Exhibit 1.1

CREDIT AND GUARANTY AGREEMENT

Dated as of June 12, 2007,

among

RELIANT ENERGY, INC., as the Borrower,

The Other Loan Parties Referred To Herein, as Guarantors,

The Other Lenders Party Hereto,

DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent,

DEUTSCHE BANK SECURITIES INC.

and

J.P. MORGAN SECURITIES INC.,
as Joint Lead Arrangers,

DEUTSCHE BANK SECURITIES INC.,
J.P. MORGAN SECURITIES INC.,
GOLDMAN SACHS CREDIT PARTNERS L.P.,
MERRILL LYNCH CAPITAL CORPORATION,
and ABN AMRO BANK N.V.,
as Joint Bookrunners
with respect to the Revolving Credit Facility

and

DEUTSCHE BANK SECURITIES INC.,
J.P. MORGAN SECURITIES INC.,
GOLDMAN SACHS CREDIT PARTNERS L.P.,
MERRILL LYNCH CAPITAL CORPORATION,
and BEAR, STEARNS & CO. INC.
as Joint Bookrunners
with respect to the Pre-Funded L/C Facility

Table of Contents

				Page
ARTICLE I		DEFINITIONS AND ACCOUNTING TERMS		1
Section 1.1		Defined Terms		1
Section 1.2		Other Interpretive Provisions		62
Section 1.3		Accounting Terms		63
Section 1.4		Rounding		63
Section 1.5		Times of Day		63
Section 1.6		Letter of Credit Amounts		63
ARTICLE II		THE COMMITMENTS AND CREDIT EXTENSIONS		64
Section 2.1		The Loans; The Pre-Funded L/C Deposit Account		64
Section 2.2		Borrowings, Conversions and Continuations of Loans		67
Section 2.3		Letters of Credit		69
Section 2.4		Optional and Mandatory Prepayments		81
Section 2.5		Termination or Reduction of Commitments; Reduction of Pre-Funded L/C Facility		85
Section 2.6		Repayment of Loans		86
Section 2.7		Interest		86
Section 2.8		Fees		87
Section 2.9		Computation of Interest and Fees		88
Section 2.10		Evidence of Debt		88
Section 2.11		Payments Generally; Administrative Agent’s Clawback		89
Section 2.12		Sharing of Payments by Lenders		91
Section 2.13		Incremental Term Loan Commitments		91
Section 2.14		Incremental RL Commitments		94
ARTICLE III		TAXES, YIELD PROTECTION AND ILLEGALITY		96
Section 3.1		Taxes		96
Section 3.2		Illegality		98
Section 3.3		Inability to Determine Rates		98
Section 3.4		Increased Costs; Capital Adequacy; Reserves on Eurodollar Rate Loans		98
Section 3.5		Compensation for Losses		100
Section 3.6		Mitigation Obligations; Replacement of Lenders		101
Section 3.7		Survival		101
Section 3.8		Application to Pre-Funded L/C Participation Fees		101
ARTICLE IV		CONDITIONS PRECEDENT TO EFFECTIVENESS AND CREDIT EXTENSIONS		102
Section 4.1		Conditions of Effectiveness and Initial Credit Extension		102
Section 4.2		Conditions to All Credit Extensions		104
ARTICLE V		REPRESENTATIONS AND WARRANTIES		105

 

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Section 5.1				Existence, Qualification and Power; Compliance with Laws		105
Section 5.2				Authorization; No Contravention		106
Section 5.3				Governmental Authorization; Other Consents		106
Section 5.4				Binding Effect		106
Section 5.5				Financial Statements; No Material Adverse Effect		106
Section 5.6				Litigation		107
Section 5.7				No Default		107
Section 5.8				Ownership of Property; Liens		107
Section 5.9				Environmental Matters		107
Section 5.10				Insurance		108
Section 5.11				Taxes		109
Section 5.12				ERISA Compliance		109
Section 5.13				Subsidiaries; Equity Interests		109
Section 5.14				Margin Regulations; Investment Company Act		110
Section 5.15				Disclosure		110
Section 5.16				Compliance with Laws		110
Section 5.17				Intellectual Property; Licenses, Etc		111
Section 5.18				Solvency		111
Section 5.19				Perfection, Etc		111
ARTICLE VI				AFFIRMATIVE COVENANTS		112
Section 6.1				Financial Statements		112
Section 6.2				Certificates; Other Information		113
Section 6.3				Notices		115
Section 6.4				Preservation of Existence, Etc		115
Section 6.5				Maintenance of Material Properties		116
Section 6.6				Maintenance of Insurance		116
Section 6.7				Compliance with Laws		116
Section 6.8				Books and Records		116
Section 6.9				Inspection Rights		116
Section 6.10				Use of Proceeds		116
Section 6.11				Additional Loan Parties; Security Interests		117
Section 6.12				Further Assurances		118
Section 6.13				Florida Mortgaged Properties		118
Section 6.14				Sale Note, etc		119
Section 6.15				Title Companies, Local Counsel Opinions		119
ARTICLE VII				NEGATIVE COVENANTS		120
Section 7.1				Liens		120
Section 7.2				Investments		120
Section 7.3				Indebtedness		120
Section 7.4				Consolidation and Mergers		123
Section 7.5				Asset Sales		124
Section 7.6				Restricted Payments		125
Section 7.7				Line of Business		126

 

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Section 7.8				Transactions with Affiliates		126
Section 7.9				Restrictive Agreements		128
Section 7.10				Use of Proceeds		128
Section 7.11				Consolidated Secured Leverage Ratio		128
Section 7.12				Modification of Certain Agreements		129
Section 7.13				Fiscal Year		129
Section 7.15				Application of Transferred Asset Sale Proceeds		129
Section 7.16				Designated Entities		129
ARTICLE VIII				GUARANTY		131
Section 8.1				Guaranty; Limitation of Liability		131
Section 8.2				Guaranty Absolute		132
Section 8.3				Waivers and Acknowledgments		133
Section 8.4				Subrogation		134
Section 8.5				Assumption and Joinder		134
Section 8.6				Subordination		135
Section 8.7				Continuing Guaranty; Assignments		135
ARTICLE IX				EVENTS OF DEFAULT AND REMEDIES		136
Section 9.1				Events of Default		136
Section 9.2				Remedies upon Event of Default		139
Section 9.3				Application of Funds		140
ARTICLE X				THE AGENTS AND THE ISSUING BANKS		141
Section 10.1				Appointment and Authority		141
Section 10.2				Rights As a Lender		141
Section 10.3				Exculpatory Provisions		141
Section 10.4				Reliance by the Agents		142
Section 10.5				Delegation of Duties		142
Section 10.6				Resignation of Administrative Agent		143
Section 10.7				Non-Reliance on Administrative Agent and Other Lenders		144
Section 10.8				No Other Duties, Etc		144
Section 10.9				Administrative Agent May File Proofs of Claim		144
Section 10.10				Collateral and Guaranty Matters		145
ARTICLE XI				MISCELLANEOUS		148
Section 11.1				Amendments, Etc		148
Section 11.2				Notices; Effectiveness; Electronic Communication		149
Section 11.3				No Waiver; Cumulative Remedies		151
Section 11.4				Expenses; Indemnity; Damage Waiver		151
Section 11.5				Payments Set Aside		153
Section 11.6				Successors and Assigns		154
Section 11.7				Confidentiality		158

 

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Section 11.8			Right of Setoff		159
Section 11.9			Interest Rate Limitation		160
Section 11.10			Counterparts; Integration; Effectiveness		160
Section 11.11			Survival of Representations and Warranties		160
Section 11.12			Severability		160
Section 11.13			Replacement of Lenders		161
Section 11.14			Governing Law; Jurisdiction; Etc		161
Section 11.15			Waiver of Jury Trial		162
Section 11.16			USA PATRIOT Act Notice		163
Section 11.17			No Oral Agreements		163
Section 11.18			Actions Regarding Collateral		163
Section 11.19			No Advisory or Fiduciary Responsibility		164

 

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SCHEDULES

	1.1(a)	Existing Letters of Credit
	1.1(b)	Guarantors
	1.1(d)	Subordination Terms
	1.1(e)	Mortgages and Title Policies
	1.1(f)	Secured Hedge Agreements
	1.1(g)	Existing Indebtedness
	2.1	Commitments and Pro Rata Shares
	5.8(c)	Closing Date Mortgaged Properties
	5.9(c)	Environmental Matters
	5.13	Subsidiaries and Other Equity Investments
	5.17	Intellectual Property Matters
	7.3(k)	List of Agreements Prohibiting Subordination of Intercompany Indebtedness
	10.10(e)	Certain Closing Actions
	11.2	Administrative Agent’s Office; Certain Addresses for Notices

 

EXHIBITS

		Form of
	A	Borrowing Notice
	B	L/C Certificate
	C	Continuation/Conversion Notice
	D	Revolving Credit Note
	E	Compliance Certificate
	F	Assignment and Assumption
	G	Assumption and Joinder
	H	Incremental Term Loan Commitment Agreement
	I	Incremental RL Commitment Agreement

 

v

CREDIT AND GUARANTY AGREEMENT

This CREDIT AND GUARANTY AGREEMENT (this “ Agreement ”) dated as of June 12, 2007, is among RELIANT ENERGY, INC., a Delaware corporation (the “ Borrower ”), the other LOAN PARTIES referred to herein, as Guarantors, each lender from time to time party hereto (collectively, the “ Lenders ” and individually, a “ Lender ”), DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent and Collateral Agent, DEUTSCHE BANK SECURITIES INC. and J.P. MORGAN SECURITIES INC., as Joint Lead Arrangers, DEUTSCHE BANK SECURITIES INC., J.P. MORGAN SECURITIES INC., GOLDMAN SACHS CREDIT PARTNERS L.P., MERRILL LYNCH CAPITAL CORPORATION, and ABN AMRO BANK N.V. as Joint Bookrunners with respect to the Revolving Credit Facility and DEUTSCHE BANK SECURITIES INC., J.P. MORGAN SECURITIES INC., GOLDMAN SACHS CREDIT PARTNERS L.P., MERRILL LYNCH CAPITAL CORPORATION and BEAR, STEARNS & CO. INC., as Joint Bookrunners with respect to the Pre-Funded L/C Facility.

W I T N E S S E T H :

WHEREAS, subject to and upon the terms and conditions set forth herein, the Lenders are willing to make available to the Borrower the respective credit facilities provided for herein;

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

Section 1.1  Defined Terms .  As used in this Agreement, the following terms shall have the meanings set forth below:

“ Acquired Debt ” means with respect to any specified Person:

(a)            Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Subsidiary of, such specified Person; and

(b)            Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

“ Acquisition ” means any transaction or any series of related transactions by which a Person (1) acquires any going business (including a power generation facility) or all or substantially all of the assets of any other Person, or division thereof, whether through purchase of assets, merger, or otherwise or (2) directly or indirectly acquires greater than 50% of the Voting Stock of any other Person.

“ Actionable Default ” means (1) the failure to pay any payment of principal of or interest on any Series of Secured Debt outstanding in the amount of $50,000,000 or more

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resulting in an event of default under the applicable Series of Secured Debt after payment is due, including payments that are due (or if any required offer had been timely made would be due) in respect of any mandatory offer to purchase Parity Secured Debt resulting in an event of default under the applicable Series of Secured Debt, (2) the failure to pay in full, when due and payable in full (whether at maturity, upon acceleration or otherwise), either the Loans or any other Series of Secured Debt outstanding in the amount of $50,000,000 or more, (3) the exercise by the Collateral Trustee or any of its co-trustees or agents (including the Administrative Agent) of any right or power that is exercisable by it only upon default to take sole and exclusive dominion or control over any deposits in a deposit account, commodity contract in a commodity account or financial asset in a securities account constituting any Shared Collateral or the delivery of any instructions to the Collateral Trustee directing it to foreclose or otherwise enforce, or to disburse the proceeds of enforcement of, any Lien upon any Collateral, or (4) the occurrence of any Event of Default under this Agreement arising from the commencement of any bankruptcy case, receivership or other insolvency or liquidation proceeding by or against the Borrower or any of its Subsidiaries or any similar default provision at any time in effect under any indenture or agreement governing any Series of Secured Debt.

“ Additional Guarantor ” means each Person (other than the Guarantors party hereto on the Closing Date) that shall be required to execute and deliver an Instrument of Assumption and Joinder pursuant to Section 6.11 .

“ Administrative Agent ” means Deutsche Bank in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.2 , or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

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

“ Affiliate ” of any specified Person means any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such specified Person; provided , that a Person will be deemed to be an Affiliate of the Borrower if the Borrower has knowledge that such Person beneficially owns 10% or more of the Voting Stock of the Borrower; provided , further , that the Borrower shall only be deemed to have knowledge of any Person beneficially owning 10% or more of the Borrower’s Voting Stock if such Person has filed a statement of beneficial ownership pursuant to Sections 13(d) or 13(g) of the Exchange Act or has provided written notice thereof to the Borrower.  Notwithstanding the foregoing, no Person (other than the Borrower or any Restricted Subsidiary of the Borrower) in whom a Securitization Entity makes an Investment in connection with a Qualified Securitization Transaction shall be deemed to be an Affiliate of the Borrower solely by reason of such Investment.

“ Agent-Related Person ” means each of the Administrative Agent, the Collateral Agent, each Joint Lead Arranger and each Joint Bookrunner named on the cover page of this Agreement, together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.

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

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

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

“ Agreement ” has the meaning specified in the preamble .

“ Applicable Margin ” means a per annum rate equal to:  (a) with respect to Revolving Credit Loans, (i) in the case of Base Rate Loans, 0.75% and (ii) in the case of Eurodollar Rate Loans, 1.75%; (b) with respect to each Tranche of Incremental Term Loans, the “Applicable Margins” as are set forth in the Incremental Term Loan Commitment Agreement governing such Tranche of Incremental Term Loans, (c) with respect to Pre-Funded L/C Term Loans and Pre-Funded L/C Deposits (i) in the case of Base Rate Loans, 0.75% and (ii) in the case of Eurodollar Rate Loans, 1.75% and (d) with respect to commitment fees payable under Section 2.8(a) , the appropriate applicable percentage set forth below corresponding to the Consolidated Secured Leverage Ratio as of the most recent Calculation Date with respect to the commitment fees:

Commitment Fees

Pricing Level		Consolidated Secured Leverage Ratio		Applicable Percentage For Commitment Fees
I		> 3.00:1		0.50	%
II		> 2.00:1 but < 3.00:1		0.375	%
III		< 2.00:1		0.25	%

 

Each Applicable Margin with respect to the commitment fees shall be determined and adjusted quarterly on the date (each a “ Calculation Date ”) one Business Day after the date by which the Borrower is required to provide the consolidated financial information required by Section 6.1(a) or (b) and the Compliance Certificate required by Section 6.2(a) for the fiscal quarter or year of the Borrower most recently ended prior to the Calculation Date; provided that (i) each such initial Applicable Margin shall be based on Pricing Level I (as shown above) and shall remain at Pricing Level I until the Calculation Date in respect of the fiscal quarter ending September 30, 2007 and, thereafter, each such Applicable Margin shall be based on the Pricing Level (as shown above) corresponding to the Consolidated Secured Leverage Ratio as of the last day of the most recently ended fiscal quarter or year of the Borrower preceding the applicable Calculation Date; (ii) if the Borrower fails to provide the consolidated financial information required by Section 6.1(a) or (b) or the Compliance Certificate required by Section 6.2(a) for the most recently ended fiscal quarter or year of the Borrower preceding any applicable Calculation Date, each such Applicable Margin from such Calculation Date shall be based on Pricing Level I (as shown above) until such time as such consolidated financial information and an appropriate officer’s certificate is provided, whereupon such Applicable Margin shall be based on the Pricing

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Level (as shown above) corresponding to the Consolidated Secured Leverage Ratio as of the last day of the most recently ended fiscal quarter or year of the Borrower preceding such Calculation Date; and (iii) if and for so long as any Event of Default shall have occurred and be continuing, each such Applicable Margin shall be based on Pricing Level I (as shown above).  Each Applicable Margin shall be effective from one Calculation Date until the next Calculation Date.

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

“ Asset Sale ” means:

(a)            the sale, lease (other than an operating lease), conveyance or other disposition of any assets; and

(b)            the issuance of Equity Interests in any of the Borrower’s Restricted Subsidiaries.

Notwithstanding the foregoing, none of the following items will be deemed to be an Asset Sale:

(1)            any single transaction or series of related transactions that involves assets with gross cash proceeds of $10,000,000 or less;

(2)            a transfer of assets between or among the Borrower and Restricted Subsidiaries;

(3)            an issuance of Equity Interests by a Restricted Subsidiary to the Borrower or to a Restricted Subsidiary of the Borrower;

(4)            the sale or lease of products, services or accounts receivable in the ordinary course of business and any sale or other disposition of damaged, worn out or obsolete assets or assets no longer used or useful in the Borrower’s or any of its Restricted Subsidiaries’ business;

(5)            the sale or other disposition of cash or Cash Equivalents;

(6)            sales of accounts receivable, equipment and related assets (including contract rights) of the type specified in the definition of Qualified Securitization Transaction to a Securitization Entity;

(7)            a Restricted Payment that is permitted by the provisions of Section 7.6 hereof or a Permitted Investment;

(8)            a disposition resulting from any Condemnation; provided , that if such disposition involves assets with gross cash proceeds in excess of $10,000,000, that any cash proceeds received in connection therewith are treated as Net Asset Sale Proceeds;

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(9)            the disposition by Reliant Energy Wholesale Generation, LLC of the substation at the Bighorn generating facility (and the related real property assets) to be conveyed to Nevada Power Company pursuant to the terms and provisions of that certain EPC Agreement dated December 18, 2002 between Reliant Energy Bighorn, LLC and Nevada Power Company;

(10)          a disposition of assets (other than any assets securing Parity Secured Debt) in connection with a foreclosure, transfer or deed in lieu of foreclosure or other exercise of remedial action; and

(11)          the sale or disposition of (a) fuel or (b) emission credits, in each case in the ordinary course of business.

“ Asset Swap ” means any swap by the Borrower and its Restricted Subsidiaries of assets with an aggregate Fair Market Value since the Closing Date of up to $500,000,000, provided , that , the Borrower (or the Restricted Subsidiary, as the case may be) receives consideration, including assets and cash at least equal to the Fair Market Value of the assets and cash being swapped (as reasonably determined by the Borrower or such Restricted Subsidiary).

“ Assignee Group ” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.6(b) ), and accepted by the Administrative Agent, in substantially the form of Exhibit F or any other form approved by the Administrative Agent.

“ Assignment of Leases and Rents ” means any assignment of leases and rents or equivalent document now existing or hereafter entered into, that is executed and delivered by one or more of the Loan Parties to the Collateral Trustee (for the benefit of the Secured Parties), and in each case, as such document may be amended, restated, supplemented or otherwise modified from time to time.

“ Attributable Debt ” means, on any date, (a) in respect of a sale and leaseback transaction, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended (such present value to be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided , that if such sale and leaseback transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of “ Capital Lease Obligation ”) and (b) in respect of any Synthetic Lease Obligation or financing lease, the amount of the remaining lease payments under the relevant lease that would as of such date be required to be capitalized on a balance sheet in accordance with GAAP if such lease were accounted for as a Capital Lease Obligation.

“ Audited Financial Statements ” means the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries for the Fiscal Year ended December 31, 2006,

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and the related consolidated statements of income or operations, shareholders’ equity and comprehensive income (loss) and cash flows for such Fiscal Year of the Borrower and its consolidated Subsidiaries, including the notes thereto.

“ Auto-Renewal Letter of Credit ” means a Letter of Credit with an initial expiry date of one year or less after the date of its issuance that has automatic renewal provisions.

“ Available Amount ” means on any date of determination, an amount equal at such time to:

(a)            the sum of, without duplication:

(i)            $250,000,000;

(ii)            an amount equal to the sum of 100% of Net Equity Proceeds received by the Borrower since the Closing Date and prior to date of determination from the sale or issuance of its Equity Interests (other than Disqualified Stock and other than Equity Interests the proceeds of which have been used to make a Restricted Payment under Section 7.6(b)(ii) , but only to the extent of such payment);

(iii)           so long as the Consolidated Secured Leverage Ratio is equal to or less than 2.50:1.00 and no Revolving Credit Loans or Term Loans are then outstanding as of the date of determination, the aggregate amount of Net Asset Sale Proceeds and Transferred Asset Sale Proceeds received by the Borrower and its Restricted Subsidiaries since the Closing Date, and prior to the date of determination, not required or used to repay, repurchase or defease Loans, Cash Collateralized L/C Obligations, the OPH Notes, other Secured Debt or other Debt or otherwise committed to be reinvested pursuant to Section 2.4(b) ; and

(iv)           an amount not less than zero equal to (A) if the Consolidated Secured Leverage Ratio as of such date of determination is > 3.00:1.00, 50%, (B) if the Consolidated Secured Leverage Ratio as of such date of determination is < 3:00:1:00, but > 2.00:1.00, 75%, and (C) if the Consolidated Secured Leverage Ratio as of such date of determination < 2.00:1.00, 100%, of Free Cash Flow for the period (taken as one accounting period) from the Closing Date to the end of the most recently ended fiscal quarter for which financial statements are available;

minus (b) (i) the aggregate amount of any Restricted Payments made after the Closing Date and on or prior to such date of determination pursuant to the basket provided under Section 7.6(b)(xi) ; plus

(ii)            the aggregate amount of Investments made after the Closing Date and on or prior to the date of determination pursuant to the basket provided under clause (4) of the definition of Permitted Investments.

“ Availability Period ” means the period from and including the Closing Date to but not including the Revolving Credit Termination Date.

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“ Bank Security Agreement ” means the Security Agreement, dated as of June 12, 2007, among the Borrower, the other Loan Parties and Deutsche Bank, as Collateral Agent, as such agreement may be amended, restated, supplemented or otherwise modified from time to time.

“ Bankruptcy Code ” means the Bankruptcy Reform Act of 1978, as heretofore and hereafter amended, as codified at 11 U.S.C. § 101 et seq .

“ Base Rate ” means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by Deutsche Bank as its “prime rate.”  The “prime rate” is a rate set by Deutsche Bank based upon various factors including Deutsche Bank’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such rate announced by Deutsche Bank shall take effect at the opening of business on the day specified in the public announcement of such change.

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

“ Base Return ” means, with respect to a Pre-Funded L/C Deposit for any Investment Period, an amount equal to the Eurodollar Rate for the applicable Investment Period.

“ Beneficial Owner ” has the meaning specified for such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act.  The terms “ Beneficially Owns ” and “ Beneficially Owned ” have a corresponding meaning.

“ Board of Directors ” means:

(1)            with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;

(2)            with respect to a partnership, the Board of Directors of the general partner of the partnership;

(3)            with respect to a limited liability company, the managing member or members or any controlling committee of managing members or board of directors thereof; and

(4)            with respect to any other Person, the board or committee of such Person serving a similar function.

“ Board Resolution ” means a resolution passed by the Board of Directors of the Borrower.

“ Borrower ” has the meaning specified in the introductory paragraph hereto, and its successors.

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“ Borrowing ” means a Revolving Credit Borrowing, a Term Borrowing or a Pre-Funded L/C Borrowing as the context may require.

“ Borrowing Notice ” means a notice of (a) a Term Borrowing in substantially the form of Exhibit A , (b) a Revolving Credit Borrowing in substantially the form of Exhibit A , (c) a conversion (which shall not constitute a new Borrowing) of Loans from one Type to the other in substantially the form of Exhibit C , or (d) a continuation (which shall not constitute a new Borrowing) of Eurodollar Rate Loans, pursuant to Section 2.2(a) , substantially in the form of Exhibit C .

“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, Houston, Texas or the state where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

“ Calculation Date ” has the meaning specified in the definition of “ Applicable Margin ”.

“ Capital Lease Obligation ” means, as applied to any Person, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet of such Person in accordance with GAAP in the reasonable judgment of such Person, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.

“ Capital Stock ” means:

(a)            in the case of a corporation, corporate stock;

(b)            in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(c)            in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and

(d)            any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

“ Cash Collateralize ” means to pledge and deposit with or deliver to the Collateral Agent, for the benefit of any L/C Issuer and (a) the Revolving Credit Lenders, as collateral for the Revolving L/C Obligations and/or the Revolving Credit Commitments; and (b) the Pre-Funded L/C Lenders, as collateral for the Pre-Funded L/C Obligations and/or the Pre-Funded L/C Commitments, cash or deposit account balances pursuant to documentation in form and

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substance reasonably satisfactory to the Administrative Agent, the Borrower, the Collateral Agent and such L/C Issuer; provided , that such cash or deposit account balances shall not be subject to any Lien other than the Lien of the Lenders to secure the Obligations.  Derivatives of such term (including the term “ Cash Collateral ”) have corresponding meanings.

“ Cash Equivalents ” means:

(1)            Dollars;

(2)            securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government ( provided , that the full faith and credit of the United States is pledged in support of those securities) having maturities of not more than one year from the date of acquisition;

(3)            deposit accounts with any Lender party to this Agreement, Mellon Bank N.A., Wells Fargo Bank, N.A., Wachovia Bank, National Association, or any other bank that has a long-term debt rating at the time of investment of A+ or better by S&P and A1 or better by Moody’s (an “ Approved Bank ”);

(4)            time deposits, certificates of deposit, acceptances or prime commercial paper issued by an Approved Bank at the time acquired or issued (as applicable and whichever is latest), in each case, having a maturity of not more than one year from the date of acquisition;

(5)            repurchase obligations for underlying securities of the types described in clause (2) entered into with an Approved Bank at the time acquired, issued or entered into (as applicable and whichever is latest), in each case, having a maturity of not more than one year from the date of acquisition and secured by securities of the type described in clause (2) , the market value of which (including accrued interest) is not less than the amount of the applicable repurchase agreement;

(6)            commercial paper with a rating at the time of investment of A-1 by S&P and P-1 by Moody’s and, in each case, maturing within one year after the date of acquisition; and

(7)            money market funds which invest primarily in Cash Equivalents of the kinds described in clauses (1) through (6) of this definition.

“ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

“ Change of Control ” means the occurrence of any of the following:

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(a)            the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d) of the Exchange Act, but excluding any employee benefit plan of the Borrower or any of its Restricted Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan);

(b)           the adoption of a plan relating to the liquidation or dissolution of the Borrower other than (i) the consolidation with, merger into or transfer of all or part of the properties and assets of any Restricted Subsidiary of the Borrower to the Borrower or any other Restricted Subsidiary of the Borrower and (ii) the merger of the Borrower with an Affiliate solely for the purpose of reincorporating the Borrower or reforming the Borrower in another jurisdiction;

(c)           the consummation of any transaction (including any merger or consolidation) the result of which is that any “person” (as defined above) becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Borrower, measured by voting power rather than number of shares;

(d)           the first day on which a majority of the members of the Board of Directors of the Borrower are not Continuing Directors; or

(e)           the Borrower consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Borrower, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Borrower or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the Voting Stock of the Borrower outstanding immediately prior to such transaction is converted into or exchanged for Voting Stock (other than Disqualified Stock) of the surviving or transferee Person constituting a majority of the outstanding shares of such Voting Stock of such surviving or transferee Person (immediately after giving effect to such issuance).

“ Channelview ” means Reliant Energy Channelview, L.P., a Delaware limited partnership, and its successors.

“ Closing Date ” means the first date all the conditions precedent in Section 4.1 are satisfied or waived in accordance with Section 11.1 (i.e. June 13, 2007).

“ Closing Date Mortgaged Properties ” means collectively the properties indicated on Schedule 5.8(c) .

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

“ Collateral ” means, collectively, (i) the “Collateral” as defined in the Collateral Trust Agreements, and (ii) the “Collateral” as defined in the Bank Security Agreement.

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“ Collateral Agent ” means Deutsche Bank in its capacity as collateral agent for the Credit Agreement Secured Parties, or such successor Collateral Agent as may be appointed pursuant to Article XI .

“ Collateral Trust Agreements ” means the Separate Collateral Trust Agreement and the Shared Collateral Trust Agreement.

“ Collateral Trustee ” means any collateral trustee for the Secured Parties under the Collateral Trust Agreements.

“ Commitment ” means, as the context may require, an Incremental Term Commitment, a Revolving Credit Commitment or Pre-Funded L/C Commitment.

“ Commodity Hedging Obligations ” means, with respect to any specified Person, the net obligations of such Person under agreements or arrangements designed to protect such Person against fluctuations in commodity prices.

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

“ Condemnation ” means any condemnation or other taking, or temporary or permanent requisition of, any property, any interest therein or right appurtenant thereto, or any change of grade affecting any property, in each case as the result of the exercise of any right of condemnation or eminent domain.  A sale or other transfer to a Governmental Authority in lieu of, or in anticipation of, condemnation shall be deemed to be a Condemnation.

“ Consolidated EBITDA ” means, for any period for the Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP, an amount equal to, without any duplication, (a) net income (before giving effect to the cumulative effect of changes in accounting principles and discontinued operations and before income taxes and franchise taxes to the extent based on the income of such Person and its Subsidiaries) for such period, plus (b) Consolidated Interest Charges for such period, plus (c) depreciation, depletion, impairment, abandonment and amortization expense for such period, plus (d) interest and fees expensed under any receivables monetization or securitization during such period, plus (e) net unrealized losses related to trading or non-trading energy derivatives, plus (f) cash dividends or distributions actually received during such period from an entity which is not a consolidated Subsidiary of such Person, and minus (g) net unrealized gains related to trading or non-trading energy derivatives; provided , however , for purposes of this definition, (i) gains and losses on the disposition of assets not in the ordinary course of business, (ii) any other noncash charge or gain, (iii) EBITDA attributable to Channelview and (iv) any extraordinary or other non-recurring item or expense, including severance costs, shall be excluded to the extent incurred or realized during such period in accordance with GAAP from the calculation of Consolidated EBITDA.

If during any period for which Consolidated EBITDA is being determined, the Borrower or any Subsidiary shall have (a) made or consummated any Acquisition for gross consideration of $10,000,000 or more (including Indebtedness assumed), then Consolidated EBITDA shall be determined on a pro forma basis for such period as if such Acquisition had been made or consummated as of the beginning of the first day of such period or (b) made or

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consummated any Asset Sale that is not fully included in discontinued operations, then Consolidated EBITDA shall, to the extent such Asset Sale is not excluded from Consolidated EBITDA pursuant to the foregoing proviso, be determined on a pro forma basis for such period as if such Asset Sale had been made or consummated as of the beginning of the first day of such period.  Furthermore, there shall be added back to Consolidated EBITDA the amount of any cash charges incurred as a result of, or a condition to, the termination of a contract with non-Affiliates under which the Borrower or a Subsidiary is obligated in an amount not to exceed in any Fiscal Year the lesser of (x) $200 million and (y) (i) $100 million plus (ii) beginning with Fiscal Year 2008, an amount not less than zero equal to (A) $100 million minus (B) the amount added back to Consolidated EBITDA under this sentence for the immediately preceding Fiscal Year (the “ Carry Forward Amount ”), but no portion of the Carry Forward Amount shall be used in the applicable Fiscal Year until the entire amount (without giving effect to any Carry Forward Amount) permitted to be added back to Consolidated EBITDA for such fiscal year has been used plus (iii) a portion elected by the Borrower of the amount permitted to be added back to Consolidated EBITDA under this sentence in the next succeeding Fiscal Year (the “ Carry Back Amount ”) without giving effect to any Carry Back Amount after such next succeeding Fiscal Year minus (iv) the portion of the Carry Back Amount for such Fiscal Year that the Borrower elected to add to Consolidated EBITDA under this sentence in the immediately preceding Fiscal Year.

“ Consolidated Interest Charges ” means, without duplication, for any period for the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, (a) the total interest expense for such period (including the Monthly Sleeve Fee, as defined in the Reimbursement Agreement, or similar fee payable in connection with the Sleeve Transaction), plus (b) the interest expense during such period attributable to (i) the fees and yield paid in connection with, or interest expense attributable to, any account receivables securitization or monetization permitted hereunder, and (ii) any capitalized interest during such period, plus (c) all cash dividends and distributions paid on preferred or preference stock, plus (d) to the extent deducted in determining total interest expense, net unrealized gains under any agreement described in the definition of “Hedging Obligations” permitted hereunder and existing on or prior to the Closing Date (excluding any ongoing settlement payments in connection with permitted interest rate swap agreements), minus (e)(i) the total interest income of such Person and its Subsidiaries, including interest income from any escrow or trust account, (ii) in all cases whether expensed or amortized, any interest expense attributable to the extent added in determining total interest expense, the upfront cost and net unrealized losses under any agreement described in the definition of “Hedging Obligations” permitted hereunder and existing on or prior to the Closing Date (excluding ongoing settlement payments in connection with permitted interest rate swap agreements), (iii) interest expense attributable to Indebtedness repaid or required to be repaid under any Indebtedness for which the Borrower has notified the Administrative Agent in writing that it agrees it will not designate the Net Asset Sale Proceeds as Excluded Proceeds, in each case in connection with an Asset Sale; and (iv) any interest expense associated with the Debt of Retail Group, the OPH Notes, the Debt of REMA and its Subsidiaries, any Debt of Channelview and its Subsidiaries or Debt of any of Channelview’s equity holders in respect of Channelview and its Subsidaries’ Debt, or any Debt of any Project Subsidiary, whether or not included as interest expense in accordance with GAAP.

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“ Consolidated Leverage Ratio ” means, as of any date of determination, the ratio of (a) Consolidated Total Debt as of such date to (b) Consolidated EBITDA for the period of the four Fiscal Quarters most recently ended for which financial statements are available.

“ Consolidated Net Tangible Assets ” means, as of any date of determination, the total amount of all assets of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, as of the end of the most recent fiscal quarter for which the Borrower’s financial statements are available, less the sum of:

(1)            the Borrower’s consolidated current liabilities as of such quarter end, determined on a consolidated basis in accordance with GAAP; and

(2)            the Borrower’s consolidated assets that are properly classified as intangible assets as of such quarter end, determined on a consolidated basis in accordance with GAAP.

“ Consolidated Secured Debt ” means at any time (a) the amount of Consolidated Total Debt at such time less (b) all amounts reflected therein attributable to Indebtedness which is unsecured by any Lien.

“ Consolidated Secured Leverage Ratio ” means, as of any date of determination, the ratio of (a) Consolidated Secured Debt as of such date to (b) Consolidated EBITDA for the period of the four Fiscal Quarters most recently ended for which financial statements are available.

“ Consolidated Total Debt ” means, as of any date of determination, for the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, all outstanding Debt of the Borrower and its Subsidiaries on such date, minus (a) without duplication, all (i) cash and short-term investments, in an aggregate amount not to exceed $500,000,000 at any time, (ii) restricted cash, in an amount not to exceed the aggregate amount of Indebtedness of the Borrower or any of its Subsidiaries, the terms of which Indebtedness cause such cash to appear as restricted cash on the consolidated balance sheet of the Borrower and its Subsidiaries, and (iii) broker, counterparty, and customer margin/collateral assets and deposits advanced to or held on behalf of such broker, counterparty or customer, as each of the foregoing appears on the consolidated balance sheet of the Borrower and its Subsidiaries and (b) the Debt of Retail Group, the OPH Notes, the Debt of REMA and its Subsidiaries, any Debt of Channelview and its Subsidiaries and Debt of any of Channelview’s equity holders in respect of Channelview and its Subsidaries’ Debt, or any Debt of any Project Subsidiary

“ Continuing Directors ” means, as of any date of determination, any member of the Board of Directors of the Borrower who (a) was a member of such Board of Directors on the Closing Date; or (b) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board at the time of such nomination or election.

“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

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“ Contribution Agreement ” means that certain Fourth Amended and Restated Contribution Agreement dated as of the Closing Date and executed by each of the Loan Parties, as such agreement may be amended, restated, supplemented or otherwise modified from time to time.

“ Contribution Date ” has the meaning specified in Section 7.15(b) .

“ Control ” means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; and the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.

“ Control Agreement ” means a Deposit Account Control Agreement or a Securities Account Control Agreement.

“ Credit Agreement Obligations ” means all advances to, and debts, liabilities, Obligations, covenants and duties of, any Loan Party arising under or in connection with any Loan Document or otherwise with respect to any Loan, Pre-Funded L/C Deposit or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including Post-Petition Interest.

“ Credit Agreement Secured Parties ” means, collectively, the Lenders, each L/C Issuer, the Administrative Agent, each counterparty to a Secured Hedge Agreement that is (or at the time such Secured Hedge Agreement was entered into, was) a Lender or an Affiliate thereof (a “ Hedge Bank ”) and (in each case) each of their respective successors, transferees and assigns.

“ Credit Extension ” means each of the following:  (a) a Borrowing; (b) an L/C Credit Extension; and (c) the making of a Pre-Funded L/C Deposit.

“ Credit Party Agents ” shall have the meaning given such term in Section 11.7 .

“ Debt ” means, as of any date of determination with respect to the Borrower and its Subsidiaries, without duplication, in accordance with GAAP the following: (a) the total amount of indebtedness, including any fair value adjustments, and other obligations of the Borrower and its Subsidiaries for borrowed money (whether by loan or the issuance of debt securities), including the unreimbursed amount of any drawings under letters of credit issued for the account of the Borrower or any of its Subsidiaries, but excluding the amount of indebtedness for borrowed money that is either (i) required to be repaid under this Agreement or otherwise or (ii) for which the Borrower has notified the Administrative Agent in writing that it agrees it will not designate the Net Asset Sale Proceeds as Excluded Proceeds, in each case in connection with an Asset Sale, (b) all Capital Lease Obligations and Attributable Debt in respect of sale and leaseback transactions (other than those associated with the REMA Lease), Synthetic Lease Obligations or financing leases, (c)  obligations under any accounts securitization or monetization arrangement permitted hereunder and not recorded on the Borrower balance sheet for that period and (d) all guaranties of payment or collection of any obligations described in clauses (a) through (c) of this definition of any other Person; provided , however , that Debt shall

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not include:  (i) any guaranties that may be incurred by endorsement of negotiable instruments for deposit or collection in the ordinary course of business or similar transactions, (ii) any Obligations or guaranties of performance of Obligations under performance bonds, (iii) trade accounts payable in the ordinary course of business, (iv) customer advance payments and customer deposits arising in the ordinary course of business, (v) the liability of any Person as a general partner of a partnership for Debt of such partnership, if the partnership is not a Subsidiary of such Person, and (vi) any completion or performance guarantees (or similar guarantees that a project or a Subsidiary perform as planned).

In determining the outstanding amount of any Debt:  (a) the amount of money borrowed shall be the outstanding principal amount thereof, (b) the amount of all unreimbursed letters of credit shall be the unreimbursed amount thereof, (c) the amount of any accounts monetization or securitization shall be the amount invested by the investor therein, and (d) the amount of guaranties shall be the amount of the guaranteed obligations determined as provided above in this sentence.

“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“ Default Rate ” means (a) when used with respect to Credit Agreement Obligations other than Loans, Pre-Funded L/C Deposits and L/C Obligations, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Margin, if any, applicable to Revolving Credit Loans maintained as Base Rate Loans plus (iii) 2% per annum, and (b) when used with respect to Loans, Pre-Funded L/C Deposits and L/C Obligations, a rate equal to (i) the rate of interest applicable thereto hereunder plus (ii) the Applicable Margin, if any, applicable thereto plus (iii) 2% per annum.

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

“ Deposit Account ” shall have the meaning given to such term in the Existing Security Agreement.

“ Deposit Account Control Agreement ” means, with respect to any Deposit Account, a written agreement or other authenticated record, in form and substance reasonably satisfactory to the Administrative Agent, pursuant to which the depositary bank in which such

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Deposit Account is maintained shall agree, among other things, to comply at any time with instructions from the Collateral Trustee (or its co-trustees, agents or sub-agents) to such depositary bank directing the disposition of funds from time to time credited to such Deposit Account, without further consent of any Loan Party or its nominee, as any such agreement or record may be amended, restated, supplemented or otherwise modified from time to time.

“ Deposit Bank ” means Deutsche Bank or any of its Affiliates.

“ Designated Credit Facilities ” has the meaning specified in the Collateral Trust Agreements; provided , that in no event will the Working Capital Agreement be a Designated Credit Facility.

“ Designated Entities ” means, collectively, OPH, REMA, Channelview, Retail Holdco, IP Trust, IT Trust and (in each case) their respective Subsidiaries.

“ Deutsche Bank ” means Deutsche Bank AG New York Branch, and its successors.

“ Disqualified Stock ” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the Term Loan Maturity Date.  Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Borrower to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock if the terms of such Capital Stock provide that the Borrower may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with the provisions of Section 7.6 .  The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement shall be equal to the maximum amount that the Borrower and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

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

“ Domestic Subsidiary ” means a Subsidiary that is organized or incorporated under the laws of the United States or a State thereof.

“ Draw Amount ” means, with respect to any Letter of Credit, the amount necessary to settle the obligations of any L/C Issuer under any draft or demand made under such Letter of Credit.

“ Eligible Assignee ” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent and (solely in the case of any assignment of a Revolving Credit Commitment) each L/C Issuer and (ii) unless an Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed); provided , that

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notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any of the Borrower’s Affiliates or Subsidiaries or any Person who in the ordinary course of its business owns and/or operates power generating facilities.

“ Environmental Laws ” means any and all Federal, state, local, regional and foreign statutes, laws, rules of common law, constitutional provisions, regulations, ordinances, rules judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or Hazardous Materials, including, without limitation, those relating to the use analysis, generation, manufacture, storage, discharge, emission, release, disposal, transportation treatment, investigation, removal, or remediation of Hazardous Materials.  Environmental Laws include, without limitation, those acts commonly referred to as the Comprehensive Environmental Response, Compensation and Liability Act of 1980; the Superfund Amendments and Reauthorization Act; the National Environmental Policy Act; the Hazardous Materials Transportation Act; the Resource Conservation and Recovery Act, the Solid Waste Disposal Act, the Clean Water Act, the Clean Air Act, the Toxic Substances Control Act, and the Occupational Safety and Health Act, and their state counterparts.

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

“ Equally and Ratably ” means, in reference to sharing of any Liens on Shared Collateral or proceeds thereof as among the holders of Parity Secured Obligations, after allowing for the payment priorities in the Order of Application, that such Liens or proceeds:

(1)            shall be allocated and distributed to the Administrative Agent for account of the Lenders and to the Secured Debt Representative for each other Series of Secured Debt for account of the holders of such Series of Secured Debt, ratably in proportion to the principal, interest, fees and premium (if any) outstanding, when the allocation or distribution is made, on (i) Credit Agreement Obligations, (ii) Hedging Obligations and amounts payable to a Lender in connection with a bank account or any other banking services, in each case, that are required by this Agreement to be secured on an equal and ratable basis with the Credit Agreement Obligations and (iii) all other Series of Secured Debt (allocated proportionately to the Secured Debt Representative for each other Series of Secured Debt if there is more than one), respectively; and thereafter

(2)            shall be allocated and distributed (if any remain after payment in full of all of the principal, interest, fees and premium (if any) outstanding on the Credit Agreement Obligations, the Hedging Obligations and other amounts payable to a lender referred to in clause (1) , and each other Series of Secured Debt) to the Administrative Agent for account of the Lenders holding any remaining Credit Agreement Obligations,

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Hedging Obligations or such other amounts and to the Secured Debt Representative for each other Series of Secured Debt for account of the holders of any remaining Parity Secured Obligations in respect of such Series of Secured Debt, ratably in proportion to the aggregate unpaid amount of such remaining Credit Agreement Obligations, Hedging Obligations or such other amounts and other remaining Parity Secured Obligations, respectively, that are due and demanded prior to the date such distribution is made.

For this purpose:

(1)            unfunded commitments to extend credit shall not be counted as outstanding debt;

(2)            obligations of the Borrower or any Guarantor in respect of outstanding letters of credit, bank guarantees, bankers’ acceptances or other similar instruments shall be counted as outstanding debt (whether or not contingent), except that if any such instrument thereafter expires without being funded, an equitable adjustment shall be made in any future distribution so that the aggregate amount distributed is distributed Equally and Ratably as if such instrument had never been outstanding (but all distributions shall be final and non-refundable when made);

(3)            during the pendency of any Actionable Default, and subject to the Order of Application, if any payment or distribution is made in cash to the Lenders or any other holders of Parity Secured Obligations from or on account of Separate Collateral by reason of enforcement of Liens or realization in a bankruptcy case, receivership or other insolvency or liquidation proceeding, then any concurrent or subsequent payment or distribution that is to be made in cash to such holders from or on account of Shared Collateral by reason of any such enforcement or realization shall be reduced, and any concurrent or subsequent payment or distribution that is to be made in cash to the remaining holders of Parity Secured Obligations from or on account of Shared Collateral by reason of any such enforcement or realization shall be increased, to the extent necessary to cause the aggregate amount of all payments and distributions made in cash to all holders of Parity Secured Obligations (whether made from or on account of Separate Collateral or from or on account of Shared Collateral) by reason of any such enforcement or realization to be distributed Equally and Ratably as fully as if the Separate Collateral had been Shared Collateral; and

(4)            all amounts apportioned and distributed to the Administrative Agent or the Secured Debt Representative for any other Series of Secured Debt may be allocated, apportioned and distributed by it in accordance with the applicable provisions of the Credit Agreement or the indenture or agreement governing such other Series of Secured Debt, including to give effect to any payment priorities provided for therein as among the holders of obligations outstanding thereunder.

“ Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

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“ ERISA ” means the Employee Retirement Income Security Act of 1974.

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) which is a member of the controlled group of the Borrower or under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.

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

“ Eurodollar Rate Loan ” means a Loan that bears interest at a rate based on the Eurodollar Rate.

“ Event of Default ” has the meaning specified in Section 9.1 .

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

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“ Exchange Traded Contract ” means each exchange traded contract between Retail Holdco or any of its Subsidiaries and an exchange requiring daily mark-to-market settlement relating to the sale, purchase, delivery or receipt of any power product or natural gas, or any financial derivative in respect thereof.

“ Excluded Entities ” means: (a) Retail Holdco, Channelview, OPH, IP Trust and IT Trust; and (b) each of their respective Subsidiaries; provided , that Retail Holdco, Channelview, OPH, IP Trust, IT Trust, together with their respective Subsidiaries, shall no longer be an “ Excluded Entity ” in the event that (x) such entity is not prohibited under any agreement for borrowed money or any Sleeve Document from taking the actions set forth in Section 6.11 , and (y) such entity is no longer restricted or prohibited from paying dividends or other distributions to a Loan Party, repaying loans or advances owed to a Loan Party or transferring any of its properties or assets to a Loan Party, other than restrictions imposed by Law.

“ Excluded Proceeds ” means any Net Asset Sale Proceeds that are designated by the Borrower as Excluded Proceeds; provided , that (a) not more than $300,000,000 of such Net Asset Sale Proceeds may be designated as Excluded Proceeds during any single calendar year and (b) not more than $1,000,000,000 of such Net Asset Sale Proceeds may be designated as Excluded Proceeds on or after the Closing Date .

“ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 11.13 ), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.1(e) , except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 3.1(a) .

“ Existing Credit Agreement ” means the Third Amended and Restated Credit Agreement dated as of December 1, 2006, by and among the Borrower, the other loan parties referred to therein, the other lenders party thereto and Bank of America, N.A., as administrative agent.

“ Existing Florida Mortgages ” means the mortgages listed in Item 1 of Schedule 1.1(e) .

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“ Existing Indebtedness ” means Indebtedness (other than intercompany Indebtedness) of the Borrower and its Restricted Subsidiaries in existence on the Closing Date and set forth on Schedule 1.1(g) .

“ Existing Letters of Credit ” means the letters of credit described on Schedule 1.1(a) hereto.

“ Existing Mortgages ” means the mortgages listed in Item 2 of Schedule 1.1(e) .

“ Existing Title Policies ” means the title policies listed in Item 3 of Schedule 1.1(e) .

“ Facility ” means the Term Facility, the Revolving Credit Facility or the Pre-Funded L/C Facility, as the context may require.

“ Fair Market Value ” means the value that would be paid by a willing buyer to a willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the chief financial officer of the Borrower or Board of Directors of the Borrower or the selling entity (unless otherwise provided in this Agreement).

“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided , that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Deutsche Bank on such day on such transactions as determined by the Administrative Agent.

“ Fee Letter ” means collectively, (i) the letter agreement, dated as of May 31, 2007, among the Borrower and each Arranger and (ii) the letter agreement, dated as of May 31, 2007, among the Borrower and the Administrative Agent.

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

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

“ Florida Mortgaged Properties ” means the Closing Date Mortgaged Properties described in the Existing Florida Mortgages.

“ Florida Mortgage Supplement ” means a Supplement to the Existing Florida Mortgages, in a form reasonably acceptable to the Agents and the Borrower, and completed to

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include the Credit Agreement Obligations as Secured Debt under each such Existing Florida Mortgage.

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

“ Foreign Person ” means any Person that is not organized or existing under the United States or a state thereof.

“ Foreign Subsidiary ” means any Subsidiary that is not a Domestic Subsidiary.

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

“ Free Cash Flow ” means, for any period from January 1, 2007 through the date of its determination:

(a)            the Borrower’s aggregate cash flow from operating activities;

plus

(b)            proceeds from sales of emissions allowances;

minus

(c)            capital expenditures;

minus

(d)            purchases of emissions allowances;

plus (if reduction) and minus (if an increase)

(e)            aggregate changes in margin deposits, net.

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

“ GAAP ” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time.

“ Governmental Authority ” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any

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agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government.

“ Granting Lender ” has the meaning specified in Section 11.6(h) .

“ Guarantee ” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).  The term “ Guarantee ” as a verb has a corresponding meaning.

“ Guaranteed Obligations ” has the meaning specified in Section 8.1(a) .

“ Guarantors ” means each of:

(a)            the entities listed on Schedule 1.1(b) hereto; and

(b)            any other Subsidiary of the Borrower that executes this Agreement in accordance with the provisions of this Agreement,

and their respective successors and assigns.

“ Guaranty ” means the guaranty of the Credit Agreement Obligations provided by each Guarantor pursuant to the terms of Article VIII of this Agreement.

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

“ Hedge Bank ” has the meaning specified in the definition of “Secured Parties”.

“ Hedge Termination Value ” means, in respect of any one or more Hedging Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a) , the amount(s) determined as the mark-to-market value(s) for such Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include a Lender or any Affiliate of a Lender).

“ Hedging Agreement ” has the meaning specified in the definition of “Hedging Obligation”.

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“ Hedging Obligations ” means, with respect to any specified Person, the net obligations of such Person under:

(a)            interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;

(b)            other agreements or arrangements designed to manage interest rate risk; and

(c)            other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates (any agreement or arrangement referred to in this clause or any of the foregoing clauses (a) and (b) , a “ Hedging Agreement ”).

The amount of any net obligation under any Hedging Agreement on any date shall be deemed to be the Hedge Termination Value thereof as of such date.

“ Honor Date ” means the date of any payment by any L/C Issuer under a Letter of Credit.

“ Incremental Loan Commitment Requirements ” shall mean, with respect to any provision of an Incremental Loan Commitment on a given Incremental Loan Commitment Date, the satisfaction of each of the following conditions on or prior to the closing date of the respective Incremental Loan Commitment Agreement:

(a)           no Default has occurred and is continuing or would be caused thereby (for purposes of such determination, assuming the relevant Loans in an aggregate principal amount equal to the full amount of Incremental Loan Commitments then provided had been incurred, and the proposed acquisition (if any) to be financed with the proceeds of such Loans had been consummated, on such date of effectiveness) and all of the representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects at such time (unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);

(b)           the delivery by the Borrower to the Administrative Agent of an officer’s certificate executed by an Authorized Officer of the Borrower and certifying as to compliance with preceding clause (a);

(c)           the delivery by the Borrower to the Administrative Agent of an acknowledgement in form and substance reasonably satisfactory to the Administrative Agent and executed by each Subsidiary Guarantor, acknowledging that such Incremental Loan Commitment and all Loans subsequently incurred pursuant to such Incremental Loan Commitment shall constitute (and be included in the definition of) “Guaranteed Obligations” under the Guaranty;

(d)           the delivery by the Borrower to the Administrative Agent of an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative

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Agent and dated such date, covering the continued effectiveness, validity and enforceability of the security interests granted pursuant to the Security Documents; and

(e)           the delivery by the Borrower and the other Loan Parties to the Administrative Agent of such other officers’ certificates, board of director resolutions and evidence of good standing as the Administrative Agent shall reasonably request.

“ Incremental RL Commitment ” shall mean, for any Lender, any commitment by such Lender to make Revolving Loans pursuant to Section 2.1(b) as agreed to by such Lender in the respective Incremental RL Commitment Agreement delivered pursuant to Section 2.14 ; it being understood, however, that on each date upon which an Incremental RL Commitment of any Lender becomes effective, such Incremental RL Commitment of such Lender shall be added to (and thereafter become a part of) the Revolving Credit Commitment of such Lender for all purposes of this Agreement as contemplated by Section 2.14 .

“ Incremental RL Commitment Agreement ” shall mean each Incremental RL Commitment Agreement in the form of Exhibit I (appropriately completed) executed in accordance with Section 2.14 .

“ Incremental RL Commitment Date ” shall mean each date upon which an Incremental RL Commitment under an Incremental RL Commitment Agreement becomes effective as provided in Section 2.14(b) .

“ Incremental RL Lender ” shall have the meaning specified in Section 2.14(b) .

“ Incremental Term Loan ” shall have the meaning provided in Section 2.1(d) .

“ Incremental Term Loan Borrowing Date ” shall mean, with respect to each Tranche of Incremental Term Loans, each date on which Incremental Term Loans of such Tranche are incurred pursuant to Section 2.1(d) and as otherwise permitted by Section 2.13 .

“ Incremental Term Loan Commitment ” shall mean, for each Lender, any commitment to make Incremental Term Loans provided by such Lender pursuant to Section 2.13 , in such amount as agreed to by such Lender in the respective Incremental Term Loan Commitment Agreement and as set forth opposite such Lender’s name in Schedule 2.1 (as modified in accordance with Section 2.13 ) directly below the column entitled “Incremental Term Loan Commitment”, as the same may be terminated pursuant to Section 2.4 or Article IX .

“ Incremental Term Loan Commitment Agreement ” shall mean each Incremental Term Loan Commitment Agreement in the form of Exhibit H (appropriately completed) executed in accordance with Section 2.13 .

“ Incremental Term Loan Lender ” shall have the meaning provided in Section 2.13(b) .

“ Incremental Term Loan Maturity Date ” shall mean, for the Incremental Term Loans, the final maturity date set forth for such Tranche of Incremental Term Loans in the

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respective Incremental Term Loan Commitment Agreement relating thereto, provided that the final maturity date for all Incremental Term Loans of a given Tranche shall be the same date.

“ Indebtedness ” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses or trade payables), whether or not contingent (without duplication):

(a)            in respect of borrowed money;

(b)            evidenced by bonds, notes, debentures or similar instruments or letters of credit or reimbursement agreements in respect thereof;

(c)            in respect of banker’s acceptances;

(d)            representing Capital Lease Obligations or Attributable Debt in respect of sale and leaseback transactions (excluding the REMA Lease), Synthetic Lease Obligations or financing leases;

(e)            representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such services are completed;

(f)             representing any Hedging Obligations; or

(g)            consisting of Disqualified Stock.

whether or not any of the preceding items appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP.  In addition, the term “ Indebtedness ” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person.  If obligations of a Securitization Entity are Indebtedness, for the purposes of calculating the amount of Indebtedness of a Securitization Entity outstanding as of any date, the face or notional amount of any interest in receivables or equipment that is outstanding as of such date shall be deemed to be Indebtedness but any such interests held by Affiliates of such Securitization Entity shall be excluded for purposes of such calculation.  The amount of any Indebtedness outstanding as of any date will be:

(i)             the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;

(ii)            the principal amount of and premium (if any) on the Indebtedness, in the case of any other Indebtedness;

(iii)           in respect of Indebtedness of other Persons secured by a Lien on the assets of the specified Person, the lesser of:

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(A)           the Fair Market Value of such asset at such date of determination, and

(B)            the amount of such Indebtedness of such other Persons; and

(iv)           in respect of any Guarantee, an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.

“ Indemnified Taxes ” means Taxes other than Excluded Taxes.

“ Indemnitee ” has the meaning specified in Section 11.4(b) .

“ Information ” has the meaning given such term in Section 11.7 .

“ Information Technology Systems ” means all information technology systems used in the operation and support of the Wholesale Business including hardware, software, middleware, tools, databases, technical and business information, know-how or other data or information, related documents, registrations and franchises, licenses or leases for any of the foregoing and all license rights and all additions, improvements, enhancements and accessions thereto, and books and records describing or used in connection with any of the foregoing.

“ Instrument of Assumption and Joinder ” means an Assumption and Joinder Agreement substantially in the form of Exhibit G .

“ Intercreditor Confirmation ” means the agreement of any holder of Parity Secured Debt or other Parity Secured Obligations to the provisions described in the Order of Application and definition of the term “Equally and Ratably,” as set forth in any Secured Debt Document for the benefit of, and enforceable as a third party beneficiary by, each present and future holder of Parity Secured Obligations and each present and future Secured Debt Representative.

“ Interest Payment Date ” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the applicable Maturity Date; provided , that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, each Quarterly Payment Date and the applicable Maturity Date.

“ Interest Period ” means as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three, six, nine, or, if available, twelve months thereafter, as selected by the Borrower in its Borrowing Notice, as the case may be; provided , that:

(i)             any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case

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of a Eurodollar Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

(ii)            any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(iii)           no Interest Period shall extend beyond the applicable Maturity Date.

“ Investment ” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or similar obligations), advances or capital contributions (excluding payroll, commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP.  “ Investment ” shall exclude extensions of trade credit by the Borrower and its Restricted Subsidiaries in the ordinary course of business and Permitted PEDFA Bond Indebtedness.  The acquisition by the Borrower or any Subsidiary of the Borrower of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Borrower or such Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person.  Except as otherwise provided in this Agreement, the amount of an Investment shall be its Fair Market Value at the time the Investment is made and without giving effect to subsequent changes in value.

“ Investment Period ” means, relative to any Pre-Funded L/C Deposits earning a Pre-Funded L/C Participation Fee, the period beginning on (and including) the date on which such Pre-Funded L/C Deposit is deposited or the last day of the preceding Investment Period and ending on (but excluding) the day which numerically corresponds to such date one month thereafter; provided , however , that (a) if any such Investment Period would otherwise end on a day that is not a Business Day, such Investment Period shall end on the next following Business Day (unless such next following Business Day is the first Business Day of another calendar month, in which case such Investment Period shall end on the Business Day next preceding such numerically corresponding day), (b) after the Closing Date there shall initially be one Investment Period which shall begin on the Closing Date and shall end on July 2, 2007, with respect to the entire aggregate principal amount of the Pre-Funded L/C Deposits and (c) with the consent of the Administrative Agent and the Borrower, such consents not to be unreasonably withheld or delayed, the Deposit Bank may require the designation of up to two separate Investment Periods to apply to the Pre-Funded L/C Deposits at any time, with the amount of the Pre-Funded L/C Deposits allocated to each such Investment Period to be designated by the Deposit Bank, and that in connection therewith, (x) the initial Investment Period so designated at the time of such designation shall end on any date specified by the Deposit Bank (which date shall in any event be no more that 40 days after the first day of such initial Investment Period) and (y) thereafter, all subsequent Investment Periods shall be determined as set forth above.

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“ IP/IT Agreements ” means the IP License Agreement, the IP Servicing Agreement, the IP Trust Agreement, the IT Services Agreement, the IT Servicing Agreement, and the IT Trust Agreement.

“ IP License Agreement ” means the Trademark License Agreement, dated as of December 1, 2006, between the Borrower and the IP Trust.

“ IP Rights ” has the meaning specified in Section 5.17 .

“ IP Servicing Agreement ” means the Trademark Administrative Servicing Agreement, dated as of December 1, 2006, between the Borrower and the IP Trust.

“ IP/IT Trust Assets ” means the “ Trust Assets ”, as collectively defined in the IP Trust Agreement and the IT Trust Agreement.

“ IP Trust ” means Reliant Energy Trademark Trust, a Delaware statutory trust.

“ IP Trust Agreement ” means the Amended and Restated Trademark Trust Agreement, dated as of December 1, 2006, among the Borrower, Reliant Energy Retail Holdings, LLC, and Wilmington Trust Company, as Delaware Trustee.

“ IRS ” means the United States Internal Revenue Service.

“ ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).

“ IT Services Agreement ” means the Information Technology Services Agreement, dated as of December 1, 2006, between the Borrower and the IT Trust.

“ IT Servicing Agreement ” means the IT Administrative Servicing Agreement, dated as of December 1, 2006, among the IT Trust, the Borrower, and Reliant Energy Corporate Services, LLC.

“ IT Trust ” means Reliant Energy IT Trust, a Delaware statutory trust.

“ IT Trust Agreement ” means the Amended and Restated IT Trust Agreement, dated as of December 1, 2006, among the Borrower, Reliant Energy Corporate Services, LLC, Reliant Retail Holdings, LLC, and Wilmington Trust Company, as Delaware Trustee.

“ Laws ” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.

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“ L/C Certificate ” means a certificate, substantially in the form of Exhibit B , to be delivered by the Borrower to the Administrative Agent and the applicable L/C Issuer in connection with the issuance of each Letter of Credit or the amendment of any outstanding Letter of Credit to increase the face amount thereof (as applicable).

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

“ L/C Exposure ” means, at any time, the amount expressed in Dollars of the aggregate or stated face amount of all drafts which may then or thereafter be presented by beneficiaries under all Letters of Credit then outstanding plus (without duplication), the face amount of all drafts which have been presented or accepted under all Letters of Credit but have not yet been paid or have been paid, but not reimbursed, whether directly or from the proceeds of a Revolving Credit Loan or a Pre-Funded L/C Deposit, as the case may be, hereunder.

“ L/C Final Expiration Date ” means the Revolving Credit L/C Final Expiration Date or the Pre-Funded L/C Commitment Termination Date, as the case may be.

“ L/C Issuer ” means each Revolving L/C Issuer and each Pre-Funded L/C Issuer.

“ L/C Obligations ” means the Revolving L/C Obligations and/or the Pre-Funded L/C Obligations, as the case may be.

“ Lender ” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes any L/C Issuer and, any Pre-Funded L/C Lender.

“ Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.

“ Letter of Credit ” means each Revolving Letter of Credit and each Pre-Funded Letter of Credit.

“ Letter of Credit Collateral Account ” has the meaning specified in the Existing Security Agreement.

“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement and any lease that constitutes a security interest.

“ Loan ” means an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan or a Revolving Credit Loan.

“ Loan Documents ” means (i) this Agreement, (ii) each Note, (iii) each L/C Certificate, (iv) each Security Document, (v) each Secured Hedge Agreement, (vi) the Contribution Agreement, (vii) each UCC financing statement, (viii) each of the Fee Letters, (ix) each Instrument of Assumption and Joinder, and (x) each other document, agreement,

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certificate or instrument required to be or otherwise executed by any Loan Party in connection with this Agreement or any or any of the other documents listed above.

“ Loan Party ” means the Borrower and each Guarantor.

“ Material Adverse Effect ” means a material adverse effect upon (a) the business, operations, property, financial condition or prospects of the Borrower and its Subsidiaries taken as a whole; or (b) the validity or enforceability against any Loan Party of any Loan Document to which it is a party or the material rights and remedies of the Administrative Agent and the Lenders thereunder.

“ Material Subsidiary ” means, as of any date, any Subsidiary of the Borrower  where either (i) $25,000,000 or more of Consolidated EBITDA during the four-Fiscal Quarter period most recently ended was attributable to such Subsidiary or (ii) as of such date, had assets with a book value of $50,000,000 or more.

“ Maturity Date ” means, as the context may require, the Revolving Credit Termination Date, the Term Loan Maturity Date or the Pre-Funded L/C Commitment Termination Date.

“ Merrill Lynch ” means Merrill Lynch Capital Corporation and its successors.

“ ML&Co. ” means Merrill Lynch & Co. Inc., a Delaware corporation.

“ MLCI ” means Merrill Lynch Commodities, Inc., a Delaware corporation.

“ Moody’s ” means Moody’s Investors Service, Inc. or if such company shall cease to issue ratings, another nationally recognized rating company selected in good faith by mutual agreement of the Administrative Agent and the Borrower.

“ Mortgage ” means any mortgage, deed of trust, deed to secure debt or such equivalent document now existing or hereafter entered into covering the Mortgaged Real Property Assets, that is executed and delivered by one or more of the Loan Parties to the Collateral Trustee (for the benefit of the Secured Parties), including the Existing Mortgages, as any such document may be amended, restated, supplemented or otherwise modified from time to time.

“ Mortgage Supplement ” means Supplements to the Existing Mortgages (except for the Existing Florida Mortgages), substantially in the form of the form of Supplement attached to each Existing Mortgage, and completed to include the Sharing Eligible Debt in existence on the Closing Date as an “Additional Series of Secured Debt” under each such Existing Mortgage.

“ Mortgaged Real Property Assets ” means those real property assets of the Loan Parties on which a Lien has been granted by the applicable Loan Party to the Collateral Trustee (for the benefit of the Secured Parties).

“ Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is

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obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

“ Net Asset Sale Proceeds ” means the aggregate cash proceeds received by the Borrower or any of its Restricted Subsidiaries in respect of any Asset Sale or Asset Swap (including any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale or Asset Swap), net of the direct costs relating to such Asset Sale or Asset Swap and payments made to retire Indebtedness (other than the Loans) required to be repaid in connection therewith, including legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale or Asset Swap, taxes paid or payable as a result of the Asset Sale or Asset Swap, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, and amounts reserved for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP.

“ Net Equity Proceeds ” means with respect to the issuance after the Closing Date by the Borrower to any Person of any Equity Interests, the excess of:

(a)            the gross cash proceeds received by the Borrower from such issuance, over

(b)            all reasonable and customary underwriting commissions and legal, investment banking, brokerage and accounting and other professional fees, sales commissions and disbursements actually incurred in connection with such issuance which have not been paid to Affiliates of the Borrower in connection therewith.

“ Non-Recourse ” means, with respect to any specified Person and the Indebtedness of such Person:

(1)            neither the Borrower nor any of its Restricted Subsidiaries that is not a Project Subsidiary (A) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) for the Indebtedness of such Person other than a pledge of the Equity Interests of such Person or of the Subsidiaries of such Person, (B) is directly or indirectly liable as a guarantor or otherwise of the Indebtedness of such Person, or (C) constitutes the lender with respect to the Indebtedness of such Person; and

(2)            in the case of an Unrestricted Subsidiary, no default on the Indebtedness of such Unrestricted Subsidiary (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of Indebtedness of the Borrower or any of its Restricted Subsidiaries to declare a default on such Indebtedness of the Borrower or any of its Restricted Subsidiaries or cause the payment of such Indebtedness of the Borrower or any of its Restricted Subsidiaries to be accelerated or payable prior to its stated maturity.

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“ Nonrenewal Notice Date ” means, for any Letter of Credit, a day (to be agreed upon at the time such Letter of Credit is issued) before which the relevant L/C Issuer may prevent the renewal of such Letter of Credit.

“ Note ” means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit D-1 or Exhibit D-2 , as applicable.

“ Obligations ” means any principal, interest, premium, fees, indemnifications, reimbursements, expenses, damages and other liabilities payable under the documentation governing any Indebtedness.

“ OPC ” means Orion Power Capital, LLC, a Delaware limited liability company, and its successors.

“ OPH ” means Orion Power Holdings, Inc., a Delaware corporation, and its successors.

“ OPH Asset Sale Proceeds ” means any Net Asset Sale Proceeds received by the Borrower or any of its Subsidiaries from any Asset Sale by OPH or any of its Subsidiaries.

“ OPH Note Indenture ” means the Indenture, dated as of April 27, 2000, among OPH and Wilmington Trust Company, as trustee, pursuant to which the OPH Notes were issued.

“ OPH Notes ” means OPH’s 12% Senior Notes due 2010.

“ OPMW ” means Orion Power MidWest, L.P., a Delaware limited partnership, and its successors.

“ OPMW Revolving Note ” means the revolving note, dated as of December 22, 2004, issued by OPMW to the Borrower in the maximum principal amount of $75,000,000.

“ Order of Application ” has the meaning assigned to it in the Collateral Trust Agreements.

“ Organization Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

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“ Orion Guaranty ” means the Amended and Restated Guaranty Agreement executed by the Orion Guarantors in favor of Reliant Energy, Inc., as secured party, as amended, restated, supplemented or otherwise modified from time to time.

“ Orion Note Document ” means the OPMW Revolving Note and each agreement or other document executed in connection therewith.

“ Orion Security Agreement ” means the Amended and Restated Security Agreement executed by OPH and the Orion Guarantors in favor of Reliant Energy, Inc., as secured party, as amended, restated, supplemented or otherwise modified from time to time.

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

“ Outstanding Amount ” means (a) with respect to Term Loans, Revolving Credit Loans and Pre-Funded L/C Deposits on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments, repayments or refundings of Term Loans, Revolving Credit Loans and Pre-Funded L/C Deposits, as the case may be, occurring on such date; (b) with respect to any Revolving L/C Obligations on any date, the amount of such Revolving L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the Revolving L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of applicable Unreimbursed Amounts; and (c) with respect to any Pre-Funded L/C Obligations on any date, the aggregate amount of such Pre-Funded L/C Obligations on such date after giving effect to any Pre-Funded L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the Pre-Funded L/C Obligations as of such date, including as a result of the aggregate amount of any reimbursements by the Borrower of applicable Unreimbursed Amounts.

“ Parent Services Agreement ” means the Master Services Agreement among the Borrower or other Loan Parties and Retail Holdco and its Subsidiaries entered into as a condition to the closing of the Reimbursement Agreement.

“ Parity Secured Debt ” means, collectively:

(1)            the Secured Notes;

(2)            the PEDFA Guaranties;

(3)            the Credit Agreement Obligations; and

(4)            Sharing Eligible Debt that is designated by the Borrower, in a certificate of a Responsible Officer of the Borrower delivered to the Collateral Trustee on or before the date of incurrence of such Indebtedness, as entitled to share Equally and Ratably in the benefits and proceeds of all Liens held by the Collateral Trustee in Shared Collateral.

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“ Parity Secured Obligations ” means, collectively, the Secured Note Obligations, the PEDFA Guaranty Obligations, the Credit Agreement Obligations and all Obligations in respect of each other Series of Secured Debt.

“ Participant ” has the meaning specified in Section 11.6(d) .

“ PBGC ” means the Pension Benefit Guaranty Corporation.

“ PEDFA Debt ” means the outstanding amount of Indebtedness permitted pursuant to clause (b)(iv) of Section 7.3 .

“ PEDFA Guaranties ” means collectively, the Borrower’s (i) five Guarantee Agreements, each dated as of December 22, 2004, among the Borrower, the Guarantors and J.P.Morgan Trust Company, as trustee, and (ii) other guaranties constituting Permitted PEDFA Bond Indebtedness made by the Borrower from time to time in accordance with Section 7.3 .

“ PEDFA Guaranty Obligations ” means:

(1)            the Obligations of the Borrower under the PEDFA Guaranties issued on December 22, 2004; or

(2)            the Obligations of the Borrower under the PEDFA Guaranties issued after the Closing Date that constitute another Series of Secured Debt.

“ Pension Plan ” means any “employee pension benefit plan” (as such term has the meaning specified in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.

“ Permitted Business ” means the business of providing services and products in the energy market and any businesses incidental or reasonably related thereto.

“ Permitted Debt ” has the meaning specified in Section 7.3 .

“ Permitted Encumbrances ” has the meaning specified in the Mortgages.

“ Permitted Investments ” means:

(1)            any Investment by the Borrower or any Restricted Subsidiary in the Borrower or in a Restricted Subsidiary (including any Person which immediately following such Investment constitutes a Restricted Subsidiary);

(2)            Investments existing on the Closing Date and on Schedule 5.13 ;

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(3)            any Investment in Cash Equivalents and, in the case of any Person, cash equivalents or other liquid investments permitted under any credit facility constituting Permitted Debt to which such Person is a party;

(4)            so long as no Default has occurred and is continuing or would be caused thereby, Investments in an aggregate amount not to exceed the Available Amount at the time of such Investment;

(5)            any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with the provisions of Section 7.5 ;

(6)            any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Borrower;

(7)            any Investments received in compromise or resolution of (A) Obligations of trade creditors or customers that were incurred in the ordinary course of business of the Borrower or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or (B) litigation, arbitration or other disputes with Persons who are not Affiliates;

(8)            Investments represented by Hedging Obligations;

(9)            loans or advances to employees made in the ordinary course of business up to an aggregate principal amount not to exceed $10,000,000 at any one time;

(10)          any Investment acquired by the Borrower or any of its Restricted Subsidiaries on account of any claim against, or interest in, any other Person (A) acquired in good faith in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of such other Person or (B) as a result of a bona fide foreclosure by the Borrower or any of its Restricted Subsidiaries with respect to any claim against any other Person;

(11)          repurchases of the Secured Refinancing Senior Notes remaining outstanding after the Closing Date, the Secured Tax-Exempt Bonds or Parity Secured Debt;

(12)          any Investment by the Borrower or a Restricted Subsidiary of the Borrower in a Securitization Entity or any Investment by a Securitization Entity in any other Person in connection with a Qualified Securitization Transaction;

(13)          payment of consolidated taxes pursuant to the Tax Sharing Agreement, dated as of October 1, 2002, among the Borrower and its Subsidiaries named therein, the Parent Services Agreement or any other tax allocation agreements among the Borrower and its Subsidiaries;

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(14)          receivables owing to the Borrower or a Restricted Subsidiary, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided , that such trade terms may include such concessionary trade terms as the Borrower or such Restricted Subsidiary deems reasonable under the circumstances;

(15)          Investments consisting of assets (other than cash and Cash Equivalents) contributed to any joint venture; provided that promptly and in any event within thirty (30) Business Days after the making of such Investments, the Equity Interests in such joint venture held by the Borrower or any Restricted Subsidiary making such Investment, shall be pledged to the Collateral Trustee to secure the Obligations in a manner satisfactory to the Administrative Agent; and

(16)          other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause that are at the time outstanding not to exceed the greater of (a) $200,000,000 and (b) 2% of Consolidated Net Tangible Assets.

“ Permitted Liens ” means:

(1)            Liens held by the Collateral Trustee Equally and Ratably securing all Indebtedness that is Parity Secured Debt and Equally and Ratably securing all other Parity Secured Obligations;

(2)            Liens that are granted or maintained by the Borrower and the Restricted Subsidiaries as security for Credit Agreement Obligations;

(3)            Liens on assets of REMA and its Subsidiaries securing Indebtedness of REMA and its Subsidiaries permitted to be incurred pursuant to clause (b)(iii) of Section 7.3 , including cash collateral for letters of credit issued thereunder and Liens encumbering assets of REMA and/or any of its Subsidiaries securing obligations under, or in connection with, or which constitute, Qualifying Credit Support (as defined in the participation agreements to which REMA is a party);

(4)            Liens on assets of the Seward Subsidiary securing Permitted PEDFA Bond Indebtedness incurred by the Seward Subsidiary and that is Non-Recourse to the Borrower and all of its other Restricted Subsidiaries (other than an unsecured Guarantee, if any, provided by the Borrower or any Guarantor);

(5)            Liens on assets of a Restricted Subsidiary in existence on the date on which such Person becomes a Restricted Subsidiary ( provided , that (i) such Liens existed at the time such Person became a Restricted Subsidiary and were not created in anticipation thereof, (ii) no such Lien shall attach to any asset acquired by such Person, after such Person became a Restricted Subsidiary, pursuant to an Investment in such Person by the Borrower or any Restricted Subsidiary, or in an Affiliate Transaction that does not satisfy the requirements of Section 7.8(a) and (iii) the amount of Indebtedness secured thereby is not increased);

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(6)            Liens securing Capital Lease Obligations, purchase money obligations, obligations under sale leaseback transactions and Synthetic Lease Obligations covering only the assets acquired with or financed by such Indebtedness; provided , however , that, the aggregate principal amount of such Capital Lease Obligations, purchase money obligations, obligations under sale leaseback transactions and Synthetic Lease Obligations shall not exceed $400,000,000 in the aggregate at any time outstanding;

(7)            [RESERVED];

(8)            Liens in favor of the Borrower or the Guarantors;

(9)            Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided , that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;

(10)          Liens imposed by law, such as carriers’, warehousemen’s, landlord’s and mechanics’ Liens, in each case, incurred in the ordinary course of business;

(11)          survey exceptions, encumbrances, easements or reservations, including those for licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines, other utilities, mineral reservations and rights and leases, zoning restrictions and other restrictions as to the use of real property or other exceptions to title that were not incurred in connection with Indebtedness and that (A) exist on the Closing Date and are recorded on such date, (B) are permitted under the terms of the Security Documents or (C) do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

(12)          Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Agreement if such Permitted Refinancing Indebtedness is incurred by the same obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded (except as provided in clause (4) of the definition of Permitted Refinancing Indebtedness); provided , that:

(a)            the new Lien shall be limited to all or part of the same categories of property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof), except, if Permitted PEDFA Bond Indebtedness is Sharing Eligible Debt, it may be secured by Liens held by the Collateral Trustee on the Shared Collateral;

(b)            the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (i) the outstanding principal amount or, if greater, committed amount of the Permitted Refinancing Indebtedness and (ii) an

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amount necessary to pay any fees and expenses, including premiums, related to such refinancings, refunding, extension, renewal or replacement and (iii) any protective advances with respect to the property and assets that secure such Permitted Refinancing Indebtedness;

(13)          Liens on assets transferred to a Securitization Entity or on assets of a Securitization Entity, in either case incurred in connection with a Qualified Securitization Transaction;

(14)          financing statements (including precautionary statements) filed in connection with a Capital Lease Obligation, financing lease, Synthetic Lease Obligation or an operating lease, in each case, not prohibited hereunder; provided , that no such financing statement extends to, covers or refers to as collateral, any property or assets of the Borrower or a Restricted Subsidiary, other than the property or assets which are subject to such Capital Lease Obligation, financing lease, Synthetic Lease Obligation, or operating lease;

(15)          Liens arising out of or in connection with any judgment that does not constitute an Event of Default or in connection with any litigation or other legal proceeding as to which an appeal to contest or review is timely commenced in good faith by appropriate proceedings and as to which adequate reserves have been established in accordance with GAAP; provided , that any right to levy, seizure, attachment, sequestration, foreclosure or garnishment of any property and assets of the Borrower or a Restricted Subsidiary thereof arising out of or in connection with any such Lien has been and continues to be enjoined or effectively stayed;

(16)          inchoate statutory Liens arising under ERISA;

(17)          Liens (A) on cash and short-term investments (i) deposited by the Borrower or any of its Subsidiaries in margin accounts with or on behalf of futures contract brokers or paid over to other counterparties or (ii) pledged or deposited as collateral to a contract counterparty or issuer of surety bonds by the Borrower or any of its Subsidiaries, in the case of clause (i) or (ii) , to secure obligations with respect to (a) contracts for commercial and trading activities in the ordinary course of business and contracts (including physical delivery, option (whether cash or financial), exchange, swap and futures contracts) for the purchase, transmission, distribution, sale, lease or hedge of any energy-related commodity or service or (b) interest rate, commodity price, or currency rate management contracts or derivatives and (B) encumbering assets other than accounts or receivables arising out of contracts or agreements relating to the generation, distribution or transmission of energy; provided , that all such agreements or contracts are entered into in the ordinary course of business;

(18)          Liens arising by virtue of any statutory or common law provision relating to banker’s liens, rights of set off or similar rights, contractual rights of setoff or netting arrangements entered into in the ordinary course of business and similar rights with respect to deposit accounts, commodity accounts and/or securities accounts;

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(19)          Liens arising under Section 9.343 of the Texas Uniform Commercial Code or similar statutes of states other than Texas;

(20)          pledges and deposits to secure the payment of worker’s compensation, unemployment insurance, social security benefits or obligations under similar laws, or to secure the payment or performance of statutory or public obligations (including environmental, municipal and public utility commission obligations and requirements), reimbursement or indemnity obligations arising out of surety, performance, or other similar bonds, and other obligations of a like nature, in each case incurred in the ordinary course of business;

(21)          Liens granted by a Person in favor of a commercial trading counterparty pursuant to a netting agreement, which Liens encumber rights under agreements that are subject to such netting agreement and which Liens secure such Person’s obligations to such counterparty under such netting agreement; provided , that any such agreements and netting agreements are entered into in the ordinary course of business; and provided , further , that the Liens are incurred in the ordinary course of business and when granted, do not secure obligations which are past due;

(22)          Liens on proceeds from the issuance of Seward Tax-Exempt Bonds or Permitted PEDFA Bond Indebtedness and Liens on Indebtedness of the Borrower held by the Seward Subsidiary securing the Seward Tax-Exempt Bonds or Permitted PEDFA Bond Indebtedness;

(23)          Liens on assets of Channelview. and Liens on the Equity Interests in Reliant Energy Channelview (Delaware) LLC and Reliant Energy Channelview (Texas) LLC, to the extent such Liens are existing on the Closing Date;

(24)          Liens on assets of REMA and its Subsidiaries created in connection with the sale-leaseback of REMA’s interests in the Keystone, Conemaugh and Shawville generating facilities consummated in August, 2000;

(25)          Liens created in connection with the indemnity and contribution obligations in favor of underwriters or note purchasers in connection with the Seward Tax-Exempt Bonds;

(26)          Liens on assets of Reliant Energy Solutions, LLC created in connection with Delivery Order No. DABT39-97-C-4046 dated September 1997 and issued by the Directorate of Contracting, Contract Support Division, Ft. Sill, Oklahoma;

(27)          Liens incurred in the ordinary course of business of the Borrower or any Restricted Subsidiary of the Borrower securing obligations that do not exceed $50,000,000 in the aggregate at any one time outstanding;

(28)          Liens on certain of Reliant Energy Wholesale Generation LLC’s switchyard equipment at the Choctaw generating facility granted to Entergy in connection with an Operating and Maintenance Agreement;

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(29)          Separate Collateral (as defined in the Separate Collateral Trust Agreement) which secures on a pari passu basis the Credit Agreement Obligations and any other Designated Credit Facilities;

(30)          Liens on assets of the Retail Group securing obligations of the Retail Group under (a) the Working Capital Agreement in an aggregate principal amount not to exceed $310,000,000 plus all other obligations due under such Working Capital Agreement; and (b) any agreement for or in support of, the supply or sales of energy or products or services related or incidental to the supply or sales of energy or any activities related to the supply or sales of energy or products or services related or incidental to the supply or sales of energy of the Retail Group, including any agreement providing for the reimbursement of guarantees or collateral postings made on behalf of any member of the Retail Group;

(31)          second priority Liens on the Collateral securing Commodity Hedging Obligations, provided that the holders of such Liens (or a trustee or agent acting on behalf of such holders) shall have entered into an intercreditor agreement with the Collateral Agent in form and substance reasonably satisfactory to the Administrative Agent; and

(32)          Liens on Property or Equity Interests of a Project Subsidiary.

“ Permitted PEDFA Bond Indebtedness ” means Indebtedness incurred or guaranteed by the Borrower and/or the Guarantors that is not supported by Letters of Credit outstanding under this Agreement, the proceeds of which are used:

(a)            to build the Seward Facility;

(b)            to reimburse the Borrower, its Restricted Subsidiaries or the Seward Subsidiary for amounts advanced or incurred, or for Indebtedness incurred to fund such construction costs, prior to the date of incurrence of such Indebtedness; or

(c)            to refund or defease the Seward-Tax Exempt Bonds or refinance Indebtedness evidenced by or in support of the Seward-Tax Exempt Bonds.

“ Permitted Prior Liens ” means (1) Liens described in clauses (5) , (6) , (7) , (9) , (10) , (11) , (14) , (17) , (18) , (19) , (20) , (21) , (25) , (26), (28) and (29) of the definition of “Permitted Liens,” (2) Liens refinancing or replacing any of the Liens contemplated in clause (1) of this definition, and (3) Liens that arise by operation of law and are not voluntarily granted, to the extent entitled by law to priority over the security interests created by the Security Documents.

“ Permitted Refinancing Indebtedness ” means any Indebtedness of the Borrower or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund other Indebtedness of the Borrower or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided , that:

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(1)            the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest on the Indebtedness and the amount of all expenses, costs and fees and premiums incurred in connection therewith);

(2)            except for Permitted PEDFA Bond Indebtedness, Debt of Channelview and its Subsidiaries and Debt of any of Channelview’s equity holders in respect of Channelview and its Subsidiaries’ Debt, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;

(3)            if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Credit Agreement Obligations, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Credit Agreement Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded, as reasonably determined by the Borrower or such Restricted Subsidiary;

(4)            such Indebtedness is incurred either by the Borrower or by the Restricted Subsidiary who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded, except that Permitted PEDFA Bond Indebtedness may be (A) incurred by the Borrower and/or guaranteed by the Borrower and/or the Guarantors if the assets of the Seward Subsidiary (other than Investments in the Borrower pledged to secure such Permitted PEDFA Bond Indebtedness and proceeds from the issuance of Permitted PEDFA Bond Indebtedness that secures Permitted PEDFA Bond Indebtedness) remain free of all Liens securing Indebtedness, except Liens held by the Collateral Trustee as security for Parity Secured Obligations or (B) guaranteed by the Borrower on an unsecured basis if such Indebtedness is otherwise Non-Recourse to the Borrower and its other Restricted Subsidiaries (other than the Seward Subsidiary) and is secured solely by Liens on the assets of the Seward Subsidiary and/or the Equity Interests of the Seward Subsidiary; and

(5)            if incurred by the Borrower, such Indebtedness may be guaranteed by the Guarantors.

“ Permitted Sale ” means one or more sales of any Transferred Asset or series of Transferred Assets by the Borrower or any Restricted Subsidiary to the Purchaser Subsidiary, pursuant to which all of the following conditions shall be satisfied on or prior to the consummation of such sale (or, if a later date is specified with respect to any of the following conditions, such later date with respect to such condition):

(1)            (a) the Borrower or the applicable selling Restricted Subsidiary shall have received from the Purchaser Subsidiary consideration in the form of cash or a

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Sale Note, or any combination thereof, in an aggregate amount equal to or greater than the fair value, or within or above the range of fair values, of such Transferred Asset or series of Transferred Assets, and (b) such consideration shall not exceed $200,000,000 for any Transferred Asset or series of Transferred Assets if more than $10,000,000 in principal is outstanding under any Sale Notes (including any Sale Note entered into in connection with such Transferred Asset or series of Transferred Assets);

(2)            the Administrative Agent on behalf of the Lenders shall have received a certificate or opinion addressed to the Administrative Agent of an engineer, appraiser, or other expert (in each case who is not an Affiliate or employee of the Borrower or any of its Subsidiaries) setting forth the fair value of the Transferred Assets;

(3)            the Purchaser Subsidiary shall have executed and delivered to the Borrower or the applicable selling Restricted Subsidiary such pledge agreements, security agreements, mortgages, deeds of trust, deeds to secure debt or other equivalent documents with respect to all such Transferred Assets to secure all the obligations of the Purchaser Subsidiary under the applicable Sale Note, which agreements, mortgages, deeds or other documents shall be in form and substance reasonably satisfactory to the Administrative Agent, and shall have executed, delivered and filed all other documents and instruments and taken all other actions as may be necessary in the reasonable opinion of the Administrative Agent and its counsel to perfect the security interests of the Borrower or the applicable selling Restricted Subsidiary pursuant to such agreements, mortgages, deeds or other documents;

(4)            the Administrative Agent shall have received a certificate, dated as of the date of consummation of such Permitted Sale and duly executed by a Responsible Officer of the Borrower, in which certificate the Borrower shall certify as to good standing, due authorization, corporate power and authority, due execution and delivery, valid and binding obligation, absence of conflicts with organizational documents, contracts, laws and governmental orders, and validity and perfection of security interests, in each case with respect to the applicable Sale Note(s) and the other documents contemplated by clause (3) , and, at the time such certificate is delivered, such certifications shall in fact be true and correct; and

(5)            all material governmental and third party consents and approvals with respect to such Permitted Sale shall have been obtained and there shall be no litigation, governmental, administrative or judicial action that could reasonably be expected to restrain or prevent such Permitted Sale.

“ Person ” means any individual, corporation, firm, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

“ PJM ” means PJM Interconnection, L.L.C. or any successor thereto.

“ PJM Retail Business ” means the Retail Energy Business conducted by the Retail Group in the ordinary course of business in the PJM market area.

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“ Plan ” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

“ Post-Petition Interest ” means interest accruing after the filing of any petition in bankruptcy, or the commencement of any case, proceeding or action relating to the bankruptcy, reorganization or insolvency of the Borrower or any other Loan Party (or interest that would accrue but for the operation of applicable bankruptcy, reorganization or insolvency laws), whether or not a claim for post-filing or post-petition interest is allowed or allowable as a claim in any such case, proceeding or action.

“ Power and Hedging Contracts ” means Retail Holdco’s and its Subsidiaries’ over-the-counter power purchase and related hedging contracts, providing for the sale, purchase, delivery or receipt of any power product or natural gas or financial derivative in respect thereof.

“ Pre-Funded L/C Borrowing ” means the conversion of all or a portion of the Pre-Funded L/C Deposit into a Term Loan in accordance with Section 2.5(d).

“ Pre-Funded L/C Commitment ” means, as to each Pre-Funded L/C Lender, its obligation to make Pre-Funded L/C Deposits to the Administrative Agent for the benefit of the Pre-Funded L/C Issuer pursuant to Section 2.1(c)(ii) in an aggregate amount at any one time outstanding not to exceed the amount set forth opposite such Pre-Funded L/C Lender’s name on Schedule 2.1 under the caption “Pre-Funded L/C Commitment” or in an Assignment and Assumption pursuant to which such Pre-Funded L/C Lender becomes a party hereto, as applicable (in an aggregate amount for all Pre-Funded L/C Lenders on the Closing Date not to exceed $250,000,000).

“ Pre-Funded L/C Commitment Termination Date ” means the earliest to occur of (a) June 30, 2014; (b) the date on which the Pre-Funded L/C Commitments have been reduced to zero pursuant to Section 2.5(d) and all Pre-Funded L/C Deposits have been returned to the Pre-Funded L/C Lenders; and (c) the date of the termination of the Pre-Funded L/C Commitments pursuant to Section 9.2 .

“ Pre-Funded L/C Deposit ” means, with respect to each Lender, the cash deposit, if any, made by such Lender pursuant to clause (c)(ii) of Section 2.1 , as the same may be (a) reduced from time to time pursuant to Section 2.1 or Section 2.5(d) ; or (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 11.6 .

“ Pre-Funded L/C Deposit Account ” means one or more accounts established by the Administrative Agent or an Affiliate thereof at Deutsche Bank with the title “Pre-Funded L/C Lenders (Reliant Energy, Inc.) Pre-Funded L/C Deposit Account” pursuant to clause (c)(i) of Section 2.1 .

“ Pre-Funded L/C Deposit Cost Amount ” means, at any time, the amount agreed to by the Borrower and the Deposit Bank.  The Pre-Funded L/C Deposit Cost Amount shall initially be equal to 0.13%.

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“ Pre-Funded L/C Deposit Return ” has the meaning specified in clause (c)(iv) of Section 2.1 .

“ Pre-Funded L/C Facility ” means, at any time, the aggregate amount of Pre-Funded L/C Deposits of all the Pre-Funded L/C Lenders at any time.

“ Pre-Funded L/C Final Expiration Date ” means the Pre-Funded L/C Commitment Termination Date.

“ Pre-Funded L/C Issuer ” means Deutsche Bank, in its capacity as issuer of the Pre-Funded Letters of Credit, together with its Affiliates and permitted successors and assigns in such capacity.

“ Pre-Funded L/C Lender ” means, as of any time, any Lender that has a Pre-Funded L/C Commitment, a Pre-Funded L/C Deposit or a Pre-Funded L/C Participation Obligation at such time.

“ Pre-Funded L/C Obligations ” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Pre-Funded Letters of Credit plus the aggregate of all Unreimbursed Amounts in connection with Pre-Funded Letters of Credit.  For purposes of computing the amount available to be drawn under any Pre-Funded Letter of Credit, the amount of such Pre-Funded Letter of Credit shall be determined in accordance with Section 1.6 .  For all purposes of this Agreement, if on any date of determination a Pre-Funded Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Pre-Funded Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“ Pre-Funded L/C Participation Fees ” has the meaning specified in clause (b) of Section 2.8 .

“ Pre-Funded L/C Participation Obligations ” has the meaning set forth in Section 2.3(b)(ii) .

“ Pre-Funded L/C Reimbursement Obligation ” has the meaning specified in clause (e) of Section 2.3 .

“ Pre-Funded L/C Term Loans ” has the meaning specified in clause (c)(i)(B) of Section 2.3 .

“ Pre-Funded Letter of Credit ” means any standby letter of credit issued under clause (a)(ii)(A) of Section 2.3 and shall include those of the Existing Letters of Credit identified on Schedule 1.1(a) as “Pre-Funded Letters of Credit”.

“ Prepayment Collateral Account ” has the meaning specified in the Existing Security Agreement.

“ Pro Rata Share ” means, with respect to each Lender and with respect to any Facility at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place),

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(a)            with respect to the Revolving Credit Facility, the numerator of which is the amount of the Revolving Credit Commitment of the relevant Revolving Credit Lender at such time and the denominator of which is the aggregate Revolving Credit Commitments at such time; provided , that if the commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of any L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.2 , then the Pro Rata Share of each Revolving Credit Lender shall be determined based on the Pro Rata Share of such Revolving Credit Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof;

(b)            with respect to the Term Facility, the numerator of which is the outstanding principal amount of the Term Loans of the relevant Term Lender at such time and the denominator of which is the aggregate outstanding principal amount of all of the Term Loans at such time; and

(c)            with respect to the Pre-Funded L/C Facility, the numerator of which is the Outstanding Amount of the Pre-Funded L/C Deposit of the relevant Pre-Funded L/C Lender at such time and the denominator of which is the Outstanding Amount of all Pre-Funded L/C Deposits at such time; provided that if the Pre-Funded L/C Deposit shall have been reduced to zero, than the Pro Rata share of each Pre-Funded L/C Lender shall be determined based on the Pro Rata Share of such Pre-Funded L/C Lender immediately prior to such reduction to zero.

“ Project Subsidiary ” means any Subsidiary of the Borrower whose principal purpose is the construction, acquisition or operation of a project or assets related or incidental to a project, whose debt is without recourse or liability to the Borrower or any of its other Subsidiaries (except (i) recourse against another Project Subsidiary, including any direct or indirect parent entity of any Project Subsidiary, substantially all of the assets of which consist of the equity of one or more Project Subsidiaries and (ii) recourse against the equity of a Project Subsidiary pledged by the Borrower of any  of its Subsidiaries to secure the debt of such Project Subsidiary or any Subsidiary of such Project Subsidiary).

“ Purchase Money Note ” means a promissory note of a Securitization Entity evidencing amounts owed to the Borrower or any Restricted Subsidiary of the Borrower in connection with a Qualified Securitization Transaction to a Securitization Entity, which note shall be repaid from cash available to the Securitization Entity other than amounts required to be established as reserves pursuant to agreements, amounts paid to investors in respect of interest and principal and amounts paid in connection with the purchase of newly generated receivables or newly acquired equipment.

“ Purchaser Subsidiary ” means a wholly-owned Subsidiary of OPH which is a Restricted Subsidiary and also a Designated Entity.

“ Qualified Securitization Transaction ” means any transaction or series of transactions that may be entered into by the Borrower or any of its Restricted Subsidiaries pursuant to which the Borrower or any of its Restricted Subsidiaries may sell, convey or otherwise transfer to: (a) a Securitization Entity (in the case of a transfer by the Borrower or any

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of its Restricted Subsidiaries); and (b) any other Person (in the case of a transfer by a Securitization Entity), or may grant a security interest in any accounts receivable or equipment (whether now existing or arising or acquired in the future) of the Borrower or any of its Restricted Subsidiaries, and any assets related thereto, including all collateral securing such accounts receivable and equipment, all contracts and contract rights and all guarantees or other obligations in respect of such accounts receivable and equipment, proceeds of such accounts receivable and equipment and other assets (including contract rights) which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable and equipment.

“ Quarterly Payment Date ” means the first day of each April, July, October and January, or, if any such date is not a Business Day, the next succeeding Business Day.

“ Reduction Amount ” has the meaning specified in Section 2.4(b)(viii) .

“ Register ” has the meaning specified in Section 11.6(c) .

“ Reimbursement Agreement ” means the Credit Sleeve and Reimbursement Agreement, dated as of September 24, 2006, among the Retail Group, MLCI and ML&Co., as amended and restated on December 1, 2006.

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

“ Release Date ” means the date on which as of the last day of two consecutive Fiscal Quarters, the Consolidated Secured Leverage Ratio for the applicable immediately preceding four Fiscal Quarters was equal to or less than 2.00:1.

“ REMA ” means Reliant Energy Mid-Atlantic Power Holdings, LLC, a Delaware limited liability company, and its successors.

“ REMA Lease ” means, collectively, the obligations of REMA as facility lessee under the Facility Lease Agreements, each dated as of August 24, 2000 and each between REMA and, respectively, Conemaugh Lessor Genco, LLC, Keystone Lessor Genco, LLC, and Shawville Lessor Genco, LLC, and under the related participation agreements and other documents executed in connection therewith.

“ Remedial Action ” shall have the meaning ascribed to it in Section 101(24) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et. seq. or any other Environmental Law.

“ Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

“ Request for Credit Extension ” means (a) with respect to a Borrowing, conversion or continuation of Term Loans or Revolving Credit Loans, a Borrowing Notice; and (b) with respect to an L/C Credit Extension, an L/C Certificate.

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“ Required Lenders ” means, as of any date of determination, Lenders having more than 50% of the sum of (a) the Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Lender for purposes of this definition) and (b) the aggregate unused Revolving Credit Commitments; provided , that the unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

“ Required Revolving Lenders ” means, as of any date of determination, Revolving Credit Lenders having more than 50% of the Revolving Credit Exposure.

“ RERH ” means Reliant Energy Retail Holdings, LLC, a Delaware limited liability company, and its successors.

“ RESE ” means Reliant Energy Solutions East, LLC, a Delaware limited liability, and its successors.

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

“ Restricted Payment ” means any of the following:

(1)            any declaration or payment of any dividend or the making of any other payment or distribution on account of the Borrower’s or any of its Restricted Subsidiaries’ Equity Interests (including any payment in connection with any merger or consolidation involving the Borrower or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Borrower’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Borrower or to the Borrower or a Restricted Subsidiary of the Borrower);

(2)            any purchase, redemption or other acquisition or retirement for value (including in connection with any merger or consolidation involving the Borrower) of any Equity Interests of the Borrower; and

(3)            any payment on or with respect to, or purchase, redemption, defeasance or other acquisition or retirement for value of any Indebtedness of the Borrower or of any Guarantor that is contractually subordinated to the Credit Agreement Obligations (excluding any intercompany Indebtedness, intercompany receivables or intercompany advances between or among any of the Borrower and its Restricted Subsidiaries and Permitted PEDFA Bond Indebtedness), except a payment of interest or principal at the Stated Maturity thereof.

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“ Restricted Subsidiary ” means a Subsidiary organized or incorporated under the laws of the United States or a State thereof that is not an Unrestricted Subsidiary.

“ Retail Energy Business ” means the Borrower’s and its Subsidiaries’ business of providing services and products in the retail energy market and any businesses incidental or reasonably related thereto operated by the Retail Group and performing under the Sleeve Documents and any activities incidental or related thereto, including:

(a)            all related retail customer contracts;

(b)            all related commercial and industrial customer contracts;

(c)            all related Exchange Traded Contracts and Power and Hedging Contracts; and

(d)            all related assets and employees necessary or appropriate to manage such business.

“ Retail Group ” means, collectively, Retail Holdco and all of its Subsidiaries.

“ Retail Holdco ” means RERH Holdings, LLC, a Delaware limited liability company.

“ Revolving Credit Borrowing ” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Revolving Credit Lenders pursuant to Section 2.1(b) .

“ Revolving Credit Commitment ” means, as to each Revolving Credit Lender, its obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section 2.1(b) (in an aggregate amount for all Revolving Credit Lenders on the Closing Date not to exceed $500,000,000, and (b) purchase participations in Revolving L/C Obligations, in an aggregate principal amount at any one time outstanding not to exceed, initially, the amount set forth opposite such Revolving Credit Lender’s name on Schedule 2.1 under the caption “Revolving Credit Commitment” or in the Assignment and Assumption pursuant to which such Revolving Credit Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

“ Revolving Credit Exposure ” means, as of any date of determination, (a) the aggregate Revolving Credit Commitments or (b) if the commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of the Revolving L/C Issuers to make Revolving L/C Credit Extensions have been terminated pursuant to Section 9.2 , the Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in Revolving L/C Obligations being deemed “held” by such Lender for purposes of this definition).

“ Revolving Credit Facility ” means, at any time, the Outstanding Amount of Revolving Credit Exposures of all Revolving Credit Lenders at such time.

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“ Revolving Credit L/C Final Expiration Date ” means the day that is five Business Days prior to the Revolving Credit Termination Date.

“ Revolving Credit Lender ” means, at any time, any Lender that has a Revolving Credit Commitment at such time.

“ Revolving Credit Loan ” means a loan by a Revolving Credit Lender to the Borrower under Section 2.1(b) .

“ Revolving Credit Note ” means a promissory note of the Borrower payable to the order of any Revolving Credit Lender, in substantially the form of Exhibit D-1 hereto, evidencing the aggregate indebtedness of the Borrower to such Revolving Credit Lender resulting from the Revolving Credit Loans made by such Revolving Credit Lender.

“ Revolving Credit Termination Date ” means the earlier of (a) June 30, 2012; or (b) the date of termination in whole of the Revolving Credit Commitments pursuant to Section 2.5 or 9.2 .

“ Revolving L/C Advance ” means, with respect to each Revolving Credit Lender, such Revolving Credit Lender’s funding of its participation in any Revolving L/C Borrowing in accordance with its Pro Rata Share.

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

“ Revolving L/C Exposure ” means, at any time, the amount expressed in Dollars of the aggregate outstanding face amount of all drafts which may then or thereafter be presented by beneficiaries under all Revolving Letters of Credit then outstanding plus (without duplication), the face amount of all drafts which have been presented or accepted under all Revolving Letters of Credit but have not yet been paid or have been paid, but not reimbursed, whether directly or from the proceeds of a Revolving Credit Loan or Revolving L/C Borrowing hereunder.

“ Revolving L/C Issuer ” means each of JPMorgan Chase Bank, N.A., ABN-AMRO Bank N.V., Deutsche Bank and any other Lender with a Revolving Credit Commitment in excess of $40,000,000 which agrees (pursuant to a joinder in form and substance satisfactory to the Administrative Agent) to be a Revolving L/C Issuer after the Closing Date, each in its capacity as an issuer of Revolving Letters of Credit hereunder, and in each case, its successors in such capacity as provided in Section 11.6(b) hereof; provided , that each of such Revolving L/C Issuers shall be required to issue Revolving Letters of Credit only in accordance with the terms and subject to the conditions set forth herein, up to an aggregate amount, at any one time, not in excess of the amount opposite such entity’s name under the column entitled “Revolving L/C Issuer Amount for Revolving Letters of Credit” in Schedule 2.1 hereto (as such Schedule may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof).  Each Revolving L/C Issuer may, in its discretion, arrange for any Revolving Letter of Credit to be issued by an Affiliate of such Revolving L/C Issuer as long as such Affiliate is reasonably acceptable to the beneficiary under such Letter of Credit, in which case,

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the term “ Revolving L/C Issuer ” shall include, with respect to Revolving Letters of Credit issued by such Affiliate, such Affiliate.

“ Revolving L/C Issuer Amount for Revolving Letters of Credit ” has the meaning specified in the definition of Revolving L/C Issuer.

“ Revolving L/C Obligations ” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Revolving Letters of Credit plus the aggregate of all Unreimbursed Amounts in connection with Revolving Letters of Credit, including all Revolving L/C Borrowings.  For purposes of computing the amount available to be drawn under any Revolving Letter of Credit, the amount of such Revolving Letter of Credit shall be determined in accordance with Section 1.6 .  For all purposes of this Agreement, if on any date of determination a Revolving Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Revolving Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“ Revolving L/C Participation Obligations ” has the meaning specified in clause (b)(ii) of Section 2.3 .

“ Revolving Letter of Credit ” means any standby letter of credit issued under clause (a)(i)(A) of Section 2.3 and shall include those of the Existing Letters of Credit identified on Schedule 1.1(a) as “Revolving Letters of Credit”.

“ Revolving Letter of Credit Fee ” has the meaning specified in Section 2.3(i) .

“ S&P ” means Standard & Poor’s Ratings Group (presently a division of The McGraw-Hill Companies, Inc.), together with its successors, or, if such company shall cease to issue ratings, another nationally recognized rating company selected in good faith by mutual agreement of the Administrative Agent and the Borrower.

“ Sale Note ” means one or more secured promissory notes, in form and substance satisfactory to the Administrative Agent, payable by the Purchaser Subsidiary to the Borrower in consideration of the sale of particular Transferred Assets, the maturity date of which note shall be no later than the Revolving Credit Termination Date.

“ Scheduled Investment Termination Date ” means, when referring to the Pre-Funded L/C Deposits on deposit in the Pre-Funded L/C Deposit Account, the date agreed to by the Borrower and the Administrative Agent and the Deposit Bank from time to time.

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

“ Secured Debt Documents ” means, collectively, the Loan Documents, the PEDFA Guaranties and the indenture, agreement and other documents governing each other Series of Secured Debt and all agreements binding on any obligor related thereto.

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“ Secured Debt Representative ” means:

(1)            the Seward Bond Trustee;

(2)            in the case of Indebtedness under this Agreement, the Administrative Agent; or

(3)            in the case of any other Series of Secured Debt, the trustee, agent or representative of the holders of such Series of Secured Debt who maintains, or on whose behalf is maintained, the transfer register for or who acts as administrative agent for such Series of Secured Debt and is appointed as Secured Debt Representative (for purposes related to the administration of the Security Documents) pursuant to the indenture or agreement governing such Series of Secured Debt.

“ Secured Hedge Agreement ” means any Hedging Agreement permitted under Article VI or VII that is entered into by and between the Borrower and any Hedge Bank, including each of the Hedging Agreements listed on Schedule 1.1(f) .

“ Secured Note Agreements ” means, collectively (a) the Indenture, dated as of December 22, 2004 among the Borrower, the guarantors referred to therein, and Wilmington Trust Company, as trustee, pursuant to which the Borrower’s 6.75% Secured Senior Notes due 2014 were issued, and (b) each other indenture among the Borrower, the guarantors referred to therein (if applicable) and the indenture trustee thereunder, and each other loan or note purchase agreement among the Borrower, the guarantors referred to therein (if applicable), the Lenders or note purchasers thereunder and the administrative agent (if any) thereunder, in each case pursuant to which a series of Secured Senior Notes was issued or a loan was made constituting a series of Secured Senior Notes, as each such agreement or indenture may be amended, restated, supplemented or otherwise modified from time to time.

“ Secured Note Obligations ” means:

(1)            the Secured Senior Notes issued on the dates of the respective Secured Note Agreements; or

(2)            in the case of any series of Secured Senior Notes issued after the Closing Date, all related exchange notes;

together with all other obligations of any obligor under the Secured Note Agreements.

“ Secured Parties ” means, collectively, the Lenders, each L/C Issuer, the Administrative Agent, the Pre-Funded L/C Facility Agent, each counterparty to a Secured Hedge Agreement that is (or at the time such Secured Hedge Agreement was entered into, was) a Lender or an Affiliate thereof (a “ Hedge Bank ”) and (in each case) each of their respective successors, transferees and assigns and each of the other “Secured Parties,” if any, as defined in the relevant Collateral Trust Agreement.

“ Secured Refinancing Senior Notes ” means, collectively, the Borrower’s (i) 9.25% Secured Senior Notes due 2010 and (ii) 9.50% Secured Senior Notes due 2013.

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“ Secured Senior Notes ” means, collectively, the Borrower’s (i) 6.75% Secured Senior Notes due 2014 and (ii) other Senior Secured Notes issued from time to time in a private placement, registered offering, exchange offering, or loan transaction, in which notes have been issued in accordance with Section 7.3 .

“ Securities Account ” means any securities account as such term has the meaning specified in the UCC, now or hereafter held in the name of any Loan Party.

“ Securities Account Control Agreement ” means, with respect to any Pledged Securities or other Investment Property (as such terms are defined in the Existing Security Agreement), a written agreement or other authenticated record, in form and substance reasonably satisfactory to the Administrative Agent, pursuant to which the securities intermediary which holds such Pledged Securities or such other Investment Property shall agree, among other things, to comply with entitlement orders or other instructions from the Collateral Trustee (or its co-trustees, agents or sub-agents) to such securities intermediary as to Pledged Securities or other Investment Property, without further consent of any Loan Party or its nominee, as any such agreement or record may be amended, amended, restated, supplemented or otherwise modified from time to time.

“ Securitization Entity ” means any Person in which the Borrower or any Restricted Subsidiary of the Borrower makes an Investment and to which the Borrower or any Restricted Subsidiary of the Borrower transfers accounts receivable or equipment (and related assets, including contract rights) which engages in no activities other than in connection with the financing, sale, or purchase of accounts receivable or equipment or related assets (including contract rights) and which is designated by the Borrower (as provided below) as a Securitization Entity:

(a)            no portion of the Indebtedness or any other Obligations (contingent or otherwise) of which:

(i)             is guaranteed by the Borrower or any Restricted Subsidiary of the Borrower (excluding guarantees of Obligations (other than the principal of, and interest on, Indebtedness)) pursuant to Standard Securitization Undertakings;

(ii)            is recourse to or obligates the Borrower or any Restricted Subsidiary of the Borrower in any way other than pursuant to Standard Securitization Undertakings; or

(iii)           subjects any property or asset of the Borrower or any Restricted Subsidiary of the Borrower, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings;

(b)            with which neither the Borrower nor any Restricted Subsidiary of the Borrower has any material contract, agreement, arrangement or understanding (except in connection with a Purchase Money Note or Qualified Securitization Transaction) other than on terms no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Borrower, as

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determined by the Borrower, other than amounts payable in the ordinary course of business in connection with servicing receivables and other assets of such entity; and

(c)            which neither the Borrower nor any Restricted Subsidiary of the Borrower has any obligation to maintain or preserve such Person’s financial condition or cause such Person to achieve certain levels of operating results.

The Borrower shall notify the Administrative Agent of any such designation, which notice shall include delivery to the Administrative Agent of a certificate of a Responsible Officer certifying that such designation complied with the foregoing conditions.

“ Security Agreements ” mean the Existing Security Agreement and the New Security Agreement.

“ Security Documents ” means (i) the Collateral Trust Agreements, the Security Agreements and the Bank Security Agreement, (ii) each Control Agreement, (iii) each Mortgage, (iv) each Assignment of Leases and Rents, and (v) each other security agreement, pledge agreement, mortgage, deed of trust, assignment agreement and other instrument being executed concurrently herewith or from time to time hereafter pursuant to which a Lien has been granted by any of the Loan Parties in favor of the Collateral Agent (for the benefit of the Secured Parties) or the Collateral Trustee (for the benefit of the Secured Parties) on any of its assets to secure any of the Obligations.

“ Senior Notes ” means collectively, the Borrower’s (i) 7.625% Senior Unsecured Notes due 2014, (ii) 7.875% Senior Unsecured Notes due 2017 and (iii) other Senior Unsecured Notes issued from time to time in a private placement, registered offering, exchange offering, or loan transaction, in which notes have been issued in accordance with Section 7.3 .

“ Separate Collateral Trust Agreement ” means that certain Collateral Trust Agreement (Separate Collateral), dated as of June 12, 2007, entered into among the Borrower, certain of its Subsidiaries and U.S. Bank, National Association, as initial Collateral Trustee, and acknowledged and agreed to by the Administrative Agent (in its capacity as a collateral trustee agent), as such agreement may be amended, restated, supplemented or otherwise modified from time to time.

“ Seperate Security Agreement ” means the Second Amended and Restated Security Agreement, dated as of June 12, 2007, among the Borrower, the other Loan Parties and the Collateral Trustee (for the benefit of the Secured Parties), as such agreement may be amended, restated, supplemented or otherwise modified from time to time.

“ Series of Secured Debt ” means, severally, the PEDFA Guaranties, the Indebtedness under this Agreement and each other issue or series of Parity Secured Debt.

“ Seward Bond Issuer ” has the meaning specified in the definition of “Seward Bond Trust Indentures” set forth in this Article.

“ Seward Bond Trust Indentures ” means (a) the Trust Indenture, dated as of December 1, 2001, between Pennsylvania Economic Development Financing Authority (the

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“ Seward Bond Issuer ”) and the Seward Bond Trustee pursuant to which the Seward Series 2001A Bonds were issued by the Seward Bond Issuer; (b) the Trust Indenture, dated as of April 1, 2002, between the Seward Bond Issuer and the Seward Bond Trustee pursuant to which the Seward Series 2002A Bonds were issued by the Seward Bond Issuer; (c) the Trust Indenture, dated as of April 1, 2002, between the Seward Bond Issuer and the Seward Bond Trustee pursuant to which the Seward Series 2002B Bonds were issued by the Seward Bond Issuer, as such Trust Indentures may be amended, restated, supplemented or otherwise modified from time to time; (d) the Trust Indenture, dated as of September 1, 2003, between the Seward Bond Issuer and the Seward Bond Trustee pursuant to which the Seward Series 2003A Bonds were issued by the Seward Bond Issuer; (e) the Trust Indenture, dated as of December 22, 2004, between the Seward Bond Issuer and the Seward Bond Trustee pursuant to which the Seward Series 2004A Bonds were issued by the Seward Bond Issuer; and (f) trust indentures entered into by the Seward Bond Issuer after the Closing Date as permitted hereunder in connection with any Seward Tax-Exempt Bonds issued after the Closing Date.

“ Seward Bond Trustee ” means J.P. Morgan Trust Company, National Association, as Trustee, and any successor or other trustee, under the Seward Bond Trust Indentures.

“ Seward Facility ” means the 521 MW coal facility and related assets owned by Reliant Energy Seward, LLC, or its successors, and located in New Florence, Indiana County, Pennsylvania.

“ Seward Series 2001A Bonds ” has the meaning specified in the definition of “Seward Tax-Exempt Bonds”.

“ Seward Series 2002A Bonds ” has the meaning specified in the definition of “Seward Tax-Exempt Bonds”.

“ Seward Series 2002B Bonds ” has the meaning specified in the definition of “Seward Tax-Exempt Bonds”.

“ Seward Series 2003A Bonds ” has the meaning specified in the definition of “Seward Tax Exempt Bonds.”

“Seward Series 2004A Bonds ” has the meaning specified in the definition of “Seward Tax Exempt Bonds.”

“ Seward Subsidiary ” means Reliant Energy Seward, LLC, a Delaware limited liability company, and its successors.

“ Seward Tax-Exempt Bonds ” means (1) the Pennsylvania Economic Financing Authority Exempt Facilities Revenue Bonds (Reliant Energy Seward, LLC Project), Series 2001A, in the original aggregate principal amount of $150,000,000 (the “ Seward Series 2001A Bonds ”), (2) the Pennsylvania Economic Financing Authority Exempt Facilities Revenue Bonds (Reliant Energy Seward, LLC Project), Series 2002A, in the original aggregate principal amount of $75,000,000 (the “ Seward Series 2002A Bonds ”), (3) the Pennsylvania Economic Financing Authority Exempt Facilities Revenue Bonds (Reliant Energy Seward, LLC Project), Series

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2002B, in the original aggregate principal amount of $75,000,000 (the “ Seward Series 2002B Bonds ”), (4) the Pennsylvania Economic Financing Authority Exempt Facilities Revenue Bonds (Reliant Energy Seward, LLC Project), Series 2003A, in the original aggregate principal amount of $100,000,000 (the “ Seward Series 2003A Bonds ”), and (5) any bonds issued by PEDFA on or after the Closing Date as permitted hereunder and supported by letters of credit outstanding hereunder.

“ Shared Collateral ” has the meaning specified in the New Collateral Trust Agreement.

“ Shared Collateral Trust Agreement ” means that certain Collateral Trust Agreement (Shared Collateral), dated as of June 12, 2007, entered into among the Borrower, certain of its Subsidiaries and U.S. Bank, National Association, as initial Collateral Trustee, and acknowledged and agreed to by the Administrative Agent (in its capacity as a collateral trustee agent) and Wilmington Trust Company, as trustee for the holders of the 6.75% Secured Senior Notes, as such agreement may be amended, restated, supplemented or otherwise modified from time to time.

“ Shared Security Agreement ” means the Second Amended and Restated Security Agreement (Shared Collateral), dated as of June 12, 2007, among the Borrower, the other Loan Parties and the Collateral Trustee (for the benefit of the Secured Parties), as such agreement may be amended, restated, supplemented or otherwise modified from time to time.

“ Sharing Eligible Debt ” means:

(1)            Indebtedness under clause (b)(i) of Section 7.3 ;

(2)            Indebtedness in an aggregate principal amount not to exceed $250,000,000 at any time outstanding;

(3)            the PEDFA Guaranties;

(4)            Permitted Refinancing Indebtedness of the Borrower or, if it constitutes Permitted PEDFA Bond Indebtedness, Indebtedness of the Borrower and/or the Seward Subsidiary and/or guaranteed by the Borrower and/or the Guarantors, the net proceeds of which are used to refinance Indebtedness evidenced by or in support of the Seward Tax-Exempt Bonds; provided , that in the case of Permitted PEDFA Bond Indebtedness, the assets of the Seward Subsidiary (other than Investments in the Borrower pledged to secure such Permitted PEDFA Bond Indebtedness and proceeds from the issuance of Permitted PEDFA Bond Indebtedness that secures Permitted PEDFA Bond Indebtedness) shall remain free of all Liens securing Indebtedness, except Permitted Prior Liens and Liens held by the Collateral Trustee as security for the Parity Secured Debt;

(5)            Permitted Refinancing Indebtedness, the net proceeds of which are used to refinance Parity Secured Debt; and

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(6)            Indebtedness; provided that, if after giving effect to the incurrence thereof, the Consolidated Secured Leverage Ratio at such time does not exceed 3.00:1.00.

provided , that each category of Indebtedness described above:

(1)            must be guaranteed by any of the Restricted Subsidiaries that, on the date of incurrence of such Indebtedness, is obligated as a Guarantor under a Guarantee of the Credit Agreement Obligations;

(2)            must not be subordinated in right of payment or in respect of the application of the proceeds of the Collateral Trustee’s Liens on the Collateral to any other Indebtedness of the Borrower or any Guarantor (whether or not such other Indebtedness is part of the same series of Indebtedness), except in accordance with the Order of Application; and

(3)            is governed by an indenture or agreement that appoints a Secured Debt Representative and includes an Intercreditor Confirmation.

“ Sleeve Documents ” means, collectively, the Working Capital Agreement, the Reimbursement Agreement, the Parent Services Agreement and all other agreements (including the agreements entered into in respect of the PJM Retail Business) delivered in connection with the Reimbursement Agreement.

“ Sleeve Transaction ” means the provision of certain guarantees of ML&Co and the posting of required collateral, in each case, in connection with the supply and hedging and related activities of the Retail Group in the Retail Energy Business.

“ Solvent ” and “ Solvency ” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital.  The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances at such time, represents the amount that can reasonably be expected to become an actual or matured liability; provided , that if the context in which “Solvent” or “Solvency” is used refers to a Person together with its Subsidiaries, Person as used above shall be deemed to be a reference to such Person together with its Subsidiaries.

“ SPC ” has the meaning specified in Section 11.6(h) .

“ Specified Junior Securities ” means subordinated debt securities issued by the Borrower that:

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(1)            are subordinated to the Loans pursuant to subordination provisions (A) at least as favorable to the Lenders as either the subordination provisions set forth in Schedule 1.1(d) hereto or the subordination provisions applicable to the Borrower’s 5.00% Convertible Senior Subordinated Notes due 2010 issued pursuant to that certain indenture, dated as of June 24, 2003, by and between the Borrower and Wilmington Trust Company, as trustee, or (B) otherwise acceptable to the Agents;

(2)            have a final maturity date occurring at least 91 days after the Term Loan Maturity Date and have a Weighted Average Life to Maturity at least 91 days longer than the Weighted Average Life to Maturity of the Term Loans;

(3)            are not guaranteed by any Subsidiary of the Borrower except for any guarantee by a Guarantor that is contractually subordinated in right of payment to the prior payment in full in cash to the Guaranty; and

(4)            are not convertible into any other securities except Equity Interests of the Borrower (other than Disqualified Stock).

“ Standard Securitization Undertakings ” means representations, warranties, covenants and indemnities entered into by the Borrower or any Subsidiary of the Borrower, which are reasonably customary in an accounts receivable or equipment securitization transaction, in each case, as determined by the Borrower.

“ Stated Maturity ” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the Closing Date, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

“ Subordinated Indebtedness ” means any Indebtedness of a Person that is contractually subordinated to the Credit Agreement Obligations.

“ Subordinated Obligations ” has the meaning specified in Section 8.6 .

“ Subsidiary ” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references herein to a “Subsidiary”, “Restricted Subsidiary”, “Restricted Subsidiaries” or “Subsidiaries” shall refer to a Subsidiary, Restricted Subsidiary, Restricted Subsidiaries or Subsidiaries of the Borrower.

“ Syndication Agent ” means Deutsche Bank, as Syndication Agent.

“ Synthetic Lease Obligation ” means the monetary obligation of a Person under a so-called synthetic, off-balance sheet or tax retention lease.

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“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“ Tender Offer and Consent Solicitation ” shall have the meaning provided in Section 4.1(i) .

“ Term Borrowing ” means a borrowing consisting of simultaneous Incremental Term Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Term Lenders pursuant to the respective Incremental Term Loan Commitment Agreement.

“ Term Facility ” means, at any time, the outstanding amount of Term Loans of all Term Lenders at such time.

“ Term Lender ” means, at any time, any Lender that has an Incremental Term Loan Commitment or holds a Term Loan at such time.

“ Term Loan ” means, collectively, each Incremental Term Loan and each Pre-Funded L/C Term Loan.

“ Term Loan Maturity Date ” means June 30, 2014.

“ Term Note ” means a promissory note of the Borrower payable to the order of any Term Lender, in substantially the form of Exhibit D-2 hereto, evidencing the aggregate indebtedness of the Borrower to such Term Lender resulting from the Term Loans made by such Term Lender.

“ Termination Date ” means the date on which (i) all of the Credit Agreement Obligations have been indefeasibly paid in full in cash, (ii) the Commitments have been permanently terminated in their entirety, (iii) all Letters of Credit shall have expired or been terminated or canceled or the Borrower shall have provided Cash Collateral for such unexpired or non-terminated Letters of Credit in accordance with the terms of this Agreement, (iv) each Pre-Funded L/C Lender shall have received the full amount of its Pre-Funded L/C Deposit, and (v) (A) each Secured Hedge Agreement shall have (1) expired, (2) been terminated or canceled or (3) been transferred by the applicable Hedge Bank in a manner (satisfactory in all respects to such Hedge Bank) so that such Hedge Bank no longer has any obligations whatsoever with respect to such Secured Hedge Agreement, or (B) the Credit Agreement Obligations under such Secured Hedge Agreement shall have been collateralized in a manner reasonably satisfactory to the applicable Hedge Bank(s).

“ Threshold Amount ” means, on any date of determination, except as otherwise set forth in Section 6.11 as to any Domestic Subsidiary or group of Domestic Subsidiaries which are not Loan Parties, that such Subsidiary or Subsidiaries had either (i) $25,000,000 or more of Consolidated EBITDA during the four-Fiscal Quarter period most recently ended or (ii) had assets the aggregate book value of which was $50,000,000 or more.

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“ Title Company ” means a title insurance company of recognized national standing which is acceptable to the Administrative Agent in its sole discretion.

“ Title Policy ” means, with respect to any Mortgage, a mortgagee policy of title insurance (ALTA or the equivalent) or marked “commitment” of title insurance insuring the applicable Mortgage as a first priority Lien on such real property asset in favor of the Collateral Trustee (for the benefit of the holders of the Parity Secured Obligations, including the Secured Parties) to secure the Parity Secured Obligations, free of all Liens other than the Permitted Encumbrances, which policy of title insurance shall be issued by a Title Company in such policy amounts, with such endorsements and affirmative insurance, and in form and substance reasonably satisfactory to the Administrative Agent, and shall contain no exceptions to coverage other than matters satisfactory to the Administrative Agent in its judgment reasonably exercised and which policy of title insurance shall have been fully paid for by the Borrower.

“ Total Outstandings ” means (without duplication) the aggregate Outstanding Amount of all Loans, Pre-Funded L/C Deposits and all L/C Obligations.

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

“ Tranche ” shall mean the respective Facility and commitments utilized in making Loans hereunder, including one or more Tranches of Incremental Term Loans.

“ Transferred Asset Sale Proceeds ” means the aggregate cash proceeds received by OPH or the Purchaser Subsidiary in respect of any Asset Sale (including any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale) with respect to any Transferred Asset, net of the direct costs relating to such Asset Sale, including legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, and amounts reserved for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP.

“ Transferred Assets ” means, collectively, a power generation facility and related properties which are sold in one or more Permitted Sales to the Purchaser Subsidiary.

“ Trigger Amount ” has the meaning specified in clause (c) of Section 6.14 .

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

“ Unfunded Pension Liability ” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

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

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“ Unreimbursed Amount ” has the meaning specified in Section 2.3(c)(i) .

“ Unrestricted Subsidiary ” means any Subsidiary of the Borrower that is designated by the Board of Directors of the Borrower as an Unrestricted Subsidiary pursuant to a Board Resolution, but only to the extent that:

(a)            such Subsidiary has no Indebtedness other than Indebtedness that is Non-Recourse to the Borrower and its Restricted Subsidiaries;

(b)            except as permitted pursuant to Section 7.8 , such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Borrower or any Restricted Subsidiary unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Borrower;

(c)            such Subsidiary is a Person with respect to which neither the Borrower nor any of its Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Equity Interests or (ii) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and

(d)            the aggregate Fair Market Value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in the Subsidiary properly designated and of all outstanding Investments owned by such Subsidiary properly designated would be Permitted Investments under Section 7.2 as of the time of the designation.

Any designation of a Subsidiary of the Borrower as an Unrestricted Subsidiary will be evidenced to the Administrative Agent by filing with the Administrative Agent a certified copy of the Board Resolution giving effect to such designation and a certificate of a Responsible Officer of the Borrower certifying that such designation complied with the preceding conditions and was permitted by Section 7.2 .  If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and the other Loan Documents and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Borrower as of such date and, if such Indebtedness is not permitted to be incurred as of such date pursuant to Section 7.3 , the Borrower will be in default of such covenant.  The Board of Directors of the Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided , that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Borrower of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if (i) such Indebtedness is permitted pursuant to Section 7.3 ; and (ii) no Default would be in existence following such designation.  Upon any such designation of an Unrestricted Subsidiary as a Restricted Subsidiary, the redesignated Subsidiary will become a Guarantor pursuant to and if required by Section 6.11 ; provided , that any redesignated Restricted Subsidiary that is not a Material

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Subsidiary need not become a Subsidiary Guarantor until such time as it becomes a Material Subsidiary.

“ Voting Stock ” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

“ Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

(1)            the sum of the products obtained by multiplying (A) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (B) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

(2)            the then outstanding principal amount of such Indebtedness.

“ Wholesale Business ” has the meaning specified in Section 5.20 .

“ Working Capital Agreement ” means the Working Capital Facility, dated as of September 24, 2006, among Retail Holdco and its Subsidiaries and ML&Co., entered into as a condition to the closing of the Reimbursement Agreement, as amended and restated on December 1, 2006.

Section 1.2  Other Interpretive Provisions .  With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a)            The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “ include ,” “ includes ” and “ including ” shall be deemed to be followed by the phrase “without limitation.”  The word “ will ” shall be construed to have the same meaning and effect as the word “ shall .”  Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, supplemented or otherwise modified or renewed or replaced in whole or in part in accordance with the terms hereof and thereof, (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “ herein ,” “ hereof ” and “ hereunder ,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “ asset ” and “ property ” shall be construed to have the same meaning and effect and to refer to any and

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all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

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

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

Section 1.3  Accounting Terms .

(a)            Generally .  All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, except as otherwise specifically prescribed herein.

(b)            Changes in GAAP .  If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders and the Borrower); provided , that until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.  Unless otherwise noted, computation of financial covenants and financial requirements under the Loan Documents shall be made on a consolidated basis for the Borrower and its Subsidiaries, without duplication.

Section 1.4  Rounding .  Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

Section 1.5  Times of Day .  Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

Section 1.6  Letter of Credit Amounts .   Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time.

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ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS

Section 2.1  The Loans; The Pre-Funded L/C Deposit Account .

(a)            [RESERVED].

(b)            The Revolving Credit Borrowings .  Subject to the terms and conditions set forth herein (including permitted increases to the Revolving Credit Facility pursuant to Section 2.14) , each Revolving Credit Lender severally agrees to make loans to the Borrower from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment; provided , that after giving effect to any Revolving Credit Borrowing, the sum of the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender plus such Lender’s Pro Rata Share of the Outstanding Amount of all Revolving L/C Obligations shall not exceed such Lender’s Revolving Credit Commitment.  Within the limits of each Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this clause, prepay under Section 2.4 , and reborrow under this clause.  Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

(c)            The Pre-Funded L/C Deposit Account .  (i)  On or prior to the Closing Date, the Administrative Agent shall establish the Pre-Funded L/C Deposit Account.  The Administrative Agent shall maintain records enabling it to determine at any time the amount of the interest of each Pre-Funded L/C Lender in the Pre-Funded L/C Deposit Account.  No Person (other than the Administrative Agent or any of their sub-agents) shall have the right to make any withdrawals from the Pre-Funded L/C Deposit Account or exercise any other right or power with respect thereto, except as expressly provided herein.  Without limiting the generality of the foregoing, each party hereto acknowledges and agrees that no amount on deposit at any time in the Pre-Funded L/C Deposit Account (A) shall be the property of any Secured Party (other than the Administrative Agent for the benefit of the Pre-Funded L/C Issuer) or any of the Borrower, its Subsidiaries or Affiliates, and (B) shall constitute “collateral” under the Loan Documents (other than in favor of the Pre-Funded L/C Issuer in respect of the Pre-Funded L/C Participation Obligations) for any Obligation of the Borrower or any other Loan Party.  Furthermore, none of the Borrower, its Subsidiaries or its Affiliates shall have any right or title to, or interest in any amount on deposit at any time in the Pre-Funded L/C Deposit Account.  In addition, each Pre-Funded L/C Lender hereby grants to the Administrative Agent for the benefit of the Pre-Funded L/C Issuer a security interest in, and rights of offset against, its rights and interests in such Pre-Funded L/C Lender’s Pre-Funded L/C Deposit, and investments thereof and proceeds of any of the foregoing, to secure the obligations of such Pre-Funded L/C Lender hereunder.  Each Pre-Funded L/C Lender agrees that its right, title and interest with respect to the Pre-Funded L/C Deposit Account shall be limited to the right to require its Pre-Funded L/C Deposit to be used as expressly set forth herein and that it will have no right to require the return of its Pre-Funded L/C Deposit other than as expressly provided herein (each Pre-Funded L/C Lender hereby acknowledging that its Pre-Funded L/C Deposit constitutes payment for its Pre-Funded L/C Participation Obligations and that the Pre-Funded L/C Issuer will be issuing, amending, renewing and extending Pre-Funded Letters of Credit in reliance on the availability of such

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Pre-Funded L/C Lender’s Pre-Funded L/C Deposit to discharge such Pre-Funded L/C Lender’s obligations in accordance with clause (c)(iii) of this Section, clause (c) of Section 2.3 and clause (d) of Section 2.5 ).  The funding of the Pre-Funded L/C Deposits and the agreements with respect thereto set forth in this Agreement constitute arrangements solely among the Administrative Agent, the Pre-Funded L/C Issuer and the Pre-Funded L/C Lenders with respect to the funding and reimbursement obligations of the Pre-Funded L/C Lenders under this Agreement, and do not constitute loans, extensions of credit or other financial accommodations to any Loan Party.

(ii)            Subject to the terms and conditions set forth herein, each Pre-Funded L/C Lender severally agrees to make a payment to the Administrative Agent on or prior to the Closing Date in an amount equal to such Pre-Funded L/C Lender’s Pre-Funded L/C Commitment and the Administrative Agent agrees to deposit such payments in the Pre-Funded L/C Deposit Account for the benefit of such Pre-Funded L/C Issuer.  Notwithstanding any provision in this Agreement to the contrary, the sole funding obligation of each Pre-Funded L/C Lender in respect of its Pre-Funded L/C Commitment and Pre-Funded L/C Participation Obligation shall be satisfied in full upon the payment of an amount equal to its Pre-Funded L/C Commitment on the Closing Date.

(iii)           Each Pre-Funded L/C Lender irrevocably and unconditionally agrees that its Pre-Funded L/C Deposit in the Pre-Funded L/C Deposit Account shall be withdrawn and distributed as follows:

(A)           In the event the Pre-Funded L/C Issuer is not reimbursed pursuant to clause (c) of Section 2.3 for a drawing in respect of a Pre-Funded Letter of Credit, the Administrative Agent shall withdraw from the Pre-Funded L/C Deposit Account the amount of such Unreimbursed Amount (and reduce each Pre-Funded L/C Lender’s Pre-Funded L/C Deposit and Pre-Funded L/C Commitment in the amount of such Pre-Funded L/C Lender’s Pro Rata Share of such Unreimbursed Amount) and make such Pre-Funded L/C Deposits available to the Pre-Funded L/C Issuer.  In connection with the foregoing, the Pre-Funded L/C Facility shall concurrently and without further action or notice be reduced by such withdrawn Unreimbursed Amount.  It is understood and agreed that such application shall not reduce or satisfy the Borrower’s obligations to reimburse the Pre-Funded L/C Issuer or the Pre-Funded L/C Lenders for the related drawing.

(B)            Subject to Section 2.5(d) , in the event the Borrower voluntarily decides to permanently reduce the Pre-Funded L/C Facility, the Administrative Agent will withdraw from the Pre-Funded L/C Deposit Account an amount equal to such reduction, and pay to each Pre-Funded L/C Lender an amount equal to the product of (1) such Pre-Funded L/C Lender’s Pro Rata Share of the Pre-Funded L/C Facility multiplied by (2) the aggregate amount of such reduction.  In connection with the foregoing, each Pre-Funded L/C Lender’s Pre-Funded L/C Commitment and Pre-Funded L/C Deposit shall concurrently and without further action or notice be reduced by its Pro Rata Share of such withdrawn amount.  In no event shall the Pre-Funded L/C Commitments and

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Pre-Funded L/C Deposits be reduced to an amount that is less than the aggregate amount of the Pre-Funded L/C Obligations.

(C)            Upon the occurrence of the Pre-Funded L/C Commitment Termination Date, in the event that all Pre-Funded Letters of Credit have been returned, replaced or cancelled, all amounts remaining in the Pre-Funded L/C Deposit Account shall be returned to the Pre-Funded L/C Lenders based on such Pre-Funded L/C Lender’s Pro Rata Share.

(iv)           The Administrative Agent, each Pre-Funded L/C Issuer and each Pre-Funded L/C Lender hereby agrees that the Deposit Bank (or a designated affiliate thereof) may invest the Pre-Funded L/C Deposits in such investments as may be determined from time to time by the Administrative Agent (or a designated affiliate thereof).  On (i) the Pre-Funded L/C Commitment Termination Date, (ii) the date of any refund of a Pre-Funded L/C Deposit pursuant to clause (a) of Section 2.4 , on the amount of such deemed Pre-Funded L/C Deposits so refunded, and (iii) the last day of any Investment Period, the Deposit Bank shall pay to each Pre-Funded L/C Lender an amount equal to (A) the Base Return for such Investment Period less the Pre-Funded L/C Deposit Cost Amount multiplied by (B) such Pre-Funded L/C Lender’s Pro Rata Share of the aggregate amount on deposit in the Pre-Funded L/C Deposit Account with respect to which such Investment Period applied (a “ Pre-Funded L/C Deposit Return ”); provided that, the Administrative Agent shall not be required to pay Pre-Funded L/C Deposit Returns to any Pre-Funded L/C Lender during quarterly periods when Pre-Funded L/C Deposits are used to reimburse any Pre-Funded L/C Issuer with respect to payments and disbursements on Pre-Funded Letters of Credit.  Any amounts earned and received with respect to Pre-Funded L/C Deposits during any applicable Investment Period in excess of the Base Return shall be for the account of the Deposit Bank.  No Person other than the Administrative Agent shall have any obligation under or in respect of this clause.

(v)            Notwithstanding anything to the contrary in this Agreement, the Borrower shall not be liable for any losses due to (A) the misappropriation of any Pre-Funded L/C Deposit or (B) the failure of the Deposit Bank to pay the Pre-Funded L/C Deposit Return to any Pre-Funded L/C Lender or to apply amounts in the Pre-Funded L/C Deposits in accordance with this clause (c) (it being understood and agreed for greater certainty that this clause shall not limit any obligation of the Borrower hereunder to pay any Pre-Funded L/C Participation Fee).  None of the Administrative Agent, the Pre-Funded L/C Issuer or any other Person guarantees any rate of return on the investment of any Pre-Funded L/C Deposit held in the Pre-Funded L/C Deposit Account.

(vi)           If the Pre-Funded L/C Issuer and/or the Administrative Agent is enjoined from taking any action referred to in this clause (c) , or if the Pre-Funded L/C Issuer and/or the Administrative Agent reasonably determines that, by operation of law, it may reasonably be precluded from taking any such action, or if any Loan Party or Pre-Funded L/C Lender challenges in any legal proceeding any of the acknowledgements, agreements or characterizations set forth in any of this clause (c) , then, in any such case (and so long as such event or condition shall be continuing), and notwithstanding

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anything contained herein to the contrary, the Pre-Funded L/C Issuer shall not be required to issue, renew or extend any Pre-Funded Letter of Credit.

(vii)          If the Pre-Funded L/C Issuer or Administrative Agent is enjoined from withdrawing amounts from the Pre-Funded Deposit Account of a Pre-Funded L/C Lender in accordance with clause (c)(iii)(A) of this Section 2.1 , or reasonably determines that it is precluded from taking such actions, (A) from and after the date such withdrawal would have been made but for such circumstance the Pre-Funded L/C Deposit Return and the Pre-Funded L/C Participation Fees that would have otherwise been required to be withdrawn and paid to such Pre-Funded L/C Lender shall instead be added to the Pre-Funded Deposit Account of such Pre-Funded L/C Lender and (B) such Pre-Funded L/C Lender shall pay to the Pre-Funded L/C Issuer interest on the amount that should have been withdrawn at the rate equal to the Default Rate for Term Loans until such time as such withdrawal is made.

(viii)         In the event any payment of a Pre-Funded L/C Reimbursement Obligation shall be required to be refunded by the Pre-Funded L/C Issuer to the Borrower after the return of the Pre-Funded L/C Deposits to the Pre-Funded L/C Lenders as permitted hereunder, each Pre-Funded L/C Lender agrees to acquire and fund a participation in such refunded amount equal to the lesser of its Pro Rata Share thereof and the amount of its Pre-Funded L/C Deposit that shall have been so returned.  The obligations of the Pre-Funded L/C Lenders under this clause shall survive the payment in full of the Pre-Funded L/C Deposits and the termination of this Agreement.

(d)            Subject to and upon the terms and conditions set forth herein and in the related Incremental Term Loan Commitment Agreement, each Incremental Term Loan Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “ Incremental Term Loan ” and, collectively, the “ Incremental Term Loans ”) to the Borrower at the time or times set forth in the related Incremental Term Loan Commitment Agreement and in an amount equal to the Incremental Term Loan Commitment of such Incremental Term Loan Lender.  Amounts borrowed under this clause and repaid or prepaid may not be reborrowed.  Incremental Term Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

Section 2.2  Borrowings, Conversions and Continuations of Loans .

(a)            Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone.  Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (New York time) (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans and (ii) on the requested date of any Borrowing of Base Rate Loans.  Each telephonic notice by the Borrower pursuant to this clause must be confirmed promptly by delivery to the Administrative Agent of a written Borrowing Notice, appropriately completed and signed by a Responsible Officer of the Borrower.  Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess

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thereof.  Except as provided in Section 2.3(c) , each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.  Each Borrowing Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Term Borrowing or a Revolving Credit Borrowing, a conversion of Term Loans or Revolving Credit Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of Loan in a Borrowing Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Borrowing Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.

(b)            Following receipt of a Borrowing Notice, the Administrative Agent shall promptly notify each Lender under the applicable Facility of the amount of its Pro Rata Share of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in Section 2.2(a) .  In the case of a Borrowing, each Lender under the applicable Facility shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. (New York time) on the Business Day specified in the applicable Borrowing Notice.  Upon satisfaction of the applicable conditions set forth in Section 4.2 (and, if such Borrowing is the initial Credit Extension, Section 4.1 ), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent by 3:00 pm (New York time) on the Business Day specified in the applicable Borrowing Notice, either by (i) crediting the account of the Borrower on the books of the Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided , that if, on the date the Borrowing Notice with respect to such Borrowing is given by the Borrower, there are Revolving L/C Borrowings outstanding, then the proceeds of such Borrowing, first , shall be applied to the payment in full of any such Revolving L/C Borrowings, and second , shall be made available to the Borrower as provided above.

(c)            The Borrower may irrevocably request that Pre-Funded L/C Deposits be made on the Closing Date by the applicable Lenders by delivering a Borrowing Notice to the Administrative Agent on or prior to the Closing Date.

(d)            Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan.  During the existence of an Event of Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Lenders.

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

(f)             After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than ten Interest Periods in effect.

(g)            The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.

Section 2.3  Letters of Credit.

(a)            (i)             The Revolving Letters of Credit .  Subject to the terms and conditions set forth herein, (A) the Revolving L/C Issuers agree, in reliance upon the agreements of the other Revolving Credit Lenders set forth in this Section, (1) from time to time on any Business Day during the period from the Closing Date until the Revolving Credit L/C Final Expiration Date, to issue Revolving Letters of Credit for the account of the Borrower or its Subsidiaries (other than Retail Holdco or any of its Subsidiaries when the Sleeve Documents are in effect), and to amend, renew or extend the expiry dates of Revolving Letters of Credit previously issued by it, in accordance with Section 2.3(b) , and (2) to honor drawings if presented in accordance with the terms and conditions of such Revolving Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Revolving Letters of Credit issued for the account of the Borrower or its Subsidiaries; provided , that no Revolving L/C Issuer shall be obligated to make any Revolving L/C Credit Extension with respect to any Revolving Letter of Credit, if as of the date of such Revolving L/C Credit Extension, (1) the amounts outstanding under the Revolving Credit Facility would exceed the aggre­gate Revolving Credit Commitments, (2) the Revolving L/C Exposure would exceed the aggregate Revolving Credit Commitments; provided , further , that no Revolving L/C Issuer shall be required to issue, amend or renew any Revolving Letter of Credit if, after giving effect thereto, all Revolving L/C Obligations held by such Revolving L/C Issuer with respect to all Revolving Letters of Credit issued by such Revolving L/C Issuer (or its Affiliates) would exceed the amount set forth on Schedule 2.1 , as modified from time to time in accordance with Section 2.14(b) to reflect any revised Revolving Credit Commitments, opposite the name of such Revolving L/C Issuer, under the column entitled “Revolving L/C Issuer Amount for Revolving Letters of Credit”, or (3) the sum of the aggre­gate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender plus such Lender’s Pro Rata Share of the Revolving L/C Exposure would exceed such Lender’s Revolving Credit Commitment; and provided , further , that upon any change in the Revolving Credit Commitments of the Revolving Credit Lenders pursuant to Section 2.14 , it is hereby agreed that, with respect to all outstanding Revolving Letters of Credit and unpaid drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 2.3 to reflect

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the new Revolving Credit Commitment of Revolving Credit Lenders.  Each request by the Borrower for the issuance or amendment of a Revolving Letter of Credit shall be deemed to be a representation by the Borrower that the Revolving L/C Credit Extension so requested complies with the conditions set forth in the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Revolving Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Revolving Letters of Credit to replace Revolving Letters of Credit that have expired or that have been drawn upon and paid.  The Existing Letters of Credit identified on Schedule 1.1(a) as “Revolving Letters of Credit” shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be Revolving Letters of Credit and shall be subject to and governed by the terms and conditions hereof.

(ii)            The Pre-Funded Letters of Credit .  Subject to the terms and conditions set forth herein, the Pre-Funded L/C Issuer agrees, in reliance upon the agreements of the other Pre-Funded L/C Lenders set forth in this Section, from time to time on any Business Day during the period from the Closing Date until the Pre-Funded L/C Final Expiration Date, for the account of the Borrower or its Subsidiaries (other than Retail Holdco or any of its Subsidiaries when the Sleeve Documents are in effect), (A) to issue one or more standby letters of credit for the account of the Borrower or its Subsidiaries (other than Retail Holdco or any of its Subsidiaries when the Sleeve Documents are in effect), and to amend, renew or extend the expiry date of Pre-Funded Letters of Credit previously issued by it, in accordance with Section 2.3(b) ; and (B) to honor drawings if presented in accordance with the terms and conditions of such Pre-Funded Letters of Credit.  The Pre-Funded L/C Issuer shall not be permitted or required to issue or increase the stated amount of any Pre-Funded Letter of Credit if, after giving effect thereto, the aggregate amount of all Pre-Funded L/C Obligations would exceed the Pre-Funded L/C Facility or if the aggregate amounts available to draw under all outstanding Pre-Funded Letters of Credit would exceed the aggregate amount of the Pre-Funded L/C Deposit Account.  Each request by the Borrower for the issuance or amendment of a Pre-Funded Letter of Credit shall be deemed to be a representation by the Borrower that the Pre-Funded Letter of Credit so requested complies with the condition set forth in the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Pre-Funded Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Pre-Funded Letters of Credit to replace Pre-Funded Letters of Credit that have expired or that have been drawn upon and paid.  The Existing Letters of Credit identified on Schedule 1.1(a) as “Pre-Funded Letters of Credit” shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be Pre-Funded Letters of Credit and shall be subject to and governed by the terms and conditions hereof.

(iii)           No L/C Issuer shall be under any obligation to issue any Letter of Credit if:

(A)           any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from

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any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;

(B)            the expiry date of such requested Letter of Credit would occur after the earlier of (1) the first anniversary of its date of issuance or (2) the 10 Business Day prior to the applicable L/C Final Expiration Date; provided that, in the event that the Borrower Cash Collateralizes such Letter of Credit in an amount satisfactory to the relevant L/C Issuer and the Administrative Agent, the expiry date of such Letter of Credit may be 90 days after the applicable L/C Final Expiration Date;

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

(D)           such Letter of Credit is to be denominated in a currency other than Dollars, or such Letter of Credit allows for payments more than three Business days after the expiry date of such Letter of Credit; or

(E)            a default on any Lender’s obligations to fund under Section 2.3(c) exists or any Lender is at such time a Defaulting Lender hereunder, unless such L/C Issuer had entered into satisfactory arrangements with the Borrower or such Lender to eliminate such L/C Issuer’s risk with respect to such Lender.

(iv)           No L/C Issuer shall be under any obligation to amend any Letter of Credit in any way (whether or not such amendment increases the amount of the applicable Letter of Credit) (A) at any time on or after the Revolving Credit Termination Date or Pre-Funded L/C Commitment Termination Date, as the case may be, (B) if the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit on the basis that the stated amount of the Letter of Credit has been reduced, the expiry date thereof has been accelerated or any term relating to the procedure for drawing thereunder has changed or (C) if any of the conditions set forth in clauses (iii)(A) , (C) , (D) or (E) of this Section 2.3 exist.  In addition, and without limiting the terms of the first sentence of this clause, no L/C Issuer shall be under any obligation to amend any Letter of Credit to increase the amount thereof if such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof by reason of the provisions of Section 2.3(a)(i) , Section 2.3(a)(ii) , Section 2.3(a)(iii) , Section 4.2 or otherwise.

(v)            Each Revolving L/C Issuer shall act on behalf of the Revolving Credit Lenders and the Pre-Funded L/C Issuer shall act on behalf of the Pre-Funded L/C Lenders, with respect to any Letters of Credit issued by it and the documents associated

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therewith, and such L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article X with respect to any acts taken or omissions suffered by an L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article X included such L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to such L/C Issuer.

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

(i)             Each Letter of Credit shall be issued payable on a sight basis upon the request of the Borrower delivered to the relevant L/C Issuer (with a copy to the Administrative Agent) in the form of an L/C Certificate, appropriately completed and signed by a Responsible Officer of the Borrower.  Such L/C Certificate must be received by such L/C Issuer, the Administrative Agent not later than 3:00 p.m. (New York time) at least two Business Days (or such later date and time as the Administrative Agent and such L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date.  In the case of a request for an initial issuance of a Letter of Credit, such L/C Certificate shall specify in form and detail reasonably satisfactory to such L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof which shall be in Dollars; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the account party or parties thereof; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) the transactions or obligations to be supported thereby.  In the case of a request for an amendment of any outstanding Letter of Credit, such L/C Certificate shall specify in form and detail reasonably satisfactory to the relevant L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters consistent with the items set forth in clauses (A) - (G) in the preceding sentence as such L/C Issuer may reasonably require.

(ii)            Promptly after receipt of any L/C Certificate, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuer’s usual and customary business practices.  Immediately upon the issuance or increase in the stated amount of (A) each Revolving Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase, without recourse or warranty, from the relevant Revolving L/C Issuer a risk participation in such Revolving Letter of Credit (the “ Revolving L/C Participation Obligation ”) in an amount equal to the product of such Lender’s Pro Rata Share of the Revolving Credit Facility times the amount of such Revolving Letter of Credit and (B) each Pre-Funded Letter of Credit or each Pre-Funded L/C Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase without recourse or warranty, to the extent of its Pro Rata Share of the Pre-Funded L/C Facility, a participation interest in such Pre-Funded Letter of Credit, including any contingent liability or Pre-Funded L/C

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Reimbursement Obligation created as a result of any issuance thereof or disbursement with respect thereto (each, a “ Pre-Funded L/C Participation Obligation ”).  Each Pre-Funded L/C Lender’s Pre-Funded L/C Participation Obligation shall be pre-funded (as provided in clause (c) of Section 2.1 ), in favor of the Pre-Funded L/C Issuer, by such Pre-Funded L/C Lender’s Pre-Funded L/C Deposit.  Such Pre-Funded L/C Lender’s Pre-Funded L/C Deposit shall be available for withdrawal by the Administrative Agent, in the amounts contemplated by and otherwise in accordance with clause (c)(iii) of Section 2.1 , to reimburse the Pre-Funded L/C Issuer for Pre-Funded L/C Reimbursement Obligations.  No L/C Issuer shall be obligated to make any independent determination as to whether the requested issuance or amendment is permitted in accordance with the terms hereof, and, unless and until such L/C Issuer receives such confirmation from the Administrative Agent such L/C Issuer shall have no obligation to issue the requested Letter of Credit.

(iii)           If the Borrower so requests in any applicable L/C Certificate, any L/C Issuer shall issue an Auto-Renewal Letter of Credit.  Unless otherwise directed by such L/C Issuer, the Borrower shall not be required to make a specific request to such L/C Issuer for any such renewal.  Once an Auto-Renewal Letter of Credit has been issued, the Borrower and the Revolving Credit Lenders or the Pre-Funded L/C Lenders, as applicable, shall be deemed to have authorized (but may not require) such L/C Issuer to permit the renewal of such Letter of Credit at any time to an expiry date not later than 10 Business Days prior to the applicable L/C Final Expiration Date; provided , that (A) such L/C Issuer may give a notice of non-renewal and thereby prevent the renewal of an Auto-Renewal Letter of Credit if such L/C Issuer has determined at any time prior to the Nonrenewal Notice Date of such Auto-Renewal Letter of Credit, in accordance with the terms of the Letter of Credit, that it would have no obligation at such time to extend such Letter of Credit in its renewed form under the terms hereof (by reason of the provisions of Sections 2.3(a)(i) ,( ii) , (iii) or (iv) or otherwise and including by reason of its resignation as L/C Issuer), and (B) such L/C Issuer shall not permit any such renewal if it has received notice (which may be by telephone, if immediately confirmed in writing, or in writing) on or before the day that is ten days before the Nonrenewal Notice Date from the Administrative Agent or the Borrower that one or more of the applicable conditions specified in Section 2.3(a)(i) is not then satisfied.

(iv)           Promptly after its issuance of any Letter of Credit or any amendment to a Letter of Credit, the relevant L/C Issuer will deliver to the Borrower and the Administrative Agent, a true and complete copy of such Letter of Credit or amendment.

(c)            Drawings and Reimbursements; Funding of Participations .

(i)             Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the relevant L/C Issuer shall promptly notify the Borrower and the Administrative Agent thereof (which may be telephonic, promptly confirmed by telecopy).  Not later than 12:00 p.m. (New York time) on an Honor Date, the Borrower may reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing; provided that the Borrower shall not be entitled to reimburse the relevant Pre-Funded L/C Issuer for any drawings

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which occur within the period commencing on the 91st day prior to the Pre-Funded L/C Commitment Termination Date until after the Pre-Funded L/C Deposit shall have been applied as set forth in clause (c)(i)(B)(x) of this Section 2.3 .  If the Borrower does not so reimburse such L/C Issuer on the date necessary to settle the obligations of the L/C Issuer under any draft drawn or demand made under a Letter of Credit, the Administrative Agent shall promptly notify each Revolving Credit Lender or Pre-Funded L/C Lender, as applicable, of the Honor Date, the amount of the unreimbursed drawing (the “ Unreimbursed Amount ”), and the amount of such Lender’s Pro Rata Share thereof.  In such event,

(A)           in respect of Revolving Letters of Credit, the Unreimbursed Amount shall automatically be converted (unless the Borrower is in Default under Section 9.1(f) or (g) ) to a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, and

(B)            in respect of the Pre-Funded Letters of Credit, (x) an amount equal to such Unreimbursed Amount shall be withdrawn from the Pre-Funded Deposit Account and paid to the Pre-Funded L/C Issuer in accordance with clause (c)(iii) of Section 2.1 to fund the Pre-Funded L/C Lenders’ Pre-Funded L/C Participation Obligations in respect thereof, and (y) the Borrower shall be obligated to reimburse the Pre-Funded L/C Issuers in an amount equal to such drawing on demand, provided that the Borrower may elect to convert an amount equal to the Unreimbursed Amount into term loans to be disbursed by the Pre-Funded L/C Lenders ratably on the Honor Date in an aggregate amount equal to the Unreimbursed Amount (each a “ Pre-Funded L/C Term Loan ”), and, in each case without regard to the minimum and multiples specified in Section 2.2(a) for the principal amount of Loans and without regard to whether the conditions in Section 4.2 are then satisfied, but subject to the amount of the unutilized portion of the Aggregate Commitments.  Any Pre-Funded L/C Term Loan made pursuant to this paragraph or Section 2.5(d) shall, on and after the funding date thereof, be deemed to be a Term Loan for all purposes hereunder and shall be treated as a single tranche of Term Loans.  Any notice given by any L/C Issuer or the Administrative Agent pursuant to this clause may be given by telephone if immediately confirmed in writing; provided , that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.  Any additional Unreimbursed Amounts in respect of any Pre-Funded Letter of Credit shall be made available to the Pre-Funded L/C Issuer pursuant to the terms of clause (c)(iii)(A) of Section 2.1 .

(ii)            Each Revolving Credit Lender (including the Revolving Credit Lender acting as Revolving L/C Issuer) shall upon any notice pursuant to Section 2.3(c)(i) make funds available to the Administrative Agent for the account of the relevant Revolving L/C Issuer at the Administrative Agent’s Office in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. (New York time) on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.3(c)(iii) , each Revolving Credit Lender that so makes funds

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available shall be deemed to have made a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the funds so received to such Revolving L/C Issuer.

(iii)           (A)           Base Rate Loans made in respect of a Revolving Letter of Credit shall be made as of the date of such settlement of such Revolving Letter of Credit.  The proceeds of such Base Rate Loan shall be paid by the Revolving Credit Lenders to the Administrative Agent for payment to the relevant Revolving L/C Issuer of such Revolving Letter of Credit (and the Administrative Agent shall promptly pay such proceeds to such L/C Issuer) to reimburse such L/C Issuer of such Revolving Letter of Credit for each Revolving Credit Lender’s Pro Rata Share of the amount actually disbursed by such L/C Issuer of such Revolving Letter of Credit pursuant to such draft or demand.  With respect to any Unreimbursed Amount in respect of a Revolving Letter of Credit that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the Borrower is in Default under Section 9.1(f) or (g) or for any other reason, the Borrower shall be deemed to have incurred from the relevant Revolving L/C Issuer an Revolving L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which Revolving L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate.  In such event, each Revolving Credit Lender’s payment to the Administrative Agent for the account of such Revolving L/C Issuer pursuant to Section 2.3(c)(iii) shall be deemed payment in respect of its participation in such Revolving L/C Borrowing and shall constitute an Revolving L/C Advance from such Revolving Credit Lender in satisfaction of its participation obligation under this Section.

(B)            Pre-Funded L/C Term Loans made upon conversion of the related Unreimbursed Amount pursuant to Section 2.3(c)(i)(B) shall permanently reduce each Pre-Funded L/C Lender’s Pre-Funded L/C Commitment and Pre-Funded L/C Deposit, concurrently and without further action or notice, by its Pro Rata Share of such withdrawn amount.  With respect to any Unreimbursed Amount in respect of a Pre-Funded Letter of Credit that is not reimbursed by the Borrower or not deemed to be converted into Pre-Funded L/C Term Loans pursuant to the terms of this paragraph because the Borrower is unable to satisfy the conditions set forth in clause (c)(i)(B) above, such Unreimbursed Amount shall bear interest at the Default Rate, and such interest shall be due and payable on demand.

(iv)           Until each Revolving Credit Lender funds its Revolving Credit Loan or Revolving L/C Advance pursuant to this clause (c) to reimburse any Revolving L/C Issuer for any amount drawn under any Revolving Letter of Credit, interest in respect of such Revolving Credit Lender’s Pro Rata Share of such amount shall be solely for the account of such L/C Issuer.  Until the Pre-Funded L/C Deposit is applied to fund the Pre-Funded L/C Lender’s Pre-Funded L/C Participation Obligation under clause (c)(iii) of Section 2.01 , interest in respect of such Pre-Funded L/C Lender’s Pro Rata share of such amount shall be solely for the account of the relevant Pre-Funded L/C Issuer.

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(v)            Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or Revolving L/C Advances to reimburse any Revolving L/C Issuer for amounts drawn under Revolving Letters of Credit, as contemplated by this clause (c) , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Revolving Credit Lender may have against such Revolving L/C Issuer, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , that each Revolving Credit Lender’s obligation to make Revolving Credit Loans (but not its obligation to make Revolving L/C Advances) pursuant to this clause (c) is subject to the Borrower not being in Default under Section 9.1(f) or (g) .  No such making of a Revolving L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse such Revolving L/C Issuer for the amount of any payment made by such Revolving L/C Issuer under any Revolving Letter of Credit, together with interest as provided herein.

(vi)           If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of any Revolving L/C Issuer any amount required to be paid by such Revolving Credit Lender pursuant to the foregoing provisions of this clause (c) by the time specified in this clause (c)(ii) , such Revolving L/C Issuer shall be entitled to recover from such Revolving Credit Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such Revolving L/C Issuer at a rate per annum equal to the Federal Funds Rate from time to time in effect for the first three days and, thereafter, at a rate of interest equal to the Base Rate.  A certificate of the relevant Revolving L/C Issuer submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this clause (c)(vi) shall be conclusive absent manifest error.

(vii)          If at any time a distribution is to be made by the Administrative Agent to any Revolving Credit Lender and such Revolving Credit Lender has failed to make available to the Administrative Agent for the account of the relevant L/C Issuer any amount required to be paid by such Revolving Credit Lender pursuant to the foregoing provisions of this clause (c) , the Administrative Agent shall pay such distribution to such L/C Issuer, to the extent of such unpaid amount together with any interest thereon accrued pursuant to clause (c)(vi) .

(viii)         On the Maturity Date or upon the occurrence of an Event of Default pursuant to Section 9.1(f) of this Agreement, each Pre-Funded L/C Issuer may assign its rights to reimbursement to the Pre-Funded L/C Lenders in accordance with their respective pro rata shares and Section 11.6 .

(ix)            Following the reimbursement by the Borrower for any drawing under the Pre-Funded L/C Facility, in no event shall the Deposit Bank be required to return to any Pre-Funded L/C Lender any proceeds of such Pre-Funded L/C Lender’s Pre-Funded L/C Deposit prior to the 90 th  day following such reimbursement unless the respective Pre-Funded L/C Lender shall have sufficiently indemnified the Deposit Bank

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(in the sole discretion of the Deposit Bank) for any losses the Deposit Bank may incur as a result of preference claims brought by any creditor of the Borrower with respect to the proceeds of such reimbursement.

(d)            Repayment of Participations .

(i)             At any time after any Revolving L/C Issuer has made a payment under any Revolving Letter of Credit and has received from any Revolving Credit Lender such Revolving Credit Lender’s Revolving L/C Advance in respect of such payment in accordance with Section 2.3(c) , if the Administrative Agent receives for the account of such Revolving L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Revolving Credit Lender its Pro Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Credit Lender’s Revolving L/C Advance was outstanding) in the same funds as those received by the Administrative Agent.

(ii)            At any time after any Pre-Funded L/C Issuer has made a payment under any Pre-Funded Letter of Credit and has applied the Pre-Funded L/C Deposit of a Pre-Funded L/C Lender in accordance with Section 2.3(c) , if the Administrative Agent receives for the account of such Pre-Funded L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Pre-Funded L/C Lender its Pro Rata share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Pre-Funded L/C Lender’s Pre-Funded L/C deposit was applied) in the same funds as those received by the Administrative Agent.

(iii)           If any payment pursuant to Section 2.3(c)(i) received by the Administrative Agent for the account of any L/C Issuer, is required to be returned under any of the circumstances described in Section 11.5 (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Revolving Credit Lender or Pre-Funded L/C Lender, as the case may be, shall pay to the Administrative Agent, for the account of such L/C Issuer its Pro Rata Share thereof on demand of the such Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect for the first three days and, thereafter, at a rate of interest equal to the Base Rate.  The obligations of the Lenders under this Section 2.3(d)(iii) shall survive the payment in full of the Credit Agreement Obligations and the termination of this Agreement.

(e)            Obligations Absolute .  The obligation of the Borrower under clause (c) of Section 2.3 to reimburse, without duplication, the Revolving L/C Issuers and the Revolving Credit Lenders and the Pre-Funded L/C Issuer and Pre-Funded L/C Lenders (such obligation of the Borrower in respect of a drawing under a Pre-Funded Letter of Credit being referred to herein as the “ Pre-Funded L/C Reimbursement Obligation ”) with respect to each disbursement (including interest thereon), each Revolving Credit Lender’s obligation under Section 2.3(c) to

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pay to such Revolving L/C Issuer its applicable Pro Rata Share of any drawing under a Letter of Credit, and the right of the Pre-Funded L/C Issuer to be paid with amounts on deposit in the Pre-Funded L/C Deposit Account pursuant to clause (c)(iii)(A) of Section 2.1 , shall be absolute and unconditional (and shall be paid strictly in accordance with the terms of this Agreement) under any and all circumstances, including the following:

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

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

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

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

(v)            any exchange, release or nonperfection of any Collateral, or any release or amendment or waiver of or consent to departure from the Guaranty or any other guarantee, for all or any of the Credit Agreement Obligations of the Borrower in respect of such Letter of Credit;

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

(vii)          any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower, except as otherwise provided in clause (f) of this Section.

The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the relevant L/C Issuer.  The Borrower shall be conclusively deemed to have waived any such claim against such L/C Issuer and its correspondents unless such notice is given as aforesaid.

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(f)             Role of L/C Issuer .  Each Revolving Credit Lender, each Pre-Funded L/C Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document.  None of any L/C Issuer, any Agent-Related Person nor any of the respective correspondents, participants or assignees of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct as determined by a court of competent jurisdiction; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or L/C Certificate.  The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement.  None of any L/C Issuer, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of any L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (vii) of Section 2.3(e) ; provided , that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against an L/C Issuer, and such L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by such L/C Issuer’s willful misconduct or gross negligence as determined by a court of competent jurisdiction or such L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit AND THE BORROWER FOR ITSELF AND ITS SUBSIDIARIES, HEREBY WAIVES AND RELINQUISHES ANY AND ALL CLAIMS IT MAY HAVE FOR INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES AND FOR DIRECT DAMAGES RESULTING FROM NEGLIGENCE BY ANY L/C ISSUER WHICH DOES NOT RISE TO THE LEVEL OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.   In furtherance and not in limitation of the foregoing, any L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and such L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

(g)            Cash Collateral .  Upon the request of the Administrative Agent or any L/C Issuer to the Borrower, if, (i) as of the Revolving Credit L/C Final Expiration Date, any Revolving Letter of Credit may for any reason remain outstanding and partially or wholly undrawn or (ii) as of the Pre-Funded L/C Final Expiration Date, any Pre-Funded Letter of Credit may for any reason remain outstanding and partially or wholly undrawn, in each case, the Borrower shall immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations (in an amount equal to such Outstanding Amount determined as of the applicable L/C Final Expiration Date).  As required pursuant to Section 2.3(a)(iii) or 2.3(b)(iii) , the Borrower shall immediately Cash Collateralize the relevant Letter(s) of Credit in the amount

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specified therein.  The Borrower hereby grants to the Collateral Agent, for the benefit of (A) in respect of the Revolving Letters of Credit, the Revolving L/C Issuers and the Revolving Credit Lenders, and (B) in respect of the Pre-Funded Letters of Credit, the Pre-Funded L/C Issuer and the Pre-Funded L/C Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing.  Cash Collateral shall be maintained in a Letter of Credit Collateral Account.  If at any time the Collateral Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other than the Collateral Agent or that the total amount of such funds is less than the aggregate Outstanding Amount of all L/C Obligations that are required to be Cash Collateralized at such time, the Borrower will, forthwith upon demand by the Collateral Agent, pay to the Collateral Agent, as additional funds to be deposited and held in such Letter of Credit Collateral Account, an amount equal to the excess of (1) such aggregate Outstanding Amount over (2) the total amount of funds, if any, then held as Cash Collateral that the Collateral Agent determines to be free and clear of any such right and claim.  Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable law, to reimburse the relevant L/C Issuers.  So long as no Event of Default shall have occurred and be continuing, upon payment, expiration or termination of a Letter of Credit that was Cash Collateralized, applicable amounts on deposit in such Letter of Credit Collateral Accounts shall be promptly returned to the Borrower.

(h)            Applicability of ISP98 and UCP .  Unless otherwise expressly agreed by the relevant L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit, or (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce (the “ ICC ”) at the time of issuance (including the ICC decision published by the Commission on Banking Technique and Practice on April 6, 1998 regarding the European single currency (euro)) shall apply to each Letter of Credit, and in each case to the extent not inconsistent with the above referred rules, the laws of the State of New York (or such other jurisdictions as may be acceptable to the Borrower and the relevant L/C Issuer) shall apply to each Letter of Credit.

(i)             Revolving Letter of Credit Fees .  The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance with its Pro Rata Share a Revolving Letter of Credit fee (the “ Revolving Letter of Credit Fee ”) for each Revolving Letter of Credit equal to (x) for so long as such Revolving Letter of Credit shall be Cash Collateralized, 1.00% per annum times the daily amount available to be drawn under such Revolving Letter of Credit and (y) otherwise, the Applicable Margin for Eurodollar Rate Loans times the daily amount available to be drawn under such Revolving Letter of Credit.  For purposes of computing the daily amount available to be drawn under any Revolving Letter of Credit, the amount of such Revolving Letter of Credit shall be determined in accordance with Section 1.6 .  Revolving Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and payable on each Quarterly Payment Date, commencing with the first such date to occur after the issuance of such Revolving Letter of Credit, on the Revolving L/C Final Expiration Date with respect to such Revolving Letter of Credit and thereafter on demand.  If there is any change in the Applicable Margin for Eurodollar Rate Loans during any quarter, for

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purposes of clause (y) above the remaining daily amount available to be drawn under each Revolving Letter of Credit shall be computed and multiplied by the Applicable Margin for Eurodollar Rate Loans separately for each period during such quarter that such Applicable Margin was in effect.  Notwithstanding anything to the contrary contained herein, upon the request of the Required Revolving Credit Lenders, while any Event of Default exists under Section 9.1(a) , all Revolving Letter of Credit Fees shall accrue at the Default Rate.

(j)             Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer .  The Borrower shall pay directly to each L/C Issuer for its own account a fronting fee on the outstanding face amount of each Letter of Credit issued by such L/C Issuer, at a rate per annum: (i) in respect of the Revolving Letters of Credit, equal to the rate to be agreed to from time to time by the Borrower and the relevant L/C Issuer (which amount shall not exceed 0.125%) and (ii) in respect of the Pre-Funded Letters of Credit, equal to 0.10%, computed on the daily amount available to be drawn under such Letters of Credit on a quarterly basis in arrears, and due and payable on each Quarterly Payment Date, commencing with the first such date to occur after the issuance of such Letter of Credit, on the L/C Final Expiration Date with respect to such Letter of Credit and thereafter on demand.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.6 .  In addition, the Borrower shall pay directly to each L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges,  of such L/C Issuer relating to letters of credit as from time to time in effect.  Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

(k)            Conflict with Issuer Documents .  In the event of any conflict between the terms hereof and the terms of any L/C Certificate or any other document between any L/C Issuer and the Borrower, the terms hereof shall control.

(l)             Letters of Credit Issued for Subsidiaries .  Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse each L/C Issuer hereunder for any and all drawings under such Letter of Credit.  The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

Section 2.4  Optional and Mandatory Prepayments .

(a)            Optional .  The Borrower may, upon notice to the Administrative Agent at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty; provided , that (1) such notice must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate Loans, and (B) on the date of prepayment of Base Rate Loans; (2) any prepayment of Eurodollar Rate Loans and Base Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof, in each case, if less, the entire principal amount thereof then outstanding; and (3) any prepayments of Term Loans shall be applied ratably to the principal repayment installments thereof on a pro rata basis.  Each such notice shall specify the

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date and amount of such prepayment or refund and the Type(s) of Loans to be prepaid.  The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment or refund.  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.5 .  Each such prepayment shall be applied to the Loans in accordance with their respective Pro Rata Shares.

(b)            Mandatory .  (i)  If the Borrower or any of its Restricted Subsidiaries consummates any Asset Sale or Asset Swap (to the extent cash proceeds are received) which in the aggregate results in the realization by the Borrower or such Restricted Subsidiary of Net Asset Sale Proceeds (determined as of the date of such Asset Sale or Asset Swap, whether or not such Net Asset Sale Proceeds are then received by the Borrower or such Restricted Subsidiary), the Borrower shall apply all Net Asset Sale Proceeds received pursuant to Section 7.5 and all other Net Asset Sale Proceeds other than Excluded Proceeds, in each case, to the extent not previously applied in such Fiscal Year to offer to make mandatory prepayments of Term Loans, if any, under this clause (b)(i) (it being understood that Net Asset Sale Proceeds subject to this clause (b)(i) applied in such Fiscal Year to make prepayments of Term Loans, if any, prior to receipt of such Net Asset Sale Proceeds other than Excluded Proceeds shall be deemed to have been made as a mandatory prepayment under this clause (b)(i) ), within three Business Days after the date of receipt thereof by the Borrower or such Restricted Subsidiary subject to the provisions of Section 2.4(b)(iv ), as follows:

(A)           to the extent such Net Asset Sale Proceeds are not OPH Asset Sale Proceeds, to prepay Loans and, subject to Section 9.3 , if an Event of Default has then occurred and is continuing, to refund the Pre-Funded L/C Deposits and reduce the Pre-Funded L/C Commitments (in each case, determined as provided in Section 2.4(b)(iii) and ( iv) below), in an amount equal to 100% of such Net Asset Sale Proceeds received; and

(B)           to the extent such Net Asset Sale Proceeds are OPH Asset Sale Proceeds and to the extent such Net Asset Sale Proceeds are not required by the terms of the OPH Note Indenture to be offered to any holder of any OPH Note or otherwise used to repurchase or prepay any OPH Notes or such offer is rejected and to the extent the OPH Note Indenture does not prohibit the distribution of such Net Asset Sale Proceeds to the Borrower, to prepay Loans and, subject to Section 9.3 , if an Event of Default has occurred and is continuing, to refund the Pre-Funded L/C Deposits and reduce the Pre-Funded L/C Commitments (in each case, determined as provided in Section 2.4(b)(iii) and (iv) below), in an amount equal to 100% of such Net Asset Sale Proceeds received; provided , that with respect to such Net Asset Sale Proceeds,

(1)            if the Borrower intends to reinvest the Net Asset Sale Proceeds, defease the PEDFA Debt or purchase of the 6.75% Secured Senior Notes in accordance with this proviso, it shall deliver written notice of such intention to the Administrative Agent on or prior to the second Business Day

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immediately following the date on which Borrower receives such Net Asset Sale Proceeds,

(2)            if the Borrower shall have delivered such notice, (x) the Net Asset Sale Proceeds may be reinvested, and in all cases the Borrower shall not be required to prepay the Term Loans, if any, as provided above, so long as (a) such reinvestment is to purchase other assets (other than current assets) which are to be utilized in the business of the Borrower and its Restricted Subsidiaries or to make a capital expenditure, (b) such reinvestment is consummated or irrevocably committed to be consummated within 365 days after the receipt of such Net Asset Sale Proceeds and (c) no Event of Default shall have occurred and be continuing on the date such notice is delivered, (y) the Net Asset Sale Proceeds may be used to repay, repurchase or defease the PEDFA Debt so long as (a) such defeasance is consummated or irrevocably committed to be consummated within six months after the receipt of such Net Asset Sale Proceeds and (b) no Default shall have occurred and be continuing on the date such notice is delivered or (z) the Net Asset Sale Proceeds may be used to prepay, repurchase or defease the 6.75% Secured Senior Notes so long as (a) such prepayment is consummated or irrevocably committed to be consummated within six months after the receipt of such Net Asset Sale Proceeds and (b) no Default shall have occurred and be continuing on the date such notice is delivered,

(3)            if the Borrower shall not have reinvested the Net Asset Sale Proceeds within such 365 day period or utilized such Net Asset Sale Proceeds to defease the PEDFA Debt or prepay, repurchase or defease the 6.75% Secured Senior Notes within such six month period, as the case may be, the Borrower shall by the last day of such period (or, if such day shall not be a Business Day, the immediately succeeding Business Day) prepay the Term Loans as set forth above in an amount equal to the Net Asset Sale Proceeds not so reinvested or utilized.

In addition, in the event any such Net Asset Sale Proceeds described in the foregoing clauses (b)(i)(A) and (B) are required by the terms of the OPH Note Agreement to be and are offered to any holder of an OPH Note but are not accepted by such holder to whom they are required by the terms of the OPH Note Indenture to be offered, and are permitted in accordance with the OPH Note Indenture to be distributed to the Borrower (such Net Asset Sale Proceeds being referred to herein as “ Available Proceeds ”), then promptly, but in any event no later than three (3) Business Days after the last day for, in each case, such holder of any OPH Note to accept the repurchase or prepayment offer, the Borrower shall prepay Loans in accordance with sub-clause (B) above (subject to the exceptions contained in the proviso to clause (B)), in an amount equal to 100% of such Available Proceeds.

(ii)            If the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Credit Loans and/or Cash Collateralize the Revolving L/C Obligations in an aggregate amount equal to such excess; provided , that the Borrower shall not be required to Cash Collateralize the Revolving L/C Obligations pursuant to this clause (b)(ii) unless after the prepayment in full of the Revolving Credit Loans the Total

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Revolving Credit Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.

(iii)           If the Pre-Funded L/C Obligations at any time exceed the aggregate amount of the Pre-Funded L/C Deposits at such time, (x) to the extent that any unutilized Revolving Credit Commitments then exist and such excess is caused by an automatic increase in the amount of a Pre-Funded Letter of Credit in accordance with the terms thereof, such excess amount shall be deemed to be new Revolving Letters of Credit issued under the Revolving Credit Facility without regard to whether the conditions set forth in Section 4.1 are deemed satisfied and (y) otherwise (including to the extent such excess amount is not deemed to be new Revolving Letters of Credit issued under the Revolving Credit Facility), the Borrower shall immediately Cash Collateralize the Pre-Funded L/C Obligations in an aggregate amount equal to such excess.

(iv)           Each prepayment of Loans, refund of Pre-Funded L/C Deposits and reduction of the Pre-Funded L/C Commitments pursuant to clause (i) of this clause (b) shall be applied ratably to the Term Loans, if any, of the Term Lenders that accept the same, which prepayment offers any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in a manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to this Section 2.4(b) , to decline all (but not a portion) of its Pro Rata Share of such prepayment (such declined amounts, the “ Declined Proceeds ”).  Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment (with such Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent).  All such accepted offers to prepay Term Loans, if any, shall be applied on a pro rata basis to the remaining scheduled installments of principal due in respect thereof, and subject to Section 9.3 , if an Event of Default has occurred and is continuing, to refund the Pre-Funded L/C Deposits and reduce the Pre-Funded L/C Commitments.  Thereafter, the remaining Declined Proceeds shall be applied to reduce the Revolving Credit Loans in the manner set forth in clause (b)(v) .

(v)            Prepayments of the Revolving Credit Loans pursuant to clause (i) of this clause (b) shall be applied, first , to prepay Revolving L/C Borrowings outstanding at such time until all such Revolving L/C Borrowings are paid in full, second , to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full and third , to Cash Collateralize the Revolving L/C Obligations; and, in the amount remaining, if any, after the prepayment in full of all Loans and Revolving L/C Borrowings outstanding at such time and the Revolving L/C Obligations have been Cash Collateralized (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “ Reduction Amount ”) may be retained by the Borrower for use in the ordinary course of its business.  Upon the drawing of any Revolving Letter of Credit, which has been Cash Collateralized, such funds shall be applied (without any further action by or notice to or from the Borrower or any other Person) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders.

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(vi)           Any refunding of the Pre-Funded L/C Deposit pursuant to this Section 2.4 shall be applied as follows:  first , to the extent that the aggregate amount of the Pre-Funded L/C Deposit exceeds the Pre-Funded L/C Obligations at such time, to reduce the Pre-Funded L/C Facility in accordance with Section 2.5(d) but on a mandatory basis and, second , to Cash Collateralize the Pre-Funded L/C Obligations.  Upon the drawing of any Pre-Funded Letter of Credit which has been Cash Collateralized, such refunds shall be applied (without further action by or notice to or from the Borrower or any other Person) to reimburse the Pre-Funded L/C Issuer or the Pre-funded L/C Lenders, as applicable.

(vii)          Notwithstanding the provisions of Section 2.4(b)(i) of this clause (b) , if any mandatory prepayments under any such clause of this clause (b) would result in the Borrower incurring any obligation (as determined in the reasonable judgment of the Borrower) under Section 3.5 as a result of any such mandatory prepayment of Eurodollar Rate Loans or refund of Pre-Funded L/C Deposits prior to the last day of an Interest Period, so long as no Default has occurred and is continuing, the Borrower may defer the making of such mandatory prepayment until the earlier of (A) the last day of such Interest Period and (B) the date thirty days after the date on which such mandatory prepayment would otherwise have been required to be made; provided that, pending such mandatory prepayment, the related amounts shall be applied to repay Revolving Credit Loans or maintained as Collateral for the Credit Agreement Obligations.

Section 2.5  Termination or Reduction of Commitments; Reduction of Pre-Funded L/C Facility .

(a)            Optional .  The Borrower may, upon notice to the Administrative Agent, terminate the unused portion of the Revolving Credit Commitments, or from time to time permanently reduce the unused portion of the Revolving Credit Commitments; provided , that (A) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination or reduction, (B) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, (C) the Borrower shall not terminate or reduce the unused portions of the Revolving Credit Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Revolving Credit Loans and Revolving L/C Obligations would exceed the Aggregate Revolving Credit Commitments.

(b)            Mandatory .  The Pre-Funded L/C Commitment shall be automatically and permanently reduced to zero on the Closing Date (after giving effect to the making of the Pre-Funded L/C Deposits).

(c)            Application of Commitment Reductions; Payment of Fees .  The Administrative Agent will promptly notify the Revolving Credit Lenders of any termination or reduction of unused portions of the Revolving Credit Commitment under this Section.  Upon any reduction of the unused Revolving Credit Commitment, the Commitment of each Revolving Credit Lender shall be reduced by such Lender’s Pro Rata Share of the amount by which the Revolving Credit Commitment is reduced.  All fees accrued until the closing date of any termination of the Aggregate Commitments shall be paid on the closing date of such termination.

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(d)            Reduction of Pre-Funded L/C Facility .  The Borrower may upon notice to the Administrative Agent from time to time permanently reduce the Pre-Funded L/C Deposit; provided that (A) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination or reduction; (B) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof; (C) such reduction shall not result in the Pre-Funded L/C Deposits (exclusive of earnings thereon) being less than Pre-Funded L/C Obligations at such time; and (D)  such reduction shall not occur prior to the 90 th  day after the Deposit Bank has received reimbursement for any drawing under the Pre-Funded L/C Facility.  Upon any such reduction of the Pre-Funded L/C Deposits, the portion of the Pre-Funded L/C Deposits being so reduced (together with any applicable Pre-Funded L/C Participation Fees) shall be refunded to each Pre-Funded L/C Lender in an amount equal to its Pro Rata Share in accordance with Section 2.1(c)(iii)(B) ; provided that the Borrower may elect to incur Pre-Funded L/C Term Loans with the proceeds of such reduction, so long as each such incurrence of Pre-Funded L/C Term Loans shall be in an amount not less than $25,000,000.

Section 2.6  Repayment of Loans .

(a)            Term Loans .  The Borrower shall repay to the Administrative Agent for the ratable account of the Term Lenders, if any, (i) on each Quarterly Payment Date, the aggregate principal amount equal to 0.25% of the outstanding Pre-Funded L/C Term Loans, if any, (which amounts shall be adjusted as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.4 ), provided , that the final principal repayment installment of the Pre-Funded L/C Term Loans, if any, shall be repaid on the Term Loan Maturity Date in an amount equal to the aggregate principal amount of all Term Loans, if any, outstanding on such date and (ii) on each date set forth in the Incremental Term Loan Commitment Agreement for a Tranche of Incremental Term Loans, the amount of the Tranche of such Term Loan set forth in such Incremental Term Loan Commitment Agreement.

(b)            Revolving Credit Loans .  The Borrower shall repay to the Administrative Agent for the ratable account of the Revolving Credit Lenders on the Revolving Credit Termination Date the aggregate principal amount of all Revolving Credit Loans outstanding on such date.

(c)            Pre-Funded L/C Deposits .  Subject to clause (d) of Section 2.5 , the Administrative Agent shall refund for the ratable account of each Pre-Funded L/C Lender on the Pre-Funded L/C Commitment Termination Date the aggregate principal amount of all Pre-Funded L/C Deposits outstanding on such date.

Section 2.7  Interest .

(a)            Subject to the provisions of clause (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Margin; and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Margin.

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(b)            (i)             All overdue principal, interest, fees and other amounts shall bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate., in each case to the fullest extent permitted by applicable Laws.

(ii)            Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

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

Section 2.8  Fees .  In addition to certain fees described in clauses (i) and (j) of Section 2.3 :

(a)          Commitment Fee .  The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Pro Rata Share, a commitment fee equal to the Applicable Margin times the actual daily amount by which the Aggregate Commitments for Revolving Credit Loans exceed the sum of (i) the Outstanding Amount of Revolving Credit Loans and (ii) the Outstanding Amount of Revolving L/C Obligations; provided , that any commitment fee accrued with respect to any of the Commitments of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such commitment fee shall otherwise have been due and payable by the Borrower prior to such time; provided , further , that no commitment fee shall accrue on any of the Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.  The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on each Quarterly Payment Date, commencing with the first such date to occur after the Closing Date, and on the Revolving Commitment Termination Date.  The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Margin during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Margin separately for each period during such quarter that such Applicable Margin was in effect.

(b)         Pre-Funded L/C Participation Fees .  Upon the deposit of the Pre-Funded L/C Deposits in the Pre-Funded L/C Deposit Account, the fees (“ Pre-Funded L/C Participation Fees ”) relative to the Pre-Funded L/C Deposits shall accrue at a rate per annum equal to the sum of (x) the Eurodollar Rate for the relevant Investment Period plus the Applicable Margin for the Pre-Funded L/C Deposits and (y) the Pre-Funded L/C Deposit Cost Amount minus the Pre-Funded L/C Deposit Return payable by the Administrative Agent to the Pre-Funded L/C Lenders pursuant to clause (c)(iv) of Section 2.1 for the applicable period.  All Pre-Funded L/C Deposits shall accrue fees at all times that they are on deposit in the Pre-Funded L/C Deposit Account.  Pre-Funded L/C Participation Fees accrued on each Pre-Funded L/C Deposit shall be payable, without duplication, (i) on the Pre-Funded L/C Commitment Termination Date, (ii) on the date of any refund of a Pre-Funded L/C Deposit pursuant to clause (a) of Section 2.4 , on the

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amount of such deemed Pre-Funded L/C Deposits so refunded, and (iii) quarterly in arrears on each Quarterly Payment Date, commencing with the first such date to occur after the Closing Date.

(c)          Other Fees .  (i) The Borrower shall pay to the Agents and the Administrative Agent for their own respective accounts fees in the amounts and at the times specified in the Fee Letters.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

Section 2.9  Computation of Interest and Fees .  All computations of interest for Base Rate Loans when the Base Rate is determined by Deutsche Bank’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest (including, without limitation the Base Return and the Pre-Funded L/C Deposit Cash Amounts) shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided , that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.11(a) , bear interest for one day.  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

Section 2.10  Evidence of Debt .

(a)            The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon.  Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Credit Agreement Obligations.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.  In the event of any conflict between the accounts and records maintained by any Pre-Funded L/C Lender or the Pre-Funded L/C Issuer and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.  Upon the request of any Lender made through the Administrative Agent, the Borrower shall promptly execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records.  Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

(b)            In addition to the accounts and records referred to in clause (a) , each Lender and the Administrative Agent shall maintain in accordance with their usual practice accounts or records evidencing the purchases and sales by each Lender of participations in Letters of Credit.  In the event of any conflict between the accounts and records maintained by

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the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.  In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Pre-Funded L/C Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

(c)            Entries made in good faith by the Administrative Agent in the Register pursuant to Section 2.10(a) , and by the Administrative Agent and each Lender in its account or accounts pursuant to Section 2.10(a) , shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided , that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement and the other Loan Documents.

Section 2.11  Payments Generally; Administrative Agent ’ s Clawback .

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

(b)            (i)             Funding by Lenders; Presumption by Administrative Agent .  Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.2 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (B) in the case of a payment to be made by the Borrower, the

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interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing.  Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

(ii)            Payments by Borrower; Presumptions by Administrative Agent .  Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or an L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or such L/C Issuer, as the case may be, the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the Lenders or such L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

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

(c)            Failure to Satisfy Conditions Precedent .  If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

(d)            Obligations of Lenders Several .  The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 11.4(c) are several and not joint.  The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 11.4(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.4(c) .

(e)            Funding Source .  Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

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Section 2.12  Sharing of Payments by Lenders .  If any Lender (with Pre-Funded L/C Lenders being included in this Section) shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it or the participations in L/C Obligations held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided , that:

(i)             if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(ii)            the provisions of this Section shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply).

Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.

Section 2.13  Incremental Term Loan Commitments .  (a)  So long as the Incremental Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Borrower shall have the right in coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.13 , but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Closing Date and prior to the date which is 12 months prior to the Term Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Assignees and which will become Lenders) provide Incremental Term Loan Commitments to the Borrower and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that

(i)             no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent and the Borrower

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an Incremental Term Loan Commitment Agreement as provided in clause (b) of this Section 2.13 , such Lender shall not be obligated to fund any Incremental Term Loans,

(ii)              any Lender (including any Eligible Assignee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender,

(iii)             the amount of each Tranche of Incremental Term Loan Commitments shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment under such Tranche of Incremental Term Loans (including Eligible Assignees who will become Lenders) of at least (A) $50,000,000 and in integral multiples of $5,000,000 in excess thereof, in the case of Incremental Term Loans to be made pursuant to a new Tranche of Incremental Term Loans, and (B) $25,000,000 and in integral multiples of $5,000,000 in excess thereof, in the case of Incremental Term Loans to be made pursuant to (and to constitute a part of) the outstanding Term Loans as contemplated by the proviso in the first sentence of Section 2.13(c) ,

(iv)           unless at the time Incremental Term Loan Commitments become effective, and after giving effect to the incurrence of Term Loans pursuant thereto, the Consolidated Secured Leverage Ratio is less than 3.00:1.00, the aggregate amount of all Incremental Term Loan Commitments provided pursuant to this Section 2.13 , shall not exceed $300,000,000,

(v)            the up-front fees and, if applicable, any unutilized commitment fees and/or other fees, payable to each Incremental Term Loan Lender in respect of each Incremental Term Loan Commitment shall be separately agreed to by the Borrower and each such Incremental Term Loan Lender,

(vi)           each Tranche of Incremental Term Loans shall (A) have an Incremental Term Loan Maturity Date of no earlier than the Term Loan Maturity Date, (B) have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Term Loans and (C) be subject to the Applicable Margins as are set forth in the Incremental Term Loan Commitment Agreement governing such Tranche of Incremental Term Loans,

(vii)          the proceeds of all Incremental Term Loans shall be used only for the purposes permitted by Section 7.10 ,

(viii)           each Incremental Term Loan Commitment Agreement shall specifically designate the Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche ( i.e. , not the same as any existing Tranche of Incremental Term Loans or other Term Loans) unless the requirements of Section 2.13(c) are satisfied),

(ix)              all Incremental Term Loans (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Loan Documents and shall be Parity Secured Debt, and

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(x)               each Lender (including any Eligible Assignee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans specified in the Incremental Term Loan Commitment Agreement as provided in Section 2.1(d) and such Loans shall thereafter be deemed to be Incremental Term Loans under such new Tranche for all purposes of this Agreement and the other applicable Loan Documents.

(b)         At the time of the provision of Incremental Term Loan Commitments pursuant to this Section 2.13 , the Borrower, the Administrative Agent and each such Lender or other Eligible Assignee which agrees to provide an Incremental Term Loan Commitment (each, an “ Incremental Term Loan Lender ”) shall execute and deliver to the Administrative Agent an Incremental Term Loan Commitment Agreement, with the effectiveness of the Incremental Term Loan Commitments provided therein to occur on the date set forth in such Incremental Term Loan Commitment Agreement, which date in any event shall be no earlier than the date on which (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (ii) all Incremental Loan Commitment Requirements are satisfied, (iii) all other conditions set forth in this Section 2.13 shall have been satisfied, and (iv) all other conditions precedent that may be set forth in such Incremental Term Loan Commitment Agreement shall have been satisfied.  The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Commitment Agreement, and at such time, to the extent requested by any Incremental Term Loan Lender, Term Notes will be issued, at the Borrower’s expense, to such Incremental Term Loan Lender in conformity with the requirements of Section 11.6(b) .

(c)            Notwithstanding anything to the contrary contained above in this Section 2.13 , the Incremental Term Loans provided by an Incremental Term Loan Lender or Incremental Term Loan Lenders, as the case may be, pursuant to an Incremental Term Loan Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., A-1, A-2, A-3, B-1, B-2, B-3, C-1, C-2, C-3, etc.), provided that, with the consent of the Administrative Agent, the parties to a given Incremental Term Loan Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Incremental Term Loans or the outstanding Term Loans, so long as the following requirements are satisfied:

(i)             the Incremental Term Loans to be made pursuant to such Incremental Term Loan Commitment Agreement shall have the same Maturity Date and shall have the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;

(ii)            the new Incremental Term Loans shall have the same scheduled payments pursuant to Section 2.6(a) as the then existing Term Loans (with the amount of each Scheduled Term Loan Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to

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which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining payment of the respective Tranche proportionately; and

(iii)           on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.2 , such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the respective Tranche.

To the extent the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of Eurodollar Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Eurodollar Rate Loans of such Tranche and which will end on the last day of such Interest Period).  In connection therewith, the Borrower hereby agrees to compensate the Lenders making the new Incremental Term Loans of the respective Tranche for funding Eurodollar Rate Loans during an existing Interest Period on such basis as may be agreed by the Borrower and the respective Lender or Lenders as may be provided in the respective Incremental Term Loan Commitment Agreement.

Section 2.14  Incremental RL Commitments .  (a)  So long as the Incremental Loan Commitment Requirements are satisfied at the time of the delivery of the request referred to below, the Borrower shall have the right in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 2.14 , but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Closing Date and prior to the date which is 12 months prior to the Revolving Loan Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Assignees and which will become Lenders as provided below) provide Incremental RL Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans and participate in Revolving Letters of Credit pursuant thereto; it being understood and agreed, however, that

(i)             no Lender shall be obligated to provide an Incremental RL Commitment as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental RL Commitment and executed and delivered to the Administrative Agent an Incremental RL Commitment Agreement in respect thereof as provided in clause (b) of this Section 2.14 , such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental RL Commitment provided pursuant to this Section 2.14 ,

(ii)            any Lender (including any Eligible Assignee who will become a Lender) may so provide an Incremental RL Commitment without the consent of any other Lender,

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(iii)           each provision of Incremental RL Commitments on a given date pursuant to this Section 2.14 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Assignee who will become a Lender)) of at least $25,000,000 and in integral multiples of $5,000,000 in excess thereof,

(iv)           the aggregate amount of all Incremental RL Commitments provided pursuant to this Section 2.14 shall not exceed $125,000,000, and

(v)            all obligations of the Borrower in connection with Incremental Revolving Commitments (and all Revolving Loans, interest, fees, obligations to reimburse drawings under Revolving Letters of Credit and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Loan Documents and shall be Parity Secured Debt, and guaranteed under the Guaranty.

(b)            At the time of the provision of Incremental RL Commitments pursuant to this Section 2.14 , the Borrower, the Administrative Agent and each such Lender or other Eligible Assignee which agrees to provide an Incremental RL Commitment (each, an “ Incremental RL Lender ”) shall execute and deliver to the Administrative Agent an Incremental RL Commitment Agreement, with the effectiveness of such Incremental RL Lender’s Incremental RL Commitment to occur on the date set forth in such Incremental RL Commitment Agreement, which date in any event shall be no earlier than the date on which (i) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (ii) all Incremental Loan Commitment Requirements are satisfied, (iii) all other conditions set forth in this Section 2.14 shall have been satisfied, and (iv) all other conditions precedent that may be set forth in such Incremental RL Commitment Agreement shall have been satisfied.  The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental RL Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental RL Commitments, (ii) Schedule 2.1 shall be deemed modified to reflect the revised Revolving Loan Commitments of the affected Lenders and (iii) to the extent requested by any Incremental RL Lender, Revolving Notes will be issued, at the Borrowers’ expense, to such Incremental RL Lender in conformity with the requirements of Section 11.6(b) .

(c)            At the time of the effective date of any Incremental RL Commitments pursuant to this Section 2.14 , the Borrower shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Revolving Credit Lenders, and incur additional Revolving Loans from certain other Revolving Credit Lenders (including the Incremental RL Lenders), in each case to the extent necessary so that all of the Revolving Credit Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments (after giving effect to any increase in the Total Revolving Commitments pursuant to this Section 2.14 ) and with the Borrower being obligated to pay to the respective Revolving Credit Lenders any costs of the type referred to in Section 2.11 in connection with any such repayment and/or Borrowing.

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ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY

Section 3.1  Taxes .

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

(b)            Payment of Other Taxes by the Borrower .  Without limiting the provisions of clause (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

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

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

(e)            Status of Lenders .  Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made

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without withholding or at a reduced rate of withholding.  In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.

Without limiting the generality of the foregoing, in the event that the Borrower is resident for tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:

(i)             duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party,

(ii)            duly completed copies of Internal Revenue Service Form W-8ECI,

(iii)           in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN, or

(iv)           any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine the withholding or deduction required to be made.

(f)             Treatment of Certain Refunds .  If the Administrative Agent, any Lender or any L/C Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or such L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided , that the Borrower, upon the request of the Administrative Agent, such Lender or such L/C Issuer, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or such L/C Issuer in the event the Administrative Agent, such Lender or such L/C Issuer is required to repay such refund to such Governmental Authority.  This clause shall not

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be construed to require the Administrative Agent, any Lender or any L/C Issuer to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.

Section 3.2  Illegality .  If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans.  Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

Section 3.3  Inability to Determine Rates .  If the Required Lenders determine that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender.  Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.

Section 3.4  Increased Costs; Capital Adequacy; Reserves on Eurodollar Rate Loans .

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

(i)             impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.4(e) ) or any L/C Issuer;

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(ii)            subject any Lender or any L/C Issuer to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit, any Eurodollar Rate Loan or Pre-Funded L/C Deposit made by it, or change the basis of taxation of payments to such Lender or such L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.1 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or such L/C Issuer); or

(iii)           impose on any Lender or any L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement, Eurodollar Rate Loans or Pre-Funded L/C Deposit made by such Lender or any Letter of Credit or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Rate Loan or Pre-Funded L/C Deposit (or of maintaining its obligation to make any such Loan or Pre-Funded L/C Deposit), or to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.

(b)            Capital Requirements .  If any Lender or any L/C Issuer determines that any Change in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such Lender’s or such L/C Issuer’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s capital or on the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company for any such reduction suffered.

(c)            Certificates for Reimbursement .  A certificate of a Lender or an L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in clause (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay such Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.

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(d)            Delay in Requests .  Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand such compensation; provided , that the Borrower shall not be required to compensate a Lender or such L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender or such L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).

(e)            Reserves on Eurodollar Rate Loans .  The Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan or the Pre-Funded L/C Deposit by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan or the Base Return is payable with respect to the Pre-Funded L/C Deposit; provided , that the Borrower shall have received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender.  If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date or payment date for such Base Return, as the case may be, such additional interest shall be due and payable 10 days from receipt of such notice.

Section 3.5  Compensation for Losses .  Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender and the Deposit Bank and the Administrative Agent harmless from any loss, cost or expense incurred by it as a result of:

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

(b)            any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower;

(c)            any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13 ; or

(d)            any withdrawals from the Pre-Funded L/C Deposit Account pursuant to the terms of this Agreement prior to the end of the applicable Investment Period or Scheduled Investment Termination Date for the Pre-Funded L/C Deposits; and (ii) the termination of all Pre-Funded L/C Deposit Commitments (and the related termination of the investment of the

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funds held in the Pre-Funded L/C Deposit Account) prior to the end of any applicable Investment Period or Scheduled Investment Termination Date for the Pre-Funded L/C Deposits,

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

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

Section 3.6  Mitigation Obligations; Replacement of Lenders .

(a)            Designation of a Different Lending Office .  If any Lender requests compensation under Section 3.4 , or the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.1 , or if any Lender gives a notice pursuant to Section 3.2 , then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.1 or 3.4 , as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.2 , as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b)            Replacement of Lenders .  If any Lender requests compensation under Section 3.4 , or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.1 , the Borrower may replace such Lender in accordance with Section 11.13 .

Section 3.7  Survival .  All of the Borrower’s obligations under this Article shall survive termination of the Aggregate Commitments and repayment of all other Credit Agreement Obligations hereunder.

Section 3.8  Application to Pre-Funded L/C Participation Fees .  The foregoing provisions of this Article III shall apply, mutatis mutandis , to Pre-Funded L/C Participation Fees and the Pre-Funded L/C Deposit Return as if Pre-Funded L/C Participation Fees were interest on Loans and to Pre-Funded L/C Deposits as if Pre-Funded L/C Deposits and the Pre-Funded L/C Deposit Return were Eurodollar Rate Loans.

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ARTICLE IV

CONDITIONS PRECEDENT TO EFFECTIVENESS AND CREDIT EXTENSIONS

Section 4.1  Conditions of Effectiveness and Initial Credit Extension .  The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder shall in each case be subject to satisfaction of the following conditions precedent:

(a)            The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:

(i)             executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;

(ii)            a Note executed by the Borrower in favor of each Lender requesting a Note;

(iii)           such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;

(iv)           such documents and certifications as the Administrative Agent may reasonably require to evidence that (A) each Loan Party is duly organized or formed, and is validly existing, in good standing in Delaware; and (B) the Borrower is qualified to engage in business in the State of Texas;

(v)            a favorable opinion of Bracewell & Giuliani LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;

(vi)           a favorable opinion of in-house counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent;

(vii)          a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.2(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since December 31, 2006 that, except as disclosed in any Exchange Act filings made on or before five Business Days before the Closing Date, has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and

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(viii)         executed counterparts of (A) the Shared Collateral Trust Agreement, (B) the Shared Security Agreement, (C) the Separate Collateral Trust Agreement, (D)  the Separate Security Agreement and (E) the Bank Security Agreement, sufficient in number for distribution to the Administrative Agent and the Borrower.

(b)            The Collateral Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party:

(i)             evidence satisfactory to the Administrative Agent that the Existing Mortgages, upon the Closing Date, will continue to create valid and subsisting Liens on the Closing Date Mortgaged Properties in favor of the Collateral Trustee for the benefit of the Secured Parties, together with evidence that (i) counterparts of the Mortgage Supplements have been duly executed, acknowledged and delivered for filing in the filing or recording offices in which each Existing Mortgage being supplemented by an associated Mortgage Supplement was filed and (ii) all filing and recording taxes, if any, and fees have been paid or will be paid upon recordation or filing of the Mortgage Supplements;

(ii)            a duly executed and acknowledged Florida Mortgage Supplement with respect to each Existing Florida Mortgage, delivered into escrow on terms and conditions reasonably satisfactory to the Agents and the Borrower (which terms and conditions shall include provision for the release from escrow and appropriate recording of each such Florida Mortgage Supplement in accordance with and in the circumstances contemplated by Section 6.13 );

(iii)           such tax and Uniform Commercial Code lien searches as the Administrative Agent may reasonably request and demonstrating that no other filings, encumbrances or transfers (other than in connection with Permitted Liens and Permitted Encumbrances) with regard to any Collateral are of record in any jurisdiction in which it shall be reasonably necessary or desirable for the Collateral Agent or Collateral Trustee, as applicable, to make a Uniform Commercial Code filing in order to provide the Collateral Agent or Collateral Trustee, as applicable, (for the benefit of the Secured Parties) with a perfected security interest in the Collateral and if applicable, evidence reasonably satisfactory to the Administrative Agent that any Liens indicated by such financing statements (or similar documents) that are not permitted under this Agreement, have been or will be released on or prior to the Closing Date; and

(iv)           such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require.

(c)            Concurrently with the making of the Loans hereunder on the Closing Date, all principal amounts of Loans outstanding under (and as defined in) the Existing Credit Agreement, together with all interest, fees and other amounts due and payable with respect

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thereto, shall have been paid in full and the Existing Credit Agreement shall have been terminated.

(d)            Any fees required to be paid on or before the Closing Date shall have been paid.

(e)            Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date.

(f)             All governmental authorizations and all third party consents and approvals necessary in connection with the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.

(g)            Since December 31, 2006, there shall not have occurred any event, development, condition or circumstance not disclosed in the Borrower’s Exchange Act filings at least five Business Days before the Closing Date, that shall have had a Material Adverse Effect.

(h)            The Borrower shall have (x) commenced tender offer and related consent solicitations (each a “ Tender Offer and Consent Solicitation ” and collectively, the “ Tender Offer and Consent Solicitations ”) with respect to its Secured Refinancing Senior Notes, pursuant to which the Borrower shall have offered to purchase all of the outstanding Secured Refinancing Senior Notes, (y) before or concurrently with the making of the Loans hereunder repurchased a majority of each series of the outstanding Secured Refinancing Senior Notes pursuant to the respective Tender Offer and Consent Solicitations and before or concurrently with the making of the Loans hereunder shall have paid all related tender premiums and accrued and unpaid interest on each series of the respective Secured Refinancing Senior Notes owing in connection therewith and (z) released all security interests with respect to the Secured Refinancing Senior Notes.  To the extent such Secured Refinancing Senior Notes shall not have been repurchased, before and concurrently with the making of the Loans hereunder, amendments to the indentures governing each series of Secured Refinancing Senior Notes contemplated by the Tender Offer and Consent Solicitation shall have become effective.

(i)             Before or concurrently with the making of the Loans hereunder the Borrower shall have received at least $1,300,000,000 in gross cash proceeds from the issuance of the Senior Notes and the Administrative Agent shall be reasonably satisfied with the terms and conditions of the documentation for the Senior Notes.

Without limiting the generality of the provisions of Section 11.4 , for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

Section 4.2  Conditions to All Credit Extensions .  The obligation of each Lender to honor any Request for a Credit Extension (including the initial Credit Extensions hereunder,

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but excluding (i) any Borrowing Notice requesting only a conversion of Loans to the other Type, (ii) a continuation of Eurodollar Rate Loan and (iii) a Revolving Credit Loan or a Pre-Funded L/C Term Loan to reimburse a drawing under a Letter of Credit as provided herein) is subject to the following conditions precedent:

(a)            the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date ( provided , that representations and warranties which have Material Adverse Effect qualifiers shall be true and correct in all respects to the extent such Material Adverse Effect qualifier is applicable thereto), and except that for purposes of this Section, the representations and warranties contained in clauses (a) and (b) of Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) , respectively, of Section 6.1 ;

(b)            no Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof; and

(c)            the Administrative Agent and, if applicable, each L/C Issuer shall have received a Request for Credit Extension in accordance with the requirements hereof.

Each Request for Credit Extension (other than a (i) Borrowing Notice requesting only a conversion of Loans to the other Type, (ii) a continuation of Eurodollar Rate Loans and (iii) a Revolving Credit Loan or a Pre-Funded L/C Term Loan to reimburse a drawing under a Letter of Credit as provided herein) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.2(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.

ARTICLE V

REPRESENTATIONS AND WARRANTIES

The Borrower represents and warrants to the Administrative Agent and the Lenders that:

Section 5.1  Existence, Qualification and Power; Compliance with Laws .  Each Loan Party and each Subsidiary thereof (a) is duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license, and (d) is in compliance with all Laws; except in each case referred to in clause (b)(i) , (c) or (d) , to

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the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

Section 5.2  Authorization; No Contravention .  The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries, where such Contractual Obligation (x) evidences Indebtedness of the Borrower or any of its Subsidiaries or (y) is identified in the exhibit list from time to time in filings made by the Borrower with the SEC as material to the Borrower, or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject that could reasonably be expected to have a Material Adverse Effect; (c) violate any Law that could reasonably be expected to have a Material Adverse Effect; or (d) result in the creation of any Lien other than a Permitted Lien.  Each Loan Party and each Subsidiary thereof is in compliance with all Contractual Obligations referred to in clause (b)(i) , except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

Section 5.3  Governmental Authorization; Other Consents .  No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (i) the execution, delivery or performance by any Loan Party of this Agreement or any other Loan Document, (ii) the grant by any Loan Party of the Liens granted by it pursuant to the Loan Documents, or (iii) the perfection or maintenance of the Liens created under the Loan Documents (including the first priority nature thereof) (other than the filing of UCC-1 Financing Statements, the Mortgages, and the Assignments of Leases and Rents), all of which have been duly obtained, taken, given or made and are in full force and effect.

Section 5.4  Binding Effect .  This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.  This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general principles of equity, whether such enforceability is considered in a proceeding at law or in equity.

Section 5.5  Financial Statements; No Material Adverse Effect .

(a)            The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein and (ii) fairly present in all material respects the consolidated financial condition of the Borrower and its consolidated Subsidiaries as of the date thereof and their results of operations and cash flows for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.

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(b)            Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, except as disclosed in the Borrower’s Exchange Act filings made on or before the five Business Days before the Closing Date, that has had or could reasonably be expected to have a Material Adverse Effect.

Section 5.6  Litigation .  There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) except as disclosed in the Borrower’s Exchange Act filings made on or before the five Business Days before the Closing Date, either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.

Section 5.7  No Default .  No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.

Section 5.8  Ownership of Property; Liens .

(a)            Each of the Borrower and each Subsidiary has good and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for Permitted Liens and Permitted Encumbrances and such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b)            The property of the Borrower and its Restricted Subsidiaries is subject to no Liens, other than Permitted Liens and Permitted Encumbrances.

(c)            Set forth on Schedule 5.8(c) hereto is a complete and accurate list of all real property interests owned as of the Closing Date by the Borrower and the other Loan Parties which are material to their business and are reflected on the financial statements referred to in Section 5.5 (other than such properties or assets disposed of since the date of such financial statements), showing as of the date hereof the street address, county or other relevant jurisdiction, state, and record owner thereof.  Except as set forth on Schedule 5.8(c) , the Borrower and each other Loan Party has good, marketable and insurable fee simple title to such real property, free and clear of all Liens, other than Permitted Liens and Permitted Encumbrances.

Section 5.9  Environmental Matters .

(a)            Borrower and its Subsidiaries have been and are in compliance with all Environmental Laws, including obtaining and complying with all required environmental permits, other than non-compliances that could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

(b)            Neither the Borrower nor any of its Subsidiaries nor any property currently or, to the knowledge of Borrower or any of its Subsidiaries, previously owned,

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operated or leased by or for Borrower or any of its Subsidiaries is subject to any pending or, to the knowledge of Borrower or any of its Subsidiaries, threatened, claim, order, agreement, notice of violation, notice of potential liability or is the subject of any pending or threatened proceeding or governmental investigation under or pursuant to Environmental Laws other than those that could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

(c)            Except as set forth on Schedule 5.9(c) , as of the Closing Date neither the Borrower nor any of its Subsidiaries has a treatment, storage or disposal facility requiring a permit under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the regulations thereunder or any state analog.

(d)            There are no facts, circumstances or conditions known to Borrower or any of its Subsidiaries arising out of or relating to the operations or ownership of Borrower or any of its Subsidiaries or of the property owned, operated or leased by Borrower or any of its Subsidiaries that are not specifically included in the financial information furnished to the Lenders that could be reasonably expected to result in any Environmental Liabilities that could reasonably be expected to have a Material Adverse Effect, unless such liabilities are (i) covered by environmental liability insurance, (ii) subject to an indemnity from any Governmental Authority, or (iii) subject to an indemnity satisfactory to the Borrower from a Person that is not an Affiliate of the Borrower that the Borrower has determined in good faith is appropriately credit worthy in relation to the potential amount of such liabilities.

(e)            As of the Closing Date, no environmental Lien has attached to any property of Borrower or its Subsidiaries and, to the knowledge of Borrower or its Subsidiaries, no facts, circumstance or conditions exist that could, individually or in the aggregate, reasonably be expected to result in an environmental Lien that would have a Material Adverse Effect.

(f)             Neither Borrower nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or Remedial Action relating to any actual or threatened release of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law that could reasonably be expected to have a Material Adverse Effect; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by Borrower or any of its Subsidiaries have been disposed of in a manner that could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

Section 5.10  Insurance .  The properties of the Borrower and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts (after giving effect to any self-insurance compatible with the following standards), with such deductibles and covering such risks as are customarily carried by companies of same or similar size engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Subsidiary operates.

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Section 5.11  Taxes .  The Borrower and its Subsidiaries have filed all Federal, state and other material tax returns and reports required to be filed after giving effect to applicable extensions, except for tax returns or reports the failure of which to timely file could not reasonably be expected to have a Material Adverse Effect, and have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP.  There is no proposed tax assessment against the Borrower or any Subsidiary that would, if made, have a Material Adverse Effect.

Section 5.12  ERISA Compliance .

(a)            Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state Laws.  Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of the Borrower, nothing has occurred which would prevent, or cause the loss of, such qualification.  The Borrower and each ERISA Affiliate have made all required contributions (both quarterly and annually) to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.

(b)            There are no pending or, to the best knowledge of the Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.  There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.

(c)            (i)  No ERISA Event has occurred or is reasonably expected to occur that could reasonably be expected to have a Material Adverse Effect; (ii) no Pension Plan has any Unfunded Pension Liability, whether or not waived, that could reasonably be expected to have a Material Adverse Effect, and no application for a waiver of the minimum funding standard has been filed with respect to any Pension Plan; (iii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA) that could reasonably be expected to have a Material Adverse Effect; (iv) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.

Section 5.13  Subsidiaries; Equity Interests .  On the Closing Date, the Borrower has no Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13 , and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and

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nonassessable and are owned in the amounts specified on Part (a) of Schedule 5.13 free and clear of all Liens except those created under the Loan Documents and the Permitted Liens.  All of the outstanding Equity Interests in the Borrower have been validly issued and are fully paid and nonassessable.  Set forth on Part (b) of Schedule 5.13 is a complete and accurate list of all Loan Parties, showing as of the Closing Date (as to each Loan Party) the jurisdiction of its incorporation, the address of its principal place of business and its U.S. taxpayer identification number.

Section 5.14  Margin Regulations; Investment Company Act .

(a)            The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock and no proceeds of any Borrowings or drawings under any Letter of Credit will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.

(b)            None of the Borrower, any Person Controlling the Borrower, or any Subsidiary (i) is in violation of any regulation under the Federal Power Act or any foreign, federal or local statute or any other Law of the United States of America or any other jurisdiction, in each case limiting its ability to incur indebtedness for money borrowed as contemplated hereby or by any other Loan Document or (ii) is or is required to be registered as an “investment company” under the Investment Company Act of 1940.  Neither the making of any Loan, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by the Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act referenced in clauses (i) and (ii) , any other Laws referenced therein, or any rule, regulation or order of the SEC under the Investment Company Act of 1940.

Section 5.15  Disclosure .  The Borrower has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it (other than general industry, political, and economic conditions), that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.  No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by other information so furnished), at the time furnished or delivered, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, taken as a whole, in the light of the circumstances under which they were made, not misleading; provided , that with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time made.

Section 5.16  Compliance with Laws .  Each Loan Party and each Subsidiary is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which

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(a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

Section 5.17  Intellectual Property; Licenses, etc .  The Borrower, the IP Trust, the IT Trust and their respective Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “ IP Rights ”) that are necessary for the operation of their respective businesses, without conflict with the rights of any other Person, unless the failure to so own or possess the right to use could not reasonably be expected to have a Material Adverse Effect.  To the best knowledge of the Borrower, except as set forth on Schedule 5.17 , no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the IT Trust, the IP Trust, the Borrower or any of their respective Subsidiaries infringes upon or mis­appropriates any rights held by any other Person in a manner that could reasonably be expected to have a Material Adverse Effect.  To the best knowledge of the Borrower, no other Person is infringing upon or misappropriating any IP Rights of the IT Trust, the IP Trust, the Borrower or any of their respective Subsidiaries in a manner that could reasonably be expected to have a Material Adverse Effect.  Except as set forth on Schedule 5.17 , no claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Borrower, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Section 5.18  Solvency .  The Borrower is, together with its Subsidiaries on a consolidated basis, Solvent.

Section 5.19  Perfection, etc .

(a)            The Security Documents (other than the Mortgages and the Assignments of Leases and Rents), create and grant to the Collateral Trustee for the benefit of the applicable Secured Parties or the Collateral Agent (for the benefit of the Credit Agreement Secured Parties), together with (i) the filing of appropriate UCC-1 and, if applicable, UCC-3, financing statements with the filing offices required under the Security Agreements, and (ii) the possession of certificated Pledged Securities (together with blank executed stock powers with respect thereto), a valid, first priority, perfected security interest in the Collateral, subject (other than in the case of investment property) only to Permitted Encumbrances and, as to perfection, subject to the terms and provisions of the Security Agreements.

(b)            The Mortgages and the Assignments of Leases and Rents, when the Mortgage Supplements are executed and delivered, will create in favor of the Collateral Trustee, for the benefit of the applicable Secured Parties, a legal, valid and enforceable Lien on all of the Loan Parties’ respective right, title and interest in and to the real property assets (except personalty that does not constitute fixtures) covered thereby and the proceeds thereof.  When each of the Mortgage Supplements are filed in the appropriate offices specified by a Loan Party and the proper amount of mortgage recording or similar taxes (if any) are paid, each of the Mortgages and the Assignments of Leases and Rents together with the UCC-1 financing statements relating to fixtures previously filed in connection with the Mortgages, shall constitute

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fully perfected Liens on, and fully perfected security interest in, all right, title and interest of the applicable Loan Parties in the real property assets (except personalty that does not constitute fixtures) covered thereby and the proceeds thereof, subject only to Permitted Encumbrances and, as to perfection, subject to the terms and provisions of the Mortgages and the Assignments of Leases and Rents.

ARTICLE VI

AFFIRMATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder, any Loan, any Pre-Funded L/C Deposit or other Credit Agreement Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding (if neither (x) Cash Collateralized in accordance with the terms of this Agreement nor (y) supported with a back-to-back letter of credit reasonably acceptable to the L/C Issuers), the Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.1 , 6.2 , and 6.3 ) cause each Subsidiary to:

Section 6.1  Financial Statements .  Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent:

(a)            as soon as available, but in any event within 90 days after the end of each Fiscal Year of the Borrower, an audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such Fiscal Year, and the related consolidated statements of income or operations, stockholders’ equity, comprehensive income (loss) and cash flows for such Fiscal Year, setting forth in each case in comparative form the figures as of the end of, and for, the previous Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, such consolidated statements to be audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with the standards of the Public Company Accounting Oversight Board or its successor and shall not be subject to any “going concern” or like qualification or exception;

(b)            as soon as available, but in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such Fiscal Quarter, and the related unaudited consolidated statements of income or operations for such Fiscal Quarter and for the portion of the Borrower’s Fiscal Year then ended and cash flows for the portion of the Borrower’s Fiscal Year then ended, setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year, all in reasonable detail, certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations and cash flows of the Borrower and its consolidated Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;

(c)            as soon as available, but in any event within thirty (30) days after the end of the first and second calendar months of each Fiscal Quarter, a copy of the Borrower’s (i)

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internal monthly consolidated corporate reporting package ( i.e. , flash reports) and (ii) monthly historical collateral postings (liquidity) reports; and

(d)            within 15 days after approval thereof by the Borrower’s Board of Directors for each Fiscal Year, a consolidated plan and financial forecast for such Fiscal Year and the two immediately succeeding Fiscal Years (or portion thereof) through the Term Loan Maturity Date (a “ Financial Plan ”), including (i) a forecasted consolidated balance sheet and forecasted consolidated statements of income or operations and cash flows of the Borrower and its Subsidiaries for each such Fiscal Year, (ii) forecasted consolidated statements of income or operations and cash flows of the Borrower and its Subsidiaries for each quarter of such Fiscal Year (but not subsequent Fiscal Years) and (iii) forecasts of calculations under Section 7.11 for each Fiscal Quarter of such Fiscal Year, and for each Fiscal Year in the case of subsequent Fiscal Years.

As to any information contained in materials furnished pursuant to Section 6.2(c) , the Borrower shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Borrower to furnish the information and materials described in clauses (a) and (b) above at the times specified therein.

Section 6.2  Certificates; Other Information .  Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent:

(a)            concurrently with the delivery of the financial statements referred to in Sections 6.1(a) and (b) , a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower;

(b)            promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;

(c)            promptly after the same are available, copies of all quarterly and annual reports filed by the Borrower with the SEC on Forms 10-Q and 10-K, and all current reports filed by the Borrower with the SEC on Form 8-K;

(d)            promptly after the furnishing thereof, copies of any notice of default furnished to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.1 or any other clause of this Section;

(e)            promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each material, non-routine, written notice or other material, non-routine, written correspondence received from the SEC concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;

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(f)             promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of (i) each notice of default or event of default received or delivered by Retail Holdco or its Subsidiaries under or in connection with any Sleeve Document, (ii) each amendment to the Reimbursement Agreement and the Working Capital Agreement to the extent not available pursuant to clause (c) above and (iii) any notice received or delivered by any such Person under (A) Section 10.1 of the IP Trust Agreement or (B) Section 9.1 of the IT Trust Agreement; and

(g)            promptly, such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request.

Documents required to be delivered pursuant to Section 6.1(a) or (b) or Sections 6.2(c) or (f) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 11.2 ; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided , that (A) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies and (B) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions ( i.e. , soft copies) of such documents.  Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.2(a) to the Administrative Agent.  The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and each L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “ Borrower Materials ”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “ Platform ”) and (b) certain of the Lenders may be “public-side” Lenders ( i.e. , Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “ Public Lender ”).  The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent and each L/C Issuer and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” are permitted to

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be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”

Section 6.3  Notices .  Promptly notify the Administrative Agent and each Lender:

(a)            after any Responsible Officer’s obtaining knowledge of the occurrence of any Default;

(b)            of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect (including as a result of (i) breach or non-performance of, or any default under, a Contractual Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws);

(c)            after any Responsible Officer’s obtaining knowledge of the occurrence of any ERISA Event or of any contribution failure under Code Section 412, or ERISA Section 302 with respect to any Pension Plan;

(d)            of the occurrence of any Asset Sale for which the Borrower is required to make a mandatory repayment pursuant to Section 2.4(b)(i) ; and

(e)            (x) of the occurrence of (i) any Permitted Sale, (ii) any repayment or prepayment of principal of any Sale Note and (iii) any repayment or prepayment of Revolving Credit Loans using either (A) cash consideration received by the Borrower or the applicable Restricted Subsidiary with respect to a Permitted Sale pursuant to clause (i) of the definition of Permitted Sale or (B) the proceeds of any repayment or prepayment set forth in clause (ii) , and (y) following the occurrence of any event set forth in clause (e)(x) , of the outstanding principal amount of all Sale Notes and calculations to demonstrate the extent to which a Trigger Amount has accrued, in each case, both immediately before and after giving effect to such event.

Each notice pursuant to this Section (other than subsection (d) ) shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto.  Each notice pursuant to Section 6.3(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.

Section 6.4  Preservation of Existence, Etc .  (a)  Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.4 or 7.5 ; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.

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Section 6.5  Maintenance of Material Properties .  (a)  Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and replacements thereof; and (c) use the standard of care typical in the industry in the operation and maintenance of its facilities, in each of cases (a), (b) and (c), except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

Section 6.6  Maintenance of Insurance .  Maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons of same or similar size engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance compatible with the following standards) as are customarily carried under similar circumstances by such other Persons and providing for not less than 30 days’ (or such other period as required by law) prior notice to the Collateral Trustee of termination, lapse or cancellation of such insurance.

Section 6.7  Compliance with Laws .  Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.

Section 6.8  Books and Records .  (a)  Maintain proper books of record and account, in which entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Borrower or such Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or such Subsidiary, as the case may be.

Section 6.9  Inspection Rights .  Permit representatives and independent contractors of the Administrative Agent to visit and inspect any of its properties (subject in the case of access to its properties and assets, to any applicable restrictions contained in the leases for the Mortgaged Real Property Assets and the applicable Loan Party’s site safety and security requirements), to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its officers, and independent public accountants, all at the expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided , that when an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and without advance notice.

Section 6.10  Use of Proceeds . Use the proceeds of the Revolving Credit Facility, the Term Facility and the Pre-Funded Letters of Credit for general corporate purposes.

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Section 6.11  Additional Loan Parties; Security Interests .

(a)            Subject to the provisions of clause (b) below, promptly and in any event within thirty (30) Business Days (i) after the formation or acquisition after the Closing Date of any new Subsidiary (other than a Subsidiary that is (A) a Project Subsidiary (except to the extent compliance with the provision of this Section 6.11(a) would not cause a default under any Indebtedness of such Project Subsidiary) or (B) prohibited from becoming a Loan Party pursuant to (1) the Sleeve Documents, (2) in the case of an acquisition, an agreement for Indebtedness permitted under Section 7.3(b)(xviii) , (3) an agreement for Indebtedness in existence on the Closing Date which is permitted under Section 7.3 , or (4) an agreement for any refinancing or renewal of any such Indebtedness pursuant to, and in accordance with, Section 7.3 (each, an “Excepted Subsidiary”) that has satisfied the Threshold Amount, (ii) with respect to any Subsidiary (other than an Excepted Subsidiary)) which was formed or acquired after the Closing Date and which did not initially satisfy the Threshold Amount, after such Subsidiary does satisfy the Threshold Amount, (iii) after any Subsidiary ceases to be an Excluded Entity or an Excepted Subsidiary or (iv) after any Subsidiary Guarantees any Indebtedness of the Borrower other than the Obligations (as the case may be), deliver to the Collateral Trustee (with copies to the Administrative Agent) the following: (x) in the case of the Domestic Subsidiaries, (A) an Instrument of Assumption and Joinder executed by such Subsidiary pursuant to which, among other things, such Subsidiary shall become a Loan Party hereunder; and a Joinder Agreement (in substantially the form of Exhibit A to the New Collateral Trust Agreement) pursuant to which, among other things, such Subsidiary shall become a party to the New Collateral Trust Agreement and the Existing Security Agreement, (B) appropriate UCC-1 financing statements with respect to the collateral under the Existing Security Agreement and under the Bank Security Agreement, (C) all applicable Lien searches with respect to such Subsidiary, (D) Organizational Documents described in Section 4.1(a)(iii) and (iv) with respect to such Subsidiary, (E) a written opinion of counsel covering those matters addressed in the opinion delivered on the Closing Date but limited to such Subsidiary, (F) Mortgages for any of such Subsidiary’s real property assets having a book value in excess of $20,0000,000, (G) such other security documents as may be reasonably requested by the Administrative Agent or its counsel and all of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and its counsel, and (H) if applicable, certificates or other instruments (if any) representing 100% of the Equity Interests in such Subsidiary owned by a Loan Party together with an undated stock power (or other appropriate document) executed in blank for each such certificate or other instrument; and (y) in the case of Foreign Subsidiaries, such security documents as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent or its counsel, in order to cause the pledge by the applicable Loan Parties of the Equity Interests of such Subsidiary owned by such Loan Parties if such Foreign Subsidiary is a direct Subsidiary of a Loan Party; provided , that no more than 65% of the total outstanding Equity Interests of such Foreign Subsidiary shall be required to be pledged by the Loan Parties pursuant to this Section.  Neither the Collateral Agent nor the Collateral Trustee nor any other Person shall be required to release any Subsidiary from the Guaranty nor release any Lien on the Equity Interests or assets of any Subsidiary solely for the reason that such Subsidiary ceases to satisfy the Threshold Amount at any time.

(b)            If at any time after the Closing Date, any one or more Domestic Subsidiaries (other than Domestic Subsidiaries that are Excepted Subsidiaries) have been formed

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or acquired which Subsidiaries are not Loan Parties hereunder and have individually or in the aggregate satisfied the Threshold Amount, promptly following its determination that the Threshold Amount has been satisfied, cause one or more of such Subsidiaries to become Loan Parties hereunder and to provide the documents required by Section 6.11(a) above, so that (i) the aggregate book value of the assets of all Domestic Subsidiaries that have been formed or acquired after the Closing Date and are not Loan Parties hereunder is, at all times, less than $50,000,000 and (ii) the aggregate Consolidated EBITDA during the four-Fiscal Quarter period most recently ended attributable to all such Subsidiaries formed or acquired after the Closing Date that are not Loan Parties does not exceed $25,000,000.

(c)            At any time and from time to time, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent and the Collateral Agent may reasonably deem necessary or desirable in obtaining the full benefits of, or in perfecting and preserving the Liens of, such Guaranties, Instruments of Assumption and Joinder, and Security Documents.

Notwithstanding anything to the contrary contained herein, none of the foregoing actions shall be required to be taken by, or with respect to, REMA or any of its Subsidiaries or, so long as the Reimbursement Agreement prohibits the Retail Group from becoming a Loan Party, any member of the Retail Group.

Section 6.12  Further Assurances .  Promptly upon request by the Administrative Agent, or any Lender through the Administrative Agent, (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Loan Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Loan Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so.

Section 6.13  Florida Mortgaged Properties .  Upon the occurrence and during the continuation of any Event of Default, at the request of the Required Lenders, the Borrower shall cause each of the Florida Mortgage Supplements to be filed in the appropriate offices and the proper amount of mortgage recording or similar taxes (if any) to be paid in connection therewith, in order to grant a fully perfected Lien on, and fully perfected security interest in, all right, title and interest of the applicable Loan Parties in the real property assets (except personalty that does not constitute fixtures) covered thereby and the proceeds thereof, subject only to Permitted Encumbrances and, as to perfection, subject to the terms and provisions of the Existing Florida Mortgages and the Assignments of Leases and Rents.

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Section 6.14  Sale Note, etc .  (a)  Cause each Sale Note to be pledged to the Secured Parties under the Existing Security Agreement.

(b)            No later than the date which is 90 days after the consummation of any Permitted Sale, treat all cash consideration received by the Borrower or the applicable Restricted Subsidiary with respect to such Permitted Sale as Excluded Proceeds or as Net Asset Sale Proceeds in accordance with Section 2.4 as if such cash received were Net Asset Sale Proceeds and OPH Asset Sale proceeds.

(c)            Within 90 days following receipt (individually or in the aggregate) of the Trigger Amount, treat all (and no less than all) of such Trigger Amount (together with any other repayments or prepayments (that are not attributable to Transferred Asset Sale Proceeds) of principal of each Sale Note that are received contemporaneously with such Trigger Amount) as Excluded Proceeds or as Net Asset Sale Proceeds in accordance with Section 2.4 as if such cash received were Net Asset Sale Proceeds and OPH Asset Sale Proceeds.  For purposes of this clause, “ Trigger Amount ” means repayments or prepayments (that are not attributable to Transferred Asset Sale Proceeds) of principal of one or more Sale Notes in an aggregate amount equal to $25,000,000, to the extent such repayments or prepayments have not previously been applied in accordance with the foregoing provisions of this clause.

(d)            Any amount remaining after the application set forth above may be retained by the Borrower for use in the ordinary course of its business.

Section 6.15  Title Companies, Local Counsel Opinions .  Promptly, but in any event within 30 days following the Closing Date, deliver to the Administrative Agent (i) modification endorsements issued by the Title Companies to the Collateral Trustee that provide the Collateral Trustee (for benefit of the Secured Parties in accordance with the New Collateral Trust Agreement) with mortgagee’s title insurance through the Closing Date under the Existing Title Policies insuring that the Existing Mortgages (not including the Existing Florida Mortgages), as supplemented by the Mortgage Supplements referenced in Section 4.1(b) , create a first priority Lien (subject to Permitted Encumbrances) on the Closing Date Mortgaged Properties (not including the Florida Mortgaged Properties) securing the Parity Secured Obligations; provided , that the coverage effectuated by the Title Companies’ issuance of the modification endorsements shall be the substantially the same as or better than the coverage under the Existing Title Policies prior to the date of issuance of the modification endorsements, except for the addition of Liens (as defined in and permitted under the Existing Credit Agreement) arising between the date the Existing Title Policies were last modified by the Title Companies and the Closing Date; and (ii) favorable opinions of local counsel for the Loan Parties in jurisdictions in which the Closing Date Mortgaged Properties are located, including, among other things, opinions with respect to the enforceability and perfection of the Mortgages covering the Closing Date Mortgaged Properties and any related fixture filings, in form and substance reasonably satisfactory to the Administrative Agent.

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ARTICLE VII

NEGATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder, any Loan or other Credit Agreement Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding (if neither (x) Cash Collateralized in accordance with the terms of this Agreement nor (y) supported with a back-to-back letter of credit reasonably acceptable to the L/C Issuers), the Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly:

Section 7.1  Liens .  Create, incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind on any asset now owned or hereafter acquired; except Permitted Liens.

Section 7.2  Investments .  (a)  Subject to Section 7.16 make any Investments; provided , however , that the Borrower and each Restricted Subsidiary may make Investments so long as, both immediately prior to the making of such Investment and immediately after giving effect thereto, (i) the Consolidated Secured Leverage Ratio at the time of such Investment does not exceed 2.00:1.00; and (ii) no Default has occurred and is continuing or would be caused thereby.

(b)            The foregoing limitations in Section 7.2(a) will not apply to Permitted Investments.

Section 7.3  Indebtedness .  (a)  Create, incur, or assume (collectively, “ incur ”) any Indebtedness; provided , however , that the Borrower and each Restricted Subsidiary may incur Indebtedness so long as, after giving pro forma effect thereto, (i) the Consolidated Leverage Ratio at such time does not exceed 5.00:1.00; and (ii) no Default has occurred and is continuing or would be caused thereby.

(b)            The foregoing limitations in Section 7.3(a) will not apply to the following (collectively, the “ Permitted Debt ”):

(i)             the Credit Agreement Obligations;

(ii)            Indebtedness of Securitization Entities under Qualified Securitization Transactions in an aggregate principal amount at any one time outstanding under this clause not to exceed (A) $450,000,000, which is incurred and outstanding only at a time when (1) the Sleeve Documents are no longer binding on the Borrower or any of is Subsidiaries and (2) no amounts are owing by the Borrower or any of its Subsidiaries under the Sleeve Documents; or (B) $300,000,000 (less the amount by which Indebtedness permitted under Section 7.3(b)(xvi) exceeds $10,000,000) which is incurred and outstanding only at a time when (1) the Working Capital Agreement has been terminated and (2) securitization facilities of the type permitted under this clause are permitted under the Sleeve Documents;

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(iii)           Indebtedness of REMA and its Subsidiaries in an aggregate principal amount at any one time outstanding under this clause (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of REMA and its Subsidiaries thereunder) not to exceed $60,000,000;

(iv)           the following Indebtedness of the Borrower and the Guarantors: (A) Permitted PEDFA Bond Indebtedness and/or the guarantee thereof by the Borrower or the Guarantors or (B) Indebtedness evidenced by or in support of the Seward Tax-Exempt Bonds, in an aggregate principal amount at any one time outstanding under this clause, not to exceed $500,000,000 less the aggregate amount of all repayments, optional or mandatory, of the principal of any Indebtedness incurred pursuant to this clause that have been made by the Borrower and/or the Guarantors since the Closing Date;

(v)            Existing Indebtedness of the Borrower and its Restricted Subsidiaries, including any outstanding Secured Senior Notes, the Senior Notes, and the Secured Refinancing Senior Notes;

(vi)           Permitted Refinancing Indebtedness of the Borrower or any of its Restricted Subsidiaries in exchange for, or the net proceeds of which are used to refund, refinance, defease or replace Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clauses (a) , (b)(i) , (ii) , (iii) , (iv) , (v) , (vi) , (xv) or (xvi) of this Section;

(vii)          intercompany Indebtedness between or among the Borrower and any of its Restricted Subsidiaries; provided , that:

(A)           such Indebtedness (except Permitted PEDFA Bond Indebtedness, Indebtedness restricted from being subordinated pursuant to agreements identified on Schedule 7.3(vii) and pursuant to Sections 7.3(b)(xvi), (xvii), and xviii) and the OPMW Revolving Note) must be subordinated to the prior payment in full in cash of the Credit Agreement Obligations; and

(B)            any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Borrower or any Restricted Subsidiary, and any sale or other transfer of any such Indebtedness to a Person that is not the Borrower or any Restricted Subsidiary (except transfers to the Collateral Trustee to secure Parity Secured Obligations) shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause;

(viii)         shares of preferred stock issued by any Restricted Subsidiary to the Borrower or to any Restricted Subsidiary; provided , that:

(A)           any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Borrower or any Restricted Subsidiary; and

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(B)            any sale or other transfer of any such preferred stock to a Person that is not either the Borrower or any Restricted Subsidiary,

shall be deemed, in each case, to constitute an issuance of such preferred stock by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause;

(ix)            Hedging Obligations incurred by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business and not for speculative purposes;

(x)             Indebtedness of the Borrower or any of its Restricted Subsidiaries in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance and surety bonds provided by the Borrower or a Restricted Subsidiary in the ordinary course of business;

(xi)            Indebtedness of the Borrower or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five business days;

(xii)           Indebtedness arising from agreements of the Borrower or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Equity Interests of a Subsidiary; provided , that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds (including non-cash proceeds) actually received by the Borrower and/or such Restricted Subsidiary in connection with such disposition;

(xiii)          the Guarantee by the Borrower or any Guarantor of Indebtedness of the Borrower or any Guarantor that is permitted by clause (a) or (b)(iv) , (v) , (vi) (ix) or (xv) of this Section;

(xiv)         the Guarantee by OPC and its Subsidiaries of the OPMW Revolving Note;

(xv)          additional Indebtedness of the Borrower or any of its Restricted Subsidiaries (other than the Retail Group, for so long as any Sleeve Documents are in effect or any amounts are owing thereunder), the proceeds of which are used for, or assumed in connection with, general corporate purposes, including:

(A)           Indebtedness of the Borrower or any of its Restricted Subsidiaries. including Parity Secured Debt, Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, and Disqualified Stock of the Borrower, and

(B)            Indebtedness of Securitization Entities under Qualified Securitization Transactions which is incurred and outstanding only at a time when

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(1) the Sleeve Documents are no longer binding on the Borrower or any of is Subsidiaries and (2) no amounts are owing by the Borrower or any of its Subsidiaries under the Sleeve Documents,

in an aggregate principal amount (or accreted value, as applicable) at any time outstanding under this clause (xv) , not to exceed $800,000,000;

(xvi)         incurrence by the Retail Group of additional Indebtedness and letters of credit (including guarantees delivered by other than the Borrower or any Subsidiary that is not a Subsidiary of Retail Holdco of such Indebtedness) provided , that (A) the aggregate principal amount of Indebtedness incurred under this clause at any one time outstanding shall not exceed $310,000,000, and (B) the proceeds of Indebtedness incurred under this clause shall be used only for the repayment of Indebtedness and other obligations of the Retail Group or to finance working capital needs of the Retail Group, including the payment of sales, general and administrative, and operations and maintenance expenses (including capital expenditures) and all other expenses in the ordinary course of business of the Retail Group).

(xvii)        Non-Recourse Indebtedness of Project Subsidiaries; and

(xviii)       Indebtedness of a Person existing at the time such Person first became a Subsidiary of the Borrower, provided that such Indebtedness was not incurred in contemplation of such acquisition.

Notwithstanding any of the foregoing, neither OPH nor any of its Subsidiaries shall create, incur, issue, assume, suffer to exist, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to any Indebtedness (including Acquired Debt and Disqualified Stock), or issue any shares of preferred stock, in each case, except to the extent permitted (A) under clauses (v) (but not any Permitted Refinancing Indebtedness thereunder), (vii) , (viii) , (ix) , (x) , (xi) , (xii) and (xiv) of this Section and (B) under clause (xv) of this Section, to the extent described in clause (e)(v) of Section 7.17 .

Section 7.4  Consolidation and Mergers .

(a)            Consolidate or merge with or into another Person, or sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, except that:

(i)             so long as no Default exists or would result therefrom, (A) any Subsidiary (other than Retail Holdco or any of its Subsidiaries when the Sleeve Documents are in effect) may merge with or dissolve into (i) the Borrower; provided, that the Borrower shall be the continuing or surviving Person or (ii) any one or more other Subsidiaries; provided, that when any Guarantor is merging with or dissolving into another Subsidiary, the Guarantor shall be the continuing or surviving person or such other Subsidiary shall become a Guarantor upon the consummation of such merger or dissolution in compliance with Section 6.11 , (B) any Subsidiary of Retail Holdco may merge with or dissolve into Retail Holdco or any other Subsidiary of Retail Holdco;

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(ii)            in connection with any Asset Sale permitted under Section 7.5 , any Subsidiary of the Borrower may dissolve, liquidate, consolidate or merge with any other Person or permit any other Person to consolidate or merge with or into it; and

(iii)           so long as no Default exists or would result therefrom, in connection with any Investment permitted under Section 7.2 , any Subsidiary of the Borrower may dissolve, liquidate, consolidate or merge with or into any other Person or permit any other Person to merge or consolidate with it; provided , that, in a merger, dissolution or consolidation of other than Retail Holdco or any of its Subsidiaries when the Sleeve Documents are in effect, the Person surviving such merger, dissolution or consolidation shall be a Guarantor in compliance with Section 6.11 .

(b)            In addition, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, lease all or substantially all of the properties or assets of the Borrower and its Restricted Subsidiaries, in one or more related transactions, to any other Person.

(c)            This Section shall not apply to (i) any sale, transfer, assignment, conveyance, lease or other disposition of assets between or among the Borrower and the Restricted Subsidiaries, or (ii) the merger of the Borrower with an Affiliate solely for the purpose of reincorporating or re-forming the Borrower in another jurisdiction.

Section 7.5  Asset Sales .  Consummate an Asset Sale unless:

(a)            the Borrower (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of (as reasonably determined by the Borrower or such Restricted Subsidiary); and

(b)            at least 75% of the consideration therefor received in the Asset Sale by the Borrower or such Restricted Subsidiary is in the form of cash or Cash Equivalents.  For purposes of this provision, each of the following shall be deemed to be cash:

(i)             any liabilities, as shown on the Borrower’s most recent consolidated balance sheet, of the Borrower or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Loans or any Guaranty thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Borrower or such Restricted Subsidiary from further liability;

(ii)            any securities, notes or other Obligations received by the Borrower or any such Restricted Subsidiary from such transferee that are converted (by sale or other disposition) by the Borrower or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion within 60 days; and

(iii)           reasonable reserves for indemnity obligations and purchase price adjustments funded in cash or held back by the purchaser;

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provided , that , the foregoing limitations in this Section 7.5(b) shall not apply to Asset Swaps.

Section 7.6  Restricted Payments .  (a) Make any Restricted Payment; provided , however , that the Borrower and each Restricted Subsidiary may make Restricted Payments so long as, both immediately prior to the making of such Restricted Payment and immediately after giving effect thereto, (i) the Consolidated Secured Leverage Ratio at the time of such Restricted Payment does not exceed 2.00:1.00; and (ii) no Default has occurred and is continuing or would be caused thereby.

(b)            The restrictions in Section 7.6(a) shall not apply to the following:

(i)             the payment of any dividend within 60 days after the date of declaration of the dividend, if at the date of declaration the dividend would have complied with the provisions of this Agreement (and, in the case of any dividends to be paid by the Borrower, no Default had occurred and was continuing on the date of such declaration);

(ii)            so long as no Default has occurred and is continuing or would be caused thereby, the making of any Restricted Payment in exchange for, or out of the net cash proceeds of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Borrower) of, Equity Interests of the Borrower (other than Disqualified Stock) or of the substantially concurrent contribution of common equity capital or surplus to the Borrower;

(iii)           the defeasance, redemption, repurchase or other acquisition of Subordinated Indebtedness of the Borrower or any Guarantor with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness;

(iv)           the payment of any dividend (or, in the case of any partnership, limited liability company or trust, any similar distribution) by a Restricted Subsidiary of the Borrower to the holders of its Equity Interests on a pro rata basis;

(v)            so long as no Default has occurred and is continuing or would be caused thereby, (A) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower or any Restricted Subsidiary of the Borrower in connection with any management equity subscription agreement, stock option agreement, shareholders’ agreement, severance agreement, employee benefit plan or agreement or similar agreement, in each case, as in existence and as in effect on the Closing Date, (B) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower or any Restricted Subsidiary of the Borrower in connection with any management equity subscription agreement, stock option agreement, shareholders’ agreement, severance agreement, employee benefit plan or agreement or similar agreement other than any such agreement or plan described in clause (A) above, or (C) the repurchase for value of any Equity Interests of the Borrower in the open market to satisfy stock options issued by the Borrower that are outstanding; provided , that with respect to clauses (B) and (C) above, the aggregate price paid for all such repurchased,

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redeemed, acquired or retired Equity Interests after the Closing Date may not exceed $25,000,000 in any calendar year;

(vi)           the repurchase of Equity Interests deemed to occur upon the exercise of stock options to the extent such Equity Interests represent a portion of the exercise price of those stock options;

(vii)          the purchase by the Borrower of fractional shares upon conversion of any securities of the Borrower into Equity Interests of the Borrower;

(viii)         so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Borrower or any Restricted Subsidiary of the Borrower issued on or after the Closing Date in accordance with Section 7.3(b) hereof;

(ix)            the transactions with any Person (including any Affiliate of the Borrower) set forth in clauses (b)(i) and (b)(iv) of Section 7.8(b) hereof and the funding of any obligations in connection therewith;

(x)             the issuance of Equity Interests of the Borrower (other than Disqualified Stock) for other Equity Interests of the Borrower in connection with any rights offering and payments for the redemption of fractional shares in connection with any rights offering; and

(xi)            so long as no Default has occurred and is continuing or would be caused thereby, Restricted Payments in an aggregate amount not to exceed the Available Amount at the time of such payment.

The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Borrower or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.

Section 7.7  Line of Business .  Not, nor permit any of its Restricted Subsidiaries to, engage in any business other than the Permitted Business, except to such extent as would not be material to the Borrower and its Subsidiaries taken as a whole.

Section 7.8  Transactions with Affiliates .

(a)            Not, and not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Borrower (each, an “ Affiliate Transaction ”), unless such Affiliate Transaction is on terms that are no less favorable (as reasonably determined by the Borrower) to the Borrower or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Borrower or such Restricted Subsidiary with an unrelated Person.

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(b)            The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the provisions of Section 7.8(a) hereof:

(i)             any employment agreement or director’s engagement agreement, employee benefit plan, officer and director indemnification agreement or any similar arrangement entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business or approved by the Board of Directors;

(ii)            transactions between or among the Borrower and/or its Restricted Subsidiaries (other than (A) the Retail Group and (B) Foreign Subsidiaries), transactions between or among any member of the Retail Group, transactions under the Parent Services Agreement, transactions between or among the IT Trust and the IP Trust and the Retail Group and transactions between or among REI, and its Subsidiaries, the IT Trust, the IP Trust, and the Retail Group that are evidenced or contemplated by the IP/IT Agreements;

(iii)           transactions with a Person that is an Affiliate of the Borrower solely because the Borrower owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;

(iv)           payment of reasonable directors’ fees to Persons who are not otherwise Affiliates of the Borrower;

(v)            any issuance of Equity Interests (other than Disqualified Stock) of the Borrower to Affiliates of the Borrower;

(vi)           Restricted Payments that do not violate the provisions of Section 7.6 hereof;

(vii)          transactions effected as part of a Qualified Securitization Transaction;

(viii)         loans or advances to employees in the ordinary course of business not to exceed $10,000,000 in the aggregate outstanding at any one time;

(ix)            any agreement, instrument or arrangement as in effect as of the Closing Date, or any amendment thereto or any transaction contemplated thereby (including pursuant to any amendment thereto) in any replacement agreement thereto so long as any such amendment or replacement agreement is not more disadvantageous to the Lenders in any material respect than the original agreement as in effect on the Closing Date as determined by the Borrower; and

(x)             any pro rata distribution (including a rights offering) to all holders of a class of Equity Interests or Indebtedness of the Borrower or any of its Restricted Subsidiaries, including Persons who are Affiliates of the Borrower or any of its Restricted Subsidiaries.

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Section 7.9  Restrictive Agreements .  Enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (b) the ability of any Restricted Subsidiary to pay dividends or make any other distributions with respect to any shares of its capital stock or any other Equity Interest or participation in its profits owned by a Restricted Subsidiary, or (c) the ability of any Restricted Subsidiary (including any Purchaser Subsidiary) to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary or to transfer any of its properties or assets to the Borrower or any other Restricted Subsidiary; provided , that the foregoing shall not apply to (i) restrictions and conditions imposed by Laws, or by any Loan Document, (ii) restrictions and conditions in any agreement or contract existing on the Closing Date and any amendments, modifications, restatements, renewals or replacements thereof that are not more restrictive, taken as a whole, than the restrictions existing on the Closing Date, (iii) customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary or asset pending such sale; provided , that such restrictions and conditions apply only to the Subsidiary or asset that is to be sold and such sale is permitted hereunder, (iv) restrictions or conditions imposed by (A) any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness or (B) by any agreement relating to Debt of a Project Subsidiary, (v) customary non-assignment provisions in any contract, easement or lease, and other customary encumbrances and restrictions entered into in the ordinary course of business that are not more restrictive, taken as a whole, than the encumbrances existing on the Closing Date, (vi) restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or similar agreement to which any Restricted Subsidiary is a party and which is entered into in the ordinary course of business; provided , that such agreement prohibits the encumbrance of solely the property or assets of such Restricted Subsidiary that are the subject of such agreement, the payment rights arising thereunder and/or the proceeds thereof and not to any other asset or property of such Restricted Subsidiary or the assets or property of any other Restricted Subsidiary, (vii) restrictions contained in documents evidencing Indebtedness existing at the time at which any such Person first becomes a Restricted Subsidiary, so long as such restriction was not agreed to or entered into solely in contemplation of such change in status, and any amendments, modifications, restatements, renewals or replacements thereof that are not more restrictive, taken as a whole, than the restrictions existing at the time such Person first becomes a Restricted Subsidiary and (viii) restrictions and conditions contained in the Sleeve Documents.

Section 7.10  Use of Proceeds .  Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.

Section 7.11  Consolidated Secured Leverage Ratio .  For so long as any Revolving Credit Loan or Revolving Credit Letter of Credit is outstanding (and not Cash Collateralized in the case of any outstanding Revolving Letter of Credit), permit the Consolidated Secured Leverage Ratio, as of the last day of any Fiscal Quarter of the Borrower to be more than 4.00:1.00.

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Section 7.12  Modification of Certain Agreements .  Without the consent of the Administrative Agent, not to be unreasonably withheld or delayed, consent to any amendment, supplement, waiver or other modification of, or enter into any forbearance from exercising any rights with respect to the terms or provisions contained in,

(a)            any Orion Note Document in any way that (i) reduces the rate of interest or extends in a material manner the date scheduled for payment of principal of or interest on, or reduces the principal amount (other than as a result of a Dollar for Dollar repayment) of, the OPMW Revolving Note (other than an annual extension of the maturity date thereof), (ii) modifies, waives or deletes the terms of the Orion Note Documents which provide for a cross-default to Indebtedness of OPH under the OPH Note Indenture or the OPH Notes, or (iii) releases collateral securing the Orion Note Documents, except in connection with any asset disposition that is not prohibited hereunder and the Net Asset Sale Proceeds of which are applied in accordance herewith;

(b)            any Sale Note in any way that (i) reduces the rate of interest or extends the date scheduled for payment of principal of or interest on, or reduces the principal amount (other than as a result of a Dollar for Dollar repayment) of, such Sale Note, (ii) modifies, waives or deletes the terms of any Sale Note which provide for a cross-default to Indebtedness of OPH under the OPH Note Indenture or the OPH Notes, or (iii) releases collateral securing such Sale Note, except in connection with any asset disposition that is not prohibited hereunder and the Net Asset Sale Proceeds of which are applied in accordance herewith; or

(c)            any Sleeve Document (or replacement of any Sleeve Document) in a way that (i) adversely affects any member of the Retail Group’s ability to make dividends or distributions to, or pay obligations owed to, the Borrower or Subsidiaries that are not members of the Retail Group or (ii) adversely affects the Lenders’ and the Administrative Agent’s rights to acquire the Sleeve Provider’s position under the Sleeve Documents.

Section 7.13  Fiscal Year .  Not, nor permit any of its Restricted Subsidiaries to, directly or indirectly, change its Fiscal Year from a Fiscal Year ending December 31.

Section 7.14  Termination of Certain Covenants upon Release Date .  Following the Release Date ( provided , that there shall not have occurred or been continuing any Default as of the Release Date), the provisions of clause (ii) of the proviso to clause (5) of the definition of Permitted Liens and the provisions of Sections 7.2 , 7.5 , 7.16 , hereof shall be terminated.

Section 7.15  Application of Transferred Asset Sale Proceeds .

The Borrower shall cause OPH and its Subsidiaries to apply all OPH Asset Sale Proceeds that are Transferred Asset Sale Proceeds to a Dollar for Dollar repayment or prepayment of the principal of, and accrued interest on, the Sale Notes and the amount so paid on the Sale Notes and the remainder, if any, shall be applied in accordance with Section 2.4 as if such Transferred Asset Sale Proceeds were Net Asset Sale Proceeds and OPH Asset Sale Proceeds.

Section 7.16  Designated Entities .  Notwithstanding anything to the contrary contained herein (including this Article):

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(a)            other than with respect to (i) the Retail Group, the IP Trust and the IT Trust, which are governed by clause (b) , neither the Borrower nor any Restricted Subsidiary shall make any Investment in or otherwise transfer any asset to any Designated Entity, other than pursuant to cash loans evidenced by promissory notes that are pledged as Collateral under the Security Documents; provided , that (A) to the extent any such Designated Entity has Contractual Obligations existing on the Closing Date which prohibit the incurrence by such Designated Entity of Indebtedness (including pursuant to such promissory notes) or (B) the Borrower reasonably determines that the incurrence of such Indebtedness is disadvantageous from a tax perspective, the Borrower and the Restricted Subsidiaries may, to the extent of such prohibitions or determination, make cash equity contributions to such Designated Entity, (ii) credit support provided in the ordinary course of business to support obligations other than Debt of such Designated Entity (such as and including posting of cash and/or letters of credit, delivery of performance guarantees or similar agreements and arrangements to guaranty the timely and complete performance of such Designated Entity), (iii) Investments and transfers of assets (other than cash, Cash Equivalents, or any power generation facility) and payments for goods and services in the ordinary course of business; provided , that the Borrower or a Restricted Subsidiary may sell the Transferred Assets to the Purchaser Subsidiary pursuant to the terms of any Permitted Sale, and (iv) Investments by a Designated Entity in the direct or indirect parents or Subsidiaries of such Designated Entity;

(b)            neither the Borrower nor any Restricted Subsidiary (other than a Subsidiary in the Retail Group or IT Trust or IP Trust) shall make any Investment in or otherwise transfer any asset to Retail Holdco, any of its Subsidiaries, the IP Trust or the IT Trust, other than (i) pursuant to cash loans evidenced by promissory notes that are pledged as Collateral under the Security Documents; provided , that (A) to the extent Retail Holdco or any of its Subsidiaries has Contractual Obligations existing on the Closing Date, including under the Sleeve Documents, which prohibit the incurrence of Indebtedness (including pursuant to such promissory notes) or (B) the Borrower reasonably determines that the incurrence of such Indebtedness is disadvantageous from a tax perspective, the Borrower and the Restricted Subsidiaries may, to the extent of such prohibitions or determination, make cash equity contributions to Retail Holdco or any of its Subsidiaries, (ii) pursuant to the Parent Services Agreement, any of the IP/IT Agreements or any documents entered into in respect of the PJM Retail Business, (iii) the transfer of the Retail Energy Business to Retail Holdco in accordance with the terms of the Sleeve Documents, (iv) Investments and transfers of the assets used in the PJM Retail Business on the date on which RESE becomes party to the Reimbursement Agreement, (v) transfers of assets (other than cash, Cash Equivalents, or any power generation facility) and payments for, and sales of, goods and services in the ordinary course of business, and transfers of cash to the IT Trust or the IP Trust for the acquisition of goods and services for the use by the IT Trust or the IP Trust in the ordinary course of business to provide the services under the IP/IT Trust Agreements, (vi) credit support (whether in the form of guarantees, cash or letters of credit), for REPS, RERS or the IT Trust that are outstanding on the Closing Date; and (vii) the Investments in and transfer of assets to the IP Trust and the IT Trust by the Borrower and its Subsidiaries pursuant to the IP/IT Agreements; and

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(c)            no Designated Entity shall incur or permit to exist any Indebtedness other than (i) pursuant to clause (a)(i) or (b)(i) above and Section 7.3(b)(iii), (ii) Existing Indebt­edness in respect of which it is obligated, (iii) Permitted Refinancing Indebtedness with respect to any such Existing Indebtedness, (iv) in the case of the Retail Group, Indebtedness permitted by clause (xvi) of Section 7.3 or (v) Indebtedness incurred by REMA, OPH or their respective Subsidiaries pursuant to clause (xv) of Section 7.3 in an amount not to exceed $200,000,000 at any time outstanding, but only if the proceeds of such Indebtedness are applied to environmental remediation and upgrade of fixed or capital assets to comply with applicable law.

ARTICLE VIII

GUARANTY

Section 8.1  Guaranty; Limitation of Liability .

(a)            Each Guarantor, jointly and severally, hereby absolutely, uncondi­tionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all Credit Agreement Obligations of the Borrower now or hereafter exist­ing (including any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Credit Agreement Obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indem­nities, contract causes of action, costs, expenses or otherwise (such Credit Agreement Obligations being the “ Guaranteed Obligations ”), and agrees to pay any and all expenses (including reasonable fees and expenses of counsel) incurred by any Agent or any other Secured Party in enforcing any rights under this Guaranty or any other Loan Document.  Without limiting the generality of the foregoing, each Guarantor’s liabil­ity shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other Loan Party to any Secured Party under or in respect of the Loan Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Loan Party.

(b)            Each Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each other Secured Party, hereby confirms that it is the intention of all such Persons that this Guaranty and the Obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of Debtor Relief Laws, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the Obligations of each Guarantor hereunder.  To effectuate the foregoing intention, the Administrative Agent, the other Secured Parties and the Guarantors hereby irrevocably agree that the Obligations of each Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the Credit Agreement Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance.

(c)            Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Secured Party under this Guaranty or any Instrument of Assumption and Joinder, such Guarantor will contribute, to the maximum extent

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permitted by law, such amounts to each other Guarantor and each other Guarantor so as to maximize the aggregate amount paid to the Secured Parties under or in respect of the Loan Documents.

Section 8.2  Guaranty Absolute .  Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with respect thereto.  The Credit Agreement Obligations of each Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other Credit Agreement Obligations of any other Loan Party under or in respect of the Loan Documents, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or any other Loan Party or whether the Borrower or any other Loan Party is joined in any such action or actions.  The liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:

(a)            any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;

(b)            any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other Credit Agreement Obligations of any other Loan Party under or in respect of the Loan Documents, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guaranteed Obligations resulting from the extension of additional credit to any Loan Party or any of its Subsidiaries or otherwise;

(c)            any taking, exchange, release or non-perfection of any Collateral or any other collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;

(d)            any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed Obligations or any other Credit Agreement Obligations of any Loan Party under the Loan Documents or any other assets of any Loan Party or any of its Subsidiaries;

(e)            any change, restructuring or termination of the corporate structure or existence of any Loan Party or any of its Subsidiaries;

(f)             any failure of any Secured Party to disclose to any Loan Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party now or hereafter known to such Secured Party (each Guarantor waiving any duty on the part of the Secured Parties to disclose such information);

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(g)            the failure of any other Person to execute or deliver this Guaranty, any Instrument of Assumption and Joinder or any other guaranty or agreement or the release or reduction of liability of any Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or

(h)            any other circumstance (including any statute of limitations) or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or a discharge of, any Loan Party or any other guarantor or surety.

This Guaranty shall survive termination of this Agreement and shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any Secured Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party or otherwise, all as though such payment had not been made.

Section 8.3  Waivers and Acknowledgments .

(a)            Each Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that any Secured Party protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Loan Party or any other Person or any Collateral.

(b)            Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.

(c)            Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by any Secured Party that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any of the other Loan Parties, any other guarantor or any other Person or any Collateral and (ii) any defense based on any right of set-off or counterclaim against or in respect of the Credit Agreement Obligations of such Guarantor hereunder.

(d)            Each Guarantor acknowledges that the Collateral Trustee may, without notice to or demand upon such Guarantor and without affecting the liability of such Guarantor under this Guaranty, foreclose under any mortgage by nonjudicial sale, and each Guarantor hereby waives any defense to the recovery by the Collateral Trustee and the other Secured Parties against such Guarantor of any deficiency after such nonjudicial sale and any defense or benefits that may be afforded by applicable law.

(e)            Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any Secured Party to disclose to such Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or

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prospects of any other Loan Party or any of its Subsidiaries now or hereafter known by such Secured Party.

(f)             Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Loan Documents and that the waivers set forth in Section 8.2 and this Section are knowingly made in contemplation of such benefits.

Section 8.4  Subrogation .  Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower, any other Loan Party or any other insider guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s Guaranteed Obligations under or in respect of this Guaranty or any other Loan Document, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Secured Party against the Borrower, any other Loan Party or any other insider guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from the Borrower, any other Loan Party or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash, all Letters of Credit shall have expired or been terminated and the Commitments shall have expired or been terminated.  If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the latest of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty, (b) the latest maturity date in respect of the Facilities outstanding from time to time and (c) the latest date of expiration or termination of all Letters of Credit, such amount shall be received and held in trust for the benefit of the Secured Parties, shall be segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan Documents, or to be held as Collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising.  If (i) any Guarantor shall make payment to any Secured Party of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash, (iii) the latest maturity date in respect of the Facilities outstanding from time to time shall have occurred and (iv) all Letters of Credit shall have expired or been terminated, the Secured Parties will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to this Guaranty.

Section 8.5  Assumption and Joinder .  Upon the execution and delivery by any Additional Guarantor of an Instrument of Assumption and Joinder as required under Section 6.11(a) , (a) such Person shall become and be a Guarantor hereunder, and each reference in this Guaranty to a “Guarantor” shall also mean and

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be a reference to such Additional Guarantor, and each reference in any other Loan Document to a “Guarantor” shall also mean and be a reference to such Additional Guarantor, and (b) each reference herein to “this Guaranty,” “hereunder,” “hereof” or words of like import referring to this Guaranty, and each reference in any other Loan Document to the “Guaranty,” “thereunder,” “thereof” or words of like import referring to this Guaranty, shall mean and be a reference to this Guaranty as supplemented by such Instrument of Assumption and Joinder.

Section 8.6  Subordination .  Each Guarantor hereby subordinates any and all debts, liabilities and other Obligations owed to such Guarantor by each other Loan Party (the “ Subordinated Obligations ”) to the Guaranteed Obligations to the extent and in the manner hereinafter set forth in this Section:

(a)            Prohibited Payments, Etc.   Except during the continuance of a Default (including the commencement and continuation of any proceeding under any Debtor Relief Law relating to any other Loan Party), each Guarantor may receive regularly scheduled payments from any other Loan Party on account of the Subordinated Obligations.  After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any Debtor Relief Law relating to any other Loan Party), however, unless the Required Lenders otherwise agree, no Guarantor shall demand, accept or take any action to collect any payment on account of the Subordinated Obligations.

(b)            Prior Payment of Guaranteed Obligations .  In any proceeding under any Debtor Relief Law relating to any other Loan Party, each Guarantor agrees that the Secured Parties shall be entitled to receive payment in full in cash of all Guaranteed Obligations (including all Post-Petition Interest) before such Guarantor receives payment of any Subordinated Obligations.

(c)            Turn-Over .  After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any Debtor Relief Law relating to any other Loan Party), each Guarantor shall, if the Administrative Agent so request, collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Secured Parties and deliver such payments to the Administrative Agent on account of the Guaranteed Obligations (including all Post-Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of such Guarantor under the other provisions of this Guaranty.

Section 8.7  Continuing Guaranty; Assignments .  This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the latest of (i) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty, (ii) the latest maturity date in respect of the Facilities outstanding from time to time, (iii) the latest date of expiration or termination of all Letters of Credit, or Cash Collateralization thereof or issuance of a back-to-back letter of credit reasonably satisfactory to the applicable L/C Issuer with respect thereto, and (iv) the release thereof in accordance with Section 10.10 , (b) be binding upon the Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the Secured Parties and their successors, transferees and assigns.  Upon the occurrence of the latest date specified in clause (a) above, the Guarantors shall be released from other Credit Agreement Obligations under the Loan Documents.  Without limiting the generality of clause (c) of the immediately preceding sentence, any Secured Party may assign or otherwise transfer all or any

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portion of its rights and Obligations under this Agreement (including all or any portion of its Commitments, the Advances owing to it and the Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Secured Party herein or otherwise, in each case as and to the extent provided in this Section.  No Guarantor shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Secured Parties.

ARTICLE IX

EVENTS OF DEFAULT AND REMEDIES

Section 9.1  Events of Default .  Any of the following shall constitute an Event of Default:

(a)            Non-Payment .  The Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within three Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee or other amount payable hereunder or under any other Loan Document; or

(b)            Specific Covenants .  The Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 2.4(b)(iii) , Section 6.3 , 6.5 (only with respect to the existence of the Borrower), 6.10 or 6.11 or Article VII ; provided that any Event of Default under Section 7.11 shall not constitute an Event of Default with respect to the Term Facility or the Pre-Funded L/C Facility until the earlier of (i) the date that is 45 days after the date such Event of Default arises with respect to the Revolving Credit Facility and (ii) the date on which the Administrative Agent or the Revolving Credit Lenders exercise any remedies with respect to the Revolving Credit Facility in accordance with Section 9.2 ; and provided, further, that any Event of Default under Section 7.11 may be waived, amended or otherwise modified from time to time by the Required Revolving Lenders pursuant to Section 11.1 ; or

(c)            Other Defaults .  Any Loan Party fails to perform or observe any other covenant or agreement (not specified in clause (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days after the earlier to occur of (i) a Loan Party receiving notice thereof from the Administrative Agent (which notice shall be given at the request of any Lender) or any other Person, or (ii) a Responsible Officer or other executive officer of a Loan Party obtains knowledge of such occurrence; or

(d)            Representations and Warranties .  Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or

(e)            Cross-Default .  (i) Any Loan Party, any Person required to become a Loan Party pursuant to Section 6.11 , REMA, Retail Holdco, OPH or any Subsidiary of REMA, Retail

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Holdco or OPH (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness under or Guarantee in respect of the REMA Lease or any other Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Hedging Agreements) having an aggregate principal amount (including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $50,000,000, or (B) fails to observe or perform any other agreement or condition relat­ing to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is (x) in the case of all such Indebtedness or Guarantees (including under or in respect of the REMA Lease), to cause, or (y) in the case of all such Indebtedness or Guarantees (other than under or in respect of the REMA Lease), to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (auto­ma­tically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebt­edness to be made, prior to its Stated Maturity, or such Guarantee to become pay­able or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Hedging Agreement an Early Termination Date (as defined in such Hedging Agreement) resulting from (A) any event of default under such Hedging Agreement as to which the Borrower or any Subsidiary is the Defaulting Party (as defined in such Hedging Agreement) or (B) any Termination Event (as so defined) under such Hedging Agreement as to which the Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the Hedge Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater than $50,000,000 and not paid when due; or

(f)             Insolvency Proceedings, Etc.   The Borrower or any Loan Party (or Person that is required to become a Loan Party pursuant to Section 6.11 ) that is a Material Subsidiary or REMA, Retail Holdco, OPH or any Subsidiary of REMA, Retail Holdco or OPH institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of their respective property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of their respective property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or

(g)            Inability to Pay Debts; Attachment .  The Borrower or any Loan Party (or Person that is required to become a Loan Party pursuant to Section 6.11 ) that is a Material Subsidiary or REMA, Retail Holdco, OPH or any Subsidiary of REMA, Retail Holdco or OPH becomes unable or admits in writing its inability or fails generally to pay its debts as they become due; or

(h)            Judgments .  There is entered against the Borrower, any Loan Party, any Person that is required to become a Loan Party pursuant to Section 6.11 , REMA, Retail Holdco,

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OPH or any Subsidiary of REMA, Retail Holdco or OPH a final judgment or order for the payment of money in an aggregate amount exceeding $50,000,000 (to the extent not covered by independent third-party insurance or that has not been paid), and (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) within thirty (30) days from the later of (X) the entry of any such judgment or the date of any such order (as applicable) and (Y) the date any payment is required to be made on or with respect to any such judgment or order pursuant to the terms thereof, the same shall not have been paid, discharged or vacated or, in the case of a judgment, stayed pending appeal, or shall not have been discharged or vacated within thirty (30) days from the entry of a final order of affirmance on appeal; or

(i)             ERISA .  (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $50,000,000, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $50,000,000; or the Borrower fails to make a contribution under Code Section 412 or ERISA Section 302 with respect to a Pension Plan, within 30 days after the date on which the Borrower obtains knowledge that such contribution is due, in an aggregate amount in excess of $50,000,000; or

(j)             Change of Control .  There occurs any Change of Control; or

(k)            Invalidity of Documents .  (i) Any Security Agreement, Mortgage or other Security Document after delivery thereof pursuant to Section 4.1 or 6.11 shall for any reason (other than pursuant to the terms thereof or as expressly permitted thereby) cease to create a valid and perfected first priority Lien (subject to Permitted Encumbrances and Permitted Liens) on and security interest in the Collateral purported to be covered thereby; provided , that no such defects pursuant to this clause with respect to a Lien granted or purported to be granted by any of the Loan Documents shall give rise to an Event of Default under this clause unless such defects shall adversely affect the aggregate value of the Collateral by an aggregate amount of $50,000,000 or more; or (ii) any Loan Party shall so assert such invalidity or lack of perfection or priority; or (iii) any other Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Credit Agreement Obligations thereunder, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any provision of any other Loan Document; or any Loan Party denies that it has any or further liability or obligation under any other Loan Document, or purports to revoke, terminate or rescind any provision of any other Loan Document;

(l)             Failure of Subordination .  Unless otherwise waived or consented to by the Administrative Agent and the Required Lenders in writing, the subordination provisions relating to any Subordinated Indebtedness (the “ Subordination Provisions ”) shall fail to be enforceable by the Administrative Agent, the Lenders and the L/C Issuers in accordance with the terms thereof, or the monetary Credit Agreement Obligations shall fail to constitute “Senior Indebtedness” or “Senior Debt” (or similar term) referring to the Credit Agreement Obligations;

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