Exhibit 10.1


 


AMENDED AND RESTATED CREDIT AGREEMENT


 


by and among


 


COVANCE INC.


 


and




THE GUARANTORS PARTY HERETO


 


and


 


THE LENDERS PARTY HERETO


 


and


 


PNC BANK, NATIONAL ASSOCIATION, as Agent


 


Dated as of October 26, 2010


 


PNC CAPITAL MARKETS, LLC, as Lead Arranger and Book Runner


 


CITIBANK, N.A.


 


JPMORGAN CHASE BANK, N.A.


 


BANK OF AMERICA, N.A.


 


TD BANK, N.A.,


 


          as
Co-Syndication Agents


 

















 


TABLE OF
CONTENTS


 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  TABLE OF
  CONTENTS

  	
   

  	
  I

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
  I

  
	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  	
  I

  
	
   

  	
   

  	
   

  
	
  1.

  	
  CERTAIN DEFINITIONS

  	
   

  	
  1

  
	
   

  	
  1.1

  	
  Certain Definitions

  	
   

  	
  1

  
	
   

  	
  1.2

  	
  Construction

  	
   

  	
  29

  
	
   

  	
   

  	
  1.2.1

  	
  Number; Inclusion

  	
   

  	
  29

  
	
   

  	
   

  	
  1.2.2

  	
  Determination

  	
   

  	
  30

  
	
   

  	
   

  	
  1.2.3

  	
  Agent’s Discretion and Consent

  	
   

  	
  30

  
	
   

  	
   

  	
  1.2.4

  	
  Documents Taken as a Whole

  	
   

  	
  30

  
	
   

  	
   

  	
  1.2.5

  	
  Headings

  	
   

  	
  30

  
	
   

  	
   

  	
  1.2.6

  	
  Implied References to this Agreement

  	
   

  	
  30

  
	
   

  	
   

  	
  1.2.7

  	
  Persons

  	
   

  	
  30

  
	
   

  	
   

  	
  1.2.8

  	
  Modifications to Documents

  	
   

  	
  31

  
	
   

  	
   

  	
  1.2.9

  	
  From, To and Through

  	
   

  	
  31

  
	
   

  	
   

  	
  1.2.10

  	
  Shall; Will

  	
   

  	
  31

  
	
   

  	
  1.3

  	
  Accounting Principles

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  REVOLVING CREDIT AND SWING LOAN FACILITIES

  	
   

  	
  31

  
	
   

  	
  2.1

  	
  Revolving Credit Commitments

  	
   

  	
  31

  
	
   

  	
   

  	
  2.1.1

  	
  Revolving Credit Loans

  	
   

  	
  31

  
	
   

  	
  2.2

  	
  Swing Loan Commitment

  	
   

  	
  32

  
	
   

  	
   

  	
  2.2.1

  	
  Swing Loans

  	
   

  	
  32

  
	
   

  	
  2.3

  	
  Nature of Lenders’ Obligations with Respect to Revolving
  Credit Loans

  	
   

  	
  32

  
	
   

  	
  2.4

  	
  Commitment Fees

  	
   

  	
  32

  
	
   

  	
  2.5

  	
  Revolving Credit Loan Requests; Swing Loan Requests

  	
   

  	
  33

  
	
   

  	
   

  	
  2.5.1

  	
  Revolving Credit Loan Requests

  	
   

  	
  33

  
	
   

  	
   

  	
  2.5.2

  	
  Swing Loan Requests

  	
   

  	
  34

  
	
   

  	
  2.6

  	
  Making Revolving Credit Loans and Swing Loans

  	
   

  	
  34

  
	
   

  	
   

  	
  2.6.1

  	
  Making Revolving Credit Loans

  	
   

  	
  34

  
	
   

  	
   

  	
  2.6.2

  	
  Making Swing Loans

  	
   

  	
  34

  
	
   

  	
  2.7

  	
  Swing Loan Note

  	
   

  	
  35

  
	
   

  	
  2.8

  	
  Use of Proceeds

  	
   

  	
  35

  
	
   

  	
  2.9

  	
  Borrowings to Repay Swing Loans

  	
   

  	
  35

  
	
   

  	
  2.10

  	
  Letter of Credit Subfacility

  	
   

  	
  35

  
	
   

  	
   

  	
  2.10.1

  	
  Issuance of Letters of Credit

  	
   

  	
  35

  
	
   

  	
   

  	
  2.10.2

  	
  Letter of Credit Fees

  	
   

  	
  36

  
	
   

  	
   

  	
  2.10.3

  	
  Disbursements, Reimbursement

  	
   

  	
  36

  



 

















 


	
   

  	
   

  	
  2.10.4

  	
  Repayment of Participation Advances

  	
   

  	
  38

  
	
   

  	
   

  	
  2.10.5

  	
  Documentation

  	
   

  	
  38

  
	
   

  	
   

  	
  2.10.6

  	
  Determinations to Honor Drawing Requests

  	
   

  	
  38

  
	
   

  	
   

  	
  2.10.7

  	
  Nature of Participation and Reimbursement Obligations

  	
   

  	
  38

  
	
   

  	
   

  	
  2.10.8

  	
  Indemnity

  	
   

  	
  40

  
	
   

  	
   

  	
  2.10.9

  	
  Liability for Acts and Omissions

  	
   

  	
  40

  
	
   

  	
   

  	
  2.10.10

  	
  Cash Collateral

  	
   

  	
  42

  
	
   

  	
  2.11

  	
  Utilization of Commitments in Optional Currencies

  	
   

  	
  42

  
	
   

  	
   

  	
  2.11.1

  	
  Periodic Computations of Dollar Equivalent Amounts of Loans
  and Letters of Credit Outstanding

  	
   

  	
  42

  
	
   

  	
   

  	
  2.11.2

  	
  Notices From Lenders That Optional Currencies Are
  Unavailable to Fund New Loans

  	
   

  	
  42

  
	
   

  	
   

  	
  2.11.3

  	
  Notices From Lenders That Optional Currencies Are
  Unavailable to Fund Renewals of the Euro-Rate Option

  	
   

  	
  43

  
	
   

  	
   

  	
  2.11.4

  	
  European Monetary Union

  	
   

  	
  44

  
	
   

  	
   

  	
  2.11.5

  	
  Requests for Additional Optional Currencies

  	
   

  	
  44

  
	
   

  	
  2.12

  	
  Currency Repayments

  	
   

  	
  45

  
	
   

  	
  2.13

  	
  Optional Currency Amounts

  	
   

  	
  45

  
	
   

  	
  2.14

  	
  Right to Increase Revolving Credit Commitments

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  TERM LOANS

  	
   

  	
  46

  
	
   

  	
  3.1

  	
  Term Loan Commitments

  	
   

  	
  46

  
	
   

  	
  3.2

  	
  Term Loan Request

  	
   

  	
  46

  
	
   

  	
  3.3

  	
  Making the Term Loans

  	
   

  	
  46

  
	
   

  	
  3.4

  	
  Term Loan Commitment Fee

  	
   

  	
  47

  
	
   

  	
  3.5

  	
  Nature of Lenders’ Obligations with Respect to Term Loans;
  Repayment Terms

  	
   

  	
  47

  
	
   

  	
  3.6

  	
  Term Notes

  	
   

  	
  47

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  INTEREST RATES

  	
   

  	
  48

  
	
   

  	
  4.1

  	
  Interest Rate Options

  	
   

  	
  48

  
	
   

  	
   

  	
  4.1.1

  	
  Interest Rate Options

  	
   

  	
  48

  
	
   

  	
   

  	
  4.1.2

  	
  Rate Quotations

  	
   

  	
  48

  
	
   

  	
  4.2

  	
  Interest Periods

  	
   

  	
  49

  
	
   

  	
   

  	
  4.2.1

  	
  Amount of Borrowing Tranche

  	
   

  	
  49

  
	
   

  	
   

  	
  4.2.2

  	
  Renewals

  	
   

  	
  49

  
	
   

  	
  4.3

  	
  Interest After Default

  	
   

  	
  49

  
	
   

  	
   

  	
  4.3.1

  	
  Letter of Credit Fees, Interest Rate

  	
   

  	
  49

  
	
   

  	
   

  	
  4.3.2

  	
  Other Obligations

  	
   

  	
  49

  
	
   

  	
   

  	
  4.3.3

  	
  Acknowledgment

  	
   

  	
  49

  
	
   

  	
  4.4

  	
  Euro-Rate Unascertainable; Illegality; Increased Costs;
  Deposits Not Available

  	
   

  	
  50

  
	
   

  	
   

  	
  4.4.1

  	
  Unascertainable

  	
   

  	
  50

  
	
   

  	
   

  	
  4.4.2

  	
  Illegality; Increased Costs; Deposits Not Available

  	
   

  	
  50

  
	
   

  	
   

  	
  4.4.3

  	
  Agent’s and Lender’s Rights

  	
   

  	
  50

  
	
   

  	
  4.5

  	
  Selection of Interest Rate Options

  	
   

  	
  51

  



 


ii

















 


	
  5.

  	
  PAYMENTS

  	
   

  	
  51

  
	
   

  	
  5.1

  	
  Payments

  	
   

  	
  51

  
	
   

  	
  5.2

  	
  Pro Rata Treatment of Lenders

  	
   

  	
  52

  
	
   

  	
  5.3

  	
  Interest Payment Dates

  	
   

  	
  52

  
	
   

  	
  5.4

  	
  Voluntary Prepayments, Mandatory Prepayments

  	
   

  	
  53

  
	
   

  	
   

  	
  5.4.1

  	
  Right to Prepay

  	
   

  	
  53

  
	
   

  	
   

  	
  5.4.2

  	
  Replacement of a Lender

  	
   

  	
  54

  
	
   

  	
   

  	
  5.4.3

  	
  Change of Lending Office

  	
   

  	
  55

  
	
   

  	
   

  	
  5.4.4

  	
  Voluntary Reduction of Revolving Credit Commitments

  	
   

  	
  55

  
	
   

  	
   

  	
  5.4.5

  	
  Application Among Interest Rate Options

  	
   

  	
  55

  
	
   

  	
   

  	
  5.4.6

  	
  Mandatory Prepayment - Currency Fluctuations

  	
   

  	
  55

  
	
   

  	
   

  	
  5.4.7

  	
  Expiration Date

  	
   

  	
  56

  
	
   

  	
  5.5

  	
  Additional Compensation in Certain Circumstances

  	
   

  	
  56

  
	
   

  	
   

  	
  5.5.1

  	
  Increased Costs Generally. If any Change in Law shall:

  	
   

  	
  56

  
	
   

  	
   

  	
  5.5.2

  	
  Capital Requirements

  	
   

  	
  57

  
	
   

  	
   

  	
  5.5.3

  	
  Certificates for Reimbursement; Repayment of Outstanding
  Loans; Borrowing of New Loans

  	
   

  	
  57

  
	
   

  	
   

  	
  5.5.4

  	
  Delay in Requests

  	
   

  	
  57

  
	
   

  	
   

  	
  5.5.5

  	
  Additional Costs with Respect to Loans in Optional
  Currencies

  	
   

  	
  58

  
	
   

  	
  5.6

  	
  Taxes

  	
   

  	
  58

  
	
   

  	
   

  	
  5.6.1

  	
  Payments Free of Taxes

  	
   

  	
  58

  
	
   

  	
   

  	
  5.6.2

  	
  Payment of Other Taxes by the Borrower

  	
   

  	
  58

  
	
   

  	
   

  	
  5.6.3

  	
  Indemnification by the Borrower

  	
   

  	
  58

  
	
   

  	
   

  	
  5.6.4

  	
  Evidence of Payments

  	
   

  	
  59

  
	
   

  	
   

  	
  5.6.5

  	
  Status of Lenders

  	
   

  	
  59

  
	
   

  	
   

  	
  5.6.6

  	
  Refund

  	
   

  	
  60

  
	
   

  	
  5.7

  	
  Indemnity

  	
   

  	
  60

  
	
   

  	
  5.8

  	
  Interbank Market Presumption

  	
   

  	
  61

  
	
   

  	
  5.9

  	
  Notes

  	
   

  	
  61

  
	
   

  	
  5.10

  	
  Settlement Date Procedures

  	
   

  	
  61

  
	
   

  	
  5.11

  	
  Judgment Currency

  	
   

  	
  62

  
	
   

  	
   

  	
  5.11.1

  	
  Currency Conversion Procedures for Judgments

  	
   

  	
  62

  
	
   

  	
   

  	
  5.11.2

  	
  Indemnity in Certain Events

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  63

  
	
   

  	
  6.1

  	
  Representations and Warranties

  	
   

  	
  63

  
	
   

  	
   

  	
  6.1.1

  	
  Organization and Qualification

  	
   

  	
  63

  
	
   

  	
   

  	
  6.1.2

  	
  [Intentionally Omitted.]

  	
   

  	
  63

  
	
   

  	
   

  	
  6.1.3

  	
  Subsidiaries

  	
   

  	
  63

  
	
   

  	
   

  	
  6.1.4

  	
  Power and Authority

  	
   

  	
  63

  
	
   

  	
   

  	
  6.1.5

  	
  Validity and Binding Effect

  	
   

  	
  64

  
	
   

  	
   

  	
  6.1.6

  	
  No Conflict

  	
   

  	
  64

  
	
   

  	
   

  	
  6.1.7

  	
  Litigation

  	
   

  	
  64

  
	
   

  	
   

  	
  6.1.8

  	
  Title to Properties

  	
   

  	
  64

  
	
   

  	
   

  	
  6.1.9

  	
  Financial Statements

  	
   

  	
  65

  



 


iii

















 


	
   

  	
   

  	
  6.1.10

  	
  Use of Proceeds; Margin Stock; Section 20 Subsidiaries

  	
   

  	
  65

  
	
   

  	
   

  	
  6.1.11

  	
  Full Disclosure

  	
   

  	
  66

  
	
   

  	
   

  	
  6.1.12

  	
  Taxes

  	
   

  	
  66

  
	
   

  	
   

  	
  6.1.13

  	
  Consents and Approvals

  	
   

  	
  66

  
	
   

  	
   

  	
  6.1.14

  	
  No Event of Default; Compliance with Instruments

  	
   

  	
  66

  
	
   

  	
   

  	
  6.1.15

  	
  Patents, Trademarks, Copyrights, Licenses, Etc.

  	
   

  	
  67

  
	
   

  	
   

  	
  6.1.16

  	
  Insurance

  	
   

  	
  67

  
	
   

  	
   

  	
  6.1.17

  	
  Compliance with Laws

  	
   

  	
  67

  
	
   

  	
   

  	
  6.1.18

  	
  [Intentionally Omitted]

  	
   

  	
  67

  
	
   

  	
   

  	
  6.1.19

  	
  Investment Companies; Regulated Entities

  	
   

  	
  67

  
	
   

  	
   

  	
  6.1.20

  	
  Plans and Benefit Arrangements

  	
   

  	
  67

  
	
   

  	
   

  	
  6.1.21

  	
  Employment Matters

  	
   

  	
  68

  
	
   

  	
   

  	
  6.1.22

  	
  Environmental and Safety Matters

  	
   

  	
  69

  
	
   

  	
   

  	
  6.1.23

  	
  Senior Debt Status

  	
   

  	
  69

  
	
   

  	
   

  	
  6.1.24

  	
  Anti-Terrorism Laws

  	
   

  	
  69

  
	
   

  	
   

  	
  6.1.25

  	
  Solvency

  	
   

  	
  70

  
	
   

  	
   

  	
  6.1.26

  	
  Security Interests

  	
   

  	
  70

  
	
   

  	
   

  	
  6.1.27

  	
  Status of the Pledged Collateral

  	
   

  	
  71

  
	
   

  	
  6.2

  	
  Continuation of Representations

  	
   

  	
  71

  
	
   

  	
  6.3

  	
  Updates to Schedules

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF
  CREDIT

  	
   

  	
  71

  
	
   

  	
  7.1

  	
  First Loans and Letters of Credit

  	
   

  	
  72

  
	
   

  	
   

  	
  7.1.1

  	
  Officer’s Certificate

  	
   

  	
  72

  
	
   

  	
   

  	
  7.1.2

  	
  Secretary’s Certificate

  	
   

  	
  72

  
	
   

  	
   

  	
  7.1.3

  	
  Delivery of Loan Documents

  	
   

  	
  73

  
	
   

  	
   

  	
  7.1.4

  	
  Opinion of Counsel

  	
   

  	
  73

  
	
   

  	
   

  	
  7.1.5

  	
  Legal Details

  	
   

  	
  73

  
	
   

  	
   

  	
  7.1.6

  	
  Payment of Fees

  	
   

  	
  73

  
	
   

  	
   

  	
  7.1.7

  	
  Consents

  	
   

  	
  73

  
	
   

  	
   

  	
  7.1.8

  	
  Officer’s Certificate Regarding MACs; Solvency

  	
   

  	
  73

  
	
   

  	
   

  	
  7.1.9

  	
  No Violation of Laws

  	
   

  	
  74

  
	
   

  	
   

  	
  7.1.10

  	
  No Actions or Proceedings

  	
   

  	
  74

  
	
   

  	
   

  	
  7.1.11

  	
  Compliance Certificate

  	
   

  	
  74

  
	
   

  	
   

  	
  7.1.12

  	
  Lien Searches

  	
   

  	
  74

  
	
   

  	
   

  	
  7.1.13

  	
  Filing Receipts

  	
   

  	
  74

  
	
   

  	
   

  	
  7.1.14

  	
  Insurance

  	
   

  	
  74

  
	
   

  	
   

  	
  7.1.15

  	
  Other Conditions

  	
   

  	
  75

  
	
   

  	
  7.2

  	
  Each Additional Loan or Letter of Credit

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  COVENANTS

  	
   

  	
  75

  
	
   

  	
  8.1

  	
  Affirmative Covenants

  	
   

  	
  75

  
	
   

  	
   

  	
  8.1.1

  	
  Preservation of Existence, Etc.

  	
   

  	
  75

  
	
   

  	
   

  	
  8.1.2

  	
  Payment of Liabilities, Including Taxes, Etc.

  	
   

  	
  75

  
	
   

  	
   

  	
  8.1.3

  	
  Maintenance of Insurance

  	
   

  	
  76

  
	
   

  	
   

  	
  8.1.4

  	
  Maintenance of Properties and Leases

  	
   

  	
  76

  



 


iv

















 


	
   

  	
   

  	
  8.1.5

  	
  Maintenance of Patents, Trademarks, Etc.

  	
   

  	
  76

  
	
   

  	
   

  	
  8.1.6

  	
  Visitation Rights

  	
   

  	
  76

  
	
   

  	
   

  	
  8.1.7

  	
  Keeping of Records and Books of Account

  	
   

  	
  77

  
	
   

  	
   

  	
  8.1.8

  	
  Plans and Benefit Arrangements

  	
   

  	
  77

  
	
   

  	
   

  	
  8.1.9

  	
  Compliance with Laws

  	
   

  	
  77

  
	
   

  	
   

  	
  8.1.10

  	
  Use of Proceeds

  	
   

  	
  77

  
	
   

  	
   

  	
  8.1.11

  	
  [Intentionally Omitted]

  	
   

  	
  78

  
	
   

  	
   

  	
  8.1.12

  	
  Tax Shelter Regulations

  	
   

  	
  78

  
	
   

  	
   

  	
  8.1.13

  	
  Anti-Terrorism Laws

  	
   

  	
  78

  
	
   

  	
   

  	
  8.1.14

  	
  Further Assurances

  	
   

  	
  78

  
	
   

  	
  8.2

  	
  Negative Covenants

  	
   

  	
  78

  
	
   

  	
   

  	
  8.2.1

  	
  Indebtedness

  	
   

  	
  79

  
	
   

  	
   

  	
  8.2.2

  	
  Liens

  	
   

  	
  80

  
	
   

  	
   

  	
  8.2.3

  	
  Guaranties

  	
   

  	
  80

  
	
   

  	
   

  	
  8.2.4

  	
  Loans and Investments

  	
   

  	
  80

  
	
   

  	
   

  	
  8.2.5

  	
  [Intentionally Omitted]

  	
   

  	
  81

  
	
   

  	
   

  	
  8.2.6

  	
  Liquidations, Mergers, Consolidations, Acquisitions

  	
   

  	
  81

  
	
   

  	
   

  	
  8.2.7

  	
  Dispositions of Assets or Subsidiaries

  	
   

  	
  82

  
	
   

  	
   

  	
  8.2.8

  	
  [Intentionally Omitted]

  	
   

  	
  83

  
	
   

  	
   

  	
  8.2.9

  	
  Subsidiaries, Partnerships and Joint Ventures

  	
   

  	
  83

  
	
   

  	
   

  	
  8.2.10

  	
  Continuation of or Change in Business

  	
   

  	
  84

  
	
   

  	
   

  	
  8.2.11

  	
  Plans and Benefit Arrangements

  	
   

  	
  84

  
	
   

  	
   

  	
  8.2.12

  	
  Fiscal Year

  	
   

  	
  85

  
	
   

  	
   

  	
  8.2.13

  	
  Changes in Organizational Documents

  	
   

  	
  85

  
	
   

  	
   

  	
  8.2.14

  	
  [Intentionally Omitted]

  	
   

  	
  85

  
	
   

  	
   

  	
  8.2.15

  	
  Maximum Leverage Ratio

  	
   

  	
  85

  
	
   

  	
   

  	
  8.2.16

  	
  Minimum Interest Coverage Ratio

  	
   

  	
  85

  
	
   

  	
  8.3

  	
  Reporting Requirements

  	
   

  	
  85

  
	
   

  	
   

  	
  8.3.1

  	
  Quarterly Financial Statements

  	
   

  	
  85

  
	
   

  	
   

  	
  8.3.2

  	
  Annual Financial Statements

  	
   

  	
  86

  
	
   

  	
   

  	
  8.3.3

  	
  Certificate of the Borrower

  	
   

  	
  86

  
	
   

  	
   

  	
  8.3.4

  	
  Notice of Default

  	
   

  	
  87

  
	
   

  	
   

  	
  8.3.5

  	
  Notice of Litigation

  	
   

  	
  87

  
	
   

  	
   

  	
  8.3.6

  	
  Agreements Regarding Pledged Collateral

  	
   

  	
  87

  
	
   

  	
   

  	
  8.3.7

  	
  Budgets, Forecasts, Other Reports and Information

  	
   

  	
  87

  
	
   

  	
   

  	
  8.3.8

  	
  Tax Shelter Provisions

  	
   

  	
  88

  
	
   

  	
   

  	
  8.3.9

  	
  Notices Regarding Plans and Benefit Arrangements

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  DEFAULT

  	
   

  	
  89

  
	
   

  	
  9.1

  	
  Events of Default

  	
   

  	
  89

  
	
   

  	
   

  	
  9.1.1

  	
  Payments Under Loan Documents

  	
   

  	
  90

  
	
   

  	
   

  	
  9.1.2

  	
  Breach of Warranty

  	
   

  	
  90

  
	
   

  	
   

  	
  9.1.3

  	
  Breach of Negative Covenants or Visitation Rights

  	
   

  	
  90

  
	
   

  	
   

  	
  9.1.4

  	
  Breach of Other Covenants

  	
   

  	
  90

  
	
   

  	
   

  	
  9.1.5

  	
  Defaults in Other Agreements or Indebtedness

  	
   

  	
  90

  



 


v

















 


	
   

  	
   

  	
  9.1.6

  	
  Final Judgments or Orders

  	
   

  	
  90

  
	
   

  	
   

  	
  9.1.7

  	
  Loan Document Unenforceable

  	
   

  	
  91

  
	
   

  	
   

  	
  9.1.8

  	
  Uninsured Losses; Proceedings Against Assets

  	
   

  	
  91

  
	
   

  	
   

  	
  9.1.9

  	
  Notice of Lien or Assessment

  	
   

  	
  91

  
	
   

  	
   

  	
  9.1.10

  	
  Insolvency

  	
   

  	
  91

  
	
   

  	
   

  	
  9.1.11

  	
  Events Relating to Plans and Benefit Arrangements

  	
   

  	
  91

  
	
   

  	
   

  	
  9.1.12

  	
  Cessation of Business

  	
   

  	
  92

  
	
   

  	
   

  	
  9.1.13

  	
  Change of Control

  	
   

  	
  92

  
	
   

  	
   

  	
  9.1.14

  	
  Involuntary Proceedings

  	
   

  	
  92

  
	
   

  	
   

  	
  9.1.15

  	
  Voluntary Proceedings

  	
   

  	
  93

  
	
   

  	
  9.2

  	
  Consequences of Event of Default

  	
   

  	
  93

  
	
   

  	
   

  	
  9.2.1

  	
  Events of Default Other Than Bankruptcy, Insolvency or
  Reorganization Proceedings

  	
   

  	
  93

  
	
   

  	
   

  	
  9.2.2

  	
  Bankruptcy, Insolvency or Reorganization Proceedings

  	
   

  	
  93

  
	
   

  	
   

  	
  9.2.3

  	
  Set-off

  	
   

  	
  94

  
	
   

  	
   

  	
  9.2.4

  	
  Intentionally Omitted

  	
   

  	
  94

  
	
   

  	
   

  	
  9.2.5

  	
  Application of Proceeds; Collateral Sharing

  	
   

  	
  94

  
	
   

  	
   

  	
  9.2.6

  	
  Other Rights and Remedies

  	
   

  	
  95

  
	
   

  	
   

  	
  9.2.7

  	
  Notice of Sale

  	
   

  	
  95

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  THE AGENT

  	
   

  	
  96

  
	
   

  	
  10.1

  	
  Appointment and Authority

  	
   

  	
  96

  
	
   

  	
  10.2

  	
  Rights as a Lender

  	
   

  	
  96

  
	
   

  	
  10.3

  	
  Exculpatory Provisions

  	
   

  	
  96

  
	
   

  	
  10.4

  	
  Reliance by Agent

  	
   

  	
  97

  
	
   

  	
  10.5

  	
  Delegation of Duties

  	
   

  	
  97

  
	
   

  	
  10.6

  	
  Resignation of Agent

  	
   

  	
  98

  
	
   

  	
  10.7

  	
  Non-Reliance on Administrative Agent and Other Lenders

  	
   

  	
  98

  
	
   

  	
  10.8

  	
  Reimbursement and Indemnification of Agent by the Borrower

  	
   

  	
  99

  
	
   

  	
  10.9

  	
  Exculpatory Provisions; Limitation of Liability

  	
   

  	
  100

  
	
   

  	
  10.10

  	
  Reimbursement and Indemnification of Agent by Lenders

  	
   

  	
  100

  
	
   

  	
  10.11

  	
  Equalization of Lenders

  	
   

  	
  101

  
	
   

  	
  10.12

  	
  Agent’s Fee

  	
   

  	
  102

  
	
   

  	
  10.13

  	
  Availability of Funds

  	
   

  	
  102

  
	
   

  	
  10.14

  	
  Calculations

  	
   

  	
  102

  
	
   

  	
  10.15

  	
  No Reliance on Agent’s Customer Identification Program

  	
   

  	
  103

  
	
   

  	
  10.16

  	
  Certain Releases of Pledged Collateral

  	
   

  	
  103

  
	
   

  	
  10.17

  	
  Additional Agents

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  MISCELLANEOUS

  	
   

  	
  103

  
	
   

  	
  11.1

  	
  Modifications, Amendments or Waivers

  	
   

  	
  103

  
	
   

  	
   

  	
  11.1.1

  	
  Increase of Commitment; Extension of Expiration Date

  	
   

  	
  104

  
	
   

  	
   

  	
  11.1.2

  	
  Extension of Payment; Reduction of Principal Interest or
  Fees; Modification of Terms of Payment

  	
   

  	
  104

  
	
   

  	
   

  	
  11.1.3

  	
  Release of Collateral or Guarantor

  	
   

  	
  104

  
	
   

  	
   

  	
  11.1.4

  	
  Miscellaneous

  	
   

  	
  104

  



 


vi

















 


	
   

  	
  11.2

  	
  No Implied Waivers; Cumulative Remedies; Writing Required

  	
   

  	
  105

  
	
   

  	
  11.3

  	
  Reimbursement and Indemnification of Lenders by the
  Borrower; Taxes

  	
   

  	
  105

  
	
   

  	
  11.4

  	
  Holidays

  	
   

  	
  106

  
	
   

  	
  11.5

  	
  Funding by Branch, Subsidiary or Affiliate

  	
   

  	
  106

  
	
   

  	
   

  	
  11.5.1

  	
  Notional Funding

  	
   

  	
  106

  
	
   

  	
   

  	
  11.5.2

  	
  Actual Funding

  	
   

  	
  107

  
	
   

  	
  11.6

  	
  Notices; Effectiveness; Electronic Communication

  	
   

  	
  107

  
	
   

  	
   

  	
  11.6.1

  	
  Notices Generally

  	
   

  	
  107

  
	
   

  	
   

  	
  11.6.2

  	
  Electronic Communications

  	
   

  	
  107

  
	
   

  	
   

  	
  11.6.3

  	
  Change of Address, Etc.

  	
   

  	
  108

  
	
   

  	
  11.7

  	
  Severability

  	
   

  	
  108

  
	
   

  	
  11.8

  	
  Governing Law

  	
   

  	
  108

  
	
   

  	
  11.9

  	
  Prior Understanding

  	
   

  	
  108

  
	
   

  	
  11.10

  	
  Duration; Survival

  	
   

  	
  108

  
	
   

  	
  11.11

  	
  Successors and Assigns

  	
   

  	
  109

  
	
   

  	
   

  	
  11.11.1

  	
  Successors and Assigns Generally

  	
   

  	
  109

  
	
   

  	
   

  	
  11.11.2

  	
  Assignments by Lenders

  	
   

  	
  109

  
	
   

  	
   

  	
  11.11.3

  	
  Register

  	
   

  	
  111

  
	
   

  	
   

  	
  11.11.4

  	
  Participations

  	
   

  	
  111

  
	
   

  	
   

  	
  11.11.5

  	
  Limitations upon Participant Rights Successors and Assigns
  Generally

  	
   

  	
  112

  
	
   

  	
   

  	
  11.11.6

  	
  Certain Pledges; Successors and Assigns Generally

  	
   

  	
  112

  
	
   

  	
  11.12

  	
  Confidentiality

  	
   

  	
  112

  
	
   

  	
   

  	
  11.12.1

  	
  General

  	
   

  	
  112

  
	
   

  	
   

  	
  11.12.2

  	
  Sharing Information With Affiliates of the Lenders

  	
   

  	
  113

  
	
   

  	
  11.13

  	
  Counterparts

  	
   

  	
  113

  
	
   

  	
  11.14

  	
  Agent’s or Lender’s Consent

  	
   

  	
  113

  
	
   

  	
  11.15

  	
  Exceptions

  	
   

  	
  114

  
	
   

  	
  11.16

  	
  Consent To Forum; Waiver Of Jury Trial

  	
   

  	
  114

  
	
   

  	
   

  	
  11.16.1

  	
  Submission To Jurisdiction

  	
   

  	
  114

  
	
   

  	
   

  	
  11.16.2

  	
  Waiver Of Venue

  	
   

  	
  114

  
	
   

  	
   

  	
  11.16.3

  	
  Service Of Process

  	
   

  	
  115

  
	
   

  	
   

  	
  11.16.4

  	
  Waiver Of Jury Trial

  	
   

  	
  115

  
	
   

  	
  11.17

  	
  USA Patriot Act. Certification from Lenders and
  Participants

  	
   

  	
  115

  
	
   

  	
  11.18

  	
  Joinder of Guarantors

  	
   

  	
  115

  
	
   

  	
  11.19

  	
  Amendment and Restatement; No Novation; Reaffirmation

  	
   

  	
  116

  



 


vii
















 


AMENDED AND RESTATED CREDIT AGREEMENT


 


THIS
AMENDED AND RESTATED CREDIT AGREEMENT is dated as of October 26, 2010, and
is made by and among COVANCE INC., a Delaware corporation, each of the
GUARANTORS (as hereinafter defined), the LENDERS (as hereinafter defined), and
PNC BANK, NATIONAL ASSOCIATION, in its capacity as agent for the Lenders under
this Agreement.


 


WITNESSETH:


 


WHEREAS,
the parties hereto are parties to a Credit Agreement dated as of June 16, 2009
(the “Existing Credit Agreement”),
whereby the Lenders have provided to the Borrower a multicurrency revolving
credit facility in an aggregate principal amount not to exceed $150,000,000.00;
and


 


WHEREAS,
the Loan Parties have requested that the Lenders amend and restate the Existing
Credit Agreement to provide for (1) a multicurrency revolving credit facility
in an aggregate principal amount not to exceed $250,000,000.00, and (2) a term
loan in the amount of $100,000,000.00; and


 


WHEREAS,
the Lenders are willing to provide such credit upon the terms and conditions
hereinafter set forth.


 


NOW,
THEREFORE, the parties hereto, in consideration of their mutual covenants and
agreements hereinafter set forth and intending to be legally bound hereby,
covenant and agree as follows:


 


1.                                       CERTAIN
DEFINITIONS


 


1.1                               Certain
Definitions.


 


In
addition to words and terms defined elsewhere in this Agreement, the following
words and terms shall have the following meanings, respectively, unless the
context hereof clearly requires otherwise:


 


Additional Lender has the meaning assigned to
such term in Section 11.11 [Successors
and Assigns].


 


Affiliate as to any Person means any other Person
which directly or indirectly controls, is controlled by, or is under common
control with such Person.  Control, as used in this definition,
means the possession, directly or indirectly, of the power to:  (i) direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise, including the power to elect a majority
of the directors 


 

















 


or
trustees of a corporation or trust, as the case may be, or (ii) vote 15%
or more of the securities having ordinary voting power for the election of
directors (or persons performing similar functions) of such Person.  Notwithstanding the foregoing:  (i) the Borrower and its Subsidiaries
shall not be Affiliates of each other, (ii) neither the Borrower nor any
of its Subsidiaries shall be an Affiliate of the Agent or any Lender, and
(iii) so long as the Borrower and its Subsidiaries own in the aggregate
less than 23% of the voting capital stock of BioImaging Technologies, Inc. (“BTI”), BTI shall not be an
Affiliate of the Borrower or any Subsidiary of the Borrower.


 


Agent means PNC Bank, National Association, and its
successors and assigns.


 


Agent’s Fee has the meaning assigned to that term in Section 10.12 [Agent’s Fee].


 


Agent’s Letter has the meaning assigned to
that term in Section 10.12 [Agent’s
Fee].


 


Agreement means this Credit Agreement, as the same may
be supplemented or amended from time to time, including all schedules and
exhibits.


 


Annual Statements  has the meaning assigned to
that term in Section 6.1.9(i)
[Historical Statements].


 


Anti-Terrorism Laws means any Laws relating to
terrorism or money laundering, including Executive Order No. 13224, the USA
Patriot Act, the Laws comprising or implementing the Bank Secrecy Act, and the
Laws administered by the United States Treasury Department’s Office of Foreign
Asset Control (as any of the foregoing Laws may from time to time be amended,
renewed, extended, or replaced).


 


Applicable Commitment Fee Rate means the percentage rate
per annum at the indicated level of Leverage Ratio then in effect as set forth
in the pricing grid on Schedule 1.1(A)
below the heading “Commitment Fee.”  The
Applicable Commitment Fee Rate shall be computed in accordance with Section 2.4 [Commitment Fees] and
the parameters set forth on Schedule 1.1(A).


 


Applicable Letter of Credit Fee means the percentage rate
per annum at the indicated level of Leverage Ratio then in effect as set forth
in the pricing grid on Schedule 1.1(A)
below the heading “Letter of Credit Fee”. 
The Applicable Letter of Credit Fee shall be computed in accordance with
the parameters set forth on Schedule 1.1(A).


 


Applicable Margin means, as applicable:


 


(i)                                     the percentage
rate spread at the indicated level of Leverage Ratio then in effect as set
forth in the pricing grid on Schedule 1.1(A)
below the heading “Revolving Credit Base Rate Spread”, and


 


2

















 


(ii)                                  the percentage
rate spread at the indicated level of Leverage Ratio then in effect as set
forth in the pricing grid on Schedule 1.1(A)
below the heading “Revolving Credit Euro-Rate Spread”.


 


The
Applicable Margin shall be computed in accordance with the parameters set forth
on Schedule 1.1(A).


 


Approved Fund  means any fund that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of business and that is administered
or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or
an Affiliate of an entity that administers or manages a Lender.


 


Assignment and Assumption Agreement means an Assignment and
Assumption Agreement by and among a Purchasing Lender, a Transferor Lender and
the Agent, as Agent and on behalf of the remaining Lender, substantially in the
form of Exhibit 1.1(A).


 


Authorized Officer means those individuals,
designated by written notice to the Agent from the Borrower, authorized to
execute notices, reports and other documents on behalf of the Loan Parties
required hereunder.  The Borrower may
amend such list of individuals from time to time by giving written notice of
such amendment to the Agent.


 


Base Rate means the greatest, from time to time, of
(i) the interest rate per annum announced from time to time by the Agent
at its Principal Office as its then prime rate, which rate may not be the
lowest rate then being charged commercial borrowers by the Agent, (ii) the
Federal Funds Open Rate plus 1⁄2% per annum, or (iii) the Daily Euro-Rate plus
1%. Any change in the Base Rate (or any component thereof) shall take effect at
the opening of business on the day such change occurs.


 


Base Rate Option means the option of the
Borrower to have Revolving Credit Loans or Term Loans bear interest at the rate
and under the terms and conditions set forth in Section 4.1.1(i)
[Base Rate Option].


 


Benefit Arrangement means at any time an “employee
benefit plan,” within the meaning of Section 3(3) of ERISA, which is
neither a Plan nor a Multiemployer Plan and which is maintained, sponsored or
otherwise contributed to by any member of the ERISA Group.


 


Benefit Plans means (i) the Covance 401(k) Savings Plan,
(ii) the Employee Stock Purchase Plan of Covance, Inc., (iii) the
2007 Employee Equity Participation Plan of the Borrower, (iv) the 2002
Employee Stock Option Plan of the Borrower, (v) the Stock Option Plan for
Non-Employee Directors of the Borrower, (vi) the Restricted Stock Plan for
Non-Employee Directors of the Borrower, (vii) the Deferred Stock Unit Plan
for Non-Employee Members of the Board of Directors of the Borrower,
(viii) any other “pension plan” (as defined in Section 3(2) of ERISA)
of the Borrower or any member of the ERISA Group, any of the Guarantors or any
Subsidiary of any of the Loan Parties, existing as of the date of this
Agreement or hereafter, or any trust created thereunder, and (ix) any other
benefit plan, whether or not 


 


3

















 


treated as such under Section 3(2) or any
other Section of ERISA, existing as of the date of this Agreement or hereafter
created, with respect to which any capital stock, debt or similar interest or
instrument or security interest or instrument, whether or not treated as such
under applicable Law, of the Borrower, any member of the ERISA Group, any of
the Guarantors or any Subsidiary of any of the Loan Parties is an investment,
distribution, benefit or award option or plan feature for any individual,
including, but not limited to, any benefit plan similar to a plan described in
(i) through (vii) above, or any trust created under any benefit plan described
in this clause (ix).


 


Blocked Person has the meaning assigned to
such term in Section 6.1.24.2
[Execution Order No. 13224].


 


Borrower means Covance Inc., a corporation organized and
existing under the laws of the State of Delaware, and its successors and
assigns.


 


Borrowing Date means, with respect to any
Loan, the date for the making thereof or the renewal or conversion thereof at
or to the same or a different Interest Rate Option, which shall be a Business
Day.


 


Borrowing Tranche means specified portions of
Loans outstanding as follows: 
(i) any Loans to which a Euro-Rate Option applies which become
subject to the same Interest Rate Option under the same Loan Request by the
Borrower and which have the same Interest Period and which are denominated
either in Dollars or in the same Optional Currency shall constitute one
Borrowing Tranche, and (ii) all Loans to which a Base Rate Option applies
shall constitute one Borrowing Tranche.


 


Business Day means any day other than a Saturday or
Sunday or a legal holiday on which commercial banks are authorized or required
to be closed for business in Pittsburgh, Pennsylvania, and (i) if the
applicable Business Day relates to any Loan to which the Euro-Rate Option
applies, such day must also be a day on which dealings are carried on in the
London interbank market, (ii) with respect to advances or payments of
Loans or any other matters relating to Loans denominated in an Optional
Currency, such day also shall be a day on which dealings in deposits in the
relevant Optional Currency are carried on in the applicable interbank market,
and (iii) with respect to advances or payments of Loans denominated in an
Optional Currency, such day shall also be a day on which all applicable banks
into which Loan proceeds may be deposited are open for business and foreign
exchange markets are open for business in the principal financial center of the
country of such currency.


 


Capital Lease means the lease of any assets which lease
would be a capital lease as determined in accordance with GAAP.


 


Cash Collateralize means to pledge and deposit
with or deliver to Agent, for the benefit of Agent and the Lenders, as
collateral for the Letter of Credit Outstanding, cash or deposit account
balances pursuant to documentation satisfactory to Agent (which documents are
hereby consented to by the Lenders). Such cash collateral shall be maintained
in blocked, non-interest bearing deposit accounts at the Agent.


 


4

















 


Cash Pooling Obligations means those ordinary course
obligations of certain Foreign Subsidiaries under treasury management cash
pooling agreements with various financial institutions as in effect on the
Closing Date or arrangements substantially similar thereto, as any of the
foregoing may be renewed, replaced or extended from time to time.


 


Change in Law means the occurrence, after the date of this
Agreement, of any of the following:  (i)
the adoption or taking effect of any Law, (ii) any change in any Law or in the
administration, interpretation or application thereof by any Official Body or
(iii) the making or issuance of any request, guideline or directive (whether or
not having the force of Law) by any Official Body; provided  however
that, for purposes of this Agreement, the Dodd-Frank Wall Street Reform
and Consumer Protection Act and all requests, guidelines or directives in
connection therewith are deemed to have gone into effect and adopted after the
date of this Agreement.


 


Closing Date means the Business Day as of which this
Agreement is executed, which shall be October 26, 2010.


 


Collateral Agent has the meaning assigned to
such term in Section 9.2.5.2 [Collateral
Sharing].


 


Collateral Documents has the meaning assigned to
such term in Section 9.2.5.2
[Collateral Sharing].


 


Commercial Letter of Credit means any letter of credit
which is a commercial letter of credit issued in respect of the purchase of goods
or services by one or more of the Loan Parties in the ordinary course of their
business.


 


Commitment means as to any Lender its Revolving Credit
Commitment and its Term Loan Commitment, and in the case PNC Bank, its Swing
Loan Commitment, and Commitments
means the aggregate of the Revolving Credit Commitments and Term Loan
Commitments of all of the Lenders and the Swing Loan Commitment.


 


Commitment Fee has the meaning assigned to
that term in Section 2.4 [Commitment
Fees].


 


Commitment Reduction Notice has the meaning assigned to
that term in Section 5.4.4 [Voluntary
Reduction of Revolving Credit Commitments].


 


Compliance Certificate has the meaning assigned to
such term in Section 8.3.3
[Certificate of the Borrower].


 


Computation Date has the meaning assigned to
such term in Section 2.11.1 [Periodic
Computations of Dollar Equivalent Amounts of Loans and Letters of Credit
Outstanding].


 


Consolidated EBIT means, for any period of
determination, with respect to the Borrower and its Subsidiaries as determined in
accordance with GAAP on a consolidated 


 


5

















 


basis, the sum of (i) Consolidated Net Income
for such period (excluding the effect of any extraordinary or other
non-recurring gains or losses outside of the ordinary course of business), plus
(ii) an amount which, in the determination of Consolidated Net Income for such
period, has been deducted for (a) Consolidated Interest Expense for such period
and (b) total Federal, state, foreign or other income taxes for such period,
all as determined in accordance with GAAP.


 


Consolidated EBITDA means, for any period of
determination, with respect to the Borrower and its Subsidiaries as determined
in accordance with GAAP on a consolidated basis, an amount equal to (i) Consolidated
EBIT minus an amount which, in the determination of Consolidated Net Income for
such period, has been included for all non-cash credits for such period, plus
(ii) an amount which, in the determination of Consolidated Net Income for such
period, has been deducted for all depreciation, amortization and other non-cash
charges for such period, plus (iii) if not already addressed by the
parenthetical in clause (i) of the definition of Consolidated
EBIT, one time cash charges incurred during such period of
determination in connection with the restructuring of business units provided
that any such restructurings are not prohibited by this Agreement, and provided
further that the aggregate of such cash charges added back to Consolidated
EBIT under this definition during the term of this Agreement shall not exceed
$10,000,000.00. All elements of the term Consolidated EBITDA
shall be as determined in accordance with GAAP.


 


Consolidated Interest Expense for any period of
determination means interest expense (net of interest income, if any) of the
Borrower and its Subsidiaries for such period determined and consolidated in
accordance with GAAP.


 


Consolidated Net Income means, for any period of
determination, the net income after taxes for such period of the Borrower and
its Subsidiaries as determined on a consolidated basis in accordance with GAAP.


 


Consolidated Net Worth means as of any date of
determination total stockholders’ equity of the Borrower and its Subsidiaries
as of such date determined and consolidated in accordance with GAAP.


 


Consolidated Subsidiary means each Person
(excluding therefrom each Excluded Subsidiary) which is a Subsidiary of the
Borrower.


 


Contamination means the presence or release or threat of
release of Regulated Substances in, on, under or migrating to or from the
Property, which pursuant to Environmental Laws requires notification or
reporting to an Official Body, or which pursuant to Environmental Laws requires
the performance of a Remedial Action or which otherwise constitutes a violation
of Environmental Laws.


 


Daily Euro-Rate means, for any day, the
rate per annum determined by the Agent by dividing (i) the Published Rate by
(ii) a number equal to 1.00 minus the Euro-Rate Reserve Percentage on such day.


 


6

















 


Defaulting Lender means any Lender that (i)
has failed to fund any portion of the Loans, participations with respect to
Letters of Credit, or participations in Swing Loans required to be funded by it
hereunder within one (1) Business Day of the date required to be funded by it
hereunder unless such failure has been cured and all interest accruing as a
result of such failure has been fully paid in accordance with the terms hereof,
(ii) has otherwise failed to pay over to the 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 unless such
failure has been cured and all interest accruing as a result of such failure has
been fully paid in accordance with the terms hereof, or (iii) has or any Lender
that has a parent entity that has since the date of this Agreement been deemed
insolvent by an Official Body or become the subject of a bankruptcy,
receivership, conservatorship or insolvency proceeding.


 


Delinquent Lender has the meaning assigned to
such term in Section 10.11
[Equalization of Lenders].


 


Dollar, Dollars, U.S. Dollars and the symbol $ means lawful money of the United
States of America.


 


Dollar Equivalent means, with respect to any
amount of any currency, the Equivalent Amount of such currency expressed in
Dollars.


 


Dollar Equivalent Revolving Facility Usage means at any
time the sum of the Dollar Equivalent amount of Revolving Credit Loans then
outstanding, the Dollar Equivalent of Swing Loans then outstanding and the
Dollar Equivalent amount of Letters of Credit Outstanding.


 


Domestic Subsidiary means any Subsidiary of the
Borrower that is incorporated or organized under the laws of the United States
of America or one of the states or territories thereof.


 


Drawing Date has the meaning assigned to that term in Section 2.10.3.2.


 


Environmental Complaint means (i) any written
notice of non-compliance or violation, order or citation relating in any way to
any Environmental Law, Required Environmental Permit, Contamination or
Regulated Substances; (ii) civil, criminal, administrative or regulatory
investigation of which the Borrower or any Subsidiary of the Borrower has
knowledge instituted by an Official Body relating in any way to any
Environmental Law, Environmental Permit, Contamination or Regulated Substance;
(iii) any administrative, regulatory or judicial action, suit, claim or
proceeding instituted by any Person or Official Body or any written notice of
liability or potential liability by any Person or Official Body, in either
instance, setting forth a cause of action for personal injury (including but
not limited to death), property damage, natural resource damage, contribution
or indemnity associated with the performance of Remedial Actions, liens or
encumbrances attached to, recorded or levied against a Property for the costs
associated with the performance of Remedial Actions, civil or administrative
penalties, criminal fines or penalties, or declaratory or equitable relief
arising under any Environmental Laws; or (iv) any written order, notice of
violation, citation, subpoena, 


 


7

















 


request for information or other written
notice or demand of any type issued by an Official Body arising out of or in
response to a violation of any Environmental Laws relating to any Property, any
Loan Party or any Subsidiary of any Loan Party.


 


Environmental Laws means all federal,
territorial, tribal, state, local and foreign Laws (including, but not limited
to, the Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. §§ 9601 et seq., the Resource Conservation and Recovery Act, 42
U.S.C. § 6901 et seq., the Hazardous Materials Transportation Act, 49
U.S.C. § 1801 et seq., the Toxic Substances Control Act, 15 U.S.C.
§ 2601 et seq., the Federal Water Pollution Control Act, 33 U.S.C.
§§ 1251 et seq., the Federal Safe Drinking Water Act, 42 U.S.C.
§§ 300f-300j, the Federal Air Pollution Control Act, 42 U.S.C. § 7401
et seq., the Oil Pollution Act, 33 U.S.C. § 2701 et seq., the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 to 136y,
Atomic Energy Act, 42 U.S.C. § 2011 et seq., the Energy Reorganization Act
of 1974 (88 Stat. 1244), the Nuclear Waste Policy Act 42 U.S.C. § 10101 et
seq., the Low-Level Radioactive Waste Policy Amendments Act of 1985 (99 Stat.
1842)) each as amended, and any regulations promulgated or any equivalent state
or local Law, and any amendments thereto) and any consent decrees, settlement
agreements, judgments, orders, directives, policies or programs issued by or
entered into with an Official Body pertaining or relating to:  (i) pollution or pollution control;
(ii) protection of human health from exposure to Regulated Substances;
(iii) protection of the environment and/or natural resources;
(iv) the presence, use, management, generation, manufacture, processing,
extraction, treatment, recycling, refining, reclamation, labeling, sale,
transport, storage, collection, distribution, disposal or release or threat of
release of Regulated Substances; (v) the presence of Contamination; and
(vi) the protection of endangered or threatened species.


 


Equivalent Amount means, at any date, as
determined by Agent (which determination shall be conclusive absent manifest
error), (i) with respect to an amount which is to be denominated in Dollars:


 


(a)                                  as to any
portion of such amount denominated in an Optional Currency, the amount of
Dollars converted from the amount of each relevant Optional Currency at the
rate at which such Optional Currency may be exchanged into Dollars, as set
forth at approximately 11:00 a.m., London or such other applicable time,
on such date by reference to the Bloomberg Financial Markets system for such Optional
Currency (or other authoritative source selected by the Agent in its sole
discretion) or, in the event of the unavailability of any such source,
the exchange rate shall instead be the spot rate of exchange of the
Agent in the market where its foreign currency exchange operations in respect
of such Optional Currency are then being conducted, at or about
11:00 a.m. at the place of such market, on such date for the purchase of
Dollars for delivery two Business Days later; provided  that if at
the time of any such determination, for any reason, no such spot rate is being
quoted, the Agent may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive absent manifest
error, plus:


 


(b)                                 as to any
portion of such amount already denominated in Dollars, the amount thereof at
such time; and


 


8

















 


(ii)                                  with respect to
an amount which is to be denominated in an Optional Currency;


 


(a)                                  as to any
portion of such amount denominated in Dollars, the amount of such Optional
Currency converted from the relevant amount of Dollars at the rate at
which Dollars may be exchanged into such Optional Currency, as set forth
at approximately 11:00 a.m., London or such other applicable time, on such
date by reference to the Bloomberg Financial Markets system for
such Optional Currency (or other authoritative source selected by the
Agent in its sole discretion) or, in the event of the unavailability of any
such source, the exchange rate shall instead be the spot rate of
exchange of the Agent in the market where its foreign currency exchange
operations in respect of such Optional Currency are then being conducted,
at or about 11:00 a.m. at the place of such market, on such date for the
purchase of such Optional Currency for delivery two Business Days later; provided
that if at the time of any such determination, for any reason, no such
spot rate is being quoted, the Agent may use any reasonable method it deems
appropriate to determine such rate, and such determination shall be conclusive
absent manifest error, plus


 


(b)                                 as to any
portion of such amount already denominated in such Optional Currency, the
amount thereof as of such time.


 


ERISA means the Employee Retirement Income Security Act
of 1974, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
as from time to time in effect.


 


ERISA Group means, at any time, the Borrower and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control and all other entities
which, together with the Borrower, are treated as a single employer under
Section 414 of the Internal Revenue Code.


 


Euro-Rate means (i) with respect to Dollar Loans
comprising any Borrowing Tranche to which the Euro-Rate Option applies for any
Interest Period, the interest rate per annum determined by the Agent by
dividing (the resulting quotient rounded upwards, if necessary, to the nearest
1/100th of 1% per annum) (a) the rate which appears on the Bloomberg Page
BBAM1 (or on such other substitute Bloomberg Page that displays rates at which
Dollar deposits are offered by leading banks in the London interbank deposit
market), or the rate which is quoted by another source selected by the Agent
which has been approved by the British Bankers’ Association as an authorized
information vendor for the purpose of displaying rates at which Dollar deposits
are offered by leading banks in the London interbank deposit market (an “Alternative Source”), at
approximately 11:00 a.m., London time, two (2) Business Days prior to the first
day of such Interest Period as the London interbank offered rate for Dollars
for an amount comparable to such Borrowing Tranche and having a borrowing date
and a maturity comparable to such Interest Period (or if there shall at any
time, for any reason, no longer exist a Bloomberg Page BBAM1, or any substitute
page, or any Alternate Source, a comparable replacement rate determined by the
Agent at such time, which determination shall be conclusive absent manifest
error) by (b) a number equal to 1.00 minus the Euro-Rate Reserve
Percentage.  Such Euro-Rate may also be
expressed by the following formula:


 


9
















 


	
  Euro-Rate
  =

  	
  Average
  of London interbank offered rates quoted

  
	
   

  	
  by
  Bloomberg or appropriate successor as shown on

  
	
   

  	
  Bloomberg
  Page BBAM1

  	
   

  
	
   

  	
  1.00
  - Euro-Rate Reserve Percentage

  



 


The
Euro-Rate shall be adjusted with respect to any Loan to which the Euro-Rate
Option applies that is outstanding on the effective date of any change in the
Euro-Rate Reserve Percentage as of such effective date.  The Agent shall give prompt notice to the
Borrower of the Euro-Rate as determined or adjusted in accordance herewith, which
determination shall be conclusive absent manifest error;


 


(ii)           with respect to Optional Currency
Loans comprising any Borrowing Tranche to which the Euro-Rate Option applies
for any Interest Period, the interest rate per annum determined by the Agent by
dividing (a) the rate of interest per annum determined by the Agent in
accordance with its usual procedures (which determination shall be conclusive
absent manifest error) to be the rate of interest per annum for deposits in the
relevant Optional Currency which appears on the relevant Bloomberg Page (or,
if no such quotation is available on such Bloomberg Page, on the appropriate
such other substitute Bloomberg Page that displays rates at which the
relevant Optional Currency deposits are offered by leading banks in the London
interbank deposit market) or the rate that is quoted by another source selected
by the Agent which has been approved by the British Bankers’ Association as an
authorized information vendor for the purposes of displaying such rates at
which such Optional Currency deposits are offered by leading banks in the
London interbank deposit market) at approximately 9:00 a.m., Pittsburgh
time, two (2) Business Days prior to the first day of such Interest Period
for delivery on the first day of such Interest Period for a period, and in an
amount, comparable to such Interest Period and principal amount of such
Borrowing Tranche (“OC Rate”)
by (b) a number equal to 1.00 minus the Euro-Rate Reserve Percentage.  Such Euro-Rate may also be expressed by the
following formula:


 


	
  Euro-Rate       =

  	
  OC Rate

  	
   

  
	
  1 - Euro-Rate Reserve Percentage

  	
   

  



 


The
Euro-Rate shall be adjusted with respect to any Euro-Rate Option outstanding on
the effective date of any change in the Euro-Rate Reserve Percentage as of such
effective date.  The Agent shall give
prompt notice to the Borrower of the Euro-Rate as determined or adjusted in
accordance herewith, which determination shall be conclusive absent manifest
error.  The Euro-Rate for any Loans shall
be based upon the Euro-Rate for the currency in which such Loans are requested.


 


Euro-Rate Option means the option of the
Borrower to have Revolving Credit Loans or Term Loans bear interest at the rate
and under the terms and conditions set forth in Section 4.1.1(ii) [Euro-Rate
Option].


 


Euro-Rate Reserve Percentage means as of any day the
maximum percentage in effect on such day: 
(i) as prescribed by the Board of Governors of the Federal 


 


10

















 


Reserve System (or any successor) for
determining the reserve requirements (including supplemental, marginal and
emergency reserve requirements) with respect to eurocurrency funding (currently
referred to as “Eurocurrency Liabilities”);
and (ii) to be maintained by a Lender as required for reserve liquidity,
special deposit, or a similar purpose by any governmental or monetary authority
of any country or political subdivision thereof (including any central bank),
against (a) any category of liabilities that includes deposits by reference
to which a Euro-Rate is to be determined, or (b) any category of extension
of credit or other assets that includes Loans or Borrowing Tranches to which a
Euro-Rate applies.


 


Event of Default means any of the events
described in Section 9.1 [Events of
Default] and referred to therein as an “Event of Default.”


 


Excluded Subsidiary means any Person in which
any Loan Party or any Subsidiary of any Loan Party has made an Investment
permitted by Section 8.2.4(v) and
which Person, as provided in the definition of Subsidiary, the Loan Parties
shall have elected to not treat as a Subsidiary for purposes of the Loan
Documents.


 


Excluded Taxes means, with respect to the
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (i) 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, (ii) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (iii) in
the case of a Foreign Lender, 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 5.6.5 [Status of
Lenders], 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 5.6.1 [Payment
Free of Taxes].


 


Executive Order No. 13224 means Executive Order No. 13224
on Terrorist Financing, effective September 24, 2001, as the same has
been, or shall hereafter be, renewed, extended, amended or replaced.


 


Existing Credit Agreement has the meaning assigned to
such term in the recitals hereto.


 


Existing Letters of Credit means the letters of credit
issued or deemed to have been issued under the Existing Credit Agreement, which
existing letters of credit are identified on Schedule
1.1(C) attached hereto and made a part hereof.


 


Expiration Date means October 26,
2015.


 


11

















 


Federal Funds Effective Rate for any day means the rate
per annum (based on a year of 360 days and actual days elapsed and rounded
upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New
York (or any successor) on such day as being the weighted average of the rates
on overnight federal funds transactions arranged by federal funds brokers on
the previous trading day, as computed and announced by such Federal Reserve
Bank (or any successor) in substantially the same manner as such Federal
Reserve Bank computes and announces the weighted average it refers to as the “Federal
Funds Effective Rate” as of the date of this Agreement; provided, if
such Federal Reserve Bank (or its successor) does not announce such rate on any
day, the “Federal Funds Effective Rate” for such day shall be the Federal Funds
Effective Rate for the last day on which such rate was announced.


 


Federal Funds Open Rate for any day means the rate
per annum (based on a year of 360 days and actual days elapsed) which is the
daily federal funds open rate as quoted by ICAP North America, Inc. (or
any successor) as set forth on the Bloomberg Screen BTMM for that day opposite
the caption “OPEN” (or on such other substitute Bloomberg Screen that displays
such rate), or as set forth on such other recognized electronic source used for
the purpose of displaying such rate as selected by the Agent (an “Alternate Source”) (or if such rate
for such day does not appear on the Bloomberg Screen BTMM (or any substitute
screen) or on any Alternate Source, or if there shall at any time, for any
reason, no longer exist a Bloomberg Screen BTMM (or any substitute screen) or
any Alternate Source, a comparable replacement rate determined by the Agent at
such time (which determination shall be conclusive absent manifest error); provided
however, that if such day is not a Business Day, the Federal Funds Open
Rate for such day shall be the “open” rate on the immediately preceding
Business Day. If and when the Federal Funds Open Rate changes, the rate of
interest with respect to any advance to which the Federal Funds Open Rate
applies will change automatically without notice to the Borrower, effective on
the date of any such change.


 


First Tier Foreign Subsidiary means, at any date of
determination, each Foreign Subsidiary in which any one or more of the Borrower
and/or any of its Domestic Subsidiaries owns more than 50%, in the aggregate,
of the Voting Stock of such Foreign Subsidiary.


 


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 of America, each
State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.


 


Foreign Subsidiary means any Subsidiary of the
Borrower which is not a Domestic Subsidiary.


 


GAAP means generally accepted accounting principles as
are in effect in the United States from time to time, subject to the provisions
of Section 1.3 [Accounting
Principles], and applied on a consistent basis both as to classification of
items and amounts.


 


Governmental Acts has the meaning assigned to
that term in Section 2.10.8
[Indemnity].


 


12

















 


Guarantor means each of the parties to this Agreement
which is designated as a “Guarantor” on the signature page hereof and each
other Person which joins this Agreement as a Guarantor after the date hereof
pursuant to Section 11.18 [Joinder of
Guarantors].


 


Guarantor Joinder means a joinder by a Person
as a Guarantor under this Agreement, the Guaranty Agreement and the other Loan
Documents in the form of Exhibit 1.1(G).


 


Guaranty of any Person means any obligation of such Person
guaranteeing or in effect guaranteeing any liability or obligation of any other
Person in any manner, whether directly or indirectly, including any agreement
to indemnify or hold harmless any other Person, any performance bond or other
suretyship arrangement and any other form of assurance against loss, except
endorsement of negotiable or other instruments for deposit or collection in the
ordinary course of business.


 


Guaranty Agreement means that Continuing
Agreement of Guaranty and Suretyship dated as of June 16, 2009, executed
and delivered by each of the Guarantors to the Agent for the benefit of the
Lenders together with any and all existing and future Guarantor Joinders
thereto and any and all existing and future reaffirmations thereof, including
without limitation reaffirmations by the Guarantors in connection with this
Agreement.


 


Hedge means an interest rate or currency swap, collar,
cap, adjustable strike cap, adjustable strike corridor or similar agreements
entered into by the Loan Parties or their Subsidiaries in the ordinary course
of business and not for speculative purpose, in order to provide protection to,
or minimize the impact upon, the Borrower, the Guarantor and/or their
Subsidiaries of increasing floating rates of interest applicable to Indebtedness
or fluctuations in exchange rates, as the case may be.


 


Historical Statements has the meaning assigned to
that term in Section 6.1.9(i) [Historical
Statements].


 


Indebtedness means, as to any Person at any time, any and
all indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or
joint or several) of such Person for or in respect of:  (i) borrowed money, (ii) amounts
raised under or liabilities in respect of any note purchase or acceptance
credit facility, (iii) reimbursement obligations (contingent or otherwise)
under any letter of credit, whether for amounts drawn or available to be drawn
thereunder, (iv) net reimbursement obligations (contingent or otherwise)
under any currency swap agreement, interest rate swap, cap, collar or floor
agreement or other interest rate management device, (v) any other
transaction (including forward sale or purchase agreements, capitalized leases
and conditional sales agreements) having the commercial effect of a borrowing
of money entered into by such Person to finance its operations or capital
requirements (but not including trade payables and accrued expenses incurred in
the ordinary course of business), or (vi) any Guaranty of Indebtedness for
borrowed money.


 


13

















 


Indemnified Taxes means Taxes other than
Excluded Taxes.


 


Ineligible Security means any security which
may not be underwritten or dealt in by member banks of the Federal Reserve
System under Section 16 of the Banking Act of 1933 (12 U.S.C.
Section 24, Seventh), as amended.


 


Insolvency Proceeding means, with respect to any
Person, (i) a case, action or proceeding with respect to such Person
(a) before any court or any other Official Body under any bankruptcy,
insolvency, reorganization or other similar Law now or hereafter in effect, or
(b) for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator, conservator (or similar official) of any Loan Party or
otherwise relating to the liquidation, dissolution, winding-up or relief of
such Person, or (ii) any general assignment for the benefit of creditors,
composition, marshaling of assets for creditors, or other, similar arrangement
in respect of such Person’s creditors generally or any substantial portion of
its creditors; undertaken under any Law.


 


Intercompany Indebtedness means, as of any date of
determination, Indebtedness payable by the Borrower to any Consolidated
Subsidiary or by any Consolidated Subsidiary to either the Borrower or any
other Consolidated Subsidiary.  It is
expressly agreed that Intercompany Indebtedness shall not include any
Indebtedness payable by the Borrower or any Consolidated Subsidiary to any
Excluded Subsidiary.


 


Interest Coverage Ratio means the ratio of the
amounts under the following clauses (i) and (ii):  (i) Consolidated EBITDA (as the
numerator) to (ii) Consolidated Interest Expense (as the
denominator).  For purposes of
calculating the Interest Coverage Ratio, Consolidated EBITDA and Consolidated
Interest Expense shall be determined as of the end of each fiscal quarter of
the Borrower for the four fiscal quarters then ended.


 


Interest Period means the period of time
selected by the Borrower in connection with (and to apply to) any election
permitted hereunder by the Borrower to have Revolving Credit Loans and or Term
Loans bear interest under the Euro-Rate Option. 
Subject to the last sentence of this definition such period shall be
one, two, three or six Months for Loans denominated in Dollars, but one Month
for Loans denominated in an Optional Currency. Such Interest Period shall
commence on the effective date of such Interest Rate Option, which shall be (a) the
Borrowing Date if the Borrower is requesting new Loans, or (b) the date of
renewal of or conversion to the Euro-Rate Option if the Borrower is renewing or
converting to the Euro-Rate Option applicable to outstanding Loans.  Notwithstanding the second sentence hereof:  (A) any Interest Period which would otherwise
end on a date which is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in the next calendar
month, in which case such Interest Period shall end on the next preceding
Business Day, and (B) the Borrower shall not select, convert to or renew
an Interest Period for any portion of the Loans that would end after the
Expiration Date.


 


Interest Rate Option means any Euro-Rate Option
or Base Rate Option.


 


14

















 


Interim Statements has the meaning assigned to
that term in Section 6.1.9(i) [Historical
Statements].


 


Internal Revenue Code means the Internal Revenue
Code of 1986, as the same may be amended or supplemented from time to time, and
any successor statute of similar import, and the rules and regulations
thereunder, as from time to time in effect.


 


Investments means collectively all of the following with
respect to any Person: 
(i) investments or contributions by any of the Loan Parties or
their Subsidiaries directly or indirectly in or to the capital of or other
payments to (except in connection with transactions for the sale of goods or
services for fair value in the ordinary course of business) such Person,
(ii) loans or advances by any of the Loan Parties or their Subsidiaries to
such Person, (iii) guaranties by any Loan Party or any Subsidiary of any
Loan Party directly or indirectly of the obligations of such Person,
(iv) other credit enhancements of any Loan Party or any Subsidiary of any Loan
Party to or for the benefit of such Person, or (v) if such Loan Party or
any Subsidiary of any Loan Party is liable as a matter of law for the
obligations of such Person, obligations, contingent or otherwise, of such
Person. If the nature of an Investment is tangible property then the amount of
such Investment shall be determined by valuing such property at fair value in
accordance with the past practice of the Loan Parties and such fair values
shall be satisfactory to the Agent, in its reasonable discretion.


 


IRH Provider  has the meaning assigned to
such term in Section 9.2.5.2
[Collateral Sharing].


 


Law means any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, opinion, release, ruling, order,
injunction, writ, decree, bond, judgment, authorization or approval, lien or
award of or settlement agreement with any Official Body.


 


Lender Joinder shall have the meaning
assigned to such term in Section 11.11
[Successors and Assigns].


 


Lender-Provided Hedge means any Hedge which is provided
by any Lender or Affiliate of a Lender and with respect to which the Agent
confirms meets the following requirements: 
such Hedge (i) is documented in a standard International Swap
Dealer Association Agreement, (ii) provides for the method of calculating
the reimbursable amount of the provider’s credit exposure in a reasonable and
customary manner, and (iii) has been represented to Agent by Borrower as
being entered into for hedging (rather than speculative) purposes.  The liabilities of the Loan Parties to the
provider of any Lender-Provided Hedge (the “Hedge
Liabilities”) shall be “Obligations” hereunder, guaranteed
obligations under the Guaranty Agreement and otherwise treated as Obligations
for purposes of each of the other Loan Documents.  The Liens securing the Hedge Liabilities
shall be pari passu with the Liens securing all other Obligations under this
Agreement and the other Loan Documents.


 


15

















 


Lenders means the financial institutions named on Schedule 1.1(B) and their
respective successors and assigns as permitted hereunder, each of which is
referred to herein as a Lender.


 


Letter of Credit has the meaning assigned to
that term in Section 2.10.1 [Issuance
of Letters of Credit].


 


Letter of Credit Borrowing has the meaning assigned to
such term in Section 2.10.3.4.


 


Letter of Credit Fee has the meaning assigned to
that term in Section 2.10.2 [Letter of
Credit Fees].


 


Letters of Credit Outstanding means at any time the sum
of (i) the aggregate undrawn face amount of outstanding Letters of Credit
and (ii) the aggregate amount of all unpaid and outstanding Reimbursement
Obligations and Letter of Credit Borrowings.


 


Leverage Ratio means the ratio of the
amounts under the following clauses (i) and (ii):  (i) Total Debt (as the numerator) to (ii) Consolidated
EBITDA (as the denominator).  For
purposes of calculating the Leverage Ratio (and unless otherwise expressly
stated in this Agreement), Total Debt shall be determined as of the end of each
fiscal quarter of the Borrower and Consolidated EBITDA shall be determined as
of the end of each fiscal quarter of the Borrower for the four fiscal quarters
then ended.


 


Lien means any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement of any
nature whatsoever, whether voluntarily or involuntarily given, including any
conditional sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security and any
filed financing statement or other notice of any of the foregoing (whether or
not a lien or other encumbrance is created or exists at the time of the
filing).


 


Loan Documents means this Agreement, the
Agent’s Letter, the Guaranty Agreement, the Pledge Agreement, the Subsidiary
Pledge Agreement, the Notes and any other instruments, certificates or
documents delivered or contemplated to be delivered hereunder or thereunder or
in connection herewith or therewith, as the same may be supplemented or amended
from time to time in accordance herewith or therewith, and Loan
Document means any of the Loan Documents.


 


Loan Parties means the Borrower and the Guarantors.


 


Loan Request means each of (i) a request for a
Revolving Credit Loan in accordance with Section 2.5
[Revolving Credit Loan Requests, Swing Loan Requests], (ii) a request for
the advance of the Term Loan in accordance with Section 3.2
[Term Loan Request], or (iii) a request to select, convert to or renew a
Base Rate Option or Euro-Rate Option with respect to an outstanding Revolving
Credit Loan or Term Loan in accordance with Section 4.1
[Interest Rate Options].


 


16

















 


Loans means collectively and Loan
means separately all Revolving Credit Loans, Term Loans and Swing Loans, or any
Revolving Credit Loan, Term Loan or Swing Loan.


 


Material Adverse Change means any set of
circumstances or events which (i) has or could reasonably be expected to
have any material adverse effect whatsoever upon the validity or enforceability
of this Agreement or any other Loan Document, (ii) is or could reasonably
be expected to be material and adverse to the business, properties, assets,
financial condition, results of operations or (as to Section 7.1.8
[Officer’s Certificate Regarding MACs; Solvency] only) prospects of the Loan
Parties taken as a whole, (iii) impairs materially or could reasonably be
expected to impair materially the ability of the Loan Parties taken as a whole
to duly and punctually pay or perform its Indebtedness, or (iv) impairs
materially or could reasonably be expected to impair materially the ability of
the Agent or any of the Lenders, to the extent permitted, to enforce their
legal remedies pursuant to this Agreement or any other Loan Document.


 


Material Adverse Effect means any set of
circumstances or events which has a material adverse effect on (i) the
business, properties, operations, assets, financial condition or results of
operations of the Loan Parties taken as a whole, or (ii) the validity or enforceability
of this Agreement or any of the other Loan Documents or the rights or remedies
of the Agent or the Lenders hereunder or thereunder.


 


Material Domestic Subsidiary means any Domestic
Subsidiary of the Borrower that is also a Material Subsidiary.


 


Material First Tier Foreign Subsidiary means a First
Tier Foreign Subsidiary that is also a Material Subsidiary.


 


Material Subsidiary means, as of any date of
determination, any Domestic Subsidiary or any Foreign Subsidiary that, together
with its Subsidiaries on a consolidated basis, (i) owns assets (excluding
assets that pursuant to GAAP principles of consolidation would be eliminated
from the consolidated balance sheet of the Borrower as of such date of
determination) on such date of determination equal to at least ten percent
(10%) of the total assets of the Borrower and its Subsidiaries on a
consolidated basis on such date of determination or (ii) generated
revenues (excluding revenues that pursuant to GAAP principles of consolidation
would be eliminated from the consolidated income statement of the Borrower as
of such date of determination) for the twelve month period ending on such date
of determination equal to at least ten percent (10%) of the total revenues of
the Borrower and its Subsidiaries on a consolidated basis for such period.


 


Month, with respect to an Interest Period under the
Euro-Rate Option, means the interval between the days in consecutive calendar
months numerically corresponding to the first day of such Interest Period.  If any Euro-Rate Interest Period begins on a
day of a calendar month for which there is no numerically corresponding day in
the month in which such Interest Period is to end, the final month of such
Interest Period shall be deemed to end on the last Business Day of such final
month.


 


17

















 


Moody’s means Moody’s Investors Service, Inc. and its
successors or assigns in the business of such company in the rating of
securities.


 


Multiemployer Plan means any employee benefit
plan which is a “multiemployer plan” within the meaning of Section 4001(a)(3) of
ERISA and to which the Borrower or any member of the ERISA Group is then making
or accruing an obligation to make contributions or, within the preceding five
Plan years, has made or had an obligation to make such contributions.


 


Multiple Employer Plan means a Plan which has two
or more contributing sponsors (including the Borrower or any member of the
ERISA Group) at least two of whom are not under common control, as such a plan
is described in Sections 4063 and 4064 of ERISA.


 


Non-Consenting Lender has the meaning assigned to
such term in Section 11.1
[Modifications, Amendments or Waivers]


 


Notes means the Revolving Credit Notes, the Term Loan
Notes and the Swing Loan Note.


 


Notices has the meaning assigned to that term in Section 11.6 [Notices;
Effectiveness; Electronic Communication].


 


Obligation means any obligation or liability of any of
the Loan Parties to the Agent or any of the Lenders, howsoever created, arising
or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due, under or in connection with this
Agreement, the Notes, the
Letters of Credit, the Agent’s Letter or any other Loan Document.  Obligations shall include the liabilities to
any Lender under any Lender-Provided Hedge but shall not include the
liabilities to other Persons under any other Hedge.


 


Official Body means any national, federal, state, local or
other government or political subdivision or any agency, authority, board,
bureau, central bank, commission, department or instrumentality of either, or
any court, tribunal, grand jury or arbitrator, in each case whether foreign or
domestic.


 


Optional Currency means any of the following
currencies:  British Pounds Sterling,
Japanese Yen, Swiss Francs, the Euro and any other currency approved by Agent
and all of the Lenders pursuant to Section 2.11.5
[Requests for Additional Optional Currencies].


 


Optional Currency Loan Processing Fees has the
meaning assigned to such term in Section 10.12
[Agent’s Fee].


 


Original Closing Date means the Business Day on
which the first Loan under the Existing Credit Agreement was made, which was June 16,
2009.


 


18
















 


Original Currency has the meaning assigned to
such term in  Section 5.11.1 [Currency
Conversion Procedures for Judgments].


 


Other Currency has the meaning assigned to
such term in Section 5.11.1 [Currency
Conversion Procedures for Judgments].


 


Overnight Rate means for any day with
respect to any Loans in an Optional Currency, the rate of interest per annum as
determined by the Agent at which overnight deposits in such currency, in an
amount approximately equal to the amount with respect to which such rate is
being determined, would be offered for such day in the applicable offshore
interbank market.


 


Order has the meaning given to such term in Section 2.10.9 [Liability for
Acts and Omissions].


 


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.


 


Participation Advance means, with respect to any
Lender, such Lender’s payment in respect of its participation in a Letter of
Credit Borrowing according to its Ratable Share pursuant to Section 2.10.4 [Repayment of
Participation Advances].


 


PBGC means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any successor.


 


Permitted Acquisitions has the meaning assigned to
such term in Section 8.2.6
[Liquidations, Mergers, Consolidations, Acquisitions].


 


Permitted Investments means:


 


(i)                                     securities
issued or directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that the full faith
and credit of the United States of America is pledged in support thereof)
having maturities of not more than twelve months from the date of acquisition,


 


(ii)                                  U.S. dollar
denominated time and demand deposits and certificates of deposit of
(a) any Lender, (b) any domestic commercial bank having capital and
surplus in excess of $500,000,000.00 or (c) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof
or from Moody’s is at least P-1 or the equivalent thereof (any such bank being
an “Approved Bank”), in each case with
maturities of not more than 270 days from the date of acquisition,


 


(iii)                               commercial
paper and variable or fixed rate notes issued by any Approved Bank (or by the
parent company thereof) or any variable rate notes issued by, or guaranteed by,
any domestic corporation rated A-1 (or the equivalent thereof) or better by
S&P or


 


19

















 


P-1 (or the equivalent thereof) or better by
Moody’s and maturing within six months of the date of acquisition,


 


(iv)                              repurchase
agreements with a bank or trust company (including any of the Lenders) or
securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States of
America in which the Borrower shall have a perfected first priority security
interest (subject to no other Liens) and having, on the date of purchase
thereof, a fair market value of at least 100% of the amount of the repurchase
obligations,


 


(v)                                 marketable
direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time
of acquisition, rated A-1 (or the equivalent thereof) or better from S&P or
rated P-1 (or the equivalent thereof) or better from Moody’s,


 


(vi)                              Euro time
deposits having a maturity of less than one year purchased from any Lender
directly (whether or not such deposit is with such Lender or any other Lender
hereunder),


 


(vii)                           investments in
portfolios comprised of securities rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and
having a total average maturity not to exceed 24 months,


 


(viii)                        cash on hand
and in bank accounts, and


 


(ix)                                investments,
classified in accordance with GAAP as current assets, in money market
investment programs registered under the Investment Company Act of 1940, as
amended, which are administered by financial institutions having capital of at
least $500,000,000 and the portfolios of which are limited to investments of
the character described in the foregoing subdivisions (i) through (viii).


 


Permitted Liens means:


 


(i)                                     Liens for
taxes, assessments, or similar charges, incurred in the ordinary course of
business and which are not yet due and payable;


 


(ii)                                  Pledges or
deposits made in the ordinary course of business to secure payment of workmen’s
compensation, or to participate in any fund in connection with workmen’s
compensation, unemployment insurance, old-age pensions or other social security
programs;


 


(iii)                               Liens of
mechanics, materialmen, warehousemen, carriers, or other like Liens, securing
obligations incurred in the ordinary course of business that are not yet due
and payable and Liens of landlords securing obligations to pay lease payments
that are not yet due and payable or in default;


 


20

















 


(iv)                              Good-faith
pledges or deposits made in the ordinary course of business to secure
performance of bids, tenders, contracts (other than for the repayment of
borrowed money) or leases, not in excess of the aggregate amount due
thereunder, or to secure statutory obligations; or surety, appeal, indemnity,
performance bonds, other similar bonds or obligations of a like nature required
in the ordinary course of business;


 


(v)                                 Encumbrances
consisting of rights-of-way, zoning restrictions, easements or other similar
encumbrances, charges or restrictions on the use of real property or other minor
defects or irregularities in title so long as all of the foregoing:  (a) are incurred in the ordinary course
of business, (b) are not in the aggregate substantial in amount,
(c) do not materially impair the use of such property or the value
thereof, and (d) none of which is violated in any material respect by
existing or proposed structures or land use;


 


(vi)                              Liens, security
interests and mortgages in favor of the Agent for the benefit of the Banks
securing the Obligations including liabilities under any Lender-Provided Hedge;


 


(vii)                           Any Lien
existing on the date of this Agreement and described on Schedule
1.1(P), provided that the principal amount secured
thereby is not hereafter increased, and no additional assets become subject to
such Lien;


 


(viii)                        Purchase Money
Security Interests, provided that the aggregate amount of loans and
deferred payments secured by such Purchase Money Security Interests shall not
exceed $50,000,000 (excluding for the purpose of this computation any loans or
deferred payments secured by Liens described on Schedule
1.1(P));


 


(ix)                                Any judgment
Liens that would not otherwise constitute an Event of Default;


 


(x)                                   The Liens set
forth in items (A) through (C) below of this clause (x) so long
as such Liens are in accordance with the applicable requirements of such items
set forth below and so long as (a) neither the aggregate outstanding
principal amount of the Indebtedness secured thereby, nor (b) the
aggregate fair market value (determined as of the date such Lien is incurred)
of the assets subject thereto exceeds in the aggregate for the Borrower and its
Subsidiaries the amount of Indebtedness permitted by Section 8.2.1(viii):


 


(A)                              Liens on fixed
or capital assets acquired, constructed or improved by the Borrower or any
Subsidiary; provided that (1) such Liens and the Indebtedness
secured thereby are incurred prior to or within 90 days after such acquisition
or the completion of such construction or improvement, (2) the
Indebtedness secured thereby does not exceed the cost (excluding transaction
costs) of acquiring, constructing or improving such fixed or capital assets and
(3) such Liens shall not encumber any property or assets of the Borrower
or any of its Subsidiaries other than the property financed by such
Indebtedness;


 


(B)                                Any Lien
existing on any assets or Person prior to the time, as part of a Permitted
Acquisition, such assets are acquired by the Borrower or a Subsidiary of 


 


21

















 


the Borrower or such Person is acquired and
becomes a Subsidiary of the Borrower; provided that (1) such Lien
is not created in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary of the Borrower, as the case may be,
(2) such Lien shall not apply to any other property or assets of the
Borrower or any Subsidiary of the Borrower, and (3) such Lien shall secure
only those obligations which it secures on the date of such acquisition or the
date such Person becomes a Subsidiary of the Borrower, as the case may be, and
extensions, renewals, refinancings and replacements thereof that do not
increase the outstanding principal amount thereof; and


 


(C)                                other Liens on
assets of the Borrower or any of its Subsidiaries not otherwise specified in
this definition of Permitted Liens;


 


(xii)                             Liens arising
by virtue of any statutory or common law provision relating to banker’s liens,
rights of setoff or similar rights as to deposit accounts or other funds
maintained, in either case, in the ordinary course of business with a creditor
depository institution;


 


(xiii)                          Any interest or
title of a lessor or sublessor under any lease or sublease entered into by the
Borrower or any Subsidiary of the Borrower in the ordinary course of its
business and covering only the assets so leased or subleased; and leases or
subleases granted to others, in the ordinary course of the Borrower’s or its
Subsidiaries’ business, not interfering in any material respect with the
business of the Borrower or any of its Subsidiaries;


 


(xiv)                         Liens, in the
ordinary course of the Borrower’s or its Subsidiaries’ business, in favor of
customs and revenue authorities as a matter of law to secure payment of custom
duties;


 


(xv)                            Liens securing
the Cash Pooling Obligations so long as such Liens are on assets of Foreign
Subsidiaries on deposit in accounts with financial institutions providing such
Cash Pooling Obligations to such Foreign Subsidiaries;


 


(xvi)                         Liens incurred
in the ordinary course of business of the Loan Parties and their Subsidiaries
on assets of the Loan Parties and their Subsidiaries, which Liens secure
surety, appeal, indemnity, performance or other similar bonds or obligations of
a like nature required in the ordinary course of business of the Loan Parties
and their Subsidiaries so long as the aggregate net book value of the assets of
the Loan Parties and their Subsidiaries secured by all Liens permitted by this
clause (xvi) does not exceed $20,000,000; and


 


(xvii)                      The following,
(a) if the validity or amount thereof is being contested in good faith by
appropriate and lawful proceedings diligently conducted so long as levy and
execution thereon have been stayed and continue to be stayed or (b) if a
final judgment is entered and such judgment is discharged within thirty (30)
days of entry, and in either case they do not affect the Pledged Collateral or
in the aggregate materially impair the ability of any Loan Party to perform its
Obligations hereunder or under the other Loan Documents:


 


22

















 


(A)                              Claims or Liens
for taxes, assessments or charges due and payable and subject to interest or
penalty, provided that the applicable Loan Party maintains such reserves
or other appropriate provisions as shall be required by GAAP and pays all such
taxes, assessments or charges forthwith upon the commencement of proceedings to
foreclose any such Lien;


 


(B)                                Claims, Liens
or encumbrances upon, and defects of title to, personal property (other than
the Pledged Collateral), including any attachment of personal property or other
legal process prior to adjudication of a dispute on the merits; or


 


(C)                                Claims or Liens
of mechanics, materialmen, warehousemen, carriers, landlords or other statutory
nonconsensual Liens.


 


Person means any individual, corporation, partnership,
limited liability company, association, joint-stock company, trust,
unincorporated organization, joint venture, government or political subdivision
or agency thereof, or any other entity.


 


Plan means at any time an employee pension benefit plan
(including a Multiple Employer Plan, but not a Multiemployer Plan) which is
covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Internal Revenue Code and either (i) is
maintained by any member of the ERISA Group for employees of any member of the
ERISA Group or (ii) has at any time within the preceding five years been
maintained by any entity which was at such time a member of the ERISA Group for
employees of any entity which was at such time a member of the ERISA Group.


 


Pledge Agreement means the Pledge Agreement
dated as of June 16, 2009, executed and delivered by the Borrower to the
Agent in connection with the Existing Credit Agreement, together with any and
all reaffirmations thereof, including without limitation, the reaffirmation thereof
by the Borrower in connection with this Agreement.


 


Pledged Collateral means the shares of common
stock and other property owned by certain of the Loan Parties in which security
interests are granted under the Pledge Agreement or the Subsidiary Pledge
Agreement.


 


PNC Bank means PNC Bank, National Association, its
successors and assigns.


 


Potential Default means any event or
condition which with notice or passage of time, or any combination of the
foregoing, would constitute an Event of Default.


 


Principal Office means the main banking
office of the Agent in Pittsburgh, Pennsylvania.


 


Prior Security Interest means a valid and
enforceable perfected first-priority security interest under the Uniform
Commercial Code and under all other applicable Law in the Pledged Collateral
which is subject only to Liens for taxes not yet due and payable to the extent
such prospective tax payments are given priority by statute.


 


23

















 


Prohibited Transaction means any prohibited
transaction as defined in Section 4975 of the Internal Revenue Code or
Section 406 of ERISA for which neither an individual nor a class exemption
has been issued by the United States Department of Labor provided, however,
that a Prohibited Transaction shall not include any transaction exempt from
Section 4975 of the Internal Revenue Code by reason of the applicability
of Section 4975(d) thereof or any transaction exempt from
Section 406 of ERISA by reason of the applicability of Section 408
thereof.


 


Property means all real property, both owned and leased, of
any Loan Party or Subsidiary of a Loan Party.


 


Published Rate means the rate of interest
published each Business Day in The Wall Street Journal
“Money Rates” listing under the caption “London Interbank Offered Rates”
for a one month period (or, if no such rate is published therein for any
reason, then the Published Rate shall be the eurodollar rate for a one month
period as published in another publication selected by the Agent).


 


Purchase Money Security Interest means Liens upon tangible
personal property securing loans to any Loan Party or Subsidiary of a Loan
Party or deferred payments by such Loan Party or Subsidiary for the purchase of
such tangible personal property.


 


Purchasing Lender means a Lender which
becomes a party to this Agreement by executing an Assignment and Assumption
Agreement.


 


Ratable Share means the proportion that a Lender’s
Commitment (excluding the Swing Loan Commitment) bears to the Commitments
(excluding the Swing Loan Commitments) of all of the Lenders.


 


Regulated Substances means, without limitation,
any substance, material or waste, regardless of its form or nature, defined
under Environmental Laws as a “hazardous substance,” “pollutant,” “pollution,” “contaminant,”
“hazardous or toxic substance,” “extremely hazardous substance,” “toxic
chemical,” “toxic substance,” “toxic waste,” “hazardous waste,” “special
handling waste,” “industrial waste,” “residual waste,” “solid waste,” “municipal
waste,” “mixed waste,” “pesticide,” “infectious waste,” “chemotherapeutic
waste,” “medical waste,” or “regulated substance” or any other material,
substance or waste, regardless of its form or nature, which is regulated,
controlled or governed by Environmental Laws due to its radioactive, ignitable,
corrosive, reactive, explosive, toxic, carcinogenic or infectious properties or
nature, or which otherwise is regulated, controlled or governed by any
applicable Environmental Law, including without limitation, petroleum and
petroleum products (including crude oil and any fractions thereof), natural
gas, synthetic gas and any mixtures thereof, asbestos, urea formaldehyde,
polychlorinated biphenyls, mercury, radon and radioactive material.


 


Regulation U means Regulation U, T, or X as promulgated
by the Board of Governors of the Federal Reserve System, as amended from time
to time.


 


24

















 


Reimbursement Obligation has the meaning assigned to
such term in Section 2.10.3.2.


 


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


 


Remedial Action means any investigation,
identification, preliminary  assessment, characterization, delineation,
feasibility study, cleanup, corrective action, removal, remediation, risk
assessment, fate and transport analysis, in-situ treatment, containment,
operation and maintenance or management in-place, control, abatement or other
response actions to Regulated Substances and any closure and post-closure
measures associated therewith.


 


Reportable Event means a reportable event
described in Section 4043 of ERISA and regulations thereunder with respect
to a Plan or Multiemployer Plan, unless notice to the PBGC has been waived
under the following subsections of PBGC Regulation Subsection 4043:  .23, .24 and .32.


 


Required Environmental Permits means all permits,
licenses, bonds or other forms of financial assurances, consents,
registrations, identification numbers, approvals or authorizations required
under Environmental Laws to own, occupy or maintain the Property or which
otherwise are required for the operations and business activities of the
Borrower or Guarantors or for the performance of a Remedial Action.


 


Required Lenders means


 


(i)                                     if there are no
Loans, Reimbursement Obligations or Letter of Credit Borrowings outstanding,
Required Lenders shall mean Lenders (other than Defaulting Lenders) whose
Revolving Credit Commitments (excluding the Swing Loan Commitments) aggregate
in excess of 50% of the Revolving Credit Commitments (excluding Swing Loan
Commitments) of all of the Lenders (other than Defaulting Lenders), or


 


(ii)                                  if there are
Loans, Reimbursement Obligations or Letter of Credit Borrowings outstanding,
Required Lenders means any group of Lenders (excluding Defaulting Lenders) if
the sum of the Loans (excluding the Swing Loans) and Reimbursement Obligations
(including, without limitation, Letter of Credit Borrowings) due to such
Lenders (excluding Defaulting Lenders) then outstanding aggregates in excess of
50% of the total principal amount of all of the Loans (excluding the Swing
Loans) and Reimbursement Obligations (including, without limitation, Letter of
Credit Borrowings) due to all Lenders (excluding those of Defaulting Lenders)
then outstanding.


 


Required Share has the meaning assigned to
such term in Section 5.10 [Settlement
Date Procedures].


 


Revolving Credit Commitment means, as to any Lender at
any time, the amount initially set forth opposite its name on Schedule 1.1(B) in the
column labeled “Amount 


 


25

















 


of Commitment for Revolving Credit Loans,”
and thereafter on Schedule I to the most recent Assignment and Assumption
Agreement, and Revolving Credit
Commitments shall mean the aggregate Revolving Credit
Commitments of all of the Lenders.


 


Revolving Credit Loans means collectively and Revolving Credit Loan means
separately all Revolving Credit Loans or any Revolving Credit Loan made by the
Lenders or one of the Lenders to the Borrower pursuant to Section 2.1
[Revolving Credit Commitments] or Section 2.10.3
[Disbursement, Reimbursement].


 


Revolving Credit Notes means collectively all
Revolving Credit Notes of the Borrower in the form of Exhibit 1.1(R) evidencing
the Revolving Credit Loans, together with all amendments, extensions, renewals,
replacements, refinancings or refundings thereof in whole or in part and Revolving Credit Note means any of
them separately.


 


Revolving Facility Usage means at any time the sum
of the amount of Revolving Credit Loans then outstanding, the amount of Swing
Loans then outstanding and the amount of Letters of Credit Outstanding.


 


Safety Complaints means any (i) written
notice of non-compliance or violation, citation or order relating in any way to
any Safety Law; (ii) civil, criminal, administrative or regulatory
investigation, or judicial action, suit, claim or proceeding instituted by an
Official Body relating in any way to any Safety Law; (iii) civil,
criminal, administrative or regulatory or judicial action, suit, claim or
proceeding instituted by any Official Body for civil or administrative
penalties, criminal fines or penalties, or declaratory or equitable relief arising
under any Safety Laws; or (iv) subpoena, request for information or other
written notice or demand of any type issued by an Official Body pursuant to any
Safety Laws.


 


Safety Laws means the Occupational Safety and Health
Act, 29 U.S.C. § 651 et seq., as amended, and any regulations promulgated
thereunder or any equivalent or other foreign, territorial, provincial state or
local Law, each as amended, and any regulations promulgated thereunder,
pertaining or relating to the protection of employees from exposure to
Regulated Substances or hazardous conditions in the workplace (but excluding
workers compensation and wage and hour laws).


 


SEC means the Securities and Exchange Commission or any
governmental agencies substituted therefore.


 


Section 20 Subsidiary means the Subsidiary of the
bank holding company controlling any Lender, which Subsidiary has been granted
authority by the Federal Reserve Board to underwrite and deal in certain
Ineligible Securities.


 


Settlement Date means the date selected
from time to time by the Agent on which the Agent elects to effect settlement
pursuant to Section 5.10 [Settlement
Date Procedures].


 


26

















 


Solvent means, with respect to any Person on a particular
date, that on such date (i) the fair value of the property of such Person
is greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (ii) the present fair saleable
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, (iii) such Person is able to pay its debts
and other liabilities, contingent obligations and other commitments as they mature
in the normal course of business, (iv) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay as such debts and liabilities mature, and (v) 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
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged.  In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will be computed
at the amount which, in light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.


 


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


 


Standby Letter of Credit means a Letter of Credit
issued to support obligations of one or more of the Loan Parties, contingent or
otherwise, which finance the working capital and business needs of the Loan
Parties incurred in the ordinary course of business, but excluding any letter
of credit under which the stated amount of such letter of credit increases
automatically over time.


 


Subsidiary of any Person at any time means (i) any
corporation or trust of which 50% or more (by number of shares or number of
votes) of the outstanding capital stock or shares of beneficial interest
normally entitled to vote for the election of one or more directors or trustees
(regardless of any contingency which does or may suspend or dilute the voting
rights) is at such time owned directly or indirectly by such Person or one or
more of such Person’s Subsidiaries, (ii) any partnership of which such
Person is a general partner or of which 50% or more of the partnership
interests is at the time directly or indirectly owned by such Person or one or
more of such Person’s Subsidiaries, (iii) any limited liability company of
which such Person is a member or of which 50% or more of the limited liability
company interests is at the time directly or indirectly owned by such Person or
one or more of such Person’s Subsidiaries or (iv) any corporation, trust,
partnership, limited liability company or other entity which is controlled by
such Person or one or more of such Person’s Subsidiaries.  It is expressly agreed that, notwithstanding
the foregoing definition of Subsidiary, the Loan Parties, upon written notice
to the Agent and the Lenders, may elect that any Person in which any Loan Party
or any Subsidiary of any Loan Party has made an Investment permitted by Section 8.2.4(v) shall
not be treated as a Subsidiary for all purposes of the Loan Documents
(including, without limitation, for purposes of the representations,
warranties, covenants and defaults thereof) and in the event of such election,
it is expressly agreed that the assets, liabilities, equity, net worth and
results of operations of such Person subject to such election shall be excluded
from the determination of the financial covenants set forth in Section 8.2.15 [Maximum
Leverage Ratio] and Section 8.2.16
[Minimum Interest Coverage Ratio], any other financial covenant (pro-forma or 


 


27

















 


otherwise) set forth in the Loan Documents
and for purposes of determining the Applicable Margin.


 


Subsidiary Pledge Agreement means the Pledge Agreement
dated as of June 16, 2009, executed and delivered by each Guarantor which
owns Pledged Collateral, to the Agent in connection with the Existing Credit
Agreement, together with any and all reaffirmations thereof, including without
limitation reaffirmations thereof by such Guarantors in connection with this
Agreement.


 


Subsidiary Shares means all issued and
outstanding capital stock, partnership interests, limited liability company
member interests or other equity interests of each Material Domestic Subsidiary
and of each Material First Tier Foreign Subsidiary.


 


Swing Loan Commitment has the meaning assigned to
such term in Section 2.2.1 [Swing
Loans].


 


Swing Loan Note means the Swing Loan Note
of the Borrower in the form of Exhibit 1.1(S) evidencing
the Swing Loans, together with all amendments, extensions, renewals,
replacements, refinancings or refundings thereof in whole or in part.


 


Swing Loan Request has the meaning assigned to
such term in Section 2.5.2 [Swing Loan
Requests] hereof.


 


Swing Loans means collectively and Swing
Loan means separately all Swing Loans or any Swing Loan made by
PNC Bank to the Borrower pursuant to Section 2.2.1
[Swing Loans] hereof.


 


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


 


Term Loan has the meaning given to such term in Section 3.1 [Term Loan
Commitments] hereof.


 


Term Loan Commitment means, as to any Lender at
any time, the amount initially set forth opposite its name on Schedule 1.1(B) in the column
labeled “Amount of Commitment for Terms Loans,” as such Commitment is
thereafter assigned or modified and Term Loan Commitments
means the aggregate Term Loan Commitments of all of the Lenders.


 


Term Loan Commitment Fee has the meaning given to
such term in Section 3.3 [Term Loan
Commitment Fee].


 


Term Loan Notes means collectively all of
the Term Loan Notes of the Borrower in the form of Exhibit 1.1(T) evidencing
the Term Loans, together with all amendments, extensions, renewals, replacements,
refinancing or refunding thereof in whole or in part and Term Loan
Note means any of them separately.


 


28
















 


Total Debt means, as of any date of determination, the
amount under the following clause (i) less the amount under the following
clause (ii):


 


(i)                                     as of the date
of determination the aggregate amount for the Borrower and its Subsidiaries
(determined without duplication) of Indebtedness, less


 


(ii)                                  the sum of (a) as
of the date of determination the aggregate amount for the Borrower and its
Subsidiaries (determined without duplication) of account deficits arising from
Cash Pooling Obligations, which account deficits do not result in overdrafts,
plus (b) as of the date of determination the aggregate amount for the
Borrower and its Subsidiaries (determined without duplication) of Intercompany
Indebtedness (it being expressly understood that any Indebtedness payable by
the Borrower or any Consolidated Subsidiary to any Excluded Subsidiary shall
not be included as Intercompany Indebtedness).


 


Transferor Lender means the selling Lender
pursuant to an Assignment and Assumption Agreement.


 


Treasury Regulations means the regulations
promulgated under the Internal Revenue Code of the U.S.


 


Uniform Commercial Code has the meaning assigned to
that term in Section 6.1.26 [Security
Interests].


 


U.S. means the United States of America.


 


USA Patriot Act means the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Public Law 107-56, as the same has been, or shall
hereafter be, renewed, extended, amended or replaced.


 


Voting Stock of a corporation, limited liability company
or partnership means, at any time, all classes of the capital stock, equivalent
ownership interests or other voting securities of such Person then outstanding
and ordinarily entitled to vote in the election of directors (or similar governing
authority).


 


1.2                               Construction.


 


Unless
the context of this Agreement otherwise clearly requires, the following rules of
construction shall apply to this Agreement and each of the other Loan
Documents:


 


1.2.1                        Number;
Inclusion.


 


references
to the plural include the singular, the plural, the part and the whole; “or”
has the inclusive meaning represented by the phrase “and/or,” and “including”
has the meaning represented by the phrase “including without limitation”;


 


29

















 


1.2.2                        Determination.


 


references
to “determination” of or by the Agent or the Lenders shall be deemed to include
good-faith estimates by the Agent or the Lenders (in the case of quantitative
determinations) and good-faith beliefs by the Agent or the Lenders (in the case
of qualitative determinations) and such determination shall be conclusive
absent manifest error;


 


1.2.3                        Agent’s
Discretion and Consent.


 


whenever
the Agent or the Lenders are granted the right herein to act in its or their sole
discretion or to grant or withhold consent such right shall be exercised in
good faith;


 


1.2.4                        Documents
Taken as a Whole.


 


the
words “hereof,” “herein,” “hereunder,” “hereto” and similar terms in this
Agreement or any other Loan Document refer to this Agreement or such other Loan
Document as a whole and not to any particular provision of this Agreement or
such other Loan Document;


 


1.2.5                        Headings.


 


the
section and other headings contained in this Agreement or such other Loan
Document and the Table of Contents (if any), preceding this Agreement or such
other Loan Document are for reference purposes only and shall not control or
affect the construction of this Agreement or such other Loan Document or the
interpretation thereof in any respect;


 


1.2.6                        Implied
References to this Agreement.


 


article,
section, subsection, clause, schedule and exhibit references are to this
Agreement or other Loan Document, as the case may be, unless otherwise
specified;


 


1.2.7                        Persons.


 


reference
to any Person includes such Person’s successors and assigns but, if applicable,
only if such successors and assigns are permitted by this Agreement or such
other Loan Document, as the case may be, and reference to a Person in a
particular capacity excludes such Person in any other capacity;


 


1.2.8                        Modifications
to Documents.


 


reference
to any agreement (including this Agreement and any other Loan Document together
with the schedules and exhibits hereto or thereto), document or instrument
means such agreement, document or instrument as amended, modified, replaced,
substituted for, superseded or restated;


 


30

















 


1.2.9                        From,
To and Through.


 


relative
to the determination of any period of time, “from” means “from and including,” “to”
means “to but excluding,” and “through” means “through and including”; and


 


1.2.10                  Shall;
Will.


 


references
to “shall” and “will” are intended to have the same meaning.


 


1.3                               Accounting
Principles.


 


Except
as otherwise provided in this Agreement, all computations and determinations as
to accounting or financial matters and all financial statements to be delivered
pursuant to this Agreement shall be made and prepared in accordance with GAAP
(including principles of consolidation where appropriate), and all accounting
or financial terms shall have the meanings ascribed to such terms by GAAP; provided,
however, that all accounting terms used in Section 8.2
[Negative Covenants] (and all defined terms used in the definition of any
accounting term used in Section 8.2
[Negative Covenants] shall have the meaning given to such terms (and defined
terms) under GAAP as in effect on the date hereof applied on a basis consistent
with those used in preparing the Annual Statements referred to in Section 6.1.9(i) [Historical
Statements].  In the event of any change
after the date hereof in GAAP, and if such change would result in the inability
to determine compliance with the financial covenants set forth in Section 8.2  [Negative
Covenants] based upon the Borrower’s regularly prepared financial statements by
reason of the preceding sentence, then the parties hereto agree to endeavor, in
good faith, to agree upon an amendment to this Agreement that would adjust such
financial covenants in a manner that would not affect the substance thereof, but
would allow compliance therewith to be determined in accordance with the
Borrower’s financial statements at that time, provided, however,
if (i) the Borrower shall object to determining such compliance on such
basis at the time of delivery of such financial statements due to any change in
GAAP or the rules promulgated with respect thereto, or (ii) either
the Agent or the Required Lenders shall so object in writing within 60 days
after delivery of such financial statements (or after the Lenders have been informed
of the changes in GAAP affecting such financial statements, if later), then for
the period following such objection, unless otherwise agreed by the Borrower
and the Required Lenders, such calculations shall be made on a basis consistent
with the most recent financial statements delivered by the Borrower to the
Lenders as to which no such objection shall have been made.


 


2.                                       REVOLVING
CREDIT AND SWING LOAN FACILITIES


 


2.1                               Revolving
Credit Commitments.


 


2.1.1                        Revolving
Credit Loans.


 


Subject
to the terms and conditions hereof and relying upon the representations and
warranties herein set forth, each Lender severally agrees to make Revolving
Credit Loans in either Dollars or one or more Optional Currencies to the
Borrower at any time or 


 


31

















 


from time to time on or after the Closing
Date to the Expiration Date, provided  that (i) after giving
effect to each such Loan the aggregate Dollar Equivalent amount of Loans from
such Lender shall not exceed such Lender’s Revolving Credit Commitment minus
such Lender’s Ratable Share of the Dollar Equivalent amount of Letters of
Credit Outstanding and further minus such Lender’s Ratable Share of outstanding
Swing Loans, and (ii) no Loan to which the Base Rate Option applies shall
be made in an Optional Currency, and provided, further that the
Dollar Equivalent Revolving Facility Usage at any time shall not exceed the
Revolving Credit Commitments of all the Lenders.  Within such limits of time and amount and
subject to the other provisions of this Agreement, the Borrower may borrow,
repay and reborrow pursuant to this Section 2.1.


 


2.2                               Swing
Loan Commitment.


 


2.2.1                        Swing
Loans.


 


Subject
to the terms and conditions hereof and relying upon the representations and
warranties herein set forth, and in order to facilitate loans and repayments
between Settlement Dates, PNC Bank may, at its option, cancelable at any time
for any reason whatsoever, make Swing Loans to the Borrower at any time or from
time to time after the Closing Date to, but not including, the Expiration Date,
in an aggregate principal amount up to but not in excess of $10,000,000.00 (the
“Swing Loan Commitment”), provided
that the Dollar Equivalent Revolving Facility Usage at any time, shall
not exceed the Revolving Credit Commitments of all the Lenders.  Within such limits of time and amount and
subject to the other provisions of this Agreement, the Borrower may borrow,
repay and reborrow pursuant to this Section 2.2.1.


 


2.3                               Nature
of Lenders’ Obligations with Respect to Revolving Credit Loans.


 


Each
Lender shall be obligated to participate in each request for Revolving Credit
Loans pursuant to Section 2.5
[Revolving Credit Loan Requests; Swing Loan Requests] in accordance with its
Ratable Share.  The aggregate Dollar
Equivalent amount of each Lender’s Revolving Credit Loans outstanding hereunder
to the Borrower at any time shall never exceed its Revolving Credit Commitment
minus its Ratable Share of the Dollar Equivalent amount of Letters of Credit
Outstanding, subject to Section 5.4.6
[Mandatory Prepayment Currency Fluctuations]. 
The obligations of each Lender hereunder are several and not joint.  The failure of any Lender to perform its
obligations hereunder shall not affect the Obligations of the Borrower to any
other party nor shall any other party be liable for the failure of such Lender
to perform its obligations hereunder. 
The Lenders shall have no obligation to make Revolving Credit Loans
hereunder on or after the Expiration Date except in accordance with Section 2.10.3.3 in the case
of any Letter of Credit drawn on or after the Expiration Date.


 


2.4                               Commitment
Fees.


 


Accruing
from the date hereof until the Expiration Date, the Borrower agrees to pay to
the Agent in Dollars for the account of each Lender, as consideration for such
Lender’s Revolving Credit Commitment hereunder, a nonrefundable commitment fee
(the “Commitment


 


32

















 


Fee”) equal to the
Applicable Commitment Fee Rate (computed on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed) on the average daily
difference between the amount of (i) such Lender’s Revolving Credit
Commitment as the same may be constituted from time to time (for purposes of
this computation, PNC Bank’s Swing Loans shall be deemed to be borrowed amounts
under its Revolving Credit Commitment) and (ii) the sum of such Lender’s
Revolving Credit Loans outstanding plus its Ratable Share of Letters of Credit
Outstanding, provided, however, that any Commitment Fee accrued
with respect to the Revolving Credit Commitment 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; and provided
further that no Commitment Fee shall accrue with respect to the
Revolving Commitment of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender.   For the purpose of
calculating the Commitment Fee as set forth in this Section 2.4,
amounts of any Revolving Credit Loans outstanding and/or Letters of Credit
Outstanding which are denominated in any Optional Currency shall be converted
to the Dollar Equivalent.   Subject to
the provisos in the directly preceding sentence all Commitment Fees shall be
payable in arrears on the first day of each July, October, January and April after
the date hereof and on the Expiration Date or upon acceleration of the Loans.


 


2.5                               Revolving
Credit Loan Requests; Swing Loan Requests.


 


2.5.1                        Revolving
Credit Loan Requests.


 


Except
as otherwise provided herein, the Borrower may from time to time prior to the
Expiration Date request the Lenders to make Revolving Credit Loans, or renew or
convert the Interest Rate Option applicable to existing Revolving Credit Loans
pursuant to Section 4.2 [Interest
Periods], by delivering to the Agent, not later than 11:00 a.m., Pittsburgh
time, (i) three (3) Business Days prior to the proposed Borrowing
Date with respect to the making of Revolving Credit Loans in Dollars to which
the Euro-Rate Option applies or the date of conversion to or the renewal of the
Euro-Rate Option for any such Loans and four (4) Business Days prior to
the proposed Borrowing Date with respect to the making of Revolving Credit
Loans in an Optional Currency or the date of conversion to or renewal of the
Euro Rate Option for Revolving Credit Loans in an Optional Currency; and
(ii) one (1) Business Day prior to either the proposed Borrowing Date
with respect to the making of a Revolving Credit Loan to which the Base Rate
Option applies or the last day of the preceding Interest Period with respect to
the conversion to the Base Rate Option for any Loan, of a duly completed Loan
Request therefor substantially in the form of Exhibit 2.5.1.  Each Loan Request shall be irrevocable and
shall specify (a) the proposed Borrowing Date; (b) the aggregate
amount of the proposed Loans (expressed in the currency in which such Loans
shall be funded if such Loans shall be funded in an Optional Currency)
comprising each Borrowing Tranche, the Dollar Equivalent amount of which shall
be in integral multiples of $1,000,000.00 and not less than $5,000,000.00 for
each Borrowing Tranche to which the Euro-Rate Option applies and in integral
multiples of $100,000.00 and not less than the lesser of $500,000.00 or the
maximum amount available for Borrowing Tranches to which the Base Rate Option applies;
(c) whether the Euro-Rate Option or Base Rate Option shall apply to the
proposed Loans comprising the applicable Borrowing


 


33

















 


Tranche; (d) the currency in which such
Loans shall be funded if the Borrower is electing the Euro Rate Option; and
(e) in the case of a Borrowing Tranche to which the Euro-Rate Option
applies, an appropriate Interest Period for the Loans comprising such Borrowing
Tranche.


 


2.5.2                        Swing
Loan Requests.


 


Except
as otherwise provided herein, the Borrower may from time to time prior to the
Expiration Date request PNC Bank to make Swing Loans by delivery to PNC Bank
not later than 1:00 p.m. Pittsburgh time on the proposed Borrowing Date of
a duly completed request therefor substantially in the form of Exhibit 2.5.2 hereto (each, a “Swing Loan Request”).  Each Swing Loan Request shall be irrevocable
and shall specify the proposed Borrowing Date and the principal amount of such
Swing Loan, which shall be in integral multiples of $500,000.00 and not less
than $1,000,000.00.


 


2.6                               Making
Revolving Credit Loans and Swing Loans.


 


2.6.1                        Making
Revolving Credit Loans.


 


The
Agent shall, promptly after receipt by it of a Loan Request pursuant to Section 2.5 [Revolving Credit
Loan Requests; Swing Loan Requests], notify the Lenders of its receipt of such
Loan Request specifying:  (i) the
proposed Borrowing Date and the time and method of disbursement of the
Revolving Credit Loans requested thereby; (ii) the amount and type of each
such Revolving Credit Loan and the applicable Interest Period (if any);
(iii) the currency in which such Revolving Credit Loan is made; and
(iv) the apportionment among the Lenders of such Revolving Credit Loans as
determined by the Agent in accordance with Section 2.3
[Nature of Lenders’ Obligations with Respect to Revolving Credit Loans].  Each Lender shall remit the principal amount
of each Revolving Credit Loan to the Agent such that the Agent is able to, and
the Agent shall, to the extent the Lenders have made funds available to it for
such purpose and subject to Section 7.2
[Each Additional Loan or Letter of Credit], fund such Revolving Credit Loans to
the Borrower in U.S. Dollars or the Optional Currency as the Borrower shall
have requested, and immediately available funds at the Principal Office prior
to 2:00 p.m., Pittsburgh time, on the applicable Borrowing Date, provided
that if any Lender fails to remit such funds to the Agent in a timely manner,
the Agent may elect in its sole discretion to fund with its own funds the
Revolving Credit Loans of such Lender on such Borrowing Date, and such Lender
shall be subject to the repayment obligation in Section 10.13
[Availability of Funds].


 


2.6.2                        Making
Swing Loans.


 


So
long as PNC Bank elects to make Swing Loans, PNC Bank shall, after receipt by
it of a Swing Loan Request pursuant to Section 2.5.2
[Swing Loan Requests], fund such Swing Loan to the Borrower in U.S. Dollars and
immediately available funds at the Principal Office prior to 2:00 p.m.
Pittsburgh time on the Borrowing Date.


 


34

















 


2.7                               Swing
Loan Note.


 


The
obligation of the Borrower to repay the unpaid principal amount of the Swing
Loans made to it by PNC Bank together with interest thereon shall be evidenced
by a demand promissory note of the Borrower dated the Closing Date in
substantially the form attached hereto as Exhibit 1.1(S) payable
to the order of PNC Bank in a face amount equal to the Swing Loan Commitment.


 


2.8                               Use
of Proceeds.


 


The
proceeds of the Revolving Credit Loans shall be used to refinance existing
Indebtedness and for general corporate purposes of the Borrower and in
accordance with Section 8.1.10
[Use of Proceeds]; provided, however, that none of the
Commitments or the Loans shall be used for currency speculation or similar
purposes.


 


2.9                               Borrowings
to Repay Swing Loans.


 


PNC
Bank may, at its option, exercisable at any time for any reason whatsoever,
demand repayment of the Swing Loans, and each Lender shall make a Revolving
Credit Loan in an amount equal to such Lender’s Ratable Share of the aggregate
principal amount of the outstanding Swing Loans, plus, if PNC Bank so requests,
accrued interest thereon, provided that no Lender shall be obligated in
any event to make Revolving Credit Loans in excess of its Revolving Credit
Commitment.  Revolving Credit Loans made
pursuant to the preceding sentence shall bear interest at the Base Rate Option
and shall be deemed to have been properly requested in accordance with Section 2.5.1 [Revolving
Credit Loan Requests] without regard to any of the requirements of that
provision.  PNC Bank shall provide notice
to the Lenders that such Revolving Credit Loans are to be made under this Section 2.9 and of the
apportionment among the Lenders, and the Lenders shall be unconditionally
obligated to fund such Revolving Credit Loans (whether or not the conditions
specified in Section 2.5.1 [Revolving
Credit Loan Requests] or Section 7
[Conditions of Lending and Issuance of Letters of Credit] are then satisfied)
by the time PNC Bank so requests, which shall not be earlier than 3:00 p.m.
Pittsburgh time on the Business Day next after the date the Lenders receive
such notice from PNC Bank.


 


2.10                        Letter
of Credit Subfacility.


 


2.10.1                  Issuance
of Letters of Credit.


 


The
Borrower may request the issuance of a letter of credit (each a “Letter of Credit”) on behalf of
itself or another Loan Party by delivering or having such other Loan Party
deliver to the Agent a completed application and agreement for letters of
credit in such form as the Agent may specify from time to time by no later than
11:00 a.m., Pittsburgh time, at least three (3) Business Days, or
such shorter period as may be agreed to by the Agent, in advance of the
proposed date of issuance.  Each Letter
of Credit shall be a Standby Letter of Credit (and may not be a Commercial
Letter of Credit) and may be denominated in either Dollars or an Optional
Currency. Subject to the terms and conditions hereof and in reliance on the
agreements of the other Lenders set forth in this Section 2.10,
the Agent or any of the Agent’s 


 


35

















 


Affiliates will issue a Letter of Credit provided
that each Letter of Credit shall (i) have a maximum maturity of
twelve (12) months from the date of issuance, (ii) in no event expire
later than one hundred eighty (180) days after the Expiration Date, and (iii) in
no event be amended to increase the amount thereof following the issuance
thereof unless the conditions set forth in Section 7.2
[Each Additional Loan or Letter of Credit] have been satisfied as of the date
of such amendment (treating such date the same as the date of issuance of a
Letter of Credit) and provided  further that in no event shall
(a) the Dollar Equivalent amount of Letters of Credit Outstanding exceed,
at any one time, $20,000,000.00 or (b) the Dollar Equivalent Revolving
Facility Usage exceed, at any one time, the Revolving Credit Commitments. It is
expressly agreed that the Existing Letters of Credit shall be deemed to be a
Letter of Credit for all purposes of this Agreement and each other Loan
Document. Notwithstanding any other provision hereof, the Agent shall not be
required to issue any Letter of Credit, if any Lender is at such time a
Defaulting Lender hereunder, unless the Agent has entered into arrangements
satisfactory to the Agent with the Borrower or such Defaulting Lender to
eliminate the Agent’s risk with respect to such Defaulting Lender.


 


2.10.2                  Letter
of Credit Fees.


 


The
Borrower shall pay in Dollars (i) to the Agent for the ratable account of
the Lenders a fee (the “Letter of Credit Fee”)
equal to the Applicable Letter of Credit Fee per annum, and (ii) to the
Agent for its own account a fronting fee equal to 1/8% per annum (computed on
the basis of a year of 360 days and actual days elapsed), which fees shall be
computed on the daily average Dollar Equivalent amount of Letters of Credit
Outstanding and shall be payable quarterly in arrears commencing with the first
day of each January, April, July and October following issuance of
each Letter of Credit and on the Expiration Date.  The Borrower shall also pay to the Agent in
Dollars for the Agent’s sole account the Agent’s then in effect customary fees
and administrative expenses payable with respect to the Letters of Credit as
the Agent may generally charge or incur from time to time in connection with
the issuance, maintenance, modification (if any), assignment or transfer (if
any),  negotiation, and administration of
Letters of Credit.


 


2.10.3                  Disbursements,
Reimbursement.


 


2.10.3.1         Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Agent a
participation in such Letter of Credit and each drawing thereunder in an amount
equal to such Lender’s Ratable Share of the maximum amount available to be
drawn under such Letter of Credit and the amount of such drawing, respectively.


 


2.10.3.2         In the event of any request
for a drawing under a Letter of Credit by the beneficiary or transferee
thereof, the Agent will promptly notify the Borrower.  Provided that it shall have received such
notice, the Borrower shall reimburse (such obligation to reimburse the Agent
shall sometimes be referred to as a “Reimbursement Obligation”)
the Agent in Dollars prior to 12:00 noon, Pittsburgh time on each date that an
amount is paid by the Agent under any Letter of Credit (each such date, an “Drawing Date”) in an amount equal
to the Dollar Equivalent amount so paid by the Agent.  In the event the 


 


36

















 


Borrower fails to reimburse the Agent for the
full Dollar Equivalent amount of any drawing under any Letter of Credit by
12:00 noon, Pittsburgh time, on the Drawing Date, the Agent will promptly
notify each Lender thereof, and the Borrower shall be deemed to have requested
that Revolving Credit Loans be made by the Lenders in Dollars under the Base
Rate Option to be disbursed on the Drawing Date under such Letter of Credit,
subject to the amount of the unutilized portion of the Revolving Credit
Commitment and subject to the conditions set forth in Section 7.2
[Each Additional Loan or Letter of Credit] other than any notice
requirements.  Any notice given by the
Agent pursuant to this Section 2.10.3.2
may be oral 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.


 


2.10.3.3         Each Lender shall, upon any
notice pursuant to Section 2.10.3.2,
make available to the Agent an amount in Dollars in immediately available funds
equal to its Ratable Share of the Dollar Equivalent amount of the drawing
minus, in the event of any drawing after the Expiration Date, any amount
applied by the Agent against such drawing from amounts deposited to Cash
Collateralize such Obligations pursuant to Section 2.10.10
[Cash Collateral] (whether or not the conditions set forth in Section 7.2 [Each Additional
Loan or Letter of Credit] have been satisfied), whereupon the participating
Lenders shall (subject to Section 2.10.3.4)
each be deemed to have made a Revolving Credit Loan under the Base Rate Option
to the Borrower in that amount.  If any
Lender so notified fails to make available in Dollars to the Agent for the
account of the Agent the amount of such Lender’s Ratable Share of such Dollar
Equivalent amount by no later than 2:00 p.m., Pittsburgh time on the
Drawing Date, then interest shall accrue, and shall be payable by such Lender
on demand, on such Lender’s obligation to make such payment, from the Drawing
Date to the date on which such Lender makes such payment (i) at a rate per
annum equal to the Federal Funds Effective Rate during the first three days
following the Drawing Date, and (ii) at a rate per annum equal to the rate
applicable to Loans under the Base Rate Option on and after the fourth day
following the Drawing Date.  The Agent
will promptly give notice of the occurrence of the Drawing Date, but failure of
the Agent to give any such notice on the Drawing Date or in sufficient time to
enable any Lender to effect such payment on such date shall not relieve such
Lender from its obligation under this Section 2.10.3.3.


 


2.10.3.4         With respect to any
unreimbursed drawing that is not converted into Revolving Credit Loans under
the Base Rate Option to the Borrower in whole or in part as contemplated by Section 2.10.3.2, because of
the Borrower’s failure to satisfy the conditions set forth in Section 7.2 [Each Additional
Loan or Letter of Credit] other than any notice requirements or for any other
reason, the Borrower shall be deemed to have incurred from the Agent a
borrowing (each a “Letter of Credit Borrowing”)
in Dollars in the Dollar Equivalent amount of such drawing.  Such Letter of Credit Borrowing shall be due
and payable on demand (together with interest) and shall bear interest at the
rate per annum applicable to the Revolving Credit Loans under the Base Rate
Option.  Each Lender’s payment to the
Agent pursuant to Section 2.10.3.3
shall be deemed to be a payment in respect of its participation in such Letter
of Credit Borrowing and shall constitute a “Participation
Advance” from such Lender in satisfaction of its participation
obligation under this Section 2.10.3.


 


37

















 


2.10.4                  Repayment
of Participation Advances.


 


2.10.4.1         Upon (and only upon) receipt
by the Agent for its account of immediately available funds from the Borrower
(i) in reimbursement of any payment made by the Agent under the Letter of
Credit with respect to which any Lender has made a Participation Advance to the
Agent, or (ii) in payment of interest on such a payment made by the Agent
under such a Letter of Credit, the Agent will pay to each Lender, in the same
funds as those received by the Agent, the amount of such Lender’s Ratable Share
of such funds, except the Agent shall retain the amount of the Ratable Share of
such funds of any Lender that (a) did not make a Participation Advance in
respect of such payment by Agent, or (b) is a Defaulting Lender in such latter
case, up to the amount by which such Defaulting Lender has defaulted.


 


2.10.4.2         If the Agent is required at
any time to return to any Loan Party, or to a trustee, receiver, liquidator,
custodian, or any official in any Insolvency Proceeding or otherwise, any
portion of the payments made by any Loan Party to the Agent pursuant to Section 2.10.4.1 in
reimbursement of a payment made under the Letter of Credit or interest or fee
thereon, each Lender shall, on demand of the Agent, forthwith return to the Agent
the amount of its Ratable Share of any amounts so returned by the Agent plus
interest thereon from the date such demand is made to the date such amounts are
returned by such Lender to the Agent, at a rate per annum equal to the Federal
Funds Effective Rate in effect from time to time.


 


2.10.5                  Documentation.


 


Each
Loan Party agrees to be bound by the terms of the Agent’s application and
agreement for letters of credit and the Agent’s written regulations and
customary practices relating to letters of credit, though such interpretation
may be different from such Loan Party’s own. 
In the event of a conflict between such application or agreement and
this Agreement, this Agreement shall govern. 
It is understood and agreed that, except in the case of gross negligence
or willful misconduct, as determined by a final non-appealable judgment of a
court of competent jurisdiction, the Agent shall not be liable for any error,
negligence and/or mistakes, whether of omission or commission, in following any
Loan Party’s instructions or those contained in the Letters of Credit or any
modifications, amendments or supplements thereto.


 


2.10.6                  Determinations
to Honor Drawing Requests.


 


In
determining whether to honor any request for drawing under any Letter of Credit
by the beneficiary thereof, the Agent shall be responsible only to determine
that the documents and certificates required to be delivered under such Letter
of Credit have been delivered and that they comply on their face with the
requirements of such Letter of Credit.


 


2.10.7                  Nature
of Participation and Reimbursement Obligations.


 


Each
Lender’s obligation in accordance with this Agreement to make the Revolving
Credit Loans or Participation Advances, as contemplated by Section 2.10.3
[Disbursements, Reimbursements], as a result of a drawing under a Letter of
Credit, and the Obligations of the Borrower to reimburse the Agent upon a draw
under a Letter of Credit, shall 


 


38

















 


be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Section 2.10 under all
circumstances, including the following circumstances:


 


(i)                                                             any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Agent or any of its Affiliates, the Borrower or any other Person
for any reason whatsoever;


 


(ii)                                                          the failure of
any Loan Party or any other Person to comply, in connection with a Letter of
Credit Borrowing, with the conditions set forth in Section 2.1
[Revolving Credit Commitments], Section 2.5
[Revolving Credit Loan Requests; Swing Loan Requests], Section 2.6
[Making Revolving Credit Loans and Swing Loans] or Section 7.2
[Each Additional Loan or Letter of Credit] or as otherwise set forth in this
Agreement for the making of a Revolving Credit Loan, it being acknowledged that
such conditions are not required for the making of a Letter of Credit Borrowing
and the obligation of the Lenders to make Participation Advances under Section 2.10.3 [Disbursements,
Reimbursements].


 


(iii)                                                       any lack of
validity or enforceability of any Letter of Credit;


 


(iv)                                                      any claim of
breach of warranty that might be made by any Loan Party or any Lender against
any beneficiary of a Letter of Credit, or the existence of any claim, set-off,
recoupment, counterclaim, crossclaim, defense or other right which any Loan
Party or any Lender may have at any time against a beneficiary, successor
beneficiary, any transferee or assignee of any Letter of Credit or the proceeds
thereof (or any Persons for whom any such transferee may be acting), the Agent
or its Affiliates or any Lender or any other Person or, whether in connection
with this Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between any Loan Party or
Subsidiaries of a Loan Party and the beneficiary for which any Letter of Credit
was procured);


 


(v)                                                         the lack of
power or authority of any signer of (or any defect in or forgery of any
signature or endorsement on) or the form of or lack of validity, sufficiency,
accuracy, enforceability or genuineness of any draft, demand, instrument,
certificate or other document presented under or in connection with any Letter
of Credit, or any fraud or alleged fraud in connection with any Letter of
Credit, or the transport of any property or provisions of services relating to
a Letter of Credit, in each case even if the Agent or any of the Agent’s
Affiliates has been notified thereof;


 


(vi)                                                      payment by the
Agent or any of its Affiliates under any Letter of Credit against presentation
of a demand, draft or certificate or other document which does not comply with
the terms of such Letter of Credit;


 


(vii)                                                   the solvency
of, or any acts of omissions by, any beneficiary of any Letter of Credit, or
any other Person having a role in any transaction or obligation relating to a
Letter of Credit, or the existence, nature, quality, quantity, condition, value
or other characteristic of any property or services relating to a Letter of
Credit;


 


39
















 


(viii)                                                any failure by
the Agent or any of Agent’s Affiliates to issue any Letter of Credit in the
form requested by any Loan Party, unless the Agent has received written notice
from such Loan Party of such failure within three (3) Business Days after
the Agent shall have furnished such Loan Party a copy of such Letter of Credit
and such error is material and no drawing has been made thereon prior to
receipt of such notice;


 


(ix)                                                        any adverse
change in the business, operations, properties, assets, condition (financial or
otherwise) or prospects of any Loan Party or Subsidiaries of a Loan Party;


 


(x)                                                           any breach of
this Agreement or any other Loan Document by any party thereto;


 


(xi)                                                        the occurrence
or continuance of an Insolvency Proceeding with respect to any Loan Party;


 


(xii)                                                     the fact that
an Event of Default or a Potential Default shall have occurred and be
continuing;


 


(xiii)                                                  the fact that
the Expiration Date shall have passed or this Agreement or the Commitments
hereunder shall have been terminated; and


 


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


 


2.10.8                  Indemnity.


 


In
addition to amounts payable as provided in Section 10.8
[Reimbursement and Indemnification of Agent by Borrower],  the
Borrower hereby agrees to protect, indemnify, pay and save harmless the Agent
and any of Agent’s Affiliates that has issued a Letter of Credit from and
against any and all claims, demands, liabilities, damages, taxes, penalties,
interest, judgments, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which the Agent or any of Agent’s Affiliates may incur or be subject
to as a consequence, direct or indirect, of the issuance of any Letter of
Credit, other than as a result of (i) the gross negligence, bad faith, or
willful misconduct of the Agent as determined by a final judgment of a court of
competent jurisdiction or (ii) the wrongful dishonor by the Agent or any
of Agent’s Affiliates of a proper demand for payment made under any Letter of
Credit, except if such dishonor resulted from any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto government
or governmental authority (all such acts or omissions herein called “Governmental Acts”).


 


2.10.9                  Liability
for Acts and Omissions.


 


As
between any Loan Party and the Agent, or the Agent’s Affiliates, such Loan
Party assumes all risks of the acts and omissions of, or misuse of the Letters
of Credit by, the respective beneficiaries of such Letters of Credit.  In furtherance and not in limitation of 


 


40

















 


the foregoing, the Agent shall not be
responsible for any of the following including any losses or damages to any
Loan Party or other Person or property relating therefrom:  (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for an issuance of any such Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged (even if the Agent or the Agent’s
Affiliates shall have been notified thereof); (ii) the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such 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; (iii) the failure of the
beneficiary of any such Letter of Credit, or any other party to which such
Letter of Credit may be transferred, to comply fully with any conditions
required in order to draw upon such Letter of Credit or any other claim of any
Loan Party against any beneficiary of such Letter of Credit, or any such
transferee, or any dispute between or among any Loan Party and any beneficiary
of any Letter of Credit or any such transferee; (iv) errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to
make a drawing under any such Letter of Credit or of the proceeds thereof;
(vii) the misapplication by the beneficiary of any such Letter of Credit
of the proceeds of any drawing under such Letter of Credit; or (viii) any
consequences arising from causes beyond the control of the Agent or the Agent’s
Affiliates, as applicable, including any Governmental Acts, and none of the
above shall affect or impair, or prevent the vesting of, any of the Agent’s or
the Agent’s Affiliates rights or powers hereunder.  Nothing in the preceding sentence shall
relieve the Agent from liability for the Agent’s bad faith, gross negligence or
willful misconduct in connection with actions or omissions described in such
clauses (i) through (viii) of such sentence, as determined by a final
non-appealable judgment of a court of competent jurisdiction.  In no event shall the Agent or the Agent’s
Affiliates be liable to any Loan Party for any indirect, consequential,
incidental, punitive, exemplary or special damages or expenses (including
without limitation attorneys’ fees), or for any damages resulting from any
change in the value of any property relating to a Letter of Credit.


 


Without
limiting the generality of the foregoing, the Agent and each of its Affiliates (a) may
rely on any oral or other communication believed in good faith by the Agent or
such Affiliate to have been authorized or given by or on behalf of the
applicant for a Letter of Credit, (b) may honor any presentation if the
documents presented appear on their face substantially to comply with the terms
and conditions of the relevant Letter of Credit; (c) may honor a
previously dishonored presentation under a Letter of Credit, whether such
dishonor was pursuant to a court order, to settle or compromise any claim of
wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the
same extent as if such presentation had initially been honored, together with
any interest paid by the Agent or its Affiliate; (d) may honor any drawing
that is payable upon presentation of a statement advising negotiation or
payment, upon receipt of such statement (even if such statement indicates that
a draft or other document is being delivered separately), and shall not be
liable for any failure of any such draft or other document to arrive, or to conform
in any way with the relevant Letter of Credit; (e) may pay any paying or
negotiating bank claiming that it rightfully honored under the laws or
practices of the place where such bank is located; and (f) may settle or
adjust any claim or demand made on the Agent or its 


 


41

















 


Affiliate in any way related to any order
issued at the applicant’s request to an air carrier, a letter of guarantee or
of indemnity issued to a carrier or any similar document (each an “Order”) and honor any drawing in
connection with any Letter of Credit that is the subject to such Order, notwithstanding
that any drafts or other documents presented in connection with such Letter of
Credit fail to conform in any way with such Letter of Credit.


 


In
furtherance and extension and not in limitation of the specific provisions set
forth above, any action taken or omitted by the Agent or the Agent’s Affiliates
under or in connection with the Letters of Credit issued by it or any documents
and certificates delivered thereunder, if taken or omitted in good faith, shall
not put the Agent or the Agent’s Affiliates under any resulting liability to
the Borrower or any Lender.


 


2.10.10            Cash Collateral.


 


Upon
the request of the Agent, if, on the Expiration Date, any Letter of Credit
Obligation for any reason remains outstanding, the Borrower shall immediately
Cash Collateralize the then outstanding amount of all Letter of Credit
Obligations. The Borrower hereby grants to the Agent, for the benefit of the
Agent and the Lenders, a security interest in all cash collateral pledged
pursuant to this Section or otherwise under this Agreement.


 


2.11                        Utilization
of Commitments in Optional Currencies.


 


2.11.1                  Periodic
Computations of Dollar Equivalent Amounts of Loans and Letters of Credit
Outstanding.


 


The
Agent will determine the Dollar Equivalent amount of (i) proposed
Revolving Credit Loans or Letters of Credit to be denominated in an Optional
Currency as of the requested Borrowing Date or date of issuance, as the case
may be, and (ii) outstanding Revolving Credit Loans denominated in an
Optional Currency as of the end of each Interest Period (each such date under
clauses (i) and (ii), a “Computation Date”).


 


2.11.2                  Notices
From Lenders That Optional Currencies Are Unavailable to Fund New Loans.


 


The
Lenders shall be under no obligation to make the Revolving Credit Loans
requested by the Borrower which are denominated in an Optional Currency if any
Lender notifies the Agent by 5:00 p.m. (Pittsburgh time) four (4) Business
Days prior to the Borrowing Date for such Revolving Credit Loans that such
Lender cannot provide its share of such Revolving Credit Loans in such Optional
Currency due to the introduction of, or any change in, any applicable Law or
any change in the interpretation or administration thereof by any Official Body
charged with the administration or interpretation thereof, or compliance by
such Lender (or any of its lending offices) with any request or directive
(whether or not having the force of Law) of any such Official Body which would
make it unlawful or impossible for such Lender (or any of its lending offices)
to honor its obligations to make a Loan in an Optional Currency.  In the event the Agent timely receives a
notice from a Lender pursuant to the preceding sentence, the Agent will notify
the Borrower no later than 12:00 noon (Pittsburgh time) three (3) Business



 


42

















 


Days prior to the Borrowing Date for such
Revolving Credit Loans that the Optional Currency is not then available for
such Revolving Credit Loans, and the Agent shall promptly thereafter notify the
Lenders of the same.  If the Borrower
receives a notice described in the preceding sentence, the Borrower may, by
notice to the Agent not later than 5:00 p.m. (Pittsburgh time) three (3) Business
Days prior to the Borrowing Date for such Revolving Credit Loans, withdraw the
Loan Request for such Revolving Credit Loans. 
If the Borrower withdraws such Loan Request, the Agent will promptly notify
each Lender of the same and the Lenders shall not make such Revolving Credit
Loans.  If the Borrower does not withdraw
such Loan Request before such time, (i) the Borrower shall be deemed to
have requested that the Revolving Credit Loans referred to in its Loan Request
shall be made in Dollars in an amount equal to the Dollar Equivalent amount of
such Revolving Credit Loans and shall bear interest under the Base Rate Option,
and (ii) the Agent shall promptly deliver a notice to each Lender
stating:  (a) that such Revolving
Credit Loans shall be made in Dollars and shall bear interest under the Base
Rate Option, (b) the aggregate amount of such Revolving Credit Loans, and (c) such
Lender’s Ratable Share of such Revolving Credit Loans.


 


2.11.3                  Notices
From Lenders That Optional Currencies Are Unavailable to Fund Renewals of the
Euro-Rate Option.


 


If
the Borrower delivers a Loan Request requesting that the Lenders renew the
Euro-Rate Option with respect to an outstanding Borrowing Tranche of Revolving
Credit Loans denominated in an Optional Currency, the Lenders shall be under no
obligation to renew such Euro-Rate Option if any Lender delivers to the Agent a
notice by 5:00 p.m. (Pittsburgh time) four (4) Business Days prior to
effective date of such renewal that such Lender cannot continue to provide
Revolving Credit Loans in such Optional Currency due to the introduction of, or
any change in, any applicable Law or any change in the interpretation or
administration thereof by any Official Body charged with the administration or
interpretation thereof, or compliance by such Lender (or any of its lending
offices with) any request or directive (whether or not having the force of Law)
of any such Official Body which would make it unlawful or impossible for such Lender
(or any of its lending offices) to honor its obligations to make a Loan in an
Optional Currency.  In the event the
Agent timely receives a notice from a Lender pursuant to the preceding
sentence, the Agent will notify the Borrower no later than 12:00 noon
(Pittsburgh time) three (3) Business Days prior to the renewal date that
the renewal of such Revolving Credit Loans in such Optional Currency is not
then available, and the Agent shall promptly thereafter notify the Lenders of
the same.  If the Agent shall have so
notified the Borrower that any such continuation of Optional Currency Loans is
not then available, any notice of renewal with respect thereto shall be deemed
withdrawn, and such Optional Currency Loans shall be redenominated into Loans
in Dollars subject to the Base Rate Option with effect from the last day of the
Interest Period with respect to any such Optional Currency Loans.  The Agent will promptly notify the Borrower
and the Lenders of any such redenomination, and in such notice, the Agent will
state the aggregate Dollar Equivalent amount of the redenominated Optional
Currency Loans as of the Computation Date with respect thereto and such Lender’s
Ratable Share thereof.


 


43

















 


2.11.4                  European
Monetary Union.


 


2.11.4.1                                             Payments
In Euros Under Certain Circumstances.


 


If,
as a result of the implementation of the European monetary union, (i) any
Optional Currency ceases to be lawful currency of the nation issuing the same
and is replaced by a European common currency (the “Euro”)
or (ii) any Optional Currency and the Euro are at the same time recognized
by any governmental authority of the nation issuing such currency as lawful
currency of such nation and the Agent or the Required Lenders shall so request
in a notice delivered to the Borrower, then any amount payable hereunder by any
part hereto in such Optional Currency shall instead by payable in the Euro and
the amount so payable shall be determined by translating the amount payable in
such Optional Currency to the Euro at the exchange rate recognized by the
European Central Lender for the purpose of implementing the European monetary
union (and the provisions governing payments in Optional Currencies in this
Agreement shall apply to such payment in the Euro as if such payment in the
Euro were a payment in an Optional Currency). 
Prior to the occurrence of the event or events described in clause (i) or
(ii) of the preceding sentence, each amount payable hereunder in any
Optional Currency will continue to be payable only in that currency, except as
otherwise provided herein.


 


2.11.4.2                                             Additional
Compensation Under Certain Circumstances.


 


The
Borrower agrees, at the request of any Lender to compensate such Lender for any
loss, cost, expense or reduction in return that such Lender shall reasonably
determine shall be incurred or sustained by such Lender as a result of the
implementation of European monetary union and that would not have been incurred
or sustained but for the transactions provided for herein.  A certificate of any Lender setting forth
such Lender’s determination of the amount or amounts necessary to compensate
such Lender shall be delivered to the Borrower and shall be conclusive absent
manifest error so long as such determination is made on a reasonable
basis.  The Borrower shall pay such
Lender the amount shown as due on any such certificate within ten (10) days
after receipt thereof.


 


2.11.5                  Requests
for Additional Optional Currencies.


 


The
Borrower may deliver to the Agent a written request that Revolving Credit Loans
hereunder also be permitted to be made in any other lawful currency (other than
Dollars), in addition to the currencies specified in the definition of “Optional
Currency” herein provided that such currency must be freely traded in the
offshore interbank foreign exchange markets, freely transferable, freely
convertible into Dollars and available to the Lenders in the applicable
interbank market.  The Agent will
promptly notify the Lenders of any such request promptly after the Agent
receives such request.  The Agent and
each Lender may grant or accept such request in their sole discretion.  The Agent will promptly notify the Borrower
of the acceptance or rejection by the Agent and each of the Lenders of the
Borrower’s request.  The requested
currency shall be approved as an Optional Currency hereunder only if the Agent
and all of the Lenders approve of the Borrower’s request.


 


44

















 


2.12                        Currency
Repayments.


 


Notwithstanding
anything contained herein to the contrary, the entire amount of principal of
and interest on any Loan made in an Optional Currency shall be repaid in the
same Optional Currency in which such Loan was made, provided, however,
that if it is impossible or illegal for the Borrower to effect payment of a
Loan in the Optional Currency in which such Loan was made, or if the Borrower
defaults in its obligations to do so, the Required Lenders may at their option
permit such payment to be made (i) at and to a different location,
subsidiary, affiliate or correspondent of Agent, or (ii) in the Equivalent
Amount of Dollars or (iii) in an Equivalent Amount of such other currency
(freely convertible into Dollars) as the Required Lenders may solely at their
option designate.  Upon any events
described in (i) through (iii) of the preceding sentence, the
Borrower shall make such payment and Borrower agrees to hold each Lender
harmless from and against any loss incurred by any Lender arising from the cost
to such Lender of any premium, any costs of exchange, the cost of hedging and
covering the Optional Currency in which such Loan was originally made, and from
any change in the value of Dollars, or such other currency, in relation to the
Optional Currency that was due and owing. 
Such loss shall be calculated for the period commencing with the first
day of the Interest Period for such Loan and continuing through the date of
payment thereof.  Without prejudice to
the survival of any other agreement of Borrower hereunder, Borrower’s obligations
under this Section 2.12 shall
survive termination of this Agreement.


 


2.13                        Optional
Currency Amounts.


 


Notwithstanding
anything contained herein to the contrary, the Agent may, with respect to
notices by the Borrower for Loans in an Optional Currency or voluntary
prepayments of less than the full amount of an Optional Currency Borrowing
Tranche, engage in reasonable rounding of the Optional Currency amounts
requested to be loaned or repaid; and, in such event, the Agent shall promptly
notify the Borrower and the Lenders of such rounded amounts and the Borrower’s
request or notice shall thereby be deemed to reflect such rounded amounts.


 


2.14                        Right
to Increase Revolving Credit Commitments.


 


Provided
that there is no Event of Default or Potential Default, if the Borrower wishes
to increase the Revolving Credit Commitments, the Borrower shall notify the
Agent thereof, provided that any such increase shall be in a minimum of
$10,000,000.00 and the aggregate of all such increases in the Revolving Credit
Commitments shall not exceed $50,000,000.00 from and after the Closing
Date.  Each Lender shall have the right
at any time within fifteen (15) Business Days following such notice to increase
its respective Revolving Credit Commitment so as to provide such added
commitment pro rata in accordance with such Lender’s Ratable Share, and any
portion of such requested increase that is not provided by any Lender
shall:  (i) first be available to
the other Lenders pro rata in accordance with their Ratable Share,
(ii) next be available to the other Lenders in such a manner as the
Borrower, the Agent and those Lenders shall agree, and (iii) thereafter,
to the extent not provided by the Lenders, to any additional lender proposed by
the Borrower, which is approved by the Agent (which approval shall not be
unreasonably withheld) and that becomes a party to this Agreement pursuant to Section 11.11 [Successors and
Assigns]. In the event of any such increase in the aggregate 


 


45

















 


Revolving Credit Commitments effected
pursuant to the terms of this Section 2.14,
new Revolving Credit Notes shall, to the extent necessary, be executed and
delivered by the Borrower in exchange for the surrender of the existing
Revolving Credit Notes and the Agent shall amend Schedule
1.1(B) to reflect any additional Lender(s) and any
change in Lenders’ Ratable Shares.


 


3.                                       TERM
LOANS


 


3.1                               Term
Loan Commitments. 
Subject to the terms and conditions hereof, and relying upon the
representations and warranties herein set forth, each Lender severally agrees
to make a term loan (each, a “Term Loan”)
to the Borrower on or within thirty (30) days after the Closing Date in an
amount not to exceed the full amount of such Lender’s Term Loan Commitment. The
Term Loans shall be advanced in Dollars, and, initially, under the Base Rate
Option, provided that the Borrower may from time to time prior to the
Expiration Date renew or convert the Interest Rate Option applicable to the
Term Loans pursuant to Section 4.2
[Interest Periods], by delivering to the Agent, not later than 11:00 a.m.,
Pittsburgh time, (i) three (3) Business Days prior to the date of
conversion to or the renewal of the Euro-Rate Option for any such Loans, and (ii) one
(1) Business Day prior to the last day of the preceding Interest Period
with respect to the conversion to the Base Rate Option for any Loan, of a duly
completed Loan Request therefore substantially in the form of Exhibit 2.5.1.  Each Loan Request shall be irrevocable and
shall specify (a) the proposed Borrowing Date; (b) the aggregate
amount of the Term Loans; (c) the aggregate amount of the proposed Loans
comprising each Borrowing Tranche, which shall be in integral multiples of
$1,000,000.00 and not less than $5,000,000.00 for each Borrowing Tranche to
which the Euro-Rate Option applies and in integral multiples of $100,000.00 and
not less than the lesser of $500,000.00 or the maximum amount available for
Borrowing Tranches to which the Base Rate Option applies; (d) whether the
Euro-Rate Option or Base Rate Option shall apply to the proposed Loans
comprising the applicable Borrowing Tranche; and (e) in the case of a
Borrowing Tranche to which the Euro-Rate Option applies, appropriate Interest
Periods for the Loans comprising such Borrowing Tranche. If the Loan Request is
not submitted by the Borrower on or before the thirtieth (30th) day after the
Closing Date or if a Loan Request is submitted by such date in an amount less
than the aggregate Term Loan Commitments, then the Term Loan Commitment shall
be reduced (A) to zero if no Loan Request is submitted, or (B) the
amount of the Loan Request, if one is submitted, as of such thirtieth day after
the Closing Date or the funding of such Loan Request, as the case may be, and
any further advance of the Term Loans shall no longer be available to the
Borrower.


 


3.2                               Term
Loan Request.  Except as
otherwise provided herein, the Borrower may request at any time (but only one
time) during the period from the Closing Date through that date which is thirty
(30) days after the Closing Date that the Lenders make the Term Loans (in an
aggregate amount up to but not exceeding the aggregate Term Loan Commitments)
by delivering to the Agent, not later than 11:00 a.m., Pittsburgh time, at
least one (1) Business Day prior to the Business Day during such period,
on which the Borrower desires such Term Loans to be made, a duly completed Loan
Request therefor.  Any Loan Request shall
be irrevocable and shall specify the Borrowing Date.


 


3.3                               Making
the Term Loans.  Promptly after receipt by the Agent of a Loan
Request pursuant to Section 3.2
[Term Loan Request], the Agent shall notify the Lenders of the 


 


46

















 


Borrowing Date for the Term Loans.  Each Lender shall remit the principal amount
of its Term Loan (which shall be equal to its Ratable Share of the aggregate
Term Loans requested, not to exceed its Term Loan Commitment) to the Agent such
that the Agent is able to, and the Agent shall, to the extent the Lenders have
made funds available to it for such purpose fund the Term Loans to the Borrower
in U.S. Dollars and immediately available funds at the Principal Office prior
to 2:00 p.m, Pittsburgh time, on the Borrowing Date, provided  that
if any Lender fails to remit such funds to the Agent in a timely manner, the
Agent may elect in its sole discretion to fund with its own funds the Term Loan
of such Lender on such Borrowing Date, and such Lender shall be subject to the
repayment obligation in Section 10.13
[Availability of Funds].


 


3.4                               Term
Loan Commitment Fee. 
Accruing from the date hereof until the Borrowing Date on which the Term
Loans are advanced, the Borrower agrees to pay to the Agent in Dollars for the
account of each Lender, as consideration for such Lenders’ Term Loan Commitment
hereunder, a nonrefundable commitment fee (the “Term Loan
Commitment Fee”) equal to the per annum rate of 0.30% (computed
on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed) on the aggregate amount of the Term Loan Commitments, payable in
arrears on the Borrowing Date on which the Term Loans are advanced. If no Loan
Request is submitted on or before the thirtieth (30th) day after the Closing
Date, then the Term Loan Commitment Fee shall be due on the earlier of (a) the
thirtieth (30th) day after the Closing Date or (b) upon acceleration of
the Loans. No Term Loan Commitment Fee shall accrue for any period after the
Term Loans are funded.


 


3.5                               Nature
of Lenders’ Obligations with Respect to Term Loans; Repayment Terms.  The obligations of each Lender to make a Term
Loan to the Borrower shall be in the proportion that such Lender’s Term Loan
Commitment bears to the Term Loan Commitments of all Lenders to the Borrower,
but each Lender’s Term Loan to the Borrower shall never exceed its Term Loan
Commitment.  The failure of any Lender to
make a Term Loan shall not relieve any other Lender of its obligations to make
a Term Loan nor shall it impose any additional liability on any other Lender
hereunder.  The Lenders shall have no
obligation to make Term Loans hereunder after the day which is thirty (30) days
after the Closing Date.  The Term Loan
Commitments are not revolving credit commitments, and the Borrower shall not
have the right to borrow, repay and reborrow under Section 3.1
[Term Loan Commitments].  The Borrower
shall repay the Term Loans to the Agent for the benefit of the Lenders in
consecutive quarterly installments of $2,500,000.00, payable on the last
Business Day of each December, March, June and September, commencing
December 31, 2010, and with a final installment on the Expiration Date
equal to the then aggregate unpaid principal amount of the Term Loans, together
with all accrued and unpaid interest and all other amounts owing hereunder.


 


3.6                               Term
Notes.  At the
request of a Lender, the Obligation of the Borrower to repay the aggregate
unpaid principal amount of the Term Loans made by such Lender, together with
interest thereon, shall be evidenced by a Term Loan Note, dated the Closing
Date payable to the order of such Lender in a face amount equal to the Term
Loan Commitment of such Lender.


 


47

















 


4.                                       INTEREST
RATES


 


4.1                               Interest
Rate Options.


 


The
Borrower shall pay interest in respect of the outstanding unpaid principal
amount of the Revolving Credit Loans and the Term Loans as selected by it from
the Base Rate Option or Euro-Rate Option set forth below applicable to the
Loans, it being understood that, subject to the provisions of this Agreement,
the Borrower may select different Interest Rate Options and different Interest
Periods to apply simultaneously to the Loans comprising different Borrowing
Tranches and may convert to or renew one or more Interest Rate Options with
respect to all or any portion of the Loans comprising any Borrowing Tranche, provided
that there shall not be at any one time outstanding more than six (6) Borrowing
Tranches in the aggregate among all of the Loans, and provided further
that Swing Loans shall bear interest at such rate, based upon the Base Rate,
determined from time to time by PNC Bank. 
If at any time the designated rate applicable to any Loan made by any
Lender exceeds such Lender’s highest lawful rate, the rate of interest on such
Lender’s Loan shall be limited to such Lender’s highest lawful rate. Interest
on the principal amount of each Loan made in an Optional Currency as provided
in Section 2.11.4, shall be paid
by the Borrower in such Optional Currency.


 


4.1.1                        Interest
Rate Options.


 


The
Borrower shall have the right to select from the following Interest Rate
Options applicable to the Revolving Credit Loans (subject to the provisions above regarding Swing Loans), and Term
Loans, except that no Loan to which a Base Rate shall apply may be made in an
Optional Currency:


 


(i)                                                             Base
Rate Option: 
A fluctuating rate per annum (computed on the basis of a year of
360 days, and actual days elapsed, provided that, for Loans made in an Optional
Currency for which a 365 day basis is the only market practice available to the
Agent, such rate shall be calculated on the basis of a year of 365 days, for
the actual days) equal to the Base Rate plus the Applicable Margin, such
interest rate to change automatically from time to time effective as of the
effective date of each change in the Base Rate or Applicable Margin; or


 


(ii)                                                          Euro-Rate
Option:  A rate per
annum (computed on the basis of a year of 360 days and actual days elapsed, provided
that, for Loans made in an Optional Currency for which a 365 day basis
is the only market practice available to the Agent, such rate shall be
calculated on the basis of a year of 365 days, for the actual days) equal to
the Euro-Rate plus the Applicable Margin, such interest rate to change
automatically from time to time effective as of the effective date of each
change in Applicable Margin.


 


4.1.2                        Rate
Quotations.


 


The
Borrower may call the Agent on or before the date on which a Loan Request is to
be delivered to receive an indication of the interest rates and the applicable
currency exchange rates then in effect, but it is acknowledged that such
projection shall not be 


 


48

















 


binding
on the Agent or the Lenders nor affect the rate of interest or the calculation
of Equivalent Amounts which thereafter are actually in effect when the election
is made.


 


4.2                               Interest
Periods.


 


At
any time when the Borrower shall select, convert to or renew a Euro-Rate
Option, the Borrower shall notify the Agent thereof by delivering a Loan
Request no later than 11:00 a.m. (Pittsburgh time) at least (i) four (4) Business
Days prior to the effective date of such Interest Rate Option, with respect to
an Optional Currency Loan, and (ii) three (3) Business Days prior to
the effective date of such Interest Rate Option with respect to a Dollar Loan.
The notice shall specify an Interest Period during which such Interest Rate
Option shall apply.  Notwithstanding the
preceding sentence, the following provisions shall apply to any selection of,
renewal of, or conversion to a Euro-Rate Option:


 


4.2.1                        Amount
of Borrowing Tranche.


 


The
Dollar Equivalent amount of each Borrowing Tranche of Euro-Rate Loans shall be
in integral multiples of $1,000,000.00 and not less than $5,000,000.00; and


 


4.2.2                        Renewals.


 


In
the case of the renewal of a Euro-Rate Option at the end of an Interest Period,
the first day of the new Interest Period shall be the last day of the preceding
Interest Period, without duplication in payment of interest for such day.


 


4.3                               Interest
After Default.


 


To
the extent permitted by Law, upon the occurrence of an Event of Default and
until such time such Event of Default shall have been cured or waived:


 


4.3.1                        Letter
of Credit Fees, Interest Rate.


 


the
Letter of Credit Fees and the rate of interest for each Loan otherwise
applicable pursuant to Section 2.10.2
[Letter of Credit Fees] or Section 4.1
[Interest Rate Options], respectively, shall be increased by 2.0% per annum;
and


 


4.3.2                        Other
Obligations.


 


each
other Obligation hereunder if not paid when due shall bear interest at a rate
per annum equal to the sum of the rate of interest applicable under the
Interest Rate Option plus an additional two percent (2%) per annum from the
time such Obligation becomes due and payable and until it is paid in full.


 


4.3.3                        Acknowledgment.


 


The
Borrower acknowledges that the increase in rates referred to in this Section 4.3 reflects, among
other things, the fact that such Loans or other amounts have


 


49
















 


become
a substantially greater risk given their default status and that the Lenders
are entitled to additional compensation for such risk; and all such interest
shall be payable by Borrower upon demand by Agent.


 


4.4                               Euro-Rate
Unascertainable; Illegality; Increased Costs; Deposits Not Available.


 


4.4.1                        Unascertainable.


 


If
on any date on which a Euro-Rate would otherwise be determined, the Agent shall
have determined that:


 


(i)                                                             adequate and
reasonable means do not exist for ascertaining such Euro-Rate, or


 


(ii)                                                          a contingency
has occurred which materially and adversely affects the London interbank
eurodollar market relating to the Euro-Rate,


 


then the Agent shall have the rights specified in Section 4.4.3 [Agent’s and
Lender’s Rights].


 


4.4.2                        Illegality;
Increased Costs; Deposits Not Available.


 


If
at any time any Lender shall have determined that:


 


(i)                                                             the making,
maintenance or funding of any Loan to which a Euro-Rate Option applies has been
made impracticable or unlawful by compliance by such Lender in good faith with
the adoption of any change in any Law or any interpretation or application
thereof occurring after the Closing Date by any Official Body or with any
request or directive of any such Official Body (whether or not having the force
of Law), or


 


(ii)                                                          such Euro-Rate
Option will not adequately and fairly reflect the cost to such Lender of the
establishment or maintenance of any such Loan, or


 


(iii)                                                       after making
all reasonable efforts, deposits of the relevant amount in Dollars or in the
Optional Currency (as applicable) for the relevant Interest Period for a Loan,
or to banks generally, to which a Euro-Rate Option applies, respectively, are
not available to such Lender with respect to such Loan, or to banks generally,
in the interbank eurodollar market, then the Agent shall have the rights
specified in Section 4.4.3 [Agent’s
and Lender’s Rights].


 


4.4.3                        Agent’s
and Lender’s Rights.


 


In
the case of any event specified in Section 4.4.1
[Unascertainable] above, the Agent shall promptly so notify the Lenders and the
Borrower thereof, and in the case of an event specified in Section 4.4.2
[Illegality; Increased Costs; Deposits Not Available] above, such Lender shall
promptly so notify the Agent and endorse a certificate to such notice as to the



 


50

















 


specific circumstances of such notice, and
the Agent shall promptly send copies of such notice and certificate to the
other Lenders and the Borrower.  Upon
such date as shall be specified in such notice (which shall not be earlier than
the date such notice is given), the obligation of (i) the Lenders, in the
case of such notice given by the Agent, or (ii) such Lender, in the case
of such notice given by such Lender, to allow the Borrower to select, convert
to or renew a Euro-Rate Option or select an Optional Currency (as applicable)
shall be suspended until the Agent shall have later notified the Borrower, or
such Lender shall have later notified the Agent, of the Agent’s or such Lender’s,
as the case may be, determination that the circumstances giving rise to such
previous determination no longer exist. 
If at any time the Agent makes a determination under Section 4.4.1
[Unascertainable] and the Borrower has previously notified the Agent of its
selection of, conversion to or renewal of a Euro-Rate Option and such Interest
Rate Option has not yet gone into effect, such notification shall be deemed to
provide for the selection of, conversion to or renewal of the Base Rate Option
otherwise available with respect to such Loans. 
If any Lender notifies the Agent of a determination under Section 4.4.2 [Illegality;
Increased Costs; Deposits Not Available], the Borrower shall, subject to the
Borrower’s indemnification Obligations under Section 5.7
[Indemnity], as to any Loan of the Lender to which a Euro-Rate Option applies,
on the date specified in such notice either, as applicable, (a) convert
such Loan to the Base Rate Option otherwise available with respect to such
Loan, or select a different Optional Currency or Dollars, or (b) prepay
such Loan in accordance with Section 5.4
[Voluntary Prepayments, Mandatory Prepayments]. Absent due notice from the
Borrower of conversion or prepayment, such Loan shall automatically be
converted to the Base Rate Option otherwise available with respect to such Loan
upon such specified date.


 


4.5                               Selection
of Interest Rate Options.


 


If
the Borrower fails to select a new Interest Period or Optional Currency to
apply to any Borrowing Tranche of Loans under the Euro-Rate Option at the
expiration of an existing Interest Period applicable to such Borrowing Tranche
in accordance with the provisions of Section 4.2
[Interest Periods], the Borrower shall be deemed to have converted such
Borrowing Tranche to the Base Rate Option or to an Optional Currency Loan in
the same Optional Currency, as applicable, commencing upon the last day of the
existing Interest Period.


 


5.                                       PAYMENTS


 


5.1                               Payments.


 


All
payments and prepayments to be made in respect of principal, interest,
Commitment Fees, Letter of Credit Fees, Agent’s Fee, Optional Currency Loan
Processing Fees or other fees or amounts due from the Borrower hereunder shall
be payable prior to 11:00 a.m., Pittsburgh time, on the date when due
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived by the Borrower, and without set-off, counterclaim or
other deduction of any nature, and an action therefore shall immediately
accrue.  Such payments shall be made to
the Agent at the Principal Office for the account of PNC Bank with respect to
the Swing Loans and for the ratable accounts of the Lenders with respect to the
Revolving Credit Loans and Term Loans, in U.S. Dollars except that payment of
principal or interest shall be made in the currency in which such Loan was
made, and in immediately 


 


51

















 


available funds, and the Agent shall promptly
distribute such amounts to the Lenders in immediately available funds, provided
that in the event payments are received by 11:00 a.m., Pittsburgh time, by
the Agent with respect to the Loans and such payments are not distributed to
the Lenders on the same day received by the Agent, the Agent shall pay the
Lenders the Federal Funds Effective Rate in the case of Loans or other amounts due
in Dollars, or the Overnight Rate in the case of Loans or other amounts due in
an Optional Currency, with respect to the amount of such payments for each day
held by the Agent and not distributed to the Lenders.  The Agent’s and each Lender’s statement of
account, ledger or other relevant record shall, in the absence of manifest
error, be conclusive as the statement of the amount of principal of and
interest on the Loans and other amounts owing under this Agreement (including
the Equivalent Amounts of the applicable currencies where such computations are
required) and shall be deemed an “account stated.”


 


5.2                               Pro
Rata Treatment of Lenders.


 


Each
borrowing of Revolving Credit Loans and the Term Loan shall be allocated to
each Lender according to its Ratable Share, and each selection of, conversion
to or renewal of any Interest Rate Option applicable to Revolving Credit Loans,
the Term Loans, and each payment or prepayment by the Borrower with respect to
principal or interest on the Revolving Credit Loans or the Term Loans, or
Commitment Fees, Letter of Credit Fees, or other fees (except for the Agent’s
Fee, the Optional Currency Loan Processing Fee or other fees payable solely for
the Agent’s account) or amounts due from the Borrower hereunder to the Lenders
with respect to the Revolving Credit Loans or the Term Loans, shall (except as
otherwise provided with respect to a Delinquent Lender and except as provided
in Section 4.4.3 [Agent’s and
Lender’s Rights] in the case of an event specified in Section 4.4
[Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not
Available], Section 5.4.2
[Replacement of a Lender] or Section 5.5
[Additional Compensation in Certain Circumstances]) be made in proportion to
the applicable Loans outstanding from each Lender and, if no such Loans are
then outstanding, in proportion to the Ratable Share of each Lender.  Notwithstanding any of the foregoing, each
borrowing or payment or prepayment by the Borrower of principal, interest, fees
or other amounts from the Borrower with respect to Swing Loans shall be made by
or to PNC Bank for its own account according to Section 2
[Revolving Credit and Swing Loan Facilities] except for such Swing Loan
borrowings that have been converted to Revolving Credit Loans in accordance with
Section 2.9 [Borrowings to
Repay Swing Loans].


 


5.3                               Interest
Payment Dates.


 


Interest
on Loans to which the Base Rate Option applies shall be due and payable in
arrears on the first day of each January, April, July and October after
the date hereof and on the Expiration Date or upon acceleration of the
Loans.  Interest on Loans to which the
Euro-Rate Option applies shall be due and payable in the currency in which such
Loan was made on the last day of each Interest Period for those Loans and, if
such Interest Period is longer than three (3) Months, also on the 90th day
of such Interest Period. Interest on mandatory prepayments of principal under Section 5.4.6 [Mandatory
Prepayment-Currency Fluctuations] shall be made in the currency in which such
Loan was made and shall be due on the date such mandatory prepayment is due.
Interest on the principal amount of each Loan or other monetary Obligation 


 


52

















 


shall be due and payable in the currency in
which such Loan was made on demand after such principal amount or other
monetary Obligation becomes due and payable (whether on the stated maturity
date, upon acceleration or otherwise).


 


5.4                               Voluntary
Prepayments, Mandatory Prepayments.


 


5.4.1                        Right
to Prepay.


 


The
Borrower shall have the right at its option from time to time to prepay the
Loans in whole or part without premium or penalty (except as provided in Section 5.4.2 [Replacement of
a Lender] or in Section 5.5
[Additional Compensation in Certain Circumstances]) in the currency in which
such Loan was made:


 


(i)                                                             at any time
with respect to any Loan to which the Base Rate Option applies,


 


(ii)                                                          on the last day
of the applicable Interest Period with respect to Loans to which a Euro-Rate
Option applies,


 


(iii)                                                       on the date
specified in a notice by any Lender pursuant to Section 4.4
[Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not
Available] with respect to any Loan to which a Euro-Rate Option applies.


 


Whenever
the Borrower desires to prepay any part of the Loans, it shall provide a
prepayment notice to the Agent by 1:00 p.m. (at least three (3) Business
Days prior to the date of prepayment of Loans made in Dollars to which the
Euro-Rate Option applies, four (4) Business Days prior to the date of prepayment
of Loans made in an Optional Currency and at least one (1) Business Day
prior to the date of prepayment of Loans to which the Base Rate Option applies)
or no later than 1:00 p.m., Pittsburgh time, on the date of prepayment of
Swing Loans, setting forth the following information:


 


(a)                                  the date, which
shall be a Business Day, on which the proposed prepayment is to be made;


 


(b)                                 a statement
indicating the application of the prepayment between the Swing Loans, Revolving
Credit Loans and Term Loans; and


 


(c)                                  the total
principal amount and currency of such prepayment, the Dollar Equivalent amount
of which shall not be less than $1,000,000.00 for any Swing Loan (or integral
multiples of $500,000.00 thereabove) or not less than $5,000,000.00 (or
integral multiples of $1,000,000.00 thereabove) for any Revolving Credit Loan
subject to the Euro-Rate Option or Term Loan (regardless of the applicable
Interest Rate Option), or not less than $500,000.00 (or integral multiples of
$100,000.00 thereabove) for any Revolving Credit Loan subject to the Base Rate
Option.


 


All
prepayment notices shall be irrevocable. 
The principal amount of the Loans for which a prepayment notice is
given, together with interest on such principal amount 


 


53

















 


except with respect to Revolving Credit Loans
to which the Base Rate Option applies, shall be due and payable on the date
specified in such prepayment notice as the date on which the proposed
prepayment is to be made in the currency in which such Loan was made.  Except as provided in Section 4.4.3
[Agent’s and Lender’s Rights], if the Borrower prepays a Revolving Credit Loan
or Term Loan but fails to specify the applicable Borrowing Tranche which the
Borrower is prepaying, the prepayment shall be applied (A) first to
Revolving Credit Loans (1) to which the Base Rate Option applies, then (2) to
Dollar Revolving Credit Loans to which the Euro-Rate Option applies, and then (3) to
Optional Currency Revolving Credit Loans, then (B) to the Term Loans (1) to
which the Base Rate Option applies, and then (2) to which the Euro-Rate
Option applies. Any prepayment hereunder shall be subject to the Borrower’s
Obligation to indemnify the Lenders under Section 5.7
[Indemnity]. Amounts prepaid on the Revolving Credit Loans shall be available
for reborrowing subject to the terms and conditions of this Agreement.
Prepayments of the Term Loans shall not be available for reborrowing and shall
be applied against installments in inverse order of their maturity.


 


5.4.2                        Replacement
of a Lender.


 


In
the event any Lender (i) gives notice under Section 4.4
[Euro-Rate Unascertainable; Illegality; Increased Costs;
Deposits Not Available], (ii) requests compensation under Section 5.5.1 [Increased Costs
Generally] or under Section 5.5.2
[Capital Requirements], or requires the Borrower to pay any additional amount
to any Lender or any Official Body for the account of any Lender pursuant to Section 5.6 [Taxes], (iii) is
a Defaulting Lender, or (iv) becomes subject to the control of an Official
Body (other than normal and customary supervision), or (v) is a
Non-Consenting Lender referred to in Section 11.1
[Modifications, Amendments or Waivers], then in any such event the Borrower
may, at its sole expense, upon notice to such Lender and the Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in, and consents required by, Section 11.11 [Successors and
Assigns], all of its interests, rights and obligations under this Agreement and
the related Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided
that:


 


(i)                                                             the Borrower
shall have paid to the Agent the assignment fee specified in Section 11.11 [Successors and
Assigns];


 


(ii)                                                          such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans and Participation Advances, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 5.7
[Indemnity] from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts),
including, without limitation, under Section 5.5.1
[Increased Costs Generally], Section 5.5.2
[Capital Requirements] and Section 5.6
[Taxes];


 


(iii)                                                       in the case of
any such assignment resulting from a claim for compensation under Section 5.5.1 [Increased Costs
Generally] or Section 5.5.2  [Capital
Requirements] or payments required to be made pursuant to Section 5.6
[Taxes], such assignment will result in a reduction in such compensation or
payments thereafter; and


 


54

















 


(iv)                                    such assignment
does not conflict with applicable Law.


 


A
Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.


 


5.4.3                        Change
of Lending Office.


 


Each
Lender agrees that upon the occurrence of any event giving rise to increased
costs or other special payments under Section 4.4.2
[Illegality, Increased Costs; Deposits Not Available] or Section 5.5.1 [Increased
Costs, Generally] with respect to such Lender, it will, if requested by the
Borrower, use reasonable efforts (subject to overall policy considerations of
such Lender) to designate another Lending Office for any Loans or Letters of
Credit affected by such event, provided that such designation is made on
such terms that such Lender and its Lending Office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of such Section.  Nothing in this Section 5.4.3
shall affect or postpone any of the Obligations of the Borrower or any other
Loan Party or the rights of the Agent or any Lender provided in this Agreement.


 


5.4.4                        Voluntary
Reduction of Revolving Credit Commitments.


 


The
Borrower shall have the right, upon not less than three (3) Business Days’
written irrevocable notice to the Agent provided no later than 11:00 a.m.
on the date such notice is provided, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving Credit
Commitments, which notice shall specify the date and amount of any such
reduction and otherwise be substantially in the form of Exhibit 5.4.4
(a “Commitment Reduction Notice”).  Any such reduction shall be in a minimum
amount equal to $5,000,000.00 or in integral multiples of $1,000,000.00
thereabove, provided, that the Revolving Credit Commitments may
not be reduced below the aggregate principal amount of all Dollar Equivalent
Revolving Facility Usage.  Each reduction
of Revolving Credit Commitments shall ratably reduce the Revolving Credit
Commitments of the Lenders.


 


5.4.5                        Application
Among Interest Rate Options.


 


All
prepayments pursuant to this Section 5.4
shall first be applied among the Interest Rate Options to the principal amount
of the Loans subject to the Base Rate Option, then to Loans subject to a
Euro-Rate Option and then to Optional Currency Loans. In accordance with Section 5.7 [Indemnity], the
Borrower shall indemnify the Lenders for any loss or expense, including loss of
margin, incurred with respect to any such prepayments applied against Loans
subject to a Euro-Rate Option on any day other than the last day of the
applicable Interest Period.


 


5.4.6                        Mandatory
Prepayment - Currency Fluctuations.


 


If
on any Computation Date the Dollar Equivalent Revolving Facility Usage is equal
to or greater than 100% of the Revolving Credit Commitments as a result of a
change in exchange rates between one (1) or more Optional Currencies and
Dollars, then the 


 


55

















 


Agent shall notify the Borrower of the
same.  The Borrower shall pay or prepay
the Revolving Credit Loans (subject to Borrower’s indemnity obligations under Section 5.4 [Voluntary
Prepayments, Mandatory Prepayments] and Section 5.5
[Additional Compensation in Certain Circumstances]) within one (1) Business
Day after receiving such notice such that the Dollar Equivalent Revolving
Facility Usage shall not exceed the aggregate Revolving Credit Commitments
after giving effect to such payments or prepayments.


 


5.4.7                        Expiration
Date.


 


Unless
sooner paid in full in connection with the termination of the Commitments, the
Borrower shall pay all outstanding Obligations hereunder, including without
limitation, principal, interest and fees in Dollars in immediately available funds on the Expiration Date except in
the case of any Letter of Credit Borrowing with respect to any such Letter of
Credit drawn on or after the Expiration Date which such Letter of Credit
Borrowing shall be due on demand in accordance with Section 2.10.3.4.


 


5.5                               Additional
Compensation in Certain Circumstances.


 


5.5.1                        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 reflected in the Euro-Rate) or the Agent;


 


(ii)                                                          subject any
Lender or the Agent to any tax of any kind whatsoever with respect or this
Agreement, any Letter of Credit, any participation in a Letter of Credit or any
Loan under the Euro-Rate Option made by it, or change the basis of taxation of
payments to such Lender or the Agent in respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section 5.6
[Taxes] and the imposition of, or any change in the rate of, any Excluded Tax
payable by such Lender or the Agent); or


 


(iii)                                                       impose on any
Lender, the Agent or the London interbank market any other condition, cost or
expense affecting this Agreement or Loan under the Euro-Rate Option 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 Loan under the Euro-Rate Option (or of maintaining its
obligation to make any such Loan), or to increase the cost to such Lender or
the Agent 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 the Agent hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or the Agent, which is provided to
the Borrower with the certificate referred to in Section 5.5.3
[Certificates for Reimbursement; Repayment of Outstanding Loans; Borrowing of
New Loans] the Borrower will pay to such Lender or the Agent, as the case may
be, in accordance with Section 5.5.3
[Certificates for Reimbursement; Repayment of Outstanding


 


56

















 


Loans; Borrowing of New Loans] and Section 5.5.4 [Delay in
Requests] such additional amount or amounts as will compensate such Lender or
the Agent, as the case may be, for such additional costs incurred or reduction
suffered.


 


5.5.2                        Capital
Requirements.


 


If
any Lender or the Agent determines that any Change in Law affecting such Lender
or the Agent or any lending office of such Lender or such Lender’s or the Agent’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 the Agent’s capital
or on the capital of such Lender’s or the Agent’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 the Agent, to a level below that which such Lender or the
Agent or such Lender’s or the Agent’s holding company could have achieved but
for such Change in Law (taking into consideration such Lender’s or the Agent’s
policies and the policies of such Lender’s or the Agent’s holding company with
respect to capital adequacy), then from time to time the Borrower will pay to
such Lender or the Agent, as the case may be, in accordance with the terms of Section 5.5.3 [Certificates
for Reimbursement; Repayment of Outstanding Loans; Borrowing of New Loans] and Section 5.5.4 [Delay in
Requests] such additional amount or amounts as will compensate such Lender or
the Agent or such Lender’s or the Agent’s holding company for any such
reduction suffered.


 


5.5.3                        Certificates
for Reimbursement; Repayment of Outstanding Loans; Borrowing of New Loans.


 


A
certificate of a Lender or the Agent setting forth the amount or amounts
necessary to compensate such Lender or the Agent or its holding company, as the
case may be, as specified in Section 5.5.1
[Increased Costs Generally], Section 5.5.2
[Capital Requirements] or Section 5.5.5
[Additional Costs with Respect to Loans in Optional Currencies] and delivered
to the Borrower shall be conclusive absent manifest error. The Borrower shall
pay such Lender or the Agent, as the case may be, the amount shown as due on
any such certificate within ten (10) days after receipt thereof, subject
to the provisions of Section 5.5.5
[Additional Costs with Respect to Loans in Optional Currencies].


 


5.5.4                        Delay
in Requests.


 


Failure
or delay on the part of any Lender or the Agent to demand compensation pursuant
to this Section 5.5 shall not
constitute a waiver of such Lender’s or the Agent’s right to demand such
compensation, provided that the Borrower shall not be required to
compensate a Lender or the Agent pursuant to this Section 5.5
for any increased costs incurred or reductions suffered more than nine months
prior to the date that such Lender or the Agent, 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 the Agent’s intention to claim compensation
therefore (except that, if Change in Law giving rise to such increased costs or
reductions in retroactive, then the nine (9) month period referred to
above shall be extended to include the period of retroactive effect thereof).


 


57

















 


5.5.5                        Additional
Costs with Respect to Loans in Optional Currencies.


 


In
the event any Lender incurs costs in complying with minimum reserve
requirements of any Official Body with respect to making or maintaining any
Loans in an Optional Currency, then upon written request of such Lender to the
Borrower (with copy to the Agent) which is accompanied by the certificate
referred in Section 5.5.3  [Certificates
for Reimbursement; Repayment of Outstanding Loans; Borrowing of New Loans], the
Borrower will pay to the Agent for such Lender in accordance with Section 5.5.3 [Certificate for
Reimbursement; Repayment of Outstanding Loans; Borrowing of New Loans] such
additional amount or amounts as will compensate such Lender for such additional
costs incurred. At such Lender’s option, stated in its written request, such
reimbursement may be calculated as an additional per annum rate to the interest
rate applicable to any Loan in an Optional Currency for which such costs are
incurred, and payable by the Borrower with each interest payment on such Loan.


 


5.6                               Taxes.


 


5.6.1                        Payments
Free of Taxes.


 


Any
and all payments by or on account of any obligation of the Borrower hereunder
or under any other Loan Documents 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 5.6) the Agent or
Lender, as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii)  the Borrower shall timely pay the full amount
deducted to the relevant Official Body in accordance with applicable Law.


 


5.6.2                        Payment
of Other Taxes by the Borrower.


 


Without
limiting the provisions of Section 5.6.1
[Payments Free of Taxes] above, the Borrower shall timely pay any Other Taxes
to the relevant Official Body in accordance with applicable Law.


 


5.6.3                        Indemnification
by the Borrower.


 


The
Borrower shall indemnify the Agent and each Lender, within ten (10) days
after demand therefore, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 5.6)
paid by the Agent, or such Lender, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes of Other Taxes were correctly or legally
imposed or asserted by the relevant Official Body. A certificate as to the
amount of such payment or liability delivered to the 


 


58

















 


Borrower by a Lender (with copy to the
Agent), or by the Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.


 


5.6.4                        Evidence
of Payments.


 


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


 


5.6.5                        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 Agent), at the time or times
prescribed by applicable Law or reasonably requested by the Borrower or the
Agent, such properly completed and executed documentation prescribed by
applicable Law as will permit such payments to be made without withholding or
at a reduced rate of withholding.  Notwithstanding
the submission of a such documentation claiming a reduced rate of or exemption
from U.S. withholding tax, the Agent shall be entitled to withhold United
States federal income taxes at the full 30% withholding rate if in its
reasonable judgment it is required to do so under the due diligence
requirements imposed upon a withholding agent under §1.1441-7(b) of the
United States Income Tax Regulations. 
Further, the Agent is indemnified under §1.1461-1(e) of the United
States Income Tax Regulations against any claims and demands of any Lender or
assignee or participant of a Lender for the amount of any tax it deducts and
withholds in accordance with regulations under §1441 of the Internal Revenue
Code.  In addition, any Lender, if
requested by the Borrower or the Agent, shall deliver such other documentation
prescribed by applicable Law or reasonably requested by the Borrower or the
Agent as will enable the Borrower or the 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 of America, any Foreign Lender
shall deliver to the Borrower and the 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 Agent, but only if such Foreign Lender
is legally entitled to do so), whichever of the following is applicable:


 


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


 


(ii)                                        duly completed
copies of IRS Form W-8ECI,


 


59
















 


(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 IRS 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.


 


5.6.6                        Refund.


 


If
the Agent or any Lender determines, in its reasonable discretion, that it has
received a refund or credit in respect 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 5.6
[Taxes], it shall as promptly as reasonably possible pay over such refund or
credit to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 5.6
[Taxes] with respect to the Taxes or Other Taxes giving rise to such refund or
credit), net of all out-of-pocket expenses of the Agent or such Lender and
without interest (other than any interest paid by the relevant Official Body
with respect to such refund or credit); provided, that the Borrower,
upon the request of the Agent or such Lender, agrees to repay the amount paid
over to the Borrower (plus any penalties, interest or other charges imposed by
the relevant Official Body) to the Agent or such Lender in the event the Agent
or such Lender is required to repay such refund to such Official Body.  This paragraph shall not be construed to
require the Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower
or any other Person.


 


5.7                               Indemnity.


 


In
addition to the compensation or payments required by Section 5.5
[Additional Compensation in Certain Circumstances] or Section 5.6
[Taxes], the Borrower shall indemnify each Lender against all liabilities,
losses or expenses (including loss of margin, any loss or expense incurred in
liquidating or employing deposits from third parties and any loss or expense
incurred in connection with funds acquired by a Lender to fund or maintain
Loans subject to an Euro-Rate Option) which such Lender sustains or incurs as a
consequence of any


 


(i)                                     payment,
prepayment, conversion or renewal of any Loan to which an Euro-Rate Option
applies on a day other than the last day of the corresponding Interest Period
(whether or not such payment or prepayment is mandatory, voluntary or automatic
and whether or not such payment or prepayment is then due),


 


(ii)                                  attempt by the
Borrower to revoke (expressly, by later inconsistent notices or otherwise) in
whole or part any Loan Requests under Section 2.5
[Revolving Credit Loan 


 


60

















 


Requests; Swing Loan Requests] or Section 4.2 [Interest Periods]
or notice relating to prepayments under Section 5.4
[Voluntary Prepayments, Mandatory Prepayments],


 


(iii)                               default by the
Borrower in the performance or observance of any covenant or condition
contained in this Agreement or any other Loan Document, including any failure
of the Borrower to pay when due (by acceleration or otherwise) any principal,
interest, Commitment Fee or any other amount due hereunder, or


 


(iv)                              assignment of
such Lender’s interest, rights and obligations under this Agreement and the
related Loan Documents as required by Borrower under Section 5.4.2
[Replacement of a Lender].


 


If
any Lender sustains or incurs any such loss or expense, it shall from time to
time notify the Borrower of the amount determined in good faith by such Lender
(which determination may include such assumptions, allocations of costs and
expenses and averaging or attribution methods as such Lender shall deem
reasonable) to be necessary to indemnify such Lender for such loss or expense.  Such notice shall set forth in reasonable
detail the basis for such determination. 
Such amount shall be due and payable by the Borrower to such Lender ten (10) Business
Days after such notice is given.


 


5.8                               Interbank
Market Presumption.


 


For
all purposes of this Agreement and each Note with respect to any aspects of the
Euro-Rate, or any Loan under the Euro-Rate Option or any Optional Currency,
each Lender and the Agent shall be presumed to have obtained rates, funding,
currencies, deposits, and the like in the applicable interbank market
regardless whether it did so or not; and, each Lender’s and Agent’s
determination of amounts payable under, and actions required or authorized by, Section 4.4 [Euro-Rate
Unascertainable; Illegality, Increased Costs; Deposits Not Available] and Section 5.7 [Indemnity] shall
be calculated, at each Lender’s and Agent’s option, as though each Lender and
Agent funded each Borrowing Tranche of Loans under the Euro-Rate Option through
the purchase of deposits of the types and maturities corresponding to the
deposits used as a reference in accordance with the terms hereof in determining
the Euro-Rate applicable to such Loans, whether in fact that is the case.


 


5.9                               Notes.


 


Upon
the request of any Lender, the Revolving Credit Loans made by such Lender may
be evidenced by a Revolving Credit Note, and the Term Loans made by such Lender
may be evidenced by a Term Loan Note, each such Note dated the Closing Date and
in an amount equal to the Revolving Credit Commitment of such Lender, in the
forms of Exhibit 1.1(R) and 

Exhibit 1.1(T) respectively.


 


5.10                        Settlement
Date Procedures.


 


In
order to minimize the transfer of funds between the Lenders and the Agent, the
Borrower may borrow, repay and reborrow Swing Loans and PNC Bank may make Swing
Loans as provided in Section 2.2.1
[Revolving Credit Loans] hereof.  On any
Business Day, the Agent 


 


61

















 


may notify each Lender of its Ratable Share
of the total of the Revolving Credit Loans and the Swing Loans (each a “Required Share”).  Prior to 2:30 p.m. (Pittsburgh time) on
the date of such notice, each Lender shall pay to the Agent the amount equal to
the difference between its Required Share and its Revolving Credit Loans, and
the Agent shall pay to each Lender its Ratable Share of all payments made by
the Borrower to the Agent with respect to the Revolving Credit Loans.  The Agent shall also effect settlement in
accordance with the foregoing sentence on the proposed Borrowing Dates for
Revolving Credit Loans, on any date where payments of principal of any Loan is
required to be paid by any Loan Party hereunder, and may at its option (and in
consultation with the Borrower) effect settlement on any other Business
Day.  These settlement procedures are established
solely as a matter of administrative convenience, and nothing contained in this
Section 5.10 shall relieve the
Lenders of their obligations to fund Revolving Credit Loans on dates other than
a Settlement Date.  The Agent may at any
time at its option for any reason whatsoever require each Lender to pay
immediately to the Agent such Lender’s Ratable Share of the outstanding
Revolving Credit Loans and each Lender may at any time require the Agent to pay
immediately to such Bank its Ratable Share of all payments made by the Borrower
to the Agent with respect to the Revolving Credit Loans.


 


5.11                        Judgment
Currency.


 


5.11.1                  Currency
Conversion Procedures for Judgments.


 


If
for the purposes of obtaining judgment in any court it is necessary to convert
a sum due hereunder or under a Note in any currency (the “Original
Currency”) into another currency (the “Other
Currency”), the parties hereby agree, to the fullest extent
permitted by Law, that the rate of exchange used shall be that at which in
accordance with normal banking procedures each Lender could purchase the
Original Currency with the Other Currency after any premium and costs of
exchange on the Business Day preceding that on which final judgment is given.


 


5.11.2                  Indemnity
in Certain Events.


 


The
obligation of the Borrower in respect of any sum due from the Borrower to any
Lender hereunder shall, notwithstanding any judgment in an Other Currency,
whether pursuant to a judgment or otherwise, be discharged only to the extent
that, on the Business Day following receipt by any Lender of any sum adjudged
to be so due in such Other Currency, such Lender may in accordance with normal
banking procedures purchase the Original Currency with such Other
Currency.  If the amount of the Original
Currency so purchased is less than the sum originally due to such Lender in the
Original Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment or payment, to indemnify such Lender against
such loss.


 


62

















 


6.                                       REPRESENTATIONS
AND WARRANTIES


 


6.1                               Representations
and Warranties.


 


Except
as set forth on the correspondingly numbered section of Schedule
6.1 attached hereto, the Loan Parties, jointly and severally,
represent and warrant to the Agent and each of the Lenders as follows:


 


6.1.1                        Organization
and Qualification.


 


Each
Loan Party and each Subsidiary of each Loan Party is a corporation, partnership
or limited liability company duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization.  Each Loan Party and each Subsidiary of each
Loan Party has the lawful power to own or lease its properties and to engage in
the business it presently conducts or proposes to conduct.  Each Loan Party and each Subsidiary of each
Loan Party is duly licensed or qualified and in good standing in each
jurisdiction where the property owned or leased by it or the nature of the
business transacted by it or both makes such licensing or qualification
necessary, except in jurisdictions where the failure to be so qualified or in
good standing would not reasonably be expected to result in a Material Adverse
Effect.


 


6.1.2                        [Intentionally
Omitted.]


 


6.1.3                        Subsidiaries.


 


As
of the Closing Date, Schedule 6.1
states the name of each of the Borrower’s Subsidiaries, its jurisdiction of
incorporation, and whether it is a Material Domestic Subsidiary or a Material
First Tier Foreign Subsidiary.  Schedule 6.1 also states as of
the Closing Date for each Material First Tier Foreign Subsidiary its authorized
capital stock, its issued and outstanding shares and the owners thereof if it
is a corporation, its outstanding partnership interests and owners thereof if
it is a partnership and its outstanding limited liability company interests,
interests assigned to managers thereof and the voting rights associated
therewith if it is a limited liability company. 
The Borrower and each Subsidiary of the Borrower has valid title to all
of the Subsidiary Shares it purports to own, free and clear in each case of any
Lien.  All Subsidiary Shares have been
validly issued, and all Subsidiary Shares are fully paid and
nonassessable.  All capital contributions
and other consideration required to be made or paid in connection with the
issuance of the Subsidiary Shares have been made or paid, as the case may
be.  As of the Closing Date, there are no
options, warrants or other rights outstanding to purchase any such Subsidiary
Shares except as indicated on Schedule 6.1.


 


6.1.4                        Power
and Authority.


 


Each
Loan Party has full power to enter into, execute, deliver and carry out this
Agreement and the other Loan Documents to which it is a party, to incur the
Indebtedness contemplated by the Loan Documents and to perform its Obligations
under the 


 


63

















 


Loan Documents to which it is a party, and
all such actions have been duly authorized by all necessary proceedings on its
part.


 


6.1.5                        Validity
and Binding Effect.


 


This
Agreement has been duly and validly executed and delivered by each Loan Party,
and each other Loan Document which any Loan Party is required to execute and
deliver on or after the date hereof will have been duly executed and delivered
by such Loan Party on the required date of delivery of such Loan Document.  This Agreement and each other Loan Document
constitutes, or will constitute, legal, valid and binding obligations of each
Loan Party which is or will be a party thereto on and after its date of
delivery thereof, enforceable against such Loan Party in accordance with its
terms, except to the extent that enforceability of any of such Loan Document
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforceability of creditors’ rights generally or
limiting the right of specific performance.


 


6.1.6                        No
Conflict.


 


Neither
the execution and delivery of this Agreement or the other Loan Documents by any
Loan Party nor the consummation of the transactions herein or therein
contemplated or compliance with the terms and provisions hereof or thereof by
any of them will conflict with, constitute a default under or result in any
breach of (i) the terms and conditions of the certificate of
incorporation, bylaws, certificate of limited partnership, partnership
agreement, certificate of formation, limited liability company agreement or
other organizational documents of any Loan Party or (ii) any Law or any
material agreement or instrument or order, writ, judgment, injunction or decree
to which any Loan Party or any of its Subsidiaries is a party or by which it or
any of its Subsidiaries is bound or to which it is subject, or result in the
creation or enforcement of any Lien, charge or encumbrance whatsoever upon any
property (now or hereafter acquired) of any Loan Party or any of its
Subsidiaries (other than Liens granted under the Loan Documents), unless such
conflict, default or breach would not be reasonably expected to result in any
Material Adverse Effect.


 


6.1.7                        Litigation.


 


There
are no actions, suits, proceedings or investigations pending or, to the
knowledge of any Loan Party, threatened against such Loan Party or any
Subsidiary of such Loan Party at law or equity before any Official Body which
individually or in the aggregate would reasonably be expected to result in any
Material Adverse Effect.  None of the
Loan Parties or any Subsidiaries of any Loan Party is in violation of any
order, writ, injunction or any decree of any Official Body which would
reasonably be expected to result in any Material Adverse Effect.


 


6.1.8                        Title
to Properties.


 


Each
Loan Party and each Subsidiary of each Loan Party has title to or valid
leasehold interest in or other valid rights to use all properties, assets and
other rights which 


 


64

















 


it purports to own or lease or which are
reflected as owned or leased on its books and records, except for such property
where the failure to maintain such title or interest, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect, and none of such property is subject to any Lien, except Permitted
Liens.


 


6.1.9                        Financial
Statements.


 


(i)                                                             Historical
Statements.  The
Borrower has delivered to the Agent copies of its audited consolidated year-end
financial statements for and as of the end of the fiscal year ended December 31,
2009 (the “Annual Statements”).  In addition, the Borrower has delivered to
the Agent copies of its unaudited consolidated interim financial statements for
the fiscal year to date and as of the end of the fiscal quarter ended June 30,
2010 (the “Interim Statements”) (the
Annual and Interim Statements being collectively referred to as the “Historical Statements”).  The Historical Statements fairly represent
the consolidated financial condition of the Borrower and its Subsidiaries as of
their dates and the results of operations for the fiscal periods then ended and
have been prepared in accordance with GAAP, subject (in the case of the Interim
Statements) to normal year-end audit adjustments.


 


(ii)                                                          No
Material Adverse Change.  Since December 31, 2009, no Material
Adverse Change has occurred.


 


6.1.10                  Use
of Proceeds; Margin Stock; Section 20 Subsidiaries.


 


6.1.10.1                                             General.


 


The
Loan Parties intend to use the proceeds of the Loans in accordance with Section 2.8  [Use of Proceeds]
and Section 8.1.10 [Use of
Proceeds].


 


6.1.10.2                                             Margin
Stock.


 


None
of the Loan Parties or any Subsidiaries of any Loan Party engages or intends to
engage principally, or as one of its important activities, in the business of
extending credit for the purpose, immediately, incidentally or ultimately, of
purchasing or carrying margin stock (within the meaning of Regulation U).  No part of the proceeds of any Loan has been
or will be used, immediately, incidentally or ultimately, to purchase or carry
any margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock or to refund Indebtedness originally incurred for
such purpose, or for any purpose which entails a violation of or which is
inconsistent with the provisions of the regulations of the Board of Governors
of the Federal Reserve System.  None of
the Loan Parties or any Subsidiary of any Loan Party holds or intends to hold
margin stock in such amounts that more than 25% of the reasonable value of the
assets of any Loan Party or Subsidiary of any Loan Party are or will be
represented by margin stock.


 


6.1.10.3                                             Section 20
Subsidiaries.


 


The
Loan Parties do not intend to use and shall not use any portion of the proceeds
of the Loans, directly or indirectly, to purchase during the underwriting 


 


65

















 


period, or for thirty (30) days thereafter, Ineligible
Securities being underwritten by a Section 20 Subsidiary.


 


6.1.11                  Full
Disclosure.


 


Neither
this Agreement nor any other Loan Document, nor any certificate, statement,
agreement or other documents furnished by the Borrower to the Agent or any
Lender in connection herewith or therewith, when taken as a whole, contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein and therein, in light of the
circumstances under which they were made, not misleading.  As of the Closing Date there is no fact known
to any Loan Party which would reasonably be expected to have a Material Adverse
Effect that has not been set forth in this Agreement or in the certificates,
statements, agreements or other documents furnished in writing to the Agent and
the Lenders prior to or at the date hereof in connection with the transactions
contemplated hereby.


 


6.1.12                  Taxes.


 


All
federal, state, local and other tax returns required to have been filed with
respect to each Loan Party and each Subsidiary of each Loan Party have been
filed, and payment or adequate provision has been made for the payment of all
taxes, fees, assessments and other governmental charges which have or may
become due pursuant to said returns or to assessments received, except to the
extent that such taxes, fees, assessments and other charges are being contested
in good faith by appropriate proceedings diligently conducted and for which
such reserves or other appropriate provisions, if any, as shall be required by
GAAP shall have been made.  There are no
agreements or waivers extending the statutory period of limitations applicable
to any federal income tax return of any Loan Party or Subsidiary of any Loan
Party for any period.


 


6.1.13                  Consents
and Approvals.


 


No
consent, approval, exemption, order or authorization of, or a registration or
filing with, any Official Body or any other Person is required by any Law or
any agreement in connection with the execution, delivery and carrying out of
this Agreement and the other Loan Documents by any Loan Party, except for those
which shall have been obtained or made on or prior to the Closing Date.


 


6.1.14                  No
Event of Default; Compliance with Instruments.


 


As
of the Closing Date after giving effect to the borrowings or other extensions
of credit to be made on the Closing Date under or pursuant to the Loan
Documents, no Event of Default or Potential Default exists.  None of the Loan Parties or any Subsidiaries
of any Loan Party is in violation of (i) any term of its certificate of
incorporation, bylaws, certificate of limited partnership, partnership
agreement, certificate of formation, limited liability company agreement or
other organizational documents or (ii) any material agreement or
instrument to 


 


66

















 


which it is a party or by which it or any of its
properties may be subject or bound where such violation would reasonably be
expected to constitute a Material Adverse Effect.


 


6.1.15                  Patents,
Trademarks, Copyrights, Licenses, Etc.


 


Each
Loan Party and each Subsidiary of each Loan Party owns or possesses all the
material patents, trademarks, service marks, trade names, copyrights, licenses,
registrations, franchises, permits and rights necessary to own and operate its
properties and to carry on its business as presently conducted and planned to
be conducted by such Loan Party or Subsidiary, without known possible, alleged
or actual conflict with the rights of others which would reasonably be expected
to result in a Material Adverse Effect.


 


6.1.16                  Insurance.


 


The
policies and bonds applicable to the Loan Parties and their Subsidiaries
provide adequate coverage from reputable and financially sound insurers in
amounts sufficient to insure the assets and risks of the Loan Parties and their
Subsidiaries taken as a whole in accordance with prudent business practice in
the industry of the Loan Parties and their Subsidiaries.


 


6.1.17                  Compliance
with Laws.


 


The
Loan Parties and their Subsidiaries are in compliance with all applicable Laws
(other than Environmental Laws which are specifically addressed in Section 6.1.22 [Environmental
and Safety Matters]) in all jurisdictions in which any Loan Party or Subsidiary
of any Loan Party is presently or will be doing business except where the
failure to do so would not reasonably be expected to constitute a Material
Adverse Effect.


 


6.1.18                  [Intentionally
Omitted]


 


6.1.19                  Investment
Companies; Regulated Entities.


 


None
of the Loan Parties or any Subsidiaries of any Loan Party is an “investment
company” registered or required to be registered under the Investment Company
Act of 1940 or under the “control” of an “investment company” as such terms are
defined in the Investment Company Act of 1940 and shall not become such an “investment
company” or under such “control.”  None
of the Loan Parties or any Subsidiaries of any Loan Party is subject to any
other Federal or state statute or regulation limiting its ability to incur
Indebtedness for borrowed money.


 


6.1.20                  Plans
and Benefit Arrangements.


 


(i)                                                             The Borrower
and each other member of the ERISA Group are in compliance in all respects with
any applicable provisions of ERISA with respect to all Benefit Arrangements,
Plans and Multiemployer Plans.  There has
been no Prohibited Transaction with respect to any Benefit Arrangement or any
Plan or, to the best knowledge of the Borrower, with respect to any
Multiemployer Plan or Multiple Employer Plan, which could result in any
liability 


 


67

















 


of the Borrower or any other member of the
ERISA Group.  The Borrower and all other
members of the ERISA Group have made when due any and all payments required to
be made under any agreement relating to a Multiemployer Plan or a Multiple
Employer Plan or any Law pertaining thereto. 
With respect to each Plan and Multiemployer Plan, the Borrower and each other
member of the ERISA Group (i) have fulfilled in all respects their
obligations under the minimum funding standards of ERISA, (ii) have not
incurred any liability to the PBGC, and (iii) have not had asserted
against them any penalty for failure to fulfill the minimum funding
requirements of ERISA.  All Plans,
Benefit Arrangements and Multiemployer Plans have been administered in
accordance with their terms and applicable Law.


 


(ii)                                                          No event
requiring notice to the PBGC under Section 302(f)(4)(A) of ERISA has
occurred or is reasonably expected to occur with respect to any Plan, and no
amendment with respect to which security is required under Section 307 of
ERISA has been made or is reasonably expected to be made to any Plan.


 


(iii)                                                       Neither the
Borrower nor any other member of the ERISA Group has incurred or reasonably
expects to incur any withdrawal liability under ERISA to any Multiemployer Plan
or Multiple Employer Plan.  Neither the
Borrower nor any other member of the ERISA Group has been notified by any
Multiemployer Plan or Multiple Employer Plan that such Multiemployer Plan or
Multiple Employer Plan has been terminated within the meaning of Title IV of
ERISA and, to the best knowledge of the Borrower, no Multiemployer Plan or
Multiple Employer Plan is reasonably expected to be reorganized or terminated,
within the meaning of Title IV of ERISA.


 


(iv)                                                      Notwithstanding
any provision of this Agreement to the contrary, no representation or warranty
contained in this Section 6.1.20
shall apply with respect to any act or omission described in this Section 6.1.20 that, as of the
applicable date described in Section 6.1.20
hereof, would not reasonably be expected to cause a Material Adverse
Effect.  In addition, to the extent that
a Benefit Arrangement, Multiemployer Plan or a Plan is described in
Section 4(b) of ERISA, any representation and warranty contained in
this Section 6.1.20 shall be deemed
to have been made at the applicable time in accordance with the best knowledge
of Borrower.


 


6.1.21                  Employment
Matters.


 


Each
of the Loan Parties and each of their Subsidiaries is in compliance with all
applicable federal, state and local labor and employment Laws including those
related to equal employment opportunity and affirmative action, labor
relations, minimum wage, overtime, child labor, medical insurance continuation,
worker adjustment and relocation notices, immigration controls and worker and
unemployment compensation, where the failure to comply would reasonably be
expected to result in a Material Adverse Effect.  There are no outstanding grievances,
arbitration awards or appeals arising therefrom or current or threatened
strikes, picketing, hand-billing or other work stoppages or slowdowns at
facilities of any of the Loan Parties or any of their Subsidiaries which in any
case would reasonably be expected to result in a Material Adverse Effect.


 


68

















 


6.1.22                  Environmental
and Safety Matters.


 


The
Loan Parties and their Subsidiaries are in compliance with all applicable
Environmental Laws and all applicable Safety Laws except where the failure to
do so would not be reasonably expected to constitute a Material Adverse Effect.
The Loan Parties and their Subsidiaries have all Required Environmental Permits
and are in compliance with all such Required Environmental Permits, except
where the failure to do so would not be reasonably expected to constitute a
Material Adverse Effect, all such Required Environmental Permits are in full
force and effect and none of the Loan Parties has received any written notice
from an Official Body that such Official Body has or intends to suspend or
revoke, whether in whole or in part, any such Required Environmental
Permit.  None of the Loan Parties or any
Subsidiaries of any Loan Party has received any Environmental Complaint, none
of the Loan Parties has any reason to believe that an Environmental Complaint
might be received, and there are no pending or, to any Loan Party’s knowledge,
threatened Environmental Complaints relating to any Loan Party or Subsidiary of
any Loan Party or, to any Loan Party’s knowledge, any prior owner, operator or
occupant of any of the Properties pertaining to, or arising out of, any
Contamination, Remedial Actions or violations of Environmental Laws or Required
Environmental Permits.  None of the Loan
Parties or any Subsidiaries of any Loan Party has received any Safety
Complaint, none of the Loan Parties has any reason to believe that a Safety
Complaint might be received and there are no pending or, to any Loan Party’s
knowledge, threatened Safety Complaints relating to any Loan Party or
Subsidiary of any Loan Party.


 


6.1.23                  Senior
Debt Status.


 


The
Obligations of each Loan Party under this Agreement, the Guaranty Agreement and
each of the other Loan Documents to which it is a party do rank and will rank
at least pari  passu in priority of payment with all other
Indebtedness of such Loan Party except Indebtedness of such Loan Party to the
extent secured by Permitted Liens.  There
is no Lien upon or with respect to any of the properties or income of any Loan
Party or Subsidiary of any Loan Party which secures indebtedness or other
obligations of any Person except for Permitted Liens.


 


6.1.24                  Anti-Terrorism
Laws.


 


6.1.24.1                     General.


 


None
of the Loan Parties nor any of their Subsidiaries nor to the best knowledge of
the Loan Parties no Affiliate of any Loan Party, is in violation of any
Anti-Terrorism Law or engages in or conspires to engage in any transaction that
evades or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in any Anti-Terrorism Law, except
where such violation is not reasonably likely to constitute a Material Adverse
Effect or expose the Agent or any Lender to liability.


 


69
















 


6.1.24.2     Executive
Order No. 13224.


 


None
of the Loan Parties, nor or any Affiliate of any Loan Party, or their
respective agents acting or benefiting in any capacity in connection with the
Loans, Letters of Credit or other transactions hereunder, is any of the
following (each a “Blocked Person”):


 


(i)            a Person that
is listed in the annex to, or is otherwise subject to the provisions of, the
Executive Order No. 13224;


 


(ii)           a Person owned
or controlled by, or acting for or on behalf of, any Person that is listed in
the annex to, or is otherwise subject to the provisions of, the Executive Order
No. 13224;


 


(iii)          a Person or
entity with which any Bank is prohibited from dealing or otherwise engaging in
any transaction by any Anti-Terrorism Law;


 


(iv)          a Person or
entity that commits, threatens or conspires to commit or supports “terrorism”
as defined in the Executive Order No. 13224;


 


(v)           a Person or
entity that is named as a “specially designated national” on the most current
list published by the U.S. Treasury Department Office of Foreign Asset Control
at its official website or any replacement website or other replacement
official publication of such list, or


 


(vi)          a person or
entity who is affiliated or associated with a person or entity listed above.


 


No
Loan Party or to the knowledge of any Loan Party, any of its agents acting in
any capacity in connection with the Loans, Letters of Credit or other
transactions hereunder (i) conducts any business or engages in making or
receiving any contribution of funds, goods or services to or for the benefit of
any Blocked Person, or (ii) deals in, or otherwise engages in any
transaction relating to, any property or interests in property blocked pursuant
to the Executive Order No. 13224.


 


6.1.25     Solvency.


 


The
Loan Parties, taken as a whole, are Solvent after giving effect to the
transactions contemplated by the Loan Documents and the incurrence of all
Indebtedness and all other Obligations.


 


6.1.26     Security
Interests.


 


The
Liens and security interests granted to the Agent pursuant to the Pledge
Agreement in the Pledged Collateral constitute and will continue to constitute
Prior Security Interests under the Uniform Commercial Code as in effect in each
applicable jurisdiction (the “Uniform Commercial Code”)
or other applicable Law entitled to all the rights, 


 


70

















 


benefits
and priorities provided by the Uniform Commercial Code or such Law.  Upon the filing of financing statements
relating to said security interests in each office and in each jurisdiction
where required in order to perfect the security interests described above,
taking possession of any stock certificates or other certificates evidencing
the Pledged Collateral, all such action as is necessary or advisable to establish
such rights of the Agent will have been taken, and there will be upon execution
and delivery of the Pledge Agreement, such filings and such taking of
possession, no necessity for any further action in order to preserve, protect
and continue such rights, except the filing of continuation statements with
respect to such financing statements within six months prior to each five-year
anniversary of the filing of such financing statements.  All filing fees and other expenses in
connection with each such action have been or will be paid by the Borrower.


 


6.1.27     Status
of the Pledged Collateral.


 


All
the Subsidiary Shares, Partnership Interests or LLC Interests included in the
Pledged Collateral to be pledged pursuant to the Pledge Agreement are or will be
upon issuance validly issued and nonassessable and owned beneficially and of
record by the pledgor free and clear of any Lien or restriction on transfer,
except as otherwise provided by the Pledge Agreement and except as the right of
the Agent to dispose of the Shares, Partnership Interests or LLC Interests may
be limited by the Securities Act of 1933, as amended, and the regulations
promulgated by the Securities and Exchange Commission thereunder and by
applicable state securities laws.


 


6.2          Continuation
of Representations.


 


The
Loan Parties make the representations and warranties in this Section 6 on
the date hereof and on the Closing Date and each date thereafter on which a
Loan is made or a Letter of Credit is issued as provided in and subject to Section 7.1 [First Loans and
Letters of Credit] and Section 7.2
[Each Additional Loan or Letter of Credit].


 


6.3          Updates
to Schedules.


 


Should
any of the information or disclosures provided on any of the Schedules attached
hereto become outdated or incorrect in any material respect, the Borrower shall
promptly provide the Agent in writing with such revisions or updates to such
Schedule as may be necessary or appropriate to update or correct same; provided,
however, that no Schedule shall be deemed to have been amended, modified or
superseded by any such correction or update, nor shall any breach of warranty
or representation resulting from the inaccuracy or incompleteness of any such
Schedule be deemed to have been cured thereby, unless and until the Required Lenders,
in their sole and absolute discretion, shall have accepted in writing such
revisions or updates to such Schedule.


 


7.             CONDITIONS
OF LENDING AND ISSUANCE OF LETTERS OF CREDIT


 


The
obligation of each Lender to make Loans and of the Agent to issue Letters of
Credit hereunder is subject to the performance by each of the Loan Parties of
its Obligations to be 


 


71

















 


performed
hereunder at or prior to the making of any such Loans or issuance of such
Letters of Credit and to the satisfaction of the following further conditions:


 


7.1          First
Loans and Letters of Credit.


 


On
the Closing Date:


 


7.1.1       Officer’s
Certificate.


 


The
representations and warranties of each of the Loan Parties contained in Section 6 [Representations and
Warranties] and in each of the other Loan Documents shall be true and accurate
on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date (except
representations and warranties which relate solely to an earlier date or time,
which representations and warranties shall be true and correct on and as of the
specific dates or times referred to therein), and each of the Loan Parties
shall have performed and complied with all covenants and conditions hereof and
thereof, no Event of Default or Potential Default shall have occurred and be
continuing or shall exist; and there shall be delivered to the Agent for the
benefit of each Lender a certificate of each of the Loan Parties, dated the
Closing Date and signed by the Chief Executive Officer, President, Chief
Financial Officer or Senior Vice President of each of the Loan Parties, to each
such effect.


 


7.1.2       Secretary’s
Certificate.


 


There
shall be delivered to the Agent for the benefit of each Lender a certificate
dated the Closing Date and signed by the Secretary or an Assistant Secretary of
each of the Loan Parties, certifying as appropriate as to:


 


(i)                    all action
taken by each Loan Party in connection with this Agreement and the other Loan
Documents;


 


(ii)                   the names of
the officer or officers authorized to sign this Agreement and the other Loan
Documents and the true signatures of such officer or officers and specifying
the Authorized Officers permitted to act on behalf of each Loan Party for
purposes of this Agreement and the true signatures of such officers, on which
the Agent and each Bank may conclusively rely; and


 


(iii)                  no change to
its organizational documents, including its certificate of incorporation,
bylaws, certificate of limited partnership, partnership agreement, certificate
of formation, and limited liability company agreement since the certification
with respect thereto delivered to the Agent by each Loan Party as of the
Original Closing Date, together with certificates from the appropriate state
officials as to the continued existence and good standing of each Loan Party in
each state where organized, where significant assets are located or where
significant business is being conducted.


 


72

















 


7.1.3       Delivery
of Loan Documents.


 


This
Agreement and the Notes shall have been duly executed and delivered to the
Agent for the benefit of the Lenders.


 


7.1.4       Opinion
of Counsel.


 


There
shall be delivered to the Agent for the benefit of each Lender a written
opinion of Drinker Biddle & Reath LLP, counsel for the Loan Parties
(who may rely on the opinions of such other counsel as may be acceptable to the
Agent), dated the Closing Date and in form and substance satisfactory to the
Agent and its counsel:


 


(i)            as to the
matters set forth in Exhibit 7.1.4;
and


 


(ii)           as to such
other matters incident to the transactions contemplated herein as the Agent may
reasonably request.


 


7.1.5       Legal
Details.


 


All
legal details and proceedings in connection with the transactions contemplated
by this Agreement and the other Loan Documents shall be in form and substance
satisfactory to the Agent, and the Agent shall have received all such other
counterpart originals or certified or other copies of such documents and
proceedings in connection with such transactions, in form and substance
satisfactory to the Agent, as the Agent may reasonably request.


 


7.1.6       Payment
of Fees.


 


The
Borrower shall have paid or caused to be paid to the Agent for itself and for
the account of the Lenders to the extent not previously paid the fees accrued
through the Closing Date and the costs and expenses for which the Agent and the
Lenders are entitled to be reimbursed.


 


7.1.7       Consents.


 


All
material consents required to effectuate the transactions contemplated hereby
shall have been obtained.


 


7.1.8       Officer’s
Certificate Regarding MACs; Solvency.


 


Since
December 31, 2009,  no Material
Adverse Change shall have occurred and no Loan Party shall be a party to any
material litigation not otherwise disclosed in the Historical Statements. After
giving effect to the consummation of the transactions under the Loan Documents
and the incurrence of all Indebtedness and all other Obligations, each Borrower
and each other Loan Party, respectively,  is
Solvent.   There shall have been
delivered to the Agent for the benefit of each Lender a certificate dated the
Closing Date and signed by the Chief 


 


73

















 


Financial
Officer of the Borrower and the President or Senior Vice President of each Loan
Party as to each matter which is the subject of this Section 7.1.8.


 


7.1.9       No
Violation of Laws.


 


The
making of the Loans and the issuance of the Letters of Credit shall not
contravene any Law applicable to any Loan Party, the Agent or any of the
Lenders.


 


7.1.10     No
Actions or Proceedings.


 


No
action, proceeding, investigation, regulation or legislation shall have been
instituted, threatened or proposed before any court, governmental agency or
legislative body to enjoin, restrain or prohibit, or to obtain damages in
respect of, this Agreement, the other Loan Documents or the consummation of the
transactions contemplated hereby or thereby or which, in the Agent’s sole
discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement or any of the other Loan Documents.


 


7.1.11     Compliance
Certificate.


 


A
duly completed Compliance Certificate as of the last day of the fiscal quarter
of the Borrower ended June 30, 2010, signed by an Authorized Officer of
the Borrower.


 


7.1.12     Lien
Searches.


 


The
Agent shall have received searches under the Uniform Commercial Code against
each Loan Party and each Material Domestic Subsidiary of each Loan Party, in
each case as reasonably required by the Agent, in the jurisdiction of each such
Person’s formation and the results of such searches shall be satisfactory in
form, scope and substance to the Agent.


 


7.1.13     Filing
Receipts.


 


The
Agent shall have received copies of all filing receipts and acknowledgments
issued by any governmental authority to evidence any recordation or filing
necessary to perfect the Lien of the Agent on the Pledged Collateral or other
satisfactory evidence of such recordation and filing.


 


7.1.14     Insurance.


 


The
Agent shall have received evidence that the Borrower has adequate insurance
required to be maintained by the Agreement, in full force and effect, in
amounts, from insurers and with terms acceptable to the Agent in its reasonable
discretion.


 


74

















 


7.1.15     Other
Conditions.


 


The
Loan Parties shall have satisfied such other conditions as the Agent may
reasonably request.


 


7.2          Each
Additional Loan or Letter of Credit.


 


At
the time of making any Loans or issuing any Letters of Credit other than Loans
made or Letters of Credit issued on the Closing Date and after giving effect to
the proposed extensions of credit:  the
representations and warranties of the Loan Parties contained in Section 6 and in the other
Loan Documents shall be true on and as of the date of such additional Loan or
Letter of Credit with the same effect as though such representations and
warranties had been made on and as of such date (except representations and
warranties which expressly relate solely to an earlier date or time, which
representations and warranties shall be true and correct on and as of the
specific dates or times referred to therein) and the Loan Parties shall have
performed and complied with all covenants and conditions hereof; no Event of
Default or Potential Default shall have occurred and be continuing or shall
exist; the making of the Loans or issuance of such Letter of Credit shall not
contravene any Law applicable to any Loan Party or Subsidiary of any Loan Party
or any of the Banks; and the Borrower shall have delivered to the Agent a duly
executed and completed Loan Request or application for a Letter of Credit as
the case may be.


 


8.             COVENANTS


 


8.1          Affirmative
Covenants.


 


The
Loan Parties, jointly and severally, covenant and agree that until payment in
full of the Loans, Reimbursement Obligations and Letter of Credit Borrowings,
and interest thereon, expiration or termination of all Letters of Credit,
satisfaction of all of the Loan Parties’ other Obligations under the Loan
Documents and termination of the Commitments, the Loan Parties shall comply at
all times with the following affirmative covenants:


 


8.1.1       Preservation
of Existence, Etc.


 


Each
Loan Party shall, and shall cause each of its Subsidiaries to, maintain its
legal existence as a corporation, limited partnership or limited liability
company and its license or qualification and good standing in each jurisdiction
in which its ownership or lease of property or the nature of its business makes
such license or qualification necessary, except as otherwise expressly
permitted in Section 8.2.6
[Liquidations, Mergers, Consolidations, Acquisitions].


 


8.1.2       Payment
of Liabilities, Including Taxes, Etc.


 


Each
Loan Party shall, and shall cause each of its Subsidiaries to, duly pay and
discharge all liabilities to which it is subject or which are asserted against
it, promptly as and when the same shall become due and payable, including all
taxes,  assessments and governmental charges
upon it or any of its properties, assets, income or profits, prior to the date 


 


75

















 


on
which penalties attach thereto, except to the extent that such liabilities,
including taxes, assessments or charges, are being contested in good faith and
by appropriate and lawful proceedings diligently conducted and for which such
reserve or other appropriate provisions, if any, as shall be required by GAAP
shall have been made, but only to the extent that failure to discharge any such
liabilities would not be reasonably expected to result in a Material Adverse
Effect.


 


8.1.3       Maintenance
of Insurance.


 


Each
Loan Party shall, and shall cause each of its Subsidiaries to, insure its
properties and assets against loss or damage by fire and such other insurable
hazards as such assets are commonly insured (including fire, extended coverage,
property damage, workers’ compensation, public liability and business
interruption insurance) and against other risks (including errors and
omissions) in such amounts as similar properties and assets are insured by
prudent companies in similar circumstances carrying on similar businesses, and
with reputable and financially sound insurers, including self-insurance to the
extent customary.


 


8.1.4       Maintenance
of Properties and Leases.


 


Each
Loan Party shall, and shall cause each of its Subsidiaries to, maintain in good
repair, working order and condition (ordinary wear and tear excepted) in
accordance with the general practice of other businesses of similar character
and size, all of those properties useful or necessary to its business, and from
time to time, such Loan Party will make or cause to be made all appropriate
repairs, renewals or replacements thereof.


 


8.1.5       Maintenance
of Patents, Trademarks, Etc.


 


Each
Loan Party shall, and shall cause each of its Subsidiaries to, maintain in full
force and effect all patents, trademarks, service marks, trade names,
copyrights, licenses, franchises, permits and other authorizations necessary
for the ownership and operation of its properties and business if the failure
so to maintain the same would reasonably be expected to constitute a Material
Adverse Effect.


 


8.1.6       Visitation
Rights.


 


Upon
reasonable prior notice to the Borrower and the Agent and during normal
business hours and in a manner that will not interfere with its business
operations, each Loan Party shall, and shall cause each of its Subsidiaries to,
permit any of the officers or authorized employees or representatives of the
Agent or any of the Lenders to visit and inspect any of its properties and to
examine and make excerpts from its books and records and discuss its business
affairs, finances and accounts with its officers, all in such detail and at
such times and as often as any of the Lenders may reasonably request.  In the event any Lender desires to conduct an
audit of any Loan Party, such Lender shall make a reasonable effort to conduct
such audit contemporaneously with any audit to be performed by the Agent.


 


76

















 


8.1.7       Keeping
of Records and Books of Account.


 


The
Borrower shall, and shall cause each Subsidiary of the Borrower to, maintain
and keep proper books of record and account which enable the Borrower and its
Subsidiaries to issue financial statements in accordance with GAAP and as
otherwise required by applicable Laws of any Official Body having jurisdiction
over the Borrower or any Subsidiary of the Borrower, and in which full, true
and correct entries shall be made in all material respects of all its dealings
and business and financial affairs.


 


8.1.8       Plans
and Benefit Arrangements.


 


The
Borrower shall, and shall cause each other member of the ERISA Group to, comply
with ERISA, the Internal Revenue Code and other applicable Laws applicable to
Plans and Benefit Arrangements except where the failure to do so, alone or in
conjunction with any other failure, would not reasonably be expected to result
in a Material Adverse Effect.  Without
limiting the generality of the foregoing, the Borrower shall cause all of its
Plans and all Plans maintained by any member of the ERISA Group to be funded in
accordance with the minimum funding requirements of ERISA and shall make, and
cause each member of the ERISA Group to make, in a timely manner, all
contributions due to Plans, Benefit Arrangements and Multiemployer Plans,
except where the failure to do so, alone or in conjunction with any other
failure, would not reasonably be expected to result in a Material Adverse
Effect.


 


8.1.9       Compliance
with Laws.


 


Each
Loan Party shall, and shall cause each of its Subsidiaries to, comply with all
applicable Laws, including all Environmental Laws and all Safety Laws, in all
respects, provided that it shall not be deemed to be a violation of this
Section 8.1.9 if any failure
to comply with any Law would not result in fines, penalties, Remedial Actions,
costs, other similar liabilities or injunctive relief which in the aggregate
would not reasonably be expected to constitute a Material Adverse Effect.
Without limiting the generality of the foregoing, each Loan Party shall, and
shall cause each of its Subsidiaries to, obtain, maintain, renew and comply
with all Environmental Permits applicable to their respective operations and
activities, provided that it shall not be deemed to be a violation of this Section 8.1.9 if any failure
to do so would not result in cease and desist orders or fines, penalties or
other similar liabilities or injunctive relief which in the aggregate would not
reasonably be expected to constitute a Material Adverse Effect.


 


8.1.10     Use
of Proceeds.


 


The
Loan Parties will use the Letters of Credit and the proceeds of the Loans only
to retire Indebtedness existing on the Closing Date, for general corporate
purposes of the Borrower (including to fund the Borrower’s buy-back of the
Borrower’s stock) and for working capital of the Borrower.  The Loan Parties shall not use the Letters of
Credit or the proceeds of the Loans for any purposes which contravenes any
applicable Law or any provision hereof.


 


77

















 


8.1.11     [Intentionally
Omitted]


 


8.1.12     Tax
Shelter Regulations.


 


None
of the Loan Parties intends to treat the Loans and/or Letters of Credit and
related transactions as being a “reportable transaction” (within the meaning of
Treasury Regulation Section 1.6011-4). In the event any of the Loan
Parties determines to take any action inconsistent with such intention, the
Borrower will promptly (i) notify the Agent thereof, and (ii) deliver to the Agent a duly
completed copy of IRS Form 8886 or any successor form.  If the Borrower so notifies the Agent, the
Borrower acknowledges that one or more of the Lenders may treat its Loans
and/or Letters of Credit as part of a transaction that is subject to Treasury
Regulation Section 301.6112-1, and such Lender or Lenders, as applicable,
will maintain the lists and other records required by such Treasury Regulation.


 


8.1.13     Anti-Terrorism
Laws.


 


The
Loan Parties and their respective Affiliates and agents shall not (i) conduct
any business or engage in any transaction or dealing with any Blocked Person,
including the making or receiving any contribution of funds, goods or services
to or for the benefit of any Blocked Person, (ii) deal in, or otherwise
engage in any transaction relating to, any property or interests in property
blocked pursuant to the Executive Order No. 13224; or (iii) engage in
or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in the Executive Order No. 13224, the USA Patriot Act or any
other Anti-Terrorism Law, except where the failure to do so is not reasonably
likely to constitute a Material Adverse Effect or expose the Agent or any
Lender to liability.  The Borrower shall
deliver to Lenders any certification or other evidence reasonably requested
from time to time by any Lender in its sole discretion, confirming Borrower’s
compliance with this Section 8.1.13.


 


8.1.14     Further
Assurances.


 


Each
Loan Party shall, from time to time, at its expense, faithfully preserve and
protect the Agent’s Lien on and Prior Security Interest in the Pledged
Collateral as a continuing first priority perfected Liens and shall do such
other acts and things as the Agent in its sole discretion may deem necessary or
advisable from time to time in order to preserve, perfect and protect the Liens
granted under the Loan Documents and to exercise and enforce its rights and
remedies thereunder with respect to the Pledged Collateral.


 


8.2          Negative
Covenants.


 


The
Loan Parties, jointly and severally, covenant and agree that until payment in
full of the Loans, Reimbursement Obligations and Letter of Credit Borrowings
and interest thereon, expiration or termination of all Letters of Credit,
satisfaction of all of the Loan Parties’ other Obligations hereunder and
termination of the Commitments, the Loan Parties shall comply with the
following negative covenants:


 


78

















 


8.2.1       Indebtedness.


 


Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to,
at any time create, incur, assume or suffer to exist any Indebtedness, except:


 


(i)            Indebtedness
under the Loan Documents;


 


(ii)           Existing
Indebtedness as set forth on Schedule 8.2.1
(including any extensions, renewals, refinancings or replacements thereof, provided
there is no increase in the amount thereof or other significant change in the
terms thereof unless otherwise specified on Schedule
8.2.1);


 


(iii)          Indebtedness
secured by Purchase Money Security Interests or Indebtedness in respect of
Capital Leases, so long as the Indebtedness permitted by this clause (iii) does
not exceed in the aggregate at any time outstanding $50,000,000.00;


 


(iv)          Indebtedness of
a Loan Party or a Subsidiary of a Loan Party to any Loan Party or to any
Subsidiary of a Loan Party;


 


(v)           Any
Lender-Provided Hedge or other Hedge approved by the Agent;


 


(vi)          Other unsecured
Indebtedness so long as (i) after giving effect thereto the Loan Parties
are in compliance with Section 8.2.15
[Maximum Leverage Ratio] (with, for purposes of determining such pro-forma
compliance with the Leverage Ratio:  (a) Consolidated
EBITDA determined as of the fiscal quarter most recently ended for which
financial statements in accordance with Section 8.3.1
[Quarterly Financial Statements] or Section 8.3.2
[Annual Financial Statements], as the case may be, and the related compliance
certificate in accordance with Section 8.3.3
[Certificate of the Borrower] have been delivered to the Agent, and (b) Total
Debt determined as of the date of incurrence or issuance of the Indebtedness
proposed to be incurred after giving effect thereto), (ii) the covenants
and events of default included in the agreements, instruments and other
documents evidencing such Indebtedness shall be no more restrictive than the
terms of the Credit Agreement, and (iii) no portion of the principal
amount thereof shall amortize or otherwise be payable, repurchased, redeemed or
defeased prior to the date which is one hundred (100) days after the Expiration
Date;


 


(vii)         Indebtedness of
the Borrower or any of its Subsidiaries arising from the honoring by a
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business;


 


(viii)        Indebtedness
secured by Liens permitted by clause (x) of the definition of Permitted
Liens, so long as the aggregate amount of such Indebtedness of the Borrower and
its Subsidiaries outstanding at any time does not exceed twenty percent (20%)
of Consolidated Net Worth;


 


(ix)          Indebtedness in
respect of Cash Pooling Obligations; and


 


79






 












 


(x)           any Guaranty
permitted by Section 8.2.3
[Guaranties].


 


8.2.2       Liens.


 


Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to,
at any time create, incur, assume or suffer to exist any Lien on any of its
property or assets, tangible or intangible, now owned or hereafter acquired, or
agree or become liable to do so,  except
Permitted Liens.


 


8.2.3       Guaranties.


 


Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to,
at any time, directly or indirectly, become or be liable in respect of any
Guaranty, or assume, guarantee, become surety for, endorse or otherwise agree,
become or remain directly or contingently liable upon or with respect to any
obligation or liability of any other Person, except for (i) Guaranties of
Indebtedness of the Loan Parties permitted hereunder, (ii) any Guaranty
issued in connection with or related to the business of the Loan Parties and
their Subsidiaries, providing for indemnification or holding harmless another
Person, (iii) any Guaranty issued in connection with or related to the
business of the Loan Parties and their Subsidiaries, to assure the payment or
performance of ordinary course obligations of any Loan Party or any Subsidiary
of any Loan Party, or (iv) any Guaranty in the ordinary course of business
of the Cash Pooling Obligations.


 


8.2.4       Loans
and Investments.


 


Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to,
at any time make or suffer to remain outstanding any loan or advance to, or
purchase, acquire or own any stock, bonds, notes or securities of, or any
partnership interest (whether general or limited) or limited liability company
interest in, or any other investment or interest in,  or
make any capital contribution to, any other Person, or agree, become or remain
liable to do any of the foregoing, except:


 


(i)            trade credit
extended on usual and customary terms in the ordinary course of business;


 


(ii)           advances to
employees to meet expenses incurred by such employees in the ordinary course of
business;


 


(iii)          Permitted
Investments;


 


(iv)          loans, advances
and investments in other Loan Parties or in Subsidiaries;


 


(v)           Investments by
the Loan Parties and their Subsidiaries in any Person (other than a Loan Party
or any Subsidiary) so long as (a) the Person in which the Investment is
made is engaged in a line of business permitted by Section 8.2.10
[Continuation of 


 


80

















 


or Change in Business], and (b) after giving
effect to each Investment in any Person, no Potential Default or Event of
Default shall exist or be continuing;


 


(vi)          so long as
after giving effect thereto no Potential Default or Event of Default shall
exist or be continuing, any transaction, event, agreement or liability to perform
described in the first paragraph of this Section 8.2.4
(i.e. such first paragraph being the paragraph immediately before item (i) of
this Section 8.2.4) that directly
involves any Benefit Plans;


 


(vii)         any acquisition
constituting a Permitted Acquisition which is consummated in accordance with Section 8.2.6 [Liquidations,
Mergers, Consolidations, Acquisitions];


 


(viii)        those
Investments set forth on Schedule 8.2.4;


 


(ix)          any
consideration received in the form of property, equity interests, securities, notes
or otherwise in connection with any disposition of assets permitted by Section 8.2.7 [Dispositions of
Assets or Subsidiaries]; and


 


(x)           any repurchase
by the Borrower or any Subsidiary of the Borrower of capital stock which has
been issued by such repurchaser thereof so long as after giving effect thereto
no Potential Default or Event of Default shall exist or be continuing.


 


8.2.5       [Intentionally
Omitted].


 


8.2.6       Liquidations,
Mergers, Consolidations, Acquisitions.


 


Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to,
dissolve, liquidate or wind-up its affairs, or become a party to any merger or
consolidation, or acquire by purchase, lease or otherwise all or substantially
all of the assets or capital stock of any other Person, provided that


 


(i)            any Loan Party
may consolidate or merge into another Loan Party, provided, however, in the
case of any merger or consolidation involving the Borrower, the Borrower shall
be the survivor thereof;


 


(ii)           any Domestic
Subsidiary of the Borrower may consolidate or merge into another Domestic
Subsidiary of the Borrower and any Foreign Subsidiary of the Borrower may
consolidate or merge into the Borrower or any other Subsidiary of the Borrower,
so long as in the case of any consolidation or merger involving any Loan Party,
such Loan Party shall be the survivor thereof;


 


(iii)          any Subsidiary
which is not a Material Subsidiary may dissolve, liquidate or wind-up its
affairs; and


 


(iv)          any Loan Party
or any Subsidiary of any Loan Party may acquire, whether by purchase or by
merger, (a) all of the ownership interests of another Person or 


 


81

















 


(b) substantially all of assets of another
Person or of a business or division of another Person (each a “Permitted Acquisition”), provided
that each of the following requirements is met:


 


(A)          if the Loan Parties are
acquiring the ownership interests in such Person, such Person, if a Material
Domestic Subsidiary, shall execute a Guarantor Joinder and join this Agreement
as a Guarantor pursuant to Section 11.18
[Joinder of Guarantors] on or before the date of such Permitted Acquisition and
if the Loan Parties are acquiring the ownership interests of a Material First
Tier Foreign Subsidiary, then 65% of such equity interests shall be pledged to
the Agent for the benefit of the Lenders on a first priority perfected basis
pursuant to a Pledge Agreement on the date of such Permitted Acquisition;


 


(B)          the Loan Parties, such
Person and its owners, as applicable, shall comply with Section 11.18
[Joinder of Guarantors] on or before the date of such Permitted Acquisition;


 


(C)          the board of directors or
other equivalent governing body of such Person shall have approved such
Permitted Acquisition and, if the Loan Parties shall use any portion of the
Loans to fund such Permitted Acquisition, the Loan Parties also shall have
delivered to the Agent written evidence of the approval of the board of
directors (or equivalent body) of such Person for such Permitted Acquisition;


 


(D)          the business acquired, or
the business conducted by the Person whose ownership interests are being
acquired, as applicable, shall be permitted by Section 8.2.10
[Continuation of or Change in Business];


 


(E)           no Potential Default or
Event of Default shall exist immediately prior to and after giving effect to
such Permitted Acquisition;


 


(F)           the Borrower shall
demonstrate that it shall be in compliance with the covenants contained in Section 8.2.15 [Maximum
Leverage Ratio] and Section 8.2.16
[Minimum Interest Coverage Ratio] after giving effect to such Permitted
Acquisition (including in such computation Indebtedness or other liabilities
assumed or incurred in connection with such Permitted Acquisition, combining
the stockholders equity (or similar equity) of the Person to be acquired with
Consolidated Net Worth, but excluding income earned or expenses incurred by the
Person, business or assets to be acquired prior to the date of such 


Permitted
Acquisition), by delivering on or before the date of such Permitted Acquisition
a certificate in the form of Exhibit 8.2.6
evidencing such compliance; and


 


(G)          if requested by the Agent,
the Loan Parties shall deliver to the Agent copies of any material agreements
entered into or proposed to be entered into by such Loan Parties in connection
with such Permitted Acquisition, together with such other information about
such Person or its assets as any Loan Party may reasonably require.


 


8.2.7       Dispositions
of Assets or Subsidiaries.


 


Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to,
sell, convey, assign, lease, abandon or otherwise transfer or dispose of, 


 


82

















 


voluntarily
or involuntarily, any of its properties or assets, tangible or intangible
(including sale, assignment, discount or other disposition of accounts,
contract rights, chattel paper, equipment or general intangibles with or
without recourse or of capital stock, shares of beneficial interest,
partnership interests or limited liability company interests of a Subsidiary of
such Loan Party), except:


 


(i)            transactions
involving the sale of inventory in the ordinary course of business;


 


(ii)           any sale,
transfer or lease of assets in the ordinary course of business which are
obsolete or no longer necessary or required in the conduct of such Loan Party’s
or such Subsidiary’s business;


 


(iii)          any sale,
transfer or lease of assets by any wholly owned Subsidiary of a Loan Party to
another Loan Party;


 


(iv)          any sale,
transfer or lease of assets by any Loan Party (other than the Borrower) to any
other Loan Party;


 


(v)           any sale,
transfer or lease of assets constituting an Investment permitted under Section 8.2.4(v);


 


(vi)          any sale,
transfer or lease of assets in the ordinary course of business which are
replaced by substitute assets acquired or leased within the ordinary course of
business;


 


(vii)         any sale,
transfer or lease of assets, other than those specifically excepted pursuant to
clauses (i) through (vi) above, provided that (a) at the time of
any disposition, no Event of Default shall exist or shall result from such
disposition, and (b) the aggregate net book value of all assets so sold by
the Loan Parties and their Subsidiaries shall not exceed in any fiscal year 25%
of the Consolidated Net Worth of the Loan Parties and their Subsidiaries;


 


(viii)        any sale,
transfer or lease of any Investment set forth on Schedule
8.2.4; or


 


(ix)          any sale,
transfer or lease of assets, other than those specifically excepted pursuant to
clauses (i) through (viii) above, which is approved by the Required
Lenders.


 


8.2.8       [Intentionally
Omitted].


 


8.2.9       Subsidiaries,
Partnerships and Joint Ventures.


 


Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to,
own or create directly or indirectly any Subsidiary other than (i) any
Material Domestic Subsidiary which has joined this Agreement as a Guarantor on
the Closing Date; (ii) any Material Domestic Subsidiary formed after the
Closing Date which joins this Agreement as 


 


83

















 


a
Guarantor pursuant to Section 11.18
[Joinder of Guarantors], (iii) any Material First Tier Foreign Subsidiary
existing on the Closing Date so long as 65% of the equity interests of such
Material First Tier Foreign Subsidiary have been pledged to the Agent for the
benefit of the Agent and the Lenders on a first priority perfected basis,
(iv) any Material First Tier Foreign Subsidiary formed or acquired after
the Closing Date so long as 65% of the equity interests of such Material First
Tier Foreign Subsidiary have been pledged to the Agent for the benefit of the
Agent and the Lenders on a first priority perfected basis and otherwise in
accordance with the requirements of Section 11.18
[Joinder of Guarantors], and (v) any other Subsidiary which is not the
subject of the immediately preceding clauses (i) through (iv) of this
Section 8.2.9.  Each of the Loan Parties and their
Subsidiaries shall not become or agree to (a) become a general or limited
partner in any general or limited partnership, except that the Loan Parties or
their Subsidiaries may be general or limited partners in other Loan Parties and
in Subsidiaries of other Loan Parties or in any Person in which an Investment
is made as permitted by Sections 8.2.4(v),
(vi), (vii), (viii) or (ix), (b) become
a member or manager of, or hold a limited liability company interest in, a
limited liability company, except that the Loan Parties or their Subsidiaries
may be members or managers of, or hold limited liability company interests in,
other Loan Parties and in Subsidiaries of other Loan Parties or in any Person
in which an Investment is made as permitted by Sections 8.2.4(v),
(vi), (vii), (viii) or (ix), or (c) become a joint
venturer or hold a joint venture interest in any joint venture, except that the
Loan Parties or their Subsidiaries may hold a joint venture interest in any
Person in which an Investment is made as permitted by Sections
8.2.4(v), (vi), (vii), (viii) or (ix).


 


8.2.10     Continuation
of or Change in Business.


 


Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to,
engage in any business other than:  (i) the
businesses in which the Borrower (whether directly or through one or more of
its Subsidiaries) engages in on the Closing Date, (ii) similar or related
businesses (including, without limitation, similar or related businesses that
serve the industries which purchase or use goods manufactured or processed or
services rendered by, any business in which the Borrower is then permitted to engage
(whether directly or through one or more of its Subsidiaries), pursuant to this
Section 8.2.10, or (iii) businesses
incidental to the foregoing.


 


8.2.11     Plans
and Benefit Arrangements.


 


Each
of the Loan Parties shall not, and shall not permit any of its Subsidiaries to,
engage in a Prohibited Transaction with any Plan, Benefit Arrangement or
Multiemployer Plan which, alone or in conjunction with any other circumstances
or set of circumstances, would result in liability under ERISA or otherwise
violate ERISA, except where any such transaction, liability or violation, alone
or in conjunction with any other circumstances or set of circumstances, would
not reasonably be expected to result in a Material Adverse Effect.


 


84

















 


8.2.12     Fiscal
Year.


 


The
Borrower shall not, and shall not permit any Subsidiary of the Borrower to,
change its fiscal year from the twelve-month period beginning January 1
and ending December 31.


 


8.2.13     Changes
in Organizational Documents.


 


The
Borrower shall not amend in any respect its certificate of incorporation
(including any provisions or resolutions relating to capital stock), by-laws,
or other organizational documents without obtaining the prior written consent
of the Required Lenders in the event any such amendment would be adverse in any
material respect to the Lenders.


 


8.2.14     [Intentionally
Omitted]


 


8.2.15     Maximum
Leverage Ratio.


 


The
Loan Parties shall not at any time permit the Leverage Ratio calculated as of
the end of each fiscal quarter to exceed 2.50 to 1.00.


 


8.2.16     Minimum
Interest Coverage Ratio.


 


The
Loan Parties shall not permit the Interest Coverage Ratio calculated as of the
end of each fiscal quarter to be less than 3.00 to 1.00.


 


8.3          Reporting
Requirements.


 


The
Loan Parties, jointly and severally, covenant and agree that until payment in
full of the Loans, Reimbursement Obligations and Letter of Credit Borrowings
and interest thereon, expiration or termination of all Letters of Credit,
satisfaction of all of the Loan Parties’ other Obligations hereunder and under
the other Loan Documents and termination of the Commitments, the Loan Parties
will furnish or cause to be furnished to the Agent and each of the Lenders:


 


8.3.1       Quarterly
Financial Statements.


 


As
soon as available and in any event within forty-five (45) calendar days after
the end of each of the first three fiscal quarters in each fiscal year,
financial statements of the Borrower, consisting of a consolidated balance
sheet as of the end of such fiscal quarter and related consolidated statements
of income, retained earnings, and cash flows for the fiscal quarter then ended
and the fiscal year through that date, all in reasonable detail and certified
(subject to normal year-end audit adjustments) by the Chief Executive Officer,
President or Chief Financial Officer of the Borrower as having been prepared in
accordance with GAAP, consistently applied, and setting forth in comparative
form the respective financial statements for the corresponding date and period in
the previous fiscal year.  The Loan
Parties will be deemed 


 


85

















 


to
have complied with the delivery requirements of this Section 8.3.1
if within forty-five (45) days after the end of their fiscal quarter, the
Borrower delivers to the Agent and each of the Lenders a copy of its Form 10-Q
as filed with the SEC and the financial statements contained therein meets the
requirements described in this Section.


 


8.3.2       Annual
Financial Statements.


 


As
soon as available and in any event within ninety (90) days after the end of
each fiscal year of the Borrower, financial statements of the Borrower
consisting of a consolidated balance sheet as of the end of such fiscal year,
and related consolidated statements of income, retained earnings and cash flows
for the fiscal year then ended, all in reasonable detail and setting forth in
comparative form the financial statements as of the end of and for the
preceding fiscal year, and certified by independent certified public accountants
of nationally or regionally recognized standing reasonably satisfactory to the
Agent.  The certificate or report of
accountants shall be free of qualifications (other than any consistency
qualification that may result from a change in the method used to prepare the
financial statements as to which such accountants concur) and shall not
indicate the occurrence or existence of any event, condition or contingency
which would materially impair the prospect of payment or performance of any
covenant, agreement or duty of any Loan Party under any of the Loan
Documents.  The Loan Parties will be
deemed to have complied with the delivery requirements of this Section 8.3.2 if within ninety
(90) days after the end of their fiscal year, the Borrower delivers to the
Agent and each of the Lenders a copy of its Annual Report and Form 10-K as
filed with the SEC and the financial statements and certification of public
accountants contained therein meets the requirements described in this Section.


 


8.3.3       Certificate
of the Borrower.


 


Concurrently
with the financial statements of the Borrower furnished to the Agent and to the
Banks pursuant to Section 8.3.1
[Quarterly Financial Statements] and Section 8.3.2
[Annual Financial Statements], a certificate (each a “Compliance
Certificate”) of the Borrower signed by the Chief Executive
Officer, President or Chief Financial Officer of the Borrower, in the form of Exhibit 8.3.3, to the effect
that (i) except as described pursuant to Section 8.3.4
[Notice of Default] the representations and warranties of the Borrower
contained in Section 6
[Representations and Warranties] and in the other Loan Documents are true on
and as of the date of such certificate with the same effect as though such
representations and warranties had been made on and as of such date (except
representations and warranties which expressly relate solely to an earlier date
or time) and the Loan Parties have performed and complied with all covenants
and conditions hereof, (ii) no Event of Default or Potential Default
exists and is continuing on the date of such certificate (iii) containing
calculations in sufficient detail to demonstrate compliance as of the date of
such financial statements with all financial covenants contained in Section 8.2 [Negative
Covenants], (iv) listing each First Tier Foreign Subsidiary and each
Domestic Subsidiary formed or acquired during the fiscal quarter or fiscal
year, as the case may be, covered by such Compliance Certificate and also
indicating whether such Subsidiary is a Material Subsidiary, (v) listing
each Person in which an Investment has been 


 


86

















 


made
during such fiscal quarter or fiscal year, with respect to which Person, as
provided herein in the definition of Subsidiary, the Loan Parties have elected
that such Person shall not be a Subsidiary, and (vi) setting forth a list
of any dispositions, transfers or sales of any asset or related assets during
such fiscal quarter or fiscal year if the net book value of the assets so disposed,
transferred or sold equals or exceeds 10% of Consolidated Net Worth as of such
quarter end or fiscal year end.


 


8.3.4       Notice
of Default.


 


Promptly
after any officer of any Loan Party has learned of the occurrence of an Event
of Default or Potential Default, a certificate signed by the Chief Executive
Officer, President or Chief Financial Officer of such Loan Party setting forth
the details of such Event of Default or Potential Default and the action which
the such Loan Party proposes to take with respect thereto.


 


8.3.5       Notice
of Litigation.


 


Promptly
after the commencement thereof, notice of all actions, suits, proceedings or
investigations before or by any Official Body or any other Person against any
Loan Party or Subsidiary of any Loan Party, which relate to any of the Pledged
Collateral or which if adversely determined would reasonably be expected to
constitute a Material Adverse Effect.


 


8.3.6       Agreements
Regarding Pledged Collateral.


 


Upon
the request of the Agent, the Loan Parties shall provide to the Agent a list of
the shareholder agreements, partnership agreements, operating agreements or
other similar agreements applicable to the Pledged Collateral, together with a
true and complete copy of each such agreement.


 


8.3.7       Budgets,
Forecasts, Other Reports and Information.


 


Promptly
upon their becoming available to the Borrower:


 


(i)            the annual
budget (including a detailed budget of revenue and expenses) and any forecasts
or projections of the Borrower, to be supplied prior to commencement of the fiscal
year to which any of the foregoing may be applicable,


 


(ii)           any reports
including management letters submitted to the Borrower by independent
accountants in connection with any annual, interim or special audit,


 


(iii)          any reports,
notices or proxy statements generally distributed by the Borrower to its
stockholders on a date no later than the date supplied to such stockholders,


 


(iv)          regular or
periodic reports, including Forms 10-K, 10-Q and 8-K, registration statements
and prospectuses, filed by the Borrower with the SEC,


 


87

















 


(v)           a copy of any
order, which is material and adverse to the Borrower or any Subsidiary of the
Borrower, in any proceeding to which the Borrower or any of its Subsidiaries is
a party issued by any Official Body, and


 


(vi)          such other
reports and information as any of the Lenders may from time to time reasonably
request.  The Borrower shall also notify
the Lenders promptly of the enactment or adoption of any Law which may result
in a Material Adverse Effect.


 


8.3.8       Tax
Shelter Provisions.


 


Promptly
after any of the Loan Parties determines that it intends to treat any of the
Loans, Letters of Credit or related transactions as being a “reportable
transaction” as provided in Section 8.1.12
[Tax Shelter Regulations]


 


(i)            a written
notice of such intention to the Agent;
and


 


(ii)           a duly
completed copy of IRS Form 8886 or any successor form.


 


8.3.9       Notices
Regarding Plans and Benefit Arrangements.


 


8.3.9.1                Certain
Events.


 


Promptly
upon becoming aware of the occurrence thereof, notice (including the nature of
the event and, when known, any action taken or threatened by the Internal
Revenue Service or the PBGC with respect thereto) of:


 


(i)        any Reportable
Event with respect to the Borrower or any other member of the ERISA Group
(regardless of whether the obligation to report said Reportable Event to the
PBGC has been waived),


 


(ii)       any Prohibited
Transaction which could subject the Borrower or any other member of the ERISA
Group to a civil penalty assessed pursuant to Section 502(i) of ERISA
or a tax imposed by Section 4975 of the Internal Revenue Code in
connection with any Plan, any Benefit Arrangement or any trust created
thereunder,


 


(iii)      any assertion
of material withdrawal liability with respect to any Multiemployer Plan,


 


(iv)      any partial or
complete withdrawal from a Multiemployer Plan by the Borrower or any other
member of the ERISA Group under Title IV of ERISA (or assertion thereof), where
such withdrawal is likely to result in material withdrawal liability,


 


(v)       any cessation
of operations (by the Borrower or any other member of the ERISA Group) at a
facility in the circumstances described in Section 4062(e) of ERISA,


 


88

















 


(vi)      withdrawal by
the Borrower or any other member of the ERISA Group from a Multiple Employer
Plan,


 


(vii)     a failure by
the Borrower or any other member of the ERISA Group to make a payment to a Plan
required to avoid imposition of a Lien under Section 302(f) of ERISA,


 


(viii)    the adoption of
an amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA, or


 


(ix)      any change in
the actuarial assumptions or funding methods used for any Plan, where the
effect of such change is to materially increase or materially reduce the
unfunded benefit liability or obligation to make periodic contributions.


 


8.3.9.2    Notices
of Involuntary Termination and Annual Reports.


 


Promptly
after receipt thereof, copies of (i) all notices received by the Borrower
or any other member of the ERISA Group of the PBGC’s intent to terminate any
Plan administered or maintained by the Borrower or any member of the ERISA
Group, or to have a trustee appointed to administer any such Plan; and
(ii) at the request of the Agent or any Lender each annual report (IRS Form 5500
series) and all accompanying schedules, the most recent actuarial reports, the
most recent financial information concerning the financial status of each Plan
administered or maintained by the Borrower or any other member of the ERISA
Group, and schedules showing the amounts contributed to each such Plan by or on
behalf of the Borrower or any other member of the ERISA Group in which any of
their personnel participate or from which such personnel may derive a benefit,
and each Schedule B (Actuarial Information) to the annual report filed by the
Borrower or any other member of the ERISA Group with the Internal Revenue
Service with respect to each such Plan.


 


8.3.9.3                Notice
of Voluntary Termination.


 


Promptly
upon the filing thereof, copies of any Form 5310, or any successor or
equivalent form to Form 5310, filed with the PBGC in connection with the
termination of any Plan.


 


9.         DEFAULT


 


9.1          Events
of Default.


 


An
Event of Default shall mean the occurrence or existence of any one or more of
the following events or conditions (whatever the reason therefor and whether
voluntary, involuntary or effected by operation of Law):


 


89






 












 


9.1.1                     Payments
Under Loan Documents.


 


The
Borrower shall fail to pay (i) any principal of any Loan (including
scheduled installments, mandatory prepayments or the payment due at maturity),
Reimbursement Obligation or Letter of Credit Borrowing when such principal is
due hereunder or (ii) any interest on any Loan , Reimbursement Obligation
or Letter of Credit Borrowing or any other amount owing hereunder or under the
other Loan Documents within three (3) Business Days after such interest or
other amount becomes due in accordance with the terms hereof or thereof;


 


9.1.2                     Breach
of Warranty.


 


Any
representation or warranty made at any time by any of the Loan Parties herein
or by any of the Loan Parties in any other Loan Document, or in any
certificate, other instrument or statement furnished pursuant to the provisions
hereof or thereof, shall prove to have been false or misleading in any material
respect as of the time it was made or furnished;


 


9.1.3                     Breach
of Negative Covenants or Visitation Rights.


 


Any
of the Loan Parties shall default in the observance or performance of any
covenant contained in Section 8.1.6
[Visitation Rights] or Section 8.2
[Negative Covenants];


 


9.1.4                     Breach
of Other Covenants.


 


Any
of the Loan Parties shall default in the observance or performance of any other
covenant, condition or provision hereof or of any other Loan Document and such
default shall continue unremedied for a period of thirty (30) days after any
officer of any Loan Party becomes aware of the occurrence thereof (such grace
period to be applicable only in the event such default can be remedied by
corrective action of the Loan Parties as determined by the Agent in its
reasonable discretion);


 


9.1.5                     Defaults
in Other Agreements or Indebtedness.


 


A
default or event of default shall occur at any time under the terms of any
other agreement involving borrowed money or the extension of credit or any
other Indebtedness under which any Loan Party or Material Subsidiary of any
Loan Party may be obligated as a borrower or guarantor in a principal amount in
excess of $30,000,000.00 in the aggregate, and such breach, default or event of
default consists of the failure to pay (beyond any period of grace permitted
with respect thereto, whether waived or not) any indebtedness when due (whether
at stated maturity, by acceleration or otherwise) or if such breach or default
permits or causes the acceleration of any indebtedness (whether or not such
right shall have been waived) or the termination of any commitment to lend;


 


9.1.6                     Final
Judgments or Orders.


 


Any
final judgments or orders for the payment of money in excess of $30,000,000.00
in the aggregate (to the extent not paid or covered by insurance from a
reputable 


 


90

















 


carrier
who has not previously denied coverage) shall be entered against any Loan Party
by a court having jurisdiction in the premises, which judgment is not
discharged, vacated, bonded or stayed pending appeal within a period of sixty
(60) days from the date of entry;


 


9.1.7                     Loan
Document Unenforceable.


 


Any
material provision of the Loan Documents shall cease to be legal, valid and
binding agreements enforceable against the party executing the same or such
party’s successors and assigns (as permitted under the Loan Documents) in
accordance with the respective terms thereof or shall in any way be terminated
(except in accordance with its terms) or become or be declared ineffective or
inoperative or shall in any way be challenged or contested or cease to give or
provide the respective Liens, security interests, rights, titles, interests,
remedies, powers or privileges intended to be created thereby;


 


9.1.8                     Uninsured
Losses; Proceedings Against Assets.


 


Any
material portion of the Loan Parties’ or any of their Material Subsidiaries’
assets are attached, seized, levied upon or subjected to a writ or distress
warrant; or such come within the possession of any receiver, trustee, custodian
or assignee for the benefit of creditors and the same is not cured within sixty
(60) days thereafter;


 


9.1.9                     Notice
of Lien or Assessment.


 


A
notice of Lien or assessment in excess of $30,000,000.00 which is not a
Permitted Lien is filed of record with respect to all or any part of any of the
Loan Parties’ or any of their Material Subsidiaries’ assets by the United
States, or any department, agency or instrumentality thereof, or by any state,
county, municipal or other governmental agency, including the PBGC, or any
taxes or debts owing at any time or times hereafter to any one of these becomes
payable and the same is not paid within thirty (30) days after the same becomes
payable, except for so long as the same is being contested in good faith in
appropriate proceedings which have the effect of staying any enforcement action
thereon and provided that such Loan Party has provided adequate bond or
established appropriate reserves;


 


9.1.10              Insolvency.


 


Any
Loan Party or any Material Subsidiary of a Loan Party ceases to be Solvent or
admits in writing its inability to pay its debts as they mature;


 


9.1.11              Events Relating to Plans and
Benefit Arrangements.


 


Any
of the following occurs:  (i) any
Reportable Event, which the Agent determines in good faith constitutes grounds
for the termination of any Plan by the PBGC or the appointment of a trustee to
administer or liquidate any Plan, shall have occurred and be continuing;
(ii) proceedings shall have been instituted or other action taken to
terminate any Plan, or a termination notice shall have been filed with respect
to any Plan; (iii) a trustee shall be appointed to administer or liquidate
any Plan; (iv) the PBGC shall give notice of its intent to institute
proceedings to terminate any Plan or Plans or to appoint a trustee to
administer or 


 


91

















 


liquidate
any Plan; and, in the case of the occurrence of (i), (ii), (iii) or (iv) above,
the Required Lenders determine in good faith that the amount of the Borrower’s
liability is likely to exceed 10% of its Consolidated Net Worth; (v) the
Borrower or any member of the ERISA Group shall fail to make any contributions
when due to a Plan or a Multiemployer Plan; (vi) the Borrower or any other
member of the ERISA Group shall make any amendment to a Plan with respect to
which security is required under Section 307 of ERISA; (vii) the
Borrower or any other member of the ERISA Group shall withdraw completely or
partially from a Multiemployer Plan; (viii) the Borrower or any other
member of the ERISA Group shall withdraw (or shall be deemed under
Section 4062(e) of ERISA to withdraw) from a Multiple Employer Plan;
or (ix) any applicable Law is adopted, changed or interpreted by any
Official Body with respect to or otherwise affecting one or more Plans,
Multiemployer Plans or Benefit Arrangements and, with respect to any of the events
specified in (v), (vi), (vii), (viii) or (ix), the Required Lenders
determine in good faith that any such occurrence would be reasonably likely to
materially and adversely affect the total enterprise represented by the
Borrower and the other members of the ERISA Group;


 


9.1.12              Cessation of Business.


 


Any
Loan Party or any Material Subsidiary of a Loan Party (i) ceases to
conduct its business as contemplated, except as expressly permitted under Section 8.2.6 [Liquidations,
Mergers, Etc.] or Section 8.2.7
[Disposition of Assets or Subsidiaries], or (ii) is enjoined, restrained
or in any way prevented by court order from conducting all or any material part
of its business and such injunction, restraint or other preventive order is not
dismissed within sixty (60) days after the entry thereof, if, in the case of
either clause (i) or clause (ii), such event would likely constitute a
Material Adverse Change, either alone or when combined with any previous events
described in either clause (i) or clause (ii) or both;


 


9.1.13              Change of Control.


 


Any
person or group of persons (within the meaning of Sections 13(d) or
14(a) of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership of (within the meaning of Rule 13d-3
promulgated by the SEC under said Act) 30% or more of the voting capital stock
of the Borrower;


 


9.1.14              Involuntary Proceedings.


 


A
proceeding shall have been instituted in a court having jurisdiction in the
premises seeking a decree or order for relief in respect of any Loan Party or
any Material Subsidiary of a Loan Party in an involuntary case under any
applicable bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect, or for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator (or similar official)
of any Loan Party or any Material Subsidiary of a Loan Party for any
substantial part of its property, or for the winding-up or liquidation of its
affairs, and such proceeding shall remain undismissed or unstayed and in effect
for a period of sixty (60) consecutive days or such court shall enter a decree
or order granting any of the relief sought in such proceeding; or


 


92

















 


9.1.15              Voluntary Proceedings.


 


Any
Loan Party or any Material Subsidiary of a Loan Party shall commence a
voluntary case under any applicable bankruptcy, insolvency, reorganization or
other similar law now or hereafter in effect, shall consent to the entry of an
order for relief in an involuntary case under any such law, or shall consent to
the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator, conservator (or other similar official) of
itself or for any substantial part of its property or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any action in furtherance of any of the
foregoing.


 


9.2                               Consequences
of Event of Default.


 


9.2.1                     Events
of Default Other Than Bankruptcy, Insolvency or Reorganization
Proceedings.


 


If
an Event of Default specified under Sections 9.1.1
through 9.1.13  shall occur and be
continuing, the Lenders and the Agent shall be under no further obligation to
make Loans or issue Letters of Credit, as the case may be, and the Agent may,
and upon the request of the Required Lenders, shall by written notice to the
Borrower, take one or both of the following actions:  (i) terminate the Commitments and
thereupon the Commitments shall be terminated and of no further force and
effect, or (ii) declare the unpaid principal amount of the Loans then
outstanding and all interest accrued thereon, any unpaid fees and all other
Indebtedness of the Borrower to the Lenders hereunder and thereunder to be
forthwith due and payable, and the same shall thereupon become and be
immediately due and payable to the Agent for the benefit of each Lender without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived, and (ii) require the Borrower to, and the
Borrower shall thereupon, deposit in a non-interest-bearing account with the
Agent, access to which shall be limited to the Agent only, as cash collateral
for its Obligations under the Loan Documents, an amount equal to the maximum
amount currently or at any time thereafter available to be drawn on all
outstanding Letters of Credit, and the Borrower hereby pledges to the Agent and
the Lenders, and grants to the Agent and the Lenders a security interest in, all
such cash as security for such Obligations. 
Upon the curing of all existing Events of Default to the satisfaction of
the Required Lenders, the Agent shall return such cash collateral to the
Borrower; and


 


9.2.2                     Bankruptcy, Insolvency
or Reorganization Proceedings.


 


If
an Event of Default specified under Section 9.1.14
[Involuntary Proceedings] or Section 9.1.15
[Voluntary Proceedings] shall occur, the Commitments shall automatically
terminate and be of no further force and effect, the Lenders shall be under no
further obligations to make Revolving Credit Loans hereunder, PNC Bank shall be
under no further obligation to make Swing Loans hereunder and the unpaid
principal amount of the Loans then outstanding and all interest accrued
thereon, any unpaid fees and all other Indebtedness of the Borrower to the
Lenders hereunder and thereunder shall be immediately due and payable, 


 


93

















 


without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived; and


 


9.2.3                     Set-off.


 


If
an Event of Default shall occur and be continuing, any Lender to whom any
Obligation is owed by any Loan Party hereunder or under any other Loan Document
or any participant of such Lender which has agreed in writing to be bound by
the provisions of Section 10.11
[Equalization of Banks] and any branch, Subsidiary or Affiliate of such Lender
or participant anywhere in the world shall have the right, in addition to all
other rights and remedies available to it, without notice to such Loan Party,
to set-off against and apply to the then unpaid balance of all the Loans and
all other Obligations of the Borrower and the other Loan Parties hereunder or
under any other Loan Document any debt owing to, and any other funds held in
any manner for the account of, the Borrower or such other Loan Party by such
Lender or participant or by such branch, Subsidiary or Affiliate, including all
funds in all deposit accounts (whether time or demand, general or special,
provisionally credited or finally credited, or otherwise) now or hereafter
maintained by the Borrower or such other Loan Party for its own account (but
not including funds held in custodian or trust accounts) with such Lender or
participant or such branch, Subsidiary or Affiliate.  Such right shall exist whether or not any
Lender or the Agent shall have made any demand under this Agreement or any
other Loan Document, whether or not such debt owing to or funds held for the
account of the Borrower or such other Loan Party is or are matured or unmatured
and regardless of the existence or adequacy of any Guaranty, any Pledged
Collateral or any other security, right or remedy available to any Lender or
the Agent; and


 


9.2.4                     Intentionally
Omitted.


 


9.2.5                     Application
of Proceeds; Collateral Sharing.


 


9.2.5.1        Application of Proceeds.


 


From
and after the date on which the Agent has taken any action pursuant to this Section 9.2 and until all
Obligations of the Loan Parties have been paid in full, any and all proceeds
received by the Agent from any sale or other disposition of the Pledged
Collateral, or any part thereof, or the exercise of any remedy by the Agent,
shall be applied as follows:


 


(i)        first, to reimburse the Agent and the Lenders for
out-of-pocket costs, expenses and disbursements, including reasonable attorneys’
and paralegals’ fees and legal expenses, incurred by the Agent or the Lenders
in connection with realizing on the Pledged Collateral or collection of any
Obligations of any of the Loan Parties under any of the Loan Documents,
including advances made by the Agent or the Lenders for the reasonable
maintenance, preservation, protection or enforcement of, or realization upon,
the Pledged 


 


94

















 


Collateral, including advances for taxes, insurance,
repairs and the like and reasonable expenses incurred to sell or otherwise
realize on, or prepare for sale or other realization on, any of the Pledged
Collateral.


 


(ii)       second, to the repayment of all Obligations then due and
unpaid of the Loan Parties to the Agent and the Lenders (including without
limitation PNC Bank as Swing Loan Lender) incurred under this Agreement or any
of the other Loan Documents or a Lender-Provided Hedge, whether of principal,
interest, fees, expenses or otherwise, in such manner as the Agent may
determine in its discretion; and


 


(iii)      the balance, if any, as required by Law.


 


9.2.5.2        Collateral Sharing.


 


All
Liens granted under any Loan Document (the “Collateral
Documents”) shall secure ratably and on a pari passu basis (i) the
Obligations in favor of the Agent and the Lenders (including without limitation
PNC Bank as Swing Loan Lender) hereunder, and (ii) the Obligations
incurred by any of the Loan Parties in favor of any Lender which provides a
Lender-Provided Hedge (the “IRH Provider”).  The Agent under the Collateral Documents
shall be deemed to serve as the collateral agent (the “Collateral
Agent”) for itself, the IRH Provider, and the Lenders (including
without limitation PNC Bank as Swing Loan Lender) hereunder, provided that the
Collateral Agent shall comply with the instructions and directions of the Agent
(or the Banks under this Agreement to the extent that this Agreement or any
other Loan Documents empowers the Lenders to direct the Agent), as to all matters
relating to the collateral under the Collateral Documents, including the
maintenance and disposition thereof.  No
IRH Provider (except in its capacity as a Lender hereunder) shall be entitled
or have the power to direct or instruct the Collateral Agent on any such
matters or to control or direct in any manner the maintenance or disposition of
the collateral under the Collateral Documents.


 


9.2.6                     Other
Rights and Remedies.


 


In
addition to all of the rights and remedies contained in this Agreement or in
any of the other Loan Documents, the Agent shall have all of the rights and
remedies under the Uniform Commercial Code or other applicable Law, all of
which rights and remedies shall be cumulative and non-exclusive, to the extent
permitted by Law.  The Agent may, and
upon the request of the Required Lenders shall, exercise all post-default
rights granted to the Agent and the Lenders under the Loan Documents or
applicable Law.


 


9.2.7                     Notice
of Sale.


 


Any
notice required to be given by the Agent or any Lender of a sale, lease, or
other disposition of the Pledged Collateral or any other intended action by the
Agent or any Bank, if given ten (10) days prior to such proposed action,
shall constitute commercially reasonable and fair notice thereof to the Loan Parties.


 


95

















 


10.          THE AGENT


 


10.1                        Appointment
and Authority.


 


Each
of the Lenders hereby irrevocably appoints PNC Bank to act on its behalf as the
Agent hereunder and under the other Loan Documents and authorizes the Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Agent by the terms hereof or thereof, together with such actions and powers
as are reasonably incidental thereto.  The
provisions of this Section 10
are solely for the benefit of the Agent and the Lenders, and neither the
Borrower nor any other Loan Party shall have rights as a third party
beneficiary of any of such provisions.


 


10.2                        Rights
as a Lender.


 


The
Person serving as the Agent hereunder shall have the same rights and powers in
its capacity as a Lender as any other Lender and may exercise the same as
though it were not the Agent and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated or unless the context otherwise requires, include
the Person serving as the Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the
Borrower or any Subsidiary or other Affiliate thereof as if such Person were
not the Agent hereunder and without any duty to account therefor to the
Lenders.


 


10.3                        Exculpatory
Provisions.


 


The
Agent shall not have any duties or obligations except those expressly set forth
herein and in the other Loan Documents. 
Without limiting the generality of the foregoing, the Agent:


 


(i)            shall not be subject to any
fiduciary or other implied duties, regardless of whether a Potential Default or
Event of Default has occurred and is continuing;


 


(ii)           shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby or by the other Loan Documents
that the Agent is required to exercise as directed in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Loan Documents); provided
that the Agent shall not be required to take any action that, in its opinion or
the opinion of its counsel, may expose the Agent to liability or that is
contrary to any Loan Document or applicable Law; and


 


(iii)          shall not, except as expressly set
forth herein and in the other Loan Documents, have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Affiliates that is communicated to or obtained by
the Person serving as the Agent or any of its Affiliates in any capacity.


 


The
Agent shall not be liable for any action taken or not taken by it (a) with
the consent or at the request of the Required Lenders (or such other number or
percentage of the 


 


96

















 


Lenders
as shall be necessary, or as the Administrative Agent shall believe in good
faith shall be necessary, under the circumstances as provided in Section 11.1 [Modifications,
Amendments or Waivers] and Section 9.2
[Consequences of Event of Default]) or (b) in the absence of its own gross
negligence or willful misconduct, as determined in a final, unappealable
judgment of a court of competent jurisdiction. 
The Agent shall be deemed not to have knowledge of any Potential Default
or Event of Default unless and until notice describing such Potential Default
or Event of Default is given to the Agent by the Borrower or a Lender.


 


The
Agent shall not be responsible for or have any duty to ascertain or inquire
into (A) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (B) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (C) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Potential Default or Event of
Default, (D) the validity, enforceability, effectiveness or genuineness of
this Agreement, any other Loan Document or any other agreement, instrument or
document or (E) the satisfaction of any condition set forth in Section 7 [Conditions of
Lending and Issuance of Letters of Credit] or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Agent.


 


10.4                        Reliance
by Agent.


 


The
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing (including any electronic message, Internet or
intranet website posting or other distribution) believed by it to be genuine
and to have been signed, sent or otherwise authenticated by the proper
Person.  The Agent also may rely upon any
statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying
thereon.  In determining compliance with
any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender,
the Agent may presume that such condition is satisfactory to such Lender unless
the Agent shall have received notice to the contrary from such Lender prior to
the making of such Loan.  The Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.


 


10.5                        Delegation
of Duties.


 


The
Agent may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through any one or more
sub-agents appointed by the Agent.  The
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Section 10.5 shall apply to
any such sub-agent and to the Related Parties of the Agent and any such
sub-agent, and shall apply to their respective activities in connection with
the syndication of the credit facilities provided for herein as well as
activities as Agent.


 


97

















 


10.6                        Resignation
of Agent.


 


The
Agent may at any time give notice of its resignation to the Lenders, and the
Borrower.  Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, with approval
from the Borrower (so long as no Event of Default has occurred and is
continuing), to appoint a successor, such approval not to be unreasonably
withheld or delayed.  If no such
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within ninety (90) days after the retiring Agent
gives notice of its resignation, then the retiring Agent may on behalf of the
Lenders, appoint a reputable bank or financial institution as a successor
Agent; provided that if the Agent shall notify the Borrower and the Lenders
that no Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (i) the
retiring Agent shall be discharged from its duties and obligations hereunder
and under the other Loan Documents (except that in the case of any collateral
security held by the Agent on behalf of itself and the Lenders under any of the
Loan Documents, the retiring Agent shall continue to hold such collateral
security until such time as a successor Agent is appointed) and (ii) all
payments, communications and determinations provided to be made by, to or
through the Agent shall instead be made by or to each Lender directly, until
such time as the Required Lenders appoint a successor Agent as provided for
above in this Section 10.6.  Upon the acceptance of a successor’s
appointment as Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
(or retired) Agent, and the retiring Agent shall be discharged from all of its
duties and obligations hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this Section).  The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor.  After the retiring Agent’s
resignation hereunder and under the other Loan Documents, the provisions of
this Section 10, Section 2.10.8 [Indemnity], Section 5.6.3 [Indemnification
by the Borrower], and Section 11.3
[Reimbursement and Indemnification of Lenders by the Borrower; Taxes] shall
continue in effect for the benefit of such retiring Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while the retiring Agent was acting as Agent.


 


If
PNC Bank resigns as Agent under this Section 10.6,
PNC Bank shall also resign as the issuer of Letters of Credit and the Swing
Loan Lender.  Upon the appointment of a
successor Agent hereunder, such successor shall (i) succeed to all of the
rights, powers, privileges and duties of PNC Bank as the retiring and Agent and
PNC Bank shall be discharged from all of its respective duties and obligations
as the issuer of Letters of Credit and the Swing Loan Lender and Agent under
the Loan Documents, and (ii) issue letters of credit in substitution for
the Letters of Credit issued by PNC Bank, as the Agent, if any, outstanding at
the time of such succession or make other arrangement satisfactory to PNC Bank
to effectively assume the obligations of PNC Bank with respect to such Letters
of Credit.


 


10.7                        Non-Reliance
on Administrative Agent and Other Lenders.


 


Each
Lender acknowledges that it has, independently and without reliance upon the
Agent or any other Lender or any of their Related Parties and based on such
documents and


 


98

















 


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


 


10.8                        Reimbursement
and Indemnification of Agent by the Borrower.


 


The
Borrower unconditionally agrees to pay or reimburse the Agent and hold the
Agent harmless against (i) liability for the payment of all reasonable
out-of-pocket costs, expenses and disbursements, including reasonable fees and
expenses of counsel (including, without duplication of legal work of outside
counsel, the allocated costs of staff counsel), appraisers and environmental
consultants, incurred by the Agent (a) in connection with the development,
negotiation, preparation, printing, execution, administration, syndication,
interpretation and performance of this Agreement and the other Loan Documents,
(b) relating to any requested amendments, waivers or consents pursuant to
the provisions hereof, (c) in connection with the enforcement of this
Agreement or any other Loan Document or collection of amounts due hereunder or
thereunder or the proof and allowability of any claim arising under this
Agreement or any other Loan Document, whether in bankruptcy or receivership
proceedings or otherwise, (d) in any workout or restructuring or in connection
with the protection, preservation, exercise or enforcement of any of the terms
hereof or of any rights hereunder or under any other Loan Document or in
connection with any foreclosure, collection or bankruptcy proceedings, and (e) in
connection with any Environmental Complaint threatened or asserted against the
Agent or the Lenders in any way relating to or arising out of this Agreement or
any other Loan Documents (including, without limitation, the protection,
preservation, exercise or enforcement of any of the terms hereof or of any
rights hereunder or under any other Loan Document or in connection with any
foreclosure, collection or bankruptcy proceedings or in any workout or
restructuring) and (ii) all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Agent, in its capacity as such, in any way relating to or arising
out of (A) this Agreement or any other Loan Documents or any action taken
or omitted by the Agent hereunder or thereunder and (B) any Environmental
Complaint in any way relating to or arising out of this Agreement or any other
Loan Documents or any action taken or omitted by the Agent hereunder or
thereunder, provided that the Borrower shall not be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements if the same results from the
Agent’s bad faith, gross negligence or willful misconduct, as determined in a
final, unappealable judgment of a court of competent jurisdiction, or if the
Borrower was not given notice of the subject claim and the opportunity to
participate in the defense thereof, at its expense (except that the Borrower
shall remain liable to the extent such failure to give notice does not result
in a loss to the Borrower), or if the same results from a compromise or
settlement agreement entered into without the consent of the Borrower, which
shall not be unreasonably withheld.  In
addition, the Borrower agrees to reimburse and pay all reasonable out-of-pocket
expenses of the Agent’s regular employees and agents engaged periodically to
perform audits of the Loan Parties’ books, records and business properties. The


 


99






 












 


Borrower
shall pay to the Agent the Agent’s annual charge for electronic distribution
services, as and when billed.


 


10.9                        Exculpatory
Provisions; Limitation of Liability.


 


Neither
the Agent nor any of its directors, officers, employees, agents, attorneys or
Affiliates shall (i) be liable to any Lender for any action taken or
omitted to be taken by it or them hereunder, or in connection herewith
including pursuant to any Loan Document, unless caused by its or their own bad
faith, gross negligence or willful misconduct, as determined in a final,
unappealable judgment of a court of competent jurisdiction; (ii) be
responsible in any manner to any of the Lenders for the effectiveness,
enforceability, genuineness, validity or the due execution of this Agreement or
any other Loan Documents or for any recital, representation, warranty,
document, certificate, report or statement herein or made or furnished under or
in connection with this Agreement or any other Loan Documents, or (iii) be
under any obligation to any of the Lenders to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions hereof
or thereof on the part of the Loan Parties, or the financial condition of the
Loan Parties, or the existence or possible existence of any Event of Default or
Potential Default.  No claim may be made
by any of the Loan Parties, any Lender, the Agent or any of their respective
Subsidiaries against the Agent, any Lender or any of their respective
directors, officers, employees, agents, attorneys or Affiliates, or any of
them, for any special, indirect or consequential damages or, to the fullest
extent permitted by Law, for any punitive damages in respect of any claim or
cause of action (whether based on contract, tort, statutory liability, or any
other ground) based on, arising out of or related to any Loan Document or the
transactions contemplated hereby or any act, omission or event occurring in
connection therewith, including the negotiation, documentation, administration
or collection of the Loans, and each of the Loan Parties, (for itself and on
behalf of each of its Subsidiaries), the Agent and each Lender hereby waive,
releases and agree never to sue upon any claim for any such damages, whether
such claim now exists or hereafter arises and whether or not it is now known or
suspected to exist in its favor.  Each
Lender agrees that, except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Agent hereunder or given to the
Agent for the account of or with copies for the Lenders, the Agent and each of
its directors, officers, employees, agents, attorneys or Affiliates shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Loan Parties which may come
into the possession of the Agent or any of its directors, officers, employees,
agents, attorneys or Affiliates.


 


10.10                 Reimbursement
and Indemnification of Agent by Lenders.


 


Each
Lender agrees to reimburse and indemnify the Agent (to the extent not
reimbursed by the Borrower and without limiting the Obligation of the Borrower
to do so) in proportion to its Ratable Share from and against all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements, including attorneys’ fees and disbursements
(including the allocated reasonable costs of staff counsel), and costs of
appraisers and environmental consultants, of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against the Agent, in its
capacity as such, in any way relating 


 


100

















 


to
or arising out of this Agreement or any other Loan Documents or any action
taken or omitted by the Agent hereunder or thereunder, provided that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements (i) if the same results from the Agent’s gross negligence or
willful misconduct, as determined in a final, unappealable judgment of a court
of competent jurisdiction or (ii) if such Lender was not given notice of
the subject claim and the opportunity to participate in the defense thereof, at
its expense (except that such Lender shall remain liable to the extent such
failure to give notice does not result in a loss to the Lender), or
(iii) if the same results from a compromise and settlement agreement
entered into without the consent of such Lender, which shall not be
unreasonably withheld.  In addition, each
Lender agrees promptly upon demand to reimburse the Agent (to the extent not reimbursed
by the Borrower and without limiting the Obligation of the Borrower to do so)
in proportion to its Ratable Share for all amounts due and payable by the
Borrower to the Agent in connection with the Agent’s periodic audit of the Loan
Parties’ books, records and business properties.


 


10.11                 Equalization
of Lenders.


 


The
Lenders and the holders of any participations in any Commitments or Loans or
other rights or obligations of a Lender hereunder agree among themselves that,  with respect to all amounts received by any Lender or any
such holder for application on any Obligation hereunder or under any such
participation, whether received by voluntary payment, by realization upon
security, by the exercise of the right of set-off or banker’s lien, by
counterclaim or by any other non-pro rata source, equitable adjustment will be
made in the manner stated in the following sentence so that, in effect, all
such excess amounts will be shared ratably among the Lenders and such holders
in proportion to their interests in payments on the Loans, except as otherwise
provided in Section 4.4.3 [Agent’s
and Lender’s Rights], Section 5.4.2  [Replacement
of a Lender] or Section 5.5  [Additional
Compensation in Certain Circumstances]. 
The Lenders or any such holder receiving any such amount shall purchase
for cash from each of the other Lenders an interest in such Lender’s Loans in
such amount as shall result in a ratable participation by the Lenders and each
such holder in the aggregate unpaid amount of the Loans, provided that
if all or any portion of such excess amount is thereafter recovered from the
Lender or the holder making such purchase, such purchase shall be rescinded and
the purchase price restored to the extent of such recovery, together with
interest or other amounts, if any, required by law (including court order) to
be paid by the Lender or the holder making such purchase. Notwithstanding
anything to the contrary contained in this Agreement or any of the other Loan
Documents, any Lender that fails at any time to comply with the provisions of
this Section 10.11 with respect to
purchasing participations from the other Lenders whereby such Lender’s share of
any payment received, whether by setoff or otherwise, is in excess of its
Ratable Share of such payments due and payable to all of the Lenders, when and to
the full extent required by the provisions of this Agreement, shall be deemed
delinquent (a “Delinquent Lender”)
and shall be deemed a Delinquent Lender until such time as each such
delinquency and all of its obligations hereunder are satisfied. A Delinquent
Lender shall be deemed to have assigned any and all payments due to it from the
Borrower, whether on account of or relating to outstanding Loans, Letters of
Credit, interest, fees or otherwise, to the remaining nondelinquent Lenders for
application to, and reduction of, their respective Ratable Share of all
outstanding Loans and other unpaid Obligations of any of the Loan Parties. The
Delinquent Lender hereby authorizes the 


 


101

















 


Agent
to distribute such payments to the nondelinquent Lenders in proportion to their
respective Ratable Share of all outstanding Loans and other unpaid Obligations
of any of the Loan Parties. A Delinquent Lender shall be deemed to have
satisfied in full a delinquency when and if, as a result of application of the
assigned payments to all outstanding Loans and other unpaid Obligations of any
of the Loan Parties to the nondelinquent Lenders, the Lenders’ respective
Ratable Share of all outstanding Loans and unpaid Obligations have returned to
those in effect immediately prior to such delinquency and without giving effect
to the nonpayment causing such delinquency.


 


10.12                 Agent’s
Fee.


 


The
Borrower shall pay to the Agent a nonrefundable fee (the “Agent’s
Fee”) under the terms of one or more letters (collectively the “Agent’s Letter”) between the
Borrower and the Agent, as amended from time to time.


 


10.13                 Availability
of Funds.


 


The
Agent may assume that each Lender has made or will make the proceeds of a
Revolving Credit Loan or Term Loan available to the Agent in immediately
available funds unless the Agent shall have been notified by such Lender on or
before the later of (i) the close of Business on the Business Day
preceding the Borrowing Date with respect to such Loan; or (ii) two (2) hours
before the time on which the Agent actually funds the proceeds of such Loan to
the Borrower (whether using its own funds pursuant to this Section 10.13
or using proceeds deposited with the Agent by the Lenders and whether such
funding occurs before or after the time on which Lenders are required to
deposit the proceeds of such Loan with the Agent).  The Agent may, in reliance upon such
assumption (but shall not be required to), make available to the Borrower a
corresponding amount in the applicable currency.  If such corresponding amount is not in fact
made available to the Agent by such Lender in the applicable currency, the
Agent shall be entitled to recover such amount on demand from such Lender (or,
if such Lender fails to pay such amount forthwith upon such demand from the
Borrower) together with interest thereon, in respect of each day during the
period commencing on the date such amount was made available to the Borrower
and ending on the date the Agent recovers such amount, at a rate per annum
equal to (a) the Federal Funds Effective Rate during the first three (3) days
after such interest shall begin to accrue and (b) the applicable interest rate
in respect of such Loan after the end of such three-day period.


 


10.14                 Calculations.


 


In
the absence of gross negligence or willful misconduct, the Agent shall not be
liable for any error in computing the amount payable to any Lender whether in
respect of the Loans, fees or any other amounts due to the Lenders under this
Agreement.  In the event an error in
computing any amount payable to any Lender is made, the Agent, the Borrower and
each affected Lender shall, forthwith upon discovery of such error, make such
adjustments as shall be required to correct such error, and any compensation
therefore will be calculated at the Federal Funds Effective Rate.


 


102

















 


10.15                 No
Reliance on Agent’s Customer Identification Program.


 


Each
Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates,
participants or assignees, may rely on the Agent to carry out such Lender’s,
Affiliate’s, participant’s or assignee’s customer identification program, or
other obligations required or imposed under or pursuant to the USA Patriot Act
or the regulations thereunder, including the regulations contained in 31 CFR
103.121 (as hereafter amended or replaced, the “CIP
Regulations”), or any other Anti-Terrorism Law, including any
programs involving any of the following items relating to or in connection with
any of the Loan Parties, their Affiliates or their agents, the Loan Documents
or the transactions hereunder or contemplated hereby:  (i) any identity verification procedures,
(ii) any recordkeeping, (iii) comparisons with government lists, (iv) customer
notices or (v) other procedures required under the CIP Regulations or such
other Laws.


 


10.16                 Certain
Releases of Pledged Collateral.


 


It
is expressly agreed by each Lender, that upon the written request of the
Borrower (accompanied by such certificates and other documentation as the Agent
may reasonably request) the Agent on behalf of the Lenders and without any
consent or action by any Lender, may, so long as no Event of Default exists
after giving effect thereto, release (i) any portion of the Pledged Collateral
and (ii) any Guarantor from its obligations under the Guaranty Agreement, in
either case in connection with any sale, transfer, lease, disposition, merger
or other transaction permitted by this Agreement; provided, however,
that the provisions set forth in this Section 10.16 apply
only to releases of portions of the Pledged Collateral or Guarantors where this
Agreement does not otherwise expressly provide for the consent or approval of
all Lenders.  (By way of example, the
provisions of this Section 10.16
would not apply to any release of all or substantially all of the Pledged
Collateral, which release, in accordance with Section
11.1.3 [Release of Collateral or Guarantor], would require the
consent of all of the Lenders).


 


10.17                 Additional
Agents.


 


No
Lender or Affiliate thereof identified as a “Lead Arranger”, “Book Runner”, or “Co-Syndication
Agent” on the facing page hereof, on the signature page hereof or otherwise
herein shall have any right, power, obligation, liability, responsibility or
duty of any kind hereunder or under any of the Loan Documents (except those
applicable to it as a “Lender”) or any fiduciary relationship with any other
Lender.


 


11.          MISCELLANEOUS


 


11.1                        Modifications,
Amendments or Waivers.


 


With
the written consent of the Required Lenders, the Agent, acting on behalf of all
the Lenders, and the Borrower, on behalf of the Loan Parties, may from time to
time enter into written agreements amending or changing any provision of this
Agreement or any other Loan Document or the rights of the Lenders or the Loan
Parties hereunder or thereunder, or may grant 


 


103

















 


written
waivers or consents to a departure from the due performance of the Obligations
of the Loan Parties hereunder or thereunder. 
Any such agreement, waiver or consent made with such written consent
shall be effective to bind all the Lenders and the Loan Parties; provided,
that, no such agreement, waiver or consent may be made which will:


 


11.1.1              Increase of Commitment; Extension
of Expiration Date.


 


Without
the written consent of the Required Lenders and the Lender affected thereby
increase the amount of the Revolving Credit Commitment or Term Loan Commitment
of such Bank hereunder or without the written consent of all Lenders extend the
Expiration Date; provided, however that the written consent of the
Required Lenders shall not be required for an increase in the aggregate
Revolving Credit Commitments requested by the Borrower in accordance with Section 2.14  [Right to
Increase Revolving Credit Commitments].


 


11.1.2              Extension of Payment; Reduction
of Principal Interest or Fees; Modification of Terms of Payment.


 


Without
the written consent of all Lenders, whether or not any Loans are outstanding,
extend the time for payment of principal or interest of any Loan (excluding the
due date of any mandatory prepayment of a Loan or any mandatory Commitment
reduction in connection with such a mandatory prepayment hereunder except for
mandatory reductions of the Commitments on the Expiration Date), the Commitment
Fee or any other fee payable to any Lender, or reduce the principal amount of
or the rate of interest borne by any Loan or reduce the Commitment Fee or any
other fee payable to any Lender, or any other fee payable to any Lender;


 


11.1.3              Release of Collateral or
Guarantor.


 


Without
the written consent of all Lenders (other than Defaulting Lenders), release all
or substantially all of the Pledged Collateral, or release any Guarantor from
its Obligations under the Guaranty Agreement, except in connection with a sale
or dissolution of such Guarantor otherwise permitted hereunder, or


 


11.1.4              Miscellaneous.


 


Without
the written consent of all Lenders (other than Defaulting Lenders), amend Section 5.2 [Pro Rata
Treatment of Lenders], Section 10.9
[Exculpatory Provisions, Limitation of Liability] or Section
10.11 [Equalization of Lenders] or this Section 11.1,
alter any provision regarding the pro rata treatment of the Lenders, change the
definition of Required Lenders, or change any requirement providing for the
Lenders or the Required Lenders to authorize the taking of any action
hereunder; provided, further, that no agreement, waiver or consent which would
modify the interests, rights or obligations of the Agent in its capacity as
Agent or as the issuer of Letters of Credit shall be effective without the
written consent of the Agent, and provided, further that, if in
connection with any proposed waiver, amendment or modification referred to in Section 11.1.1 through Section 11.1.4 above, the consent
of the Required Lenders is obtained but the consent of one or more of such
other Lenders whose consent is required is not obtained (each a “Non-Consenting Lender”), then the 


 


104

















 


Borrower
shall have the right to replace any such Non-Consenting Lender with one or more
replacement Lenders pursuant to Section 5.4.2
[Replacement of a Lender].


 


11.2                        No
Implied Waivers; Cumulative Remedies; Writing Required.


 


No
course of dealing and no delay or failure of the Agent or any Lender in
exercising any right, power, remedy or privilege under this Agreement or any
other Loan Document shall affect any other or future exercise thereof or
operate as a waiver thereof, nor shall any single or partial exercise thereof or
any abandonment or discontinuance of steps to enforce such a right, power,
remedy or privilege preclude any further exercise thereof or of any other
right, power, remedy or privilege.  The
rights and remedies of the Agent and the Lenders under this Agreement and any
other Loan Documents are cumulative and not exclusive of any rights or remedies
which they would otherwise have.  Any
waiver, permit, consent or approval of any kind or character on the part of the
Agent or any Lender of any breach or default under this Agreement or any such
waiver of any provision or condition of this Agreement must be in writing and
shall be effective only to the extent specifically set forth in such writing.


 


11.3                        Reimbursement
and Indemnification of Lenders by the Borrower; Taxes.


 


The
Borrower agrees unconditionally upon demand to pay or reimburse to each Lender
(other than the Agent, as to which the Borrower’s Obligations are set forth in Section 10.10 [Reimbursement
and Indemnification of Agent by Lenders]) and to save such Lender harmless
against (i) liability for the payment of all reasonable out-of-pocket
costs, expenses and disbursements (including fees and expenses of counsel
(including allocated costs of staff counsel) for each Lender except with
respect to (a) and (b) below), incurred by such Lender (a) in connection
with the administration and interpretation of this Agreement, and other
instruments and documents to be delivered hereunder, (b) relating to any
amendments, waivers or consents pursuant to the provisions hereof, (c) in
connection with the enforcement of this Agreement or any other Loan Document,
or collection of amounts due hereunder or thereunder or the proof and
allowability of any claim arising under this Agreement or any other Loan
Document, whether in bankruptcy or receivership proceedings or otherwise,
(d) in any workout or restructuring or in connection with the protection,
preservation, exercise or enforcement of any of the terms hereof or of any
rights hereunder or under any other Loan Document or in connection with any
foreclosure, collection or bankruptcy proceedings, and (e) in connection with
any Environmental Complaint threatened or asserted against the Lender in any
way relating to or arising out of this Agreement or any other Loan Documents (including,
without limitation, the protection, preservation, exercise or enforcement of
any of the terms hereof or of any rights hereunder or under any other Loan
Document or in connection with any foreclosure, collection or bankruptcy
proceedings or in any workout or restructuring), or (ii) all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against such Lender, in its capacity as such, in
any way relating to or arising out of (y) this Agreement or any other Loan
Documents or any action taken or omitted by such Lender hereunder or thereunder
and (z) any Environmental Complaint in any way relating to or arising out of
this Agreement or any other Loan Documents or any action taken or omitted by
such Lender hereunder or thereunder, provided that the Borrower shall
not be liable for any portion of such liabilities, 


 


105

















 


obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements (A) if the same results from such Lender’s gross negligence
or willful misconduct, as determined in a final, unappealable judgment of a
court of competent jurisdiction, or (B) if the Borrower was not given
notice of the subject claim and the opportunity to participate in the defense
thereof, at its expense (except that the Borrower shall remain liable to the
extent such failure to give notice does not result in a loss to the Borrower),
or (C) if the same results from a compromise or settlement agreement
entered into without the consent of the Borrower, which shall not be
unreasonably withheld.  The Lenders will
attempt to minimize the fees and expenses of legal counsel for the Lenders
which are subject to reimbursement by the Borrower hereunder by considering the
usage of one law firm to represent the Lenders and the Agent if appropriate
under the circumstances.  The Borrower
agrees unconditionally to pay all stamp, document, transfer, recording or
filing taxes or fees and similar impositions now or hereafter determined by the
Agent or any Lender to be payable in connection with this Agreement or any
other Loan Document, and the Borrower agrees unconditionally to save the Agent
and the Lenders harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying any such taxes, fees or impositions.


 


11.4                        Holidays.


 


Whenever
payment of a Loan to be made or taken hereunder shall be due on a day which is
not a Business Day such payment shall be due on the next Business Day (except
as provided in Section 4.2
[Interest Periods] with respect to Interest Periods under the Euro-Rate Option)
and such extension of time shall be included in computing interest and fees,
except that the Loans shall be due on the Business Day preceding the Expiration
Date if the Expiration Date is not a Business Day.  Whenever any payment or action to be made or
taken hereunder (other than payment of the Loans) shall be stated to be due on
a day which is not a Business Day, such payment or action shall be made or
taken on the next following Business Day, and such extension of time shall not
be included in computing interest or fees, if any, in connection with such
payment or action.


 


11.5                        Funding
by Branch, Subsidiary or Affiliate.


 


11.5.1              Notional Funding.


 


Each
Lender shall have the right from time to time, without notice to the Borrower,
to deem any branch, Subsidiary or Affiliate (which for the purposes of this Section 11.5 shall mean any
corporation or association which is directly or indirectly controlled by or is
under direct or indirect common control with any corporation or association
which directly or indirectly controls such Lender) of such Lender to have made,
maintained or funded any Loan to which the Euro-Rate Option applies at any
time, provided that immediately following (on the assumption that a
payment were then due from the Borrower to such other office), and as a result
of such change, the Borrower would not be under any greater financial
obligation pursuant to Section 5.5
[Additional Compensation in Certain Circumstances] than it would have been in
the absence of such change.  Notional funding
offices may be selected by each Lender without regard to such Lender’s actual
methods of making, maintaining or funding the Loans or any sources of funding
actually used by or available to such Lender.


 


106

















 


11.5.2              Actual Funding.


 


Each
Lender shall have the right from time to time to make or maintain any Loan by
arranging for a branch, Subsidiary or Affiliate of such Lender to make or
maintain such Loan subject to the last sentence of this Section 11.5.2.  If any Lender causes a branch, Subsidiary or
Affiliate to make or maintain any part of the Loans hereunder, all terms and
conditions of this Agreement shall, except where the context clearly requires
otherwise, be applicable to such part of the Loans to the same extent as if
such Loans were made or maintained by such Lender, but in no event shall any
Lender’s use of such a branch, Subsidiary or Affiliate to make or maintain any
part of the Loans hereunder cause such Lender or such branch, Subsidiary or Affiliate
to incur any cost or expenses payable by the Borrower hereunder or require the
Borrower to pay any other compensation to any Lender (including any expenses
incurred or payable pursuant to Section 5.5
[Additional Compensation in Certain Circumstances]) which would otherwise not
be incurred.


 


11.6                        Notices;
Effectiveness; Electronic Communication.


 


11.6.1              Notices Generally.


 


Except
in the case of notices and other communications expressly permitted to be given
by telephone (and except as provided in Section 11.6.2
[Electronic Communications]), all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopier (i) if to
a Lender, to it at its address set forth in its administrative questionnaire,
or (ii) if to any other Person, to it at its address set forth on Schedule 1.1(B).


 


Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next Business Day for the
recipient).  Notices delivered through
electronic communications to the extent provided in Section
11.6.2 [Electronic Communications], shall be effective as
provided in such Section.


 


11.6.2              Electronic Communications.


 


Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by the Agent; provided that
the foregoing shall not apply to notices to any Lender if such Lender, has
notified the Agent that it is incapable of receiving notices by electronic
communication.  The Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or
communications.  Unless the Agent
otherwise prescribes, (i) notices and other communications sent to an
e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as 


 


107

















 


by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement); provided that if such notice or other
communication is not sent during the normal business hours of the recipient,
such notice or communication shall be deemed to have been sent at the opening
of business on the next Business Day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefore.


 


11.6.3              Change of Address, Etc.


 


Any
party hereto may change its address, e-mail address or telecopier number for
notices and other communications hereunder by notice to the other parties
hereto.


 


11.7                        Severability.


 


The
provisions of this Agreement are intended to be severable.  If any provision of this Agreement shall be
held invalid or unenforceable in whole or in part in any jurisdiction, such
provision shall, as to such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.


 


11.8                        Governing
Law.


 


Each
Letter of Credit and Section 2.10
[Letter of Credit Subfacility] shall be subject to the Uniform Customs and
Practice for Documentary Credits (2007 Revision), International Chamber of
Commerce Publication No. 600, as the same may be revised or amended from time
to time, and to the extent not inconsistent therewith, the internal laws of the
Commonwealth of Pennsylvania without regard to its conflict of laws principles,
and the balance of this Agreement shall be deemed to be a contract under the Laws
of the Commonwealth of Pennsylvania and for all purposes shall be governed by
and construed and enforced in accordance with the internal laws of the
Commonwealth of Pennsylvania without regard to its conflict of laws principles.


 


11.9                        Prior
Understanding.


 


This
Agreement and the other Loan Documents supersede all prior understandings and
agreements, whether written or oral, between the parties hereto and thereto
relating to the transactions provided for herein and therein, including any
prior confidentiality agreements and commitments.


 


11.10                 Duration;
Survival.


 


All
representations and warranties of the Loan Parties contained herein or made in
connection herewith shall survive the making of Loans and issuance of Letters
of Credit and shall not be waived by the execution and delivery of this
Agreement, any investigation by the Agent or the Lenders, the making of Loans,
issuance of Letters of Credit, or payment in full of the Loans.  


 


108

















 


All
covenants and agreements of the Loan Parties contained in Sections 8.1
[Affirmative Covenants], Section 8.2
[Negative Covenants] and Section 8.3
[Reporting Requirements] herein shall continue in full force and effect from
and after the date hereof so long as the Borrower may borrow or request Letters
of Credit hereunder and until termination of the Commitments and payment in
full of the Loans and expiration or termination of all Letters of Credit.  All covenants and agreements of the Borrower
contained herein relating to the payment of principal, interest, premiums,
additional compensation or expenses and indemnification, including those set
forth in Section 5 [Payments] and Section 10.8 [Reimbursement
and Indemnification of Agent by the Borrower], Section
10.10 [Reimbursement and Indemnification of Agent by Lenders]
and Section 11.3 [Reimbursement
and Indemnification of Lenders by the Borrower; Taxes], shall survive payment
in full of the Loans, expiration or termination of the Letters of Credit and
termination of the Commitments.


 


11.11                 Successors
and Assigns.


 


11.11.1                                                       Successors
and Assigns Generally.


 


The
provisions of this Agreement shall be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and assigns permitted
hereby, except that neither the Borrower nor any other Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of the Agent and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an
assignee in accordance with the provisions of Section
11.11.2 [Assignments by Lenders], (ii) by way of participation
in accordance with the provisions of Section 11.11.4
[Participations], or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of Section 11.11.6
[Certain Pledges; Successors and Assigns Generally] (and any other attempted
assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in Section 11.11.4
[Participations] and, to the extent expressly contemplated hereby, the Related
Parties of each of the Agent and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.


 


11.11.2                                                       Assignments
by Lenders.


 


Any
Lender may at any time assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that any
such assignment shall be subject to the following conditions:


 


(i)                                     Minimum
Amounts.


 


(A)                  in the case
of an assignment of the entire remaining amount of the assigning Lender’s
Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and


 


109






 












 


(B)          in any case not described in
clause (i)(A) of this Section 11.11.2,
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in effect,
the principal outstanding balance of the Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and
Assumption Agreement with respect to such assignment is delivered to the Agent
or, if “Trade Date” is specified in the Assignment and Assumption Agreement, as
of the Trade Date) shall not be less than $5,000,000.00, unless each of the
Agent and, so long as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be unreasonably withheld
or delayed).


 


(ii)                  Proportionate
Amounts.


 


Each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under
this Agreement with respect to the Loan or the Commitment assigned. Each
partial assignment shall be in such amounts so that after such assignment, with
respect to each Lender and its Affiliates taken as a group, such group’s
Ratable Share of (a) the Revolving Credit Loans, (b) the Revolving Credit
Commitment, (c) the Term Loan and (d) the Term Loan Commitment shall be in
equal percentages when calculated against, in respect of the Revolving Credit
Loans and the Revolving Credit Commitment, the aggregate of the Revolving
Credit Commitments of the Lenders, and in respect of the Term Loan and the Term
Loan Commitment, the aggregate of the Term Loan Commitments of the Lenders.


 


(iii)                 Required
Consents.


 


Subject to the following sentence, no consent shall be required for any
assignment except for the consent of the Agent (which shall not be unreasonably
withheld or delayed). The consent of the Borrower (such consent not to be
unreasonably withheld or delayed) shall also be required for an assignment
unless (a) an Event of Default has occurred and is continuing at the time of
such assignment or (b) such assignment is to a Lender, an Affiliate of a Lender
or an Approved Fund.


 


(iv)                Assignment
and Assumption Agreement.


 


The parties to each assignment shall execute and deliver to the Agent
an Assignment and Assumption Agreement, together with a processing and
recordation fee of $3,500.00, and the assignee, if it is not a Lender, shall
deliver to the Agent an administrative questionnaire provided by the Agent.


 


(v)                 No
Assignment to Borrower.


 


No such assignment shall be made to the Borrower or any of the Borrower’s
Affiliates or Subsidiaries.


 


(vi)                No
Assignment to Natural Persons.


 


No such assignment shall be made to a natural person.


 


110

















 


Subject
to acceptance and recording thereof by the Administrative Agent pursuant to Section 11.11.3 [Register],
from and after the effective date specified in each Assignment and Assumption
Agreement, the assignee thereunder shall be a party to this Agreement and, to
the extent of the interest assigned by such Assignment and Assumption
Agreement, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption Agreement, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption Agreement covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto)
but shall continue to be entitled to the benefits of Section
4.4  [Euro-Rate Unascertainable; Illegality; Increased
Costs; Deposits Not Available], Section 5.5 [Additional
Compensation in Certain Circumstances], Section 5.6
[Taxes] and Section 11.3 [Reimbursement
and Indemnification of Lender by the Borrower; Taxes]  with
respect to facts and circumstances occurring prior to the effective date of
such assignment.  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this Section 11.11.2
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section 11.11.4 [Participations].


 


11.11.3                  Register.


 


The
Agent, acting solely for this purpose as an agent of the Borrower, shall
maintain a record of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time. 
Such register shall be conclusive, and the Borrower, the Agent and the
Lenders may treat each Person whose name is in such register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 
Such register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


11.11.4                  Participations.


 


Any
Lender may at any time, without the consent of, or notice to, the Borrower or
the Agent, sell participations to any Person (other than a natural person or
the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion
of such Lender’s rights and/or obligations under this Agreement (including all
or a portion of its Commitment and/or the Loans owing to it); provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Agent and the Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement.


 


Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver with respect to 


 


111

















 


Section 11.1.1 [Increase of
Commitment; Extension of Expiration Date], Section 11.1.2
[Extension of Payment; Reduction of Principal Interest or Fees; Modification of
Terms of Payment], or Section 11.1.3
[Release of Collateral or Guarantor]. 
Subject to Section 11.11.5
[Limitations upon Participant Rights Successors and Assigns Generally], the Borrower
agrees that each Participant shall be entitled to the benefits of Section 4.4 [Euro-Rate
Unascertainable; Illegality; Increased Costs; Deposits Not Available], Section 5.5 [Additional
Compensation in Certain Circumstances]  to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to Section 11.11.2 [Assignments
by Lenders], Section 5.6 [Taxes] and Section 11.3 [Reimbursement and
Indemnification of Lenders by the Borrower; Taxes].  To the extent permitted by Law, each
Participant also shall be entitled to the benefits of Section 9.2.3
[Setoff]  as though it were a Lender; provided
such Participant agrees to be subject to Section 10.11
[Equalization of Lenders]  as though it
were a Lender.


 


11.11.5                  Limitations
upon Participant Rights Successors and Assigns Generally.


 


A
Participant shall not be entitled to receive any greater payment under Section 5.5 [Additional
Compensation in Certain Circumstances], Section 5.6
[Taxes] or Section 11.3 [Reimbursement
and Indemnification of Lender by the Borrower; Taxes ]  than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent.  A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 5.6 [Taxes]  unless the Borrower is notified of the participation sold
to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 10.11
[Equalization of Lenders]  as though it
were a Lender.


 


11.11.6                  Certain
Pledges; Successors and Assigns Generally.


 


Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment shall release such
Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.


 


11.12      Confidentiality.


 


11.12.1                  General.


 


The
Agent and the Lenders each agree to keep confidential all information obtained
from any Loan Party or its Subsidiaries which is nonpublic and confidential or
proprietary in nature (including any information the Borrower specifically
designates as confidential), except as provided below, and to use such
information only in connection with their respective capacities under this Agreement
and for the purposes contemplated hereby. 
The Agent and the Lenders shall be permitted to disclose such
information worldwide (i) among the Lenders and to any Affiliates and/or
to outside legal counsel, accountants and other professional advisors who need
to know such information in connection with the administration and 


 


112

















 


enforcement
of this Agreement, subject to agreement of such Persons to maintain the
confidentiality, (ii) to assignees and participants as contemplated by Section 11.11 [Successors and
Assigns], and prospective assignees and participants, (iii) to the extent
requested by any bank regulatory authority or, with notice to the Borrower, as
otherwise required by applicable Law or by any subpoena or similar legal
process, or in connection with any investigation or proceeding arising out of
the transactions contemplated by this Agreement (in each case, to the extent
the Agent or such Lender is legally permitted to notify the Borrower by the
governing law to which it is subject), (iv) if it becomes publicly
available other than as a result of a breach of this Agreement or becomes
available from a source not known to be subject to confidentiality
restrictions, or (v) if the Borrower shall have consented to such
disclosure.  Notwithstanding anything
herein to the contrary, the information subject to this Section
11.12.1 shall not include, and the Agent and each Lender may
disclose without limitation of any kind, any information with respect to the “tax
treatment” and “tax structure” (in each case, within the meaning of Treasury
Regulation Section 1.6011-4) of the transactions contemplated hereby and all
materials of any kind (including opinions or other tax analyses) that are
provided to the Agent or such Lender relating to such tax treatment and tax
structure; provided that with respect to any document or similar item
that in either case contains information concerning the tax treatment or tax
structure of the transaction as well as other information, this sentence shall
only apply to such portions of the document or similar item that relate to the
tax treatment or tax structure of the Loans, Letters of Credit and transactions
contemplated hereby.


 


11.12.2                  Sharing
Information With Affiliates of the Lenders.


 


Each
Loan Party acknowledges that from time to time financial advisory, investment
banking and other services may be offered or provided to the Borrower or one or
more of its Affiliates (in connection with this Agreement or otherwise) by any
Lender or by one or more Subsidiaries or Affiliates of such Lender and each of
the Loan Parties hereby authorizes each Lender to share any information
delivered to such Lender by such Loan Party and its Subsidiaries pursuant to
this Agreement, or in connection with the decision of such Lender to enter into
this Agreement, to any such Subsidiary or Affiliate of such Lender, it being
understood that any such Subsidiary or affiliate of any Lender receiving such
information shall be bound by the provisions of Section
11.12.1 as if it were a Lender hereunder.  Such authorization shall survive the
repayment of the Loans and other Obligations and the termination of the
Commitments.


 


11.13      Counterparts.


 


This
Agreement may be executed by different parties hereto on any number of separate
counterparts, each of which, when so executed and delivered, shall be an
original, and all such counterparts shall together constitute one and the same
instrument.


 


11.14      Agent’s
or Lender’s Consent.


 


Whenever
the Agent’s or any Lender’s consent is required to be obtained under this
Agreement or any of the other Loan Documents as a condition to any action,
inaction, condition or event, the Agent and each Lender shall be authorized to
give or withhold such 


 


113

















 


consent
in its sole and absolute discretion and to condition its consent upon the
giving of additional collateral, the payment of money or any other matter.


 


11.15      Exceptions.


 


The
representations, warranties and covenants contained herein shall be independent
of each other, and no exception to any representation, warranty or covenant
shall be deemed to be an exception to any other representation, warranty or
covenant contained herein unless expressly provided, nor shall any such
exceptions be deemed to permit any action or omission that would be in
contravention of applicable Law.


 


11.16      Consent
To Forum; Waiver Of Jury Trial.


 


11.16.1                  Submission
To Jurisdiction.


 


THE
BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF PENNSYLVANIA SITTING IN ALLEGHENY COUNTY AND OF THE UNITED STATES
DISTRICT COURT OF THE WESTERN DISTRICT OF PENNSYLVANIA, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH PENNSYLVANIA STATE COURT OR, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.  NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE AGENT,
ANY LENDER OR THE ISSUING LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE
BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.


 


11.16.2                  Waiver
Of Venue.


 


THE
BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO IN THIS SECTION 11.16.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT 


 


114

















 


PERMITTED
BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT AND AGREES NOT ASSERT ANY SUCH
DEFENSE.


 


11.16.3                  Service
Of Process.


 


EACH
PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED
FOR NOTICES IN SECTION 11.6 [NOTICES;
EFFECTIVENESS; ELECTRONIC COMMUNICATION]. 
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.


 


11.16.4                  Waiver
Of Jury Trial.


 


EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, ADMINISTRATIVE AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


11.17      USA
Patriot Act. Certification from Lenders and Participants.


 


Each
Lender or assignee or participant of a Lender that is not incorporated under
the Laws of the United States of America or a state thereof (and is not
excepted from the certification requirement contained in Section 313 of the USA
Patriot Act and the applicable regulations because it is both (i) an affiliate
of a depository institution or foreign bank that maintains a physical
presence in the United states or foreign county, and (ii) subject to
supervision by a banking authority regulating such affiliated depository
institution or foreign bank) shall deliver to the Agent the certification, or,
if applicable, recertification, certifying that such Bank is not a “shell” and
certifying to other matters as required by Section 313 of the USA Patriot Act
and the applicable regulations:  (1)
within 10 days after the Closing Date, and (2) as such other times as are
required under the USA Patriot Act.


 


11.18      Joinder
of Guarantors.


 


Any
Material Domestic Subsidiary of the Borrower which is required to join this
Agreement as a Guarantor pursuant to Section 8.2.9
[Subsidiaries, Partnerships and Joint 


 


115

















 


Ventures]
shall execute and deliver to the Agent (i) a Guarantor Joinder in
substantially the form attached hereto as Exhibit 1.1(G)
pursuant to which it shall join as a Guarantor each of the documents to which
the Guarantors are parties; (ii) documents in the forms described in Section 7.1 [First Loans and
Letters of Credit] modified as appropriate to relate to such Material Domestic
Subsidiary, and (iii) documents necessary to grant and perfect Prior Security
Interests in all Pledged Collateral held by such Material Domestic
Subsidiary.  The Loan Parties shall
deliver such Guarantor Joinder and related documents to the Agent within five
(5) Business Days after the date of the filing of such Material Domestic
Subsidiary’s articles of incorporation if the Material Domestic Subsidiary is a
corporation, the date of the filing of its certificate of limited partnership
if it is a limited partnership or the date of its organization if it is an
entity other than a limited partnership or corporation.


 


11.19      Amendment
and Restatement; No Novation; Reaffirmation.


 


This
Agreement amends and restates in its entirety the Existing Credit Agreement,
and the Loan Parties confirm that:  (i)
the Existing Credit Agreement, the Guaranty Agreement, the Pledge Agreement,
the Subsidiary Pledge Agreement and the other Loan Documents and the collateral
for the Obligations thereunder at all times, since the date of the execution
and delivery of such documents, have remained in full force and effect and have
continued to secure such Obligations as amended, restated and increased
hereunder, (ii) their obligations under each and every Loan Document to which
any Loan Party is a party is hereby reaffirmed by such Loan Party; and (iii)
all such collateral shall continue to secure the Obligations hereunder. The
Loans hereunder are both an increase and a continuation of the Loans under the
Existing Credit Agreement. The Loan Parties, the Agent and the Lenders
acknowledge and agree that the amendment and restatement of the Existing Credit
Agreement by this Agreement is not intended to constitute, nor does it
constitute, a novation, interruption, suspension of continuity, satisfaction,
discharge or termination of the obligations, loans, liabilities, or
indebtedness under the Existing Credit Agreement and other Loan Documents
thereunder or the collateral security therefor, and this Agreement and the
other Loan Documents are entitled to all rights and benefits originally
pertaining to the Existing Credit Agreement and the other Loan Documents.


 


116

















 


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


 


	
   

  	
  COVANCE
  INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  William E. Klitgaard

  
	
   

  	
   

  	
  Name:
  

  	
  William
  E. Klitgaard

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CJB
  INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William E. Klitgaard

  
	
   

  	
   

  	
  Name:
  

  	
  William
  E. Klitgaard

  
	
   

  	
   

  	
  Title:
  

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COVANCE
  CENTRAL LABORATORY SERVICES INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William E. Klitgaard

  
	
   

  	
   

  	
  Name:
  

  	
  William
  E. Klitgaard

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COVANCE
  CENTRAL LABORATORY SERVICES LIMITED PARTNERSHIP, an Indiana
  limited partnership

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  Covance
  Central Laboratory Services Inc., a Delaware corporation, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William E. Klitgaard

  
	
   

  	
   

  	
  Name:
  

  	
  William
  E. Klitgaard

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Vice President

  



 


[Signatures continue on
following page]


 

















 


	
   

  	
  COVANCE
  PRECLINICAL CORPORATION, a Washington Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  William E. Klitgaard

  
	
   

  	
   

  	
  Name:
  

  	
  William
  E. Klitgaard

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COVANCE
  LABORATORIES INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  William E. Klitgaard

  
	
   

  	
   

  	
  Name:
  

  	
  William
  E. Klitgaard

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Vice President

  
					



 


[Signatures continue on
following page]


 

















 


	
   

  	
  PNC
  BANK, NATIONAL ASSOCIATION, individually and as
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Edward M. Tessalone

  
	
   

  	
   

  	
  Name:
  

  	
  Edward
  M. Tessalone

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Vice President

  



 


[Signatures continue on
following page]


 






 












 


	
   

  	
  BANK
  OF TOKYO-MITSUBISHI UFJ TRUST COMPANY, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  George Stoecklein

  
	
   

  	
   

  	
  Name:

  	
  George
  Stoecklein

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


[Signatures continue on following page]


 

















 


	
   

  	
  MORGAN
  STANLEY BANK, N.A, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Sherrese Clarke

  
	
   

  	
   

  	
  Name:
  

  	
  Sherrese
  Clarke

  
	
   

  	
   

  	
  Title:
  

  	
  Authorized
  Signatory

  



 


[Signatures continue on
following page]


 

















 


	
   

  	
  TD
  BANK, N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/Marla
  Willner

  
	
   

  	
   

  	
  Name:
  

  	
  Marla
  Willner

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Vice President

  



 


[Signatures
continue on following page]


 

















 


	
   

  	
  JPMORGAN
  CHASE BANK N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  D. Scott Farquhar

  
	
   

  	
   

  	
  Name:
  

  	
  D.
  Scott Farquhar

  
	
   

  	
   

  	
  Title:
  

  	
  Vice
  President

  



 


[Signatures continue on
following page]


 

















 


	
   

  	
  BANK
  OF AMERICA, N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/David
  J. Bardwil

  
	
   

  	
   

  	
  Name:
  

  	
  David
  J. Bardwil

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Vice President

  



 


[Signatures continue on
following page]


 

















 


	
   

  	
  BARCLAYS
  BANK PLC, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Alan Croot

  
	
   

  	
   

  	
  Name:
  

  	
  Alan
  A. Croot

  
	
   

  	
   

  	
  Title:
  

  	
  Corporate
  Director

  



 


[Signatures continue on
following page]


 

















 


	
   

  	
  CREDIT
  SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Ari Bruger

  
	
   

  	
   

  	
  Name:
  

  	
  Ari
  Bruger

  
	
   

  	
   

  	
  Title:
  

  	
  Vice
  President

  



 


	
   

  	
  By:
  

  	
  /s/
  Rahul Parmar

  
	
   

  	
   

  	
  Name:
  

  	
  Rahul
  Parmar

  
	
   

  	
   

  	
  Title:
  

  	
  Associate

  



 


[Signatures continue on
following page]


 

















 


	
   

  	
  CITIBANK,
  N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Eileen F. McEvoy

  
	
   

  	
   

  	
  Name:
  

  	
  Eileen
  McEvoy

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


[Signatures continue on
following page]


 

















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Scott Santa Cruz

  
	
   

  	
   

  	
  Name:
  

  	
  Scott
  Santa Cruz

  
	
   

  	
   

  	
  Title:
  

  	
  Director

  



 


[Signatures continue on following page]


 

















 


	
   

  	
  RBS
  CITIZENS, N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Barrett D. Bencivenga

  
	
   

  	
   

  	
  Name:
  

  	
  Barrett
  D. Bencivenga

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Vice President

  



 


[Signatures continue on
following page]


 
















 


	
   

  	
  HSBC
  BANK USA, N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Robert Moravec

  
	
   

  	
   

  	
  Name:
  

  	
  Robert
  Moravec

  
	
   

  	
   

  	
  Title:
  

  	
  Vice
  President

  



 


[Signatures continue on
following page]


 

















 


	
   

  	
  HSBC
  BANK PLC, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Tim Stephens

  
	
   

  	
   

  	
  Name:
  

  	
  Tim
  Stephens

  
	
   

  	
   

  	
  Title:

  	
  Deputy
  Head of Corporate Banking

  



 

















 


SCHEDULE 1.1(A)


 


PRICING GRID


 


	
  Level

  	
   

  	
  Leverage

  Ratio

  	
   

  	
  Commitment

  Fee

  	
   

  	
  Base Rate

  Spread

  	
   

  	
  Euro-Rate

  Spread

  	
   

  	
  Letter of

  Credit

  Fee

  	
   

  
	
  I

  	
   

  	
  Less than or equal to 1.0 to 1.0

  	
   

  	
  .30%

  	
   

  	
  1.00%

  	
   

  	
  2.00%

  	
   

  	
  2.00%

  	
   

  
	
  II

  	
   

  	
  Greater than 1.0 to 1.0 or less than or equal to
  1.50 to 1.0

  	
   

  	
  .35%

  	
   

  	
  1.25%

  	
   

  	
  2.25%

  	
   

  	
  2.25%

  	
   

  
	
  III

  	
   

  	
  Greater than 1.50 to 1.0 but less than or equal
  to 2.0 to 1.0

  	
   

  	
  .40%

  	
   

  	
  1.50%

  	
   

  	
  2.50%

  	
   

  	
  2.50%

  	
   

  
	
  IV

  	
   

  	
  Greater than 2.0 to 1.0

  	
   

  	
  .45%

  	
   

  	
  1.75%

  	
   

  	
  2.75%

  	
   

  	
  2.75%

  	
   

  



 


provided,
however, that if for purposes of calculating the Leverage Ratio, EBITDA is zero
or negative, level IV shall apply.


 


For
purposes of determining the Applicable Margin, the Applicable Commitment Fee
Rate and the Applicable Letter of Credit Fee:


 


(A)          The Applicable Margin, the Applicable Commitment Fee Rate, and the Applicable
Letter of Credit Fee shall be determined on the Closing Date based on the
Leverage Ratio computed on such date pursuant to that certificate delivered
pursuant to Section 7.1.11
[Compliance Certificate] hereof.


 


(B)           The
Applicable Commitment Fee Rate and the Applicable Letter of Credit Fee shall be recomputed as of the end
of each fiscal quarter based on the Leverage Ratio as of such quarter end.  The Applicable Margin shall be recomputed as
of the end of each fiscal quarter based on the Leverage Ratio as of such
quarter end.  Any increase or decrease in
the Applicable Margin, the Applicable Commitment Fee Rate, or the
Applicable Letter of Credit Fee computed as of a quarter end shall be effective on the date on which the Compliance
Certificate and corresponding financial statements evidencing such computation
are due to be delivered under Section 8.3.3
[Certificate of the Borrower] (the “Reset Date”);
provided, however, that if the Borrower has failed to deliver, or
caused to be delivered, such Compliance Certificate and corresponding financial
statements on or before the date such delivery is due as required, as the case
may be, under Section 8.3.1 [Quarterly
Financial Statements] or Section 8.3.2
[Annual Financial Statements] (the “Delivery Date”),
then the Leverage Ratio shall be deemed, solely for the purposes of determining
the Applicable Margin, the
Applicable Commitment Fee Rate, and the Applicable Letter of Credit Fee, to be
greater than 2.0 to 1.0 from the Delivery Date until the Compliance Certificate
and financial statements due for the fiscal quarter subsequent to the fiscal
quarter for which delivery did not timely occur by the requisite Delivery Date
are timely delivered as required, as the case may be, under Section 8.3.2 [Quarterly
Financial Statements] 


 

















 


or
Section 8.3.3 [Annual
Financial Statements], and provided  further  that any such
increase or decrease in the Applicable Margin with respect to the Euro-Rate
Spread applicable to an Optional Currency Borrowing Tranche shall go into
effect at the end of the then current Interest Period therefor.