section 5.2(b) of Revolving Credit Loans shall be applied to the Revolving Credit Loans of any Defaulting Lender.  In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion with a view, but no obligation, to minimize breakage costs owing under Section 2.11.

(f)                                    Eurodollar Interest Periods.  In lieu of making any payment pursuant to this Section 5.2 in respect of any Eurodollar Loan other than on the last day of the Interest Period therefor so long as no Default or Event of Default shall have occurred and be continuing, the Borrower at its option may deposit with the Administrative Agent an amount equal to the amount of the Eurodollar Loan to be prepaid and such Eurodollar Loan shall be repaid on the last day of the Interest Period therefor in the required amount.  Such deposit shall be held by the Administrative Agent in a corporate time deposit account established on terms reasonably satisfactory to the Administrative Agent, earning interest at the then-customary rate for accounts of such type.  Such deposit shall constitute cash collateral for the Specified Obligations, provided that the Borrower may at any time direct that such deposit be applied to make the applicable payment required pursuant to this Section 5.2.

(g)                                 Minimum Amount.  No prepayment shall be required pursuant to Section 5.2(a)(i) unless and until the amount at any time of Net Cash Proceeds from Prepayment Events required to be applied at or prior to such time pursuant to such Section and not yet applied at or prior to such time to prepay Term Loans pursuant to such Section exceeds (i) $10,000,000 for any single Prepayment Event or series of related Prepayment Events and (ii) $25,000,000 in the aggregate for all such Prepayment Events.

(h)                                 Reduction of Base Letter of Credit Exposures.  If on any date the aggregate amount of the Lenders’ Base Letter of Credit Exposures exceeds the Total Base Letter of Credit Commitment as then in effect, the Borrower shall forthwith pay to the Administrative Agent an amount in cash equal to such excess and the Administrative Agent shall hold such payment for the benefit of the Lenders as security for the Base Letters of Credit Outstanding pursuant to a cash collateral agreement to be entered into in form and substance satisfactory to the Administrative Agent (which shall permit certain investments in Permitted Investments satisfactory to the Administrative Agent, until the proceeds are applied to the secured obligations).

(i)                                     Reduction of Special Letter of Credit Exposures.  If on any date the aggregate amount of the Lenders’ Special Letter of Credit Exposures exceeds the Total Special Letter of Credit Commitment as then in effect, the Borrower shall forthwith pay to the Administrative Agent an amount in cash equal to such excess and the Administrative Agent shall hold such payment for the benefit of the Lenders as security for the Special Letters of Credit Outstanding pursuant to a cash collateral agreement to be entered into in form and substance satisfactory to the Administrative Agent (which shall permit certain investments in Permitted

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Investments satisfactory to the Administrative Agent, until the proceeds are applied to the secured obligations).

(j)                                     Foreign Asset Sales.  Notwithstanding any other provisions of this Section 5.2, (i) to the extent that any of or all the Net Cash Proceeds of any asset sale by a Restricted Foreign Subsidiary giving rise to an Asset Sale Prepayment Event (a “Foreign Asset Sale”), the Net Cash Proceeds of any Recovery Event from a Restricted Foreign Subsidiary (a “Foreign Recovery Event”), or Excess Cash Flow are prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.2 but may be retained by the applicable Restricted Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (the Borrower hereby agreeing to cause the applicable Restricted Foreign Subsidiary to promptly take all actions required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be immediately effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 5.2 and (ii) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Asset Sale, any Foreign Recovery Event or Excess Cash Flow would have a material adverse tax cost consequence with respect to such Net Cash Proceeds or Excess Cash Flow, the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Restricted Foreign Subsidiary, provided that, in the case of this clause (ii), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to Section 5.2(a) (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), (x) the Borrower applies an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather than such Restricted Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Restricted Foreign Subsidiary.

5.3.                              Method and Place of Payment.  (a)  Except as otherwise specifically provided herein, all payments under this Agreement shall be made by the Borrower, without set-off, counterclaim or deduction of any kind, to the Administrative Agent for the ratable account of the Lenders entitled thereto, the Letter of Credit Issuer or the Swingline Lender, as the case may be, not later than 12:00 Noon (New York time) on the date when due and shall be made in immediately available funds in Dollars at the Administrative Agent’s Office, it being understood that written or facsimile notice by the Borrower to the Administrative Agent to make a payment from the funds in the Borrower’s account at the Administrative Agent’s Office shall constitute the making of such payment to the extent of such funds held in such account.  The Administrative Agent will thereafter cause to be distributed on the same day (if payment was actually received by the Administrative Agent prior to 2:00 p.m. (New York time) on such day)

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like funds relating to the payment of principal or interest or Fees ratably to the Lenders entitled thereto or to the Letter of Credit Issuer or the Swingline Lender, as applicable.

(b)                                 For purposes of computing interest or fees, any payments under this Agreement that are made later than 2:00 p.m. (New York time) shall be deemed to have been made on the next succeeding Business Day.  Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable during such extension at the applicable rate in effect immediately prior to such extension.

5.4.                              Net Payments.  (a)  Subject to the following sentence, all payments made by or on behalf of the Borrower under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for or on account of, any current or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes) and capital taxes imposed on the Administrative Agent or any Lender and (ii) any taxes imposed on the Administrative Agent or any Lender as a result of a current or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement).  If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) are required to be withheld from any amounts payable under this Agreement, the Borrower shall increase the amounts payable to the Administrative Agent or such Lender to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the Borrower shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof (a “Non-U.S. Lender”) if such Lender fails to comply with the requirements of paragraph (b) of this Section 5.4.  Whenever any Non-Excluded Taxes are payable by the Borrower, as promptly as possible thereafter the Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by the Borrower showing payment thereof.  If the Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the Borrower shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest, costs or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure.  The agreements in this Section 5.4(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

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(b)                                 Each Non-U.S. Lender shall:

(i)                                     deliver to the Borrower and the Administrative Agent two copies of either (x) in the case of Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the Borrower under this Agreement;

(ii)                                  deliver to the Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower; and