exv10w1






Exhibit 10.1




$250,000,000 REVOLVING CREDIT FACILITY




CREDIT AGREEMENT




by and among




SUPERIOR WELL SERVICES, INC.




and




THE LENDERS PARTY HERETO




and




CITIZENS BANK OF PENNSYLVANIA, As Administrative Agent




and




RBS Securities Corporation d/b/a/ RBS Greenwich Capital,

As Sole Lead Arranger and Sole Bookrunner




Dated as of September 30, 2008





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	1.	 	CERTAIN DEFINITIONS	 	 	1	 
	 
	 	1.1	 	Certain Definitions	 	 	1	 
	 
	 	1.2	 	Construction	 	 	19	 
	 
	 	1.3	 	Accounting Principles	 	 	19	 
	 
	 	 	 	 	 	 	 	 
	2.	 	REVOLVING CREDIT AND SWING LOAN FACILITIES	 	 	20	 
	 
	 	2.1	 	Revolving Credit Commitments	 	 	20	 
	 
	 	2.2	 	Nature of Lenders’ Obligations with Respect to Revolving Credit Loans	 	 	20	 
	 
	 	2.3	 	Commitment Fees	 	 	21	 
	 
	 	2.4	 	Intentionally Omitted	 	 	21	 
	 
	 	2.5	 	Revolving Credit Loan Requests; Swing Loan Requests	 	 	21	 
	 
	 	2.6	 	Making Revolving Credit Loans
and Swing Loans; Presumptions by the Administrative Agent; Repayment
of Revolving Credit Loans; Borrowings to Repay Swing Loans	 	 	22	 
	 
	 	2.7	 	Notes	 	 	23	 
	 
	 	2.8	 	Use of Proceeds	 	 	23	 
	 
	 	2.9	 	Letter of Credit Subfacility	 	 	23	 
	 
	 	2.10	 	Reduction of Revolving Credit Commitment	 	 	30	 
	 
	 	2.11	 	Increase in Revolving Credit Commitments	 	 	30	 
	 
	 	 	 	 	 	 	 	 
	3.	 	INTENTIONALLY OMITTED	 	 	32	 
	 
	 	 	 	 	 	 	 	 
	4.	 	INTEREST RATES	 	 	32	 
	 
	 	4.1	 	Interest Rate Options	 	 	32	 
	 
	 	4.2	 	Interest Periods	 	 	33	 
	 
	 	4.3	 	Interest After Default	 	 	33	 
	 
	 	4.4	 	LIBOR Rate Unascertainable;
Illegality; Increased Costs; Deposits Not Available	 	 	34	 
	 
	 	4.5	 	Selection of Interest Rate Options	 	 	35	 
	 
	 	 	 	 	 	 	 	 
	5.	 	PAYMENTS	 	 	35	 
	 
	 	5.1	 	Payments	 	 	35	 
	 
	 	5.2	 	Pro Rata Treatment of Lenders	 	 	36	 
	 
	 	5.3	 	Sharing of Payments by Lenders	 	 	36	 
	 
	 	5.4	 	Presumptions by Administrative Agent	 	 	37	 
	 
	 	5.5	 	Interest Payment Dates	 	 	37	 
	 
	 	5.6	 	Voluntary Prepayments	 	 	37	 
	 
	 	5.7	 	Intentionally Omitted	 	 	39	 
	 
	 	5.8	 	Increased Costs	 	 	39	 
	 
	 	5.9	 	Taxes	 	 	40	 
	 
	 	5.10	 	Indemnity	 	 	42	 
	 
	 	5.11	 	Settlement Date Procedures	 	 	43	 






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	6.	 	REPRESENTATIONS AND WARRANTIES	 	 	43	 
	 
	 	6.1	 	Representations and Warranties	 	 	43	 
	 
	 	6.2	 	Updates to Schedules	 	 	47	 
	 
	 	 	 	 	 	 	 	 
	7.	 	CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT	 	 	48	 
	 
	 	7.1	 	First Loans and Letters of Credit	 	 	48	 
	 
	 	7.2	 	Each Loan or Letter of Credit	 	 	49	 
	 
	 	 	 	 	 	 	 	 
	8.	 	COVENANTS	 	 	49	 
	 
	 	8.1	 	Affirmative Covenants	 	 	49	 
	 
	 	8.2	 	Negative Covenants	 	 	53	 
	 
	 	8.3	 	Reporting Requirements	 	 	59	 
	 
	 	 	 	 	 	 	 	 
	9.	 	DEFAULT	 	 	61	 
	 
	 	9.1	 	Events of Default	 	 	61	 
	 
	 	9.2	 	Consequences of Event of Default	 	 	63	 
	 
	 	 	 	 	 	 	 	 
	10.	 	THE ADMINISTRATIVE AGENT	 	 	64	 
	 
	 	10.1	 	Appointment and Authority	 	 	64	 
	 
	 	10.2	 	Rights as a Lender	 	 	64	 
	 
	 	10.3	 	Exculpatory Provisions	 	 	65	 
	 
	 	10.4	 	Reliance by Administrative Agent	 	 	66	 
	 
	 	10.5	 	Delegation of Duties	 	 	66	 
	 
	 	10.6	 	Resignation of Administrative Agent	 	 	66	 
	 
	 	10.7	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	67	 
	 
	 	10.8	 	No Other Duties, etc	 	 	68	 
	 
	 	10.9	 	Administrative Agent’s Fee	 	 	68	 
	 
	 	10.10	 	Authorization to Release Collateral and Guarantors	 	 	68	 
	 
	 	10.11	 	No Reliance on Administrative
Agent’s Customer Identification Program	 	 	68	 
	 
	 	 	 	 	 	 	 	 
	11.	 	MISCELLANEOUS	 	 	68	 
	 
	 	11.1	 	Modifications, Amendments or Waivers	 	 	68	 
	 
	 	11.2	 	No Implied Waivers; Cumulative Remedies	 	 	69	 
	 
	 	11.3	 	Expenses; Indemnity; Damage Waiver	 	 	69	 
	 
	 	11.4	 	Holidays	 	 	71	 
	 
	 	11.5	 	Notices; Effectiveness; Electronic Communication	 	 	71	 
	 
	 	11.6	 	Severability	 	 	72	 
	 
	 	11.7	 	Duration; Survival	 	 	72	 
	 
	 	11.8	 	Successors and Assigns	 	 	73	 
	 
	 	11.9	 	Confidentiality	 	 	76	 
	 
	 	11.10	 	Counterparts; Integration; Effectiveness	 	 	77	 
	 
	 	11.11	 	CHOICE OF LAW; SUBMISSION TO JURISDICTION; WAIVER OF VENUE; SERVICE OF
   PROCESS; WAIVER OF JURY TRIAL	 	 	77	 
	 
	 	11.12	 	USA Patriot Act Notice	 	 	78	 






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LIST OF SCHEDULES AND EXHIBITS




	 	 	 	 	 
	SCHEDULES	 	 	 	 
	 
	 	 	 	 
	SCHEDULE 1.1(A)

	 	—
	 	PRICING GRID
	SCHEDULE 1.1(B)

	 	—
	 	COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES
	SCHEDULE 1.1(E)

	 	—
	 	EXCLUDED COLLATERAL
	SCHEDULE 1.1(P)

	 	—
	 	PERMITTED LIENS
	SCHEDULE 2.9

	 	—
	 	EXISTING LETTERS OF CREDIT
	SCHEDULE 6.1(a)

	 	—
	 	QUALIFICATIONS TO DO BUSINESS
	SCHEDULE 6.1(b)

	 	—
	 	SUBSIDIARIES
	SCHEDULE 6.1(n)

	 	—
	 	ENVIRONMENTAL DISCLOSURES
	SCHEDULE 7.1(a)

	 	—
	 	OPINION OF COUNSEL
	SCHEDULE 8.1(c)

	 	—
	 	INSURANCE REQUIREMENTS RELATING TO COLLATERAL
	SCHEDULE 8.2(a)

	 	—
	 	PERMITTED INDEBTEDNESS
	SCHEDULE 8.2(d)

	 	—
	 	EXISTING INVESTMENTS
	SCHEDULE 8.2(h)

	 	—
	 	AFFILIATE TRANSACTION
	 
	 	 	 	 
	EXHIBITS
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT 1.1(A)

	 	—
	 	ASSIGNMENT AND ASSUMPTION AGREEMENT
	EXHIBIT 1.1(G)(1)

	 	—
	 	GUARANTOR JOINDER
	EXHIBIT 1.1(G)(2)

	 	—
	 	GUARANTY AGREEMENT
	EXHIBIT 1.1(I)

	 	—
	 	INTERCOMPANY SUBORDINATION AGREEMENT
	EXHIBIT 1.1(N)(1)

	 	—
	 	REVOLVING CREDIT NOTE
	EXHIBIT 1.1(N)(2)

	 	—
	 	SWING LOAN NOTE
	EXHIBIT 1.1(P)(1)

	 	—
	 	PATENT, TRADEMARK AND COPYRIGHT ASSIGNMENT
	EXHIBIT 1.1(P)(2)

	 	—
	 	PLEDGE AGREEMENT
	EXHIBIT 1.1(S)

	 	—
	 	SECURITY AGREEMENT
	EXHIBIT 2.5(a)

	 	—
	 	LOAN REQUEST
	EXHIBIT 2.5(b)

	 	—
	 	SWING LOAN REQUEST
	EXHIBIT 2.11

	 	—
	 	LENDER JOINDER
	EXHIBIT 8.2(f)

	 	—
	 	ACQUISITION COMPLIANCE CERTIFICATE
	EXHIBIT 8.3(c)

	 	—
	 	QUARTERLY COMPLIANCE CERTIFICATE







(iii)











 





CREDIT AGREEMENT




     THIS CREDIT AGREEMENT (as hereafter amended, the “Agreement”) is dated as of September 30,
2008 and is made by and among SUPERIOR WELL SERVICES, INC., a Delaware corporation (the
“Borrower”), EACH OF THE GUARANTORS (as hereinafter defined), LENDERS (as hereinafter defined),
KEYBANK NATIONAL ASSOCIATION and ROYAL BANK OF CANADA, each it its capacity as Co-Documentation
Agent and CITIZENS BANK OF PENNSYLVANIA, in its capacity as administrative agent for the Lenders
under this Agreement (hereinafter referred to in such capacity as the “Administrative Agent”).



     The Borrower has requested the Lenders to provide a revolving credit facility to the Borrower
in an aggregate principal amount not to exceed $250,000,000. In consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound hereby, the
parties hereto 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:



     Adjusted LIBOR Rate means, relative to any LIBOR Rate Loan to be made, continued or
maintained as, or converted into, a LIBOR Rate Loan for any LIBOR Interest Period, a rate per annum
determined by dividing (x) the LIBOR Rate for such LIBOR Interest Period by (y) a percentage equal
to one hundred percent (100%) minus the LIBOR Reserve Percentage.



     Administrative Agent shall mean Citizens Bank of Pennsylvania, and its successors and
assigns.



     Administrative Agent’s Fee shall have the meaning specified in Section 10.9
[Administrative Agent’s Fee].



     Administrative Agent’s Letter shall have the meaning specified in Section 10.9
[Administrative Agent’s Fee].



     Affiliate as to any Person any other Person (i) which directly or indirectly controls,
is controlled by, or is under common control with such Person, (ii) which beneficially owns or
holds 5% or more of any class of the voting or other equity interests of such Person, or (iii) 15%
or more of any class of voting interests or other equity interests of which is beneficially owned
or held, directly or indirectly, by such Person.



     Alternative Base Rate shall mean the greater of (i) the Prime Rate, or (ii) the
Federal Funds Effective Rate plus 0.50% per annum.



 









 





     Alternative Base Rate Option shall mean the option of the Borrower to have Loans bear
interest at the rate and under the terms set forth in either Section 4.1(a)(i)(A)[Revolving Credit
Alternative Base Rate Option].



     Ancillary Security Documents shall mean all documents, instruments, environmental
reports, agreements, endorsements, policies and certificates requested by the Administrative Agent
and customarily delivered by any property owner in connection with a mortgage financing. Without
limiting the generality of the foregoing, examples of Ancillary Security Documents would include
insurance policies (other than title insurance) or certificates regarding any collateral, lien
searches, estoppel letters, flood insurance certifications, environmental audits which shall meet
the Administrative Agent’s minimum requirements for phase I environmental assessments or phase II
environmental assessments, as applicable, opinions of counsel and the like.



     Anti-Terrorism Laws shall mean 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 shall mean the percentage rate per annum based on the
Leverage Ratio then in effect according to the pricing grid on Schedule 1.1(A) below the
heading “Commitment Fee.”



     Applicable Letter of Credit Fee Rate shall mean the percentage rate per annum based on
the Leverage Ratio then in effect according to the pricing grid on Schedule 1.1(A) below
the heading “Letter of Credit Fee.”



     Applicable Margin shall mean, as applicable:



     (i) the percentage spread to be added to the Alternative Base Rate applicable to Revolving
Credit Loans under the Alternative Base Rate Option based on the Leverage Ratio then in effect
according to the pricing grid on Schedule 1.1(A) below the heading “Revolving Credit
Alternative Base Rate Spread”; or



     (ii) the percentage spread to be added to the LIBOR Rate applicable to Revolving Credit Loans
under the LIBOR Rate Option based on the Leverage Ratio then in effect according to the pricing
grid on Schedule 1.1(A) below the heading “Revolving Credit LIBOR Rate Spread”.



     Approved Fund shall mean 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 (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or
an Affiliate of an entity that administers or manages a Lender.



     Assignment and Assumption means an assignment and assumption entered into by a Lender
and an assignee permitted under Section 11.8 [Successors and Assigns], in substantially the form of
Exhibit 1.1(A).



2









 





     Authorized Officer shall mean, with respect to any Loan Party, the Chief Executive
Officer, President, Chief Financial Officer, Treasurer or Assistant Treasurer of such Loan Party or
such other individuals, designated by written notice to the Administrative 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 Administrative Agent.



     Availability shall mean the Commitments minus the sum of the Revolving
Facility Usage and the outstanding Swing Loans.



     Borrower shall mean Superior Well Services, Inc., a corporation organized and existing
under the laws of the State of Delaware.



     Borrowing Date shall mean, 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 shall mean specified portions of Loans outstanding as follows: (i)
any Loans to which a LIBOR 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 LIBOR Interest Period
shall constitute one Borrowing Tranche, and (ii) all Loans to which an Alternative Base Rate Option
applies shall constitute one Borrowing Tranche.



     Business Day means:



     (i) any day which is neither a Saturday or Sunday nor a legal holiday on which commercial
banks are authorized or required to be closed in New York, New York; and



     (ii) when such term is used to describe a day on which a borrowing, payment, prepaying, or
repaying is to be made in respect of any LIBOR Rate Loan, any day which is: (a) neither a Saturday
or Sunday nor a legal holiday on which commercial banks are authorized or required to be closed in
New York City; and (b) a day on which dealings in US dollars deposits are transacted in the London
interbank market.



     Change in Law shall mean the occurrence, after the date of this Agreement, of any of
the following: (a) the adoption or taking effect of any Law, (b) any change in any Law or in the
administration, interpretation or application thereof by any Official Body or (c) the making or
issuance of any request, guideline or directive (whether or not having the force of Law) by any
Official Body.



     Citizens Bank shall mean Citizens Bank of Pennsylvania, its successors and assigns.



     Closing Date shall mean the Business Day on which the first Loan shall be made, which
shall be September 30, 2008.



     Code shall mean 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.



3









 





     Collateral shall mean the collateral under the (i) Security Agreement (ii) Pledge
Agreement, and (iii) Patent, Trademark and Copyright Assignment and the term “Collateral” shall not
include Excluded Collateral.



     Commitment shall mean as to any Lender of its Revolving Credit Commitment and, in the
case of the Administrative Agent, its Revolving Credit Commitment and Swing Loan Commitment, and
Commitments shall mean the aggregate of the Revolving Credit Commitments and Swing Loan
Commitment of all of the Lenders.



     Commitment Fee shall have the meaning specified in Section 2.3 [Commitment Fees].



     Compliance Certificate shall have the meaning specified in Section 8.3(c) [Certificate
of the Borrower].



     Complying Lender shall mean any Lender which is not a Non-Complying Lender.



     Consideration shall mean with respect to any Permitted Acquisition or purchase of all
or substantially all of the assets of Diamondback, the aggregate, without duplication, of (i) the
cash paid by any of the Loan Parties, directly or indirectly, to the seller in connection
therewith, (ii) the Indebtedness incurred or assumed by any of the Loan Parties, whether in favor
of the seller or otherwise and whether fixed or contingent, (iii) any Guaranty given or incurred by
any Loan Party in connection therewith, and (iv) any other consideration given or obligation
incurred by any of the Loan Parties in connection therewith.



     Consolidated EBITDA for any period of determination shall mean (i) the sum of net
income, depreciation, amortization, other non-cash charges to net income, interest expense and
income tax expense minus (ii) non-cash credits to net income, in each case of the Borrower
and its Subsidiaries for such period determined and consolidated in accordance with GAAP;
provided, however, that for the purposes of this definition, with respect to the
acquisition of the assets of Diamondback or any other business acquired by the Loan Parties
pursuant to a Permitted Acquisition pursuant to Section 8.2(f) [Liquidations, Mergers,
Consolidations, Acquisitions], Consolidated EBITDA shall be calculated on a pro forma basis (in a
manner reasonably acceptable to the Administrative Agent) as if such acquisition or Permitted
Acquisition had been consummated at the beginning of such period.



     Diamondback shall mean Diamondback Holdings, LLC, a Delaware limited liability
company.



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



     Drawing Date shall have the meaning specified in Section 2.9(c) [Disbursements,
Reimbursement].



     Environmental Laws shall mean all applicable federal, state, local, tribal,
territorial and foreign Laws (including common law), constitutions, statutes, treaties,
regulations, rules, ordinances and codes and any consent decrees, settlement agreements, judgments,
orders, directives, policies or programs issued by or entered into with an Official Body pertaining
or



4









 







relating to: (i) pollution or pollution control; (ii) protection of human health from exposure
to regulated substances; or the environment; (iii) protection of the environment and/or natural
resources; employee safety in the workplace; (iv) the presence, use, management, generation,
manufacture, processing, extraction, treatment, recycling, refining, reclamation, labeling,
packaging, sale, transport, storage, collection, distribution, disposal or release or threat of
release of regulated substances; (v) the presence of contamination; (vi) the protection of
endangered or threatened species; and (vii) the protection of environmentally sensitive areas.



     ERISA shall mean 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 Affiliate shall mean, at any time, any trade or business (whether or not
incorporated) under common control with the Borrower and are treated as a single employer under
Section 414 of the Code.



     ERISA Event means (a) a reportable event (under Section 4043 of ERISA and regulations
thereunder) with respect to a Pension Plan; (b) a withdrawal by Borrower or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that
is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an
event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon Borrower or any ERISA Affiliate.



     ERISA Group shall mean, 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.



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



     Excluded Collateral shall mean any real and personal property contained on
Schedule 1.1(E), as the same may be supplemented from time to time to add other real and
personal property at the sole discretion of the Administrative Agent.



     Excluded Taxes shall mean, with respect to the Administrative Agent, any Lender, the
Issuing Lender or any other recipient of any payment to be made by or on account of any obligation
of the Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes),



5









 







by the jurisdiction (or any political subdivision thereof) under the Laws of which such
recipient is organized or in which its principal office is located or, in the case of any Lender,
in which its applicable lending office is located, (b) any branch profits taxes imposed by the
United States of America or any similar tax imposed by any other jurisdiction in which the Borrower
is located and (c) in the case of a Foreign Lender, 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 5.9(e) [Taxes —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 5.9(a) [Taxes — Payment Free
of Taxes].



     Executive Order No. 13224 shall mean the 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 shall mean that Credit Agreement by and among the Loan
Parties and Citizens Bank, dated October 18, 2005, as amended.



     Existing Letters of Credit shall have the meaning assigned to that term in Section
2.9.



     Expiration Date shall mean, with respect to the Commitments, March 31 2013.



     Federal Funds Effective Rate for any day shall mean 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.



     Fixed Charge Coverage Ratio shall mean the ratio of Consolidated EBITDA minus
Maintenance Capital Expenditures to Fixed Charges.



     Fixed Charges shall mean for any period of determination the sum of interest expense,
income taxes, scheduled principal installments on Indebtedness (as adjusted for prepayments),
payments under capitalized leases and dividends and distributions made pursuant to Section 8.2(e)
[Dividends and Distributions], in each case of the Borrower and its Subsidiaries for such period
determined and consolidated in accordance with GAAP.



     Foreign Lender shall mean 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.



6









 





     GAAP shall mean generally accepted accounting principles as are in effect 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.



     Guarantor shall mean 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.



     Guarantor Joinder shall mean a joinder by a Person as a Guarantor under the Loan
Documents in the form of Exhibit 1.1(G)(1).



     Guaranty of any Person shall mean 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 shall mean the Continuing Agreement of Guaranty and Suretyship in
substantially the form of Exhibit 1.1(G)(2) executed and delivered by each of the
Guarantors.



     Hedging Contracts means, interest rate swap agreements, interest rate cap agreements
and interest rate collar agreements, or any other agreements or arrangements entered into between
the Borrower and any Lender and designed to protect the Borrower against fluctuations in interest
rates or currency exchange rates.



     Hedging Obligations means, with respect to the Borrower, all liabilities of the
Borrower to any Lender under Hedging Contracts.



     Increasing Lender shall have the meaning assigned to that term in Section 2.11
[Increase in Revolving Credit Commitments].



     Indebtedness shall mean, 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, currency swap agreement, interest rate swap, cap, collar or floor agreement or
other interest rate management device, (iv) 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 which are not represented by a promissory note or other evidence of indebtedness and
which are not more than ninety (90) days past due), or (v) any Guaranty of Indebtedness for
borrowed money.



     Indemnified Taxes shall mean Taxes other than Excluded Taxes.



7









 





     Indemnitee shall have the meaning specified in Section 11.3(b) [Indemnification by the
Borrower].



     Indemnity shall mean an indemnity agreement in the form and substance satisfactory to
the Administrative Agent relating to possible environmental liabilities associated with any of the
owned or leased real property of the Loan Parties or their Subsidiaries.



     Information shall mean all information received from the Loan Parties or any of their
Subsidiaries relating to the Loan Parties or any of such Subsidiaries or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or the Issuing Lender on a non-confidential basis prior to disclosure by the Loan Parties or
any of their Subsidiaries, provided that, in the case of information received from the Loan
Parties or any of their Subsidiaries after the date of this Agreement, such information is clearly
identified at the time of delivery as confidential.



     Insolvency Proceeding shall mean, with respect to any Person: (a) a case, action or
proceeding with respect to such Person (i) before any court or any other Official Body under any
bankruptcy, insolvency, reorganization or other similar Law now or hereafter in effect, or (ii) 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 (b) 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 Subordination Agreement shall mean a Subordination Agreement among the
Loan Parties in the form attached hereto as Exhibit 1.1(I).



     Interest Rate Option shall mean any LIBOR Rate Option or Alternative Base Rate Option.



     IRS shall mean the Internal Revenue Service.



     Issuing Lender means Citizens Bank, in its individual capacity as issuer of Letters of
Credit hereunder or any other Lender that the Administrative Agent designates if requested by the
Borrower or if otherwise required.



     Joint Venture shall mean a corporation, partnership, limited liability company or
other entities in which any Person other than the Loan Parties and their Subsidiaries holds,
directly or indirectly, an equity interest.



     Law shall mean 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 by or settlement agreement with any Official
Body.



     Lenders shall mean the financial institutions named on Schedule 1.1(B) or who
enter this agreement via an Assignment and Assumption and their respective successors and assigns
as permitted hereunder, each of which is referred to herein as a Lender. For the purpose of any
Loan Document which provides for the granting of a security interest or other Lien to the



8









 







Lenders or to the Administrative Agent for the benefit of the Lenders as security for the
Obligations, “Lenders” shall include any Affiliate of a Lender to which such Obligation is owed.



     Letter of Credit shall have the meaning specified in Section 2.9(a) [Issuance of
Letters of Credit].



     Letter of Credit Borrowing shall have the meaning specified in Section 2.9(c)
[Disbursements, Reimbursement].



     Letter of Credit Fee shall have the meaning specified in Section 2.9(b) [Letter of
Credit Fees].



     Letter of Credit Obligation means, as of any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit on such date (if any Letter of
Credit shall increase in amount automatically in the future, such aggregate amount available to be
drawn shall currently give effect to any such future increase) plus the aggregate
Reimbursement Obligations and Letter of Credit Borrowings on such date.



     Letter of Credit Sublimit shall have the meaning specified in Section 2.9 [Letter of
Credit Subfacility].



     Leverage Ratio shall mean, as of the end of any date of determination, the ratio of
(A) consolidated Indebtedness of Borrower and its Subsidiaries on such date to (B) Consolidated
EBITDA (i) for the four fiscal quarters then ending if such date is a fiscal quarter end or (ii)
for the four fiscal quarters most recently ended if such date is not a fiscal quarter end.



     LIBOR Interest Period means, relative to any LIBOR Rate Loan:



     (i) initially, the period beginning on (and including) the date on which such LIBOR Rate Loan
is made or continued as, or converted into, a LIBOR Rate Loan pursuant to Section 2.5(a) [Revolving
Credit Loan Requests] and ending on (but excluding) the day which numerically corresponds to such
date one, two, three, six or, if available to all Lenders, twelve months thereafter (or, if such
month has no numerically corresponding day, on the last Business Day of such month), in each case
as the Borrower may select in its notice pursuant to Section 2.5(a) [Revolving Credit Loan
Requests]; and



     (ii) thereafter, each period commencing on the last day of the next preceding LIBOR Interest
Period applicable to such LIBOR Rate Loan and ending one, two, three, six or, if available to all
Lenders, twelve months thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent pursuant to Section 2.5(a) [Revolving Credit Loan Requests] hereof;



     provided, however, that



     (a) LIBOR Interest Periods commencing on the same date for LIBOR Rate Loans comprising part of
the same advance under this agreement shall be of the same duration;



9









 





     (b) LIBOR Interest Periods for LIBOR Rate Loans in connection with which the Borrower has or
may incur Hedging Obligations with any Lender shall be of the same duration as the relevant periods
set under the applicable Hedging Contracts;



     (c) if such LIBOR Interest Period would otherwise end on a day which is not a Business Day,
such LIBOR Interest Period shall end on the next following Business Day unless such day falls in
the next calendar month, in which case such LIBOR Interest Period shall end on the first preceding
Business Day;



     (d) no LIBOR Interest Period may end later than the termination of this agreement.



     Such LIBOR Interest Period shall commence on the effective date of such Interest Rate Option,
which shall be (i) the Borrowing Date if the Borrower is requesting new Loans, or (ii) the date of
renewal of or conversion to the LIBOR Rate Option if the Borrower is renewing or converting to the
LIBOR Rate Option applicable to outstanding Loans. Notwithstanding the second sentence hereof: (A)
any LIBOR 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 LIBOR Interest Period shall end on the next preceding Business Day, and
(B) the Borrower shall not select, convert to or renew an LIBOR Interest Period for any portion of
the Loans that would end after the Expiration Date.



     LIBOR Rate means, relative to any LIBOR Interest Period, the offered rate for deposits
of U.S. Dollars in an amount approximately equal to the amount of the requested LIBOR Rate Loan for
a term coextensive with the designated LIBOR Interest Period which the British Bankers’ Association
fixes as its LIBOR rate as of 11:00 a.m. London time on the day which is two Business Days prior to
the beginning of such LIBOR Interest Period. If such day is not a Business Day, the LIBOR Rate
shall be determined on the next preceding day which is a Business Day. If for any reason the
Administrative Agent cannot determine such offered rate by the British Bankers’ Association, the
Administrative Agent may, in its discretion, select a replacement index based on the arithmetic
mean of the quotations, if any, of the interbank offered rate by first class banks in London or New
York for deposits in comparable amounts and maturities.



     LIBOR Rate Loan shall mean any Loan that bears interest under the LIBOR Rate
Option. 



     LIBOR Rate Option shall mean shall mean the option of the Borrower to have Loans bear
interest at the rate and under the terms set forth in Section 4.1(a)(i)(B) [Revolving Credit LIBOR
Rate Option].



     LIBOR Reserve Percentage means, relative to any day of any LIBOR Interest Period, the
maximum aggregate (without duplication) of the rates (expressed as a decimal fraction) of reserve
requirements (including all basic, emergency, supplemental, marginal and other reserves and taking
into account any transitional adjustments or other scheduled changes in reserve requirements) under
any regulations of the Board of Governors of the Federal Reserve System (the “Board”) or other
governmental authority having jurisdiction with respect thereto as issued from time to time and
then applicable to assets or liabilities consisting of “Eurocurrency



10









 







Liabilities”, as currently defined in Regulation D of the Board, having a term approximately
equal or comparable to such LIBOR Interest Period.



     Lien shall mean 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 shall mean this Agreement, the Administrative Agent’s Letter, the
Guaranty Agreement, the Intercompany Subordination Agreement, the Notes, the Patent, Trademark and
Copyright Assignment, the Pledge Agreement, the Security Agreement, and any other instruments,
certificates or documents including Hedging Contracts) delivered in connection herewith or
therewith.



     Loan Parties shall mean the Borrower and the Guarantors.



     Loan Request shall have the meaning specified in Section 2.5 [Revolving Credit Loan
Requests; Swing Loan Requests].



     Loans shall mean collectively and Loan shall mean separately all Revolving
Credit Loans and Swing Loans or any Revolving Credit Loan and Swing Loan.



     Maintenance Capital Expenditures shall mean an amount equal to $10,000,000 plus a
cumulative amount equal to three percent (3%) of the acquisition value of equipment acquired during
each fiscal quarter commencing with the fiscal quarter ending December 31, 2008.



     Material Adverse Change shall mean any set of circumstances or events which (a) 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, (b) is or could reasonably be expected
to be material and adverse to the business, properties, assets, financial condition, results of
operations or prospects of the Loan Parties taken as a whole, (c) 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 (d) impairs materially or could reasonably
be expected to impair materially the ability of the Administrative Agent or any of the Lenders, to
the extent permitted, to enforce their legal remedies pursuant to this Agreement or any other Loan
Document.



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



11









 





     Mortgage shall mean any mortgage or deed of trust in form and substance satisfactory
to the Administrative Agent executed by a Loan Party and delivered to the Administrative Agent for
the benefit of the Lenders, pursuant to Section 8.1(j) of this Agreement.



     Multiemployer Plan shall mean 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.



     New Lender shall have the meaning assigned to that term in Section 2.11 [Increase in
Revolving Credit Commitments].



     Non-Complying Lender shall mean any Lender which has failed to fund any Loan which it
is required to fund, or pay any other amount which it is required to pay to the Administrative
Agent or any other Lender, within one day of the due date therefor.



     Non-Consenting Lender shall have the meaning specified in Section 11.1 [Modifications,
Amendments or Waivers].



     Non-Perfected Collateral shall mean any individual titled vehicle or equipment having
an acquisition value less than $100,000 on the Closing Date or the date of acquisition by such Loan
Party.



     Notes shall mean, collectively, the promissory notes in the form of Exhibit
1.1(N)(1) evidencing the Revolving Credit Loans and in the form of Exhibit 1.1(N)(2)
evidencing the Swing Loan.



     Notices shall have the meaning specified in Section 11.5 [Notices; Effectiveness;
Electronic Communication].



     Obligation shall mean any obligation or liability of any of the Loan Parties,
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 (i) this Agreement, the
Notes, the Letters of Credit, the Administrative Agent’s Letter or any other Loan Document whether
to the Administrative Agent, any of the Lenders or their Affiliates or other persons provided for
under such Loan Documents, (ii) any Hedging Contract and (iii) any Other Lender Provided Financial
Service Product.



     Official Body shall mean the government of the United States of America or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



     Other Lender Provided Financial Service Product shall mean agreements or other
arrangements under which any Lender or Affiliate of a Lender provides any of the following products
or services to any of the Loan Parties: (a) credit cards, (b) credit card processing



12









 







services, (c) debit cards, (d) purchase cards, (e) ACH Transactions, (f) cash management,
including controlled disbursement, accounts or services, or (g) foreign currency exchange.



     Other Taxes shall mean 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.



     Participant has the meaning specified in Section 11.8(d) [Participations].



     Participation Advance shall have the meaning specified in Section 2.9(c)
[Disbursements, Reimbursement].



     Patent, Trademark and Copyright Assignment shall mean the Patent, Trademark and
Copyright Collateral Assignment in substantially the form of Exhibit 1.1(P)(1) executed and
delivered by each of the Loan Parties to the Administrative Agent for the benefit of the Lenders.



     Payment Date shall mean the last day of each March, June, September and December after
the date hereof and on the Expiration Date or upon acceleration of the Notes.



     Payment In Full shall mean payment in full in cash of the Loans and other Obligations
hereunder, termination of the Commitments and expiration or termination of all Letters of Credit.



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



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



     Permitted Acquisitions shall have the meaning assigned to such term in Section 8.2(f)
[Liquidations, Mergers, Consolidations, Acquisitions].



     Permitted Investments shall mean:



     (i) direct obligations of the United States of America or any agency or instrumentality
thereof or obligations backed by the full faith and credit of the United States of America maturing
in twelve (12) months or less from the date of acquisition;



     (ii) commercial paper maturing in 180 days or less rated not lower than A-1, by Standard &
Poor’s or P-1 by Moody’s Investors Service, Inc. on the date of acquisition;



     (iii) demand deposits, time deposits or certificates of deposit maturing within one year in
commercial banks whose obligations are rated A-1, A or the equivalent or better by Standard &
Poor’s on the date of acquisition; and



13









 





     (iv) money market or mutual funds whose investments are limited to those types of investments
described in clauses (i)-(iii) above.



     Permitted Liens shall mean:



     (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;



     (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 or other similar bonds required in the ordinary course of
business;



     (v) Encumbrances consisting of zoning restrictions, easements or other restrictions on the use
of real property, none of which materially impairs the use of such property or the value thereof,
and 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 Administrative Agent for the
benefit of the Lenders and their Affiliates securing the Obligations including Other Lender
Provided Financial Services Obligations and Hedging Obligations;



     (vii) Liens on property leased by any Loan Party or Subsidiary of a Loan Party under capital
and operating leases permitted hereunder securing obligations of such Loan Party or Subsidiary to
the lessor under such leases;



     (viii) Liens issued in connection with Section 8.2(a)(vii);



     (ix) Any Lien existing on the date of this Agreement and described on Schedule
1.1(P),or any other Lien that may arise in connection with a Permitted Refinancing;



     (x) Purchase Money Security Interests; provided that the aggregate amount of loans,
capital leases and deferred payments secured by such Purchase Money Security Interests shall not
exceed $10,000,000 (excluding for the purpose of this computation any loans or deferred payments
secured by Liens described on Schedule 1.1(P));



     (xi) Liens arising solely by virtue of any statutory or common law provision relating to the
Administrative Agent’s liens, rights of set-off or similar rights and remedies as to deposit



14









 







accounts or other funds maintained with a creditor depository institution; provided
that (A) such deposit account is not a dedicated cash collateral account and is not subject to
restrictions against access by the Loan Parties in excess of those set forth by regulations
promulgated by the Board of Governors of the Federal Reserve System, and (B) such deposit account
is not intended by the Loan Parties to provide collateral to the depository institution;



     (xii) Precautionary Liens filed by any lessor under any operating leases not prohibited under
this Agreement; and



     (xiii) 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 has not been entered and such
judgment continues unsatisfied and is not discharged within thirty (30) days after entry, and in
either case they do not affect the Collateral or, in the aggregate, materially impair the ability
of any Loan Party to perform its Obligations hereunder or under the other Loan Documents:




     (1) 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;




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




     (3) Claims or Liens of mechanics, materialmen, warehousemen, carriers, or other
statutory nonconsensual Liens; or




     (4) Liens resulting from final judgments or orders described in Section 9.1(f)
[Final Judgments or Orders].



     Permitted Refinancing shall mean the refinancing, extension or renewal of any existing
Indebtedness that is set forth on Schedule 8.2(a) so long as such refinancing does not (i)
increase the principal amount of such Indebtedness; (ii) increase the secured amount of such
Indebtedness; (iii) include any additional assets as collateral for such Indebtedness; and (iv)
does not otherwise provide for any other significant change to the terms of such Indebtedness.



     Person shall mean 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 shall mean 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 Code and either (i) is maintained by any
member of the ERISA Group for employees of any member of the ERISA



15









 







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 shall mean the Pledge Agreement in substantially the form of
Exhibit 1.1(P)(2) executed and delivered by each of the Loan Parties to the Administrative
Agent for the benefit of the Lenders.



     Potential Default shall mean any event or condition which with notice or passage of
time, or both, would constitute an Event of Default.



     Prime Rate shall mean a rate per annum equal to the rate of interest announced by
Administrative Agent from time to time as its “Prime Rate.” Any change in the Prime Rate shall be
effective immediately from and after such change in the Prime Rate. Interest accruing by reference
to the Prime Rate shall be calculated the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed. The Borrower acknowledges that the Administrative Agent may make loans to
its customers above, at or below the Prime Rate.



     Prime Rate Loan means any loan for the period(s) when the rate of interest applicable
to such Loan is calculated by reference to the Prime Rate.



     Principal Office shall mean the main office designated as such in writing by the
Administrative Agent.



     Prior Security Interest shall mean a valid and enforceable perfected first-priority
security interest under the Uniform Commercial Code in the Collateral which is subject only to
statutory Liens for taxes not yet due and payable or Purchase Money Security Interests; provided
however that the Lenders acknowledge that the security interest granted to Lenders by the Loan
Parties on the Non-Perfected Collateral shall not be perfected.



     Purchase Money Security Interest shall mean Liens upon tangible personal property
securing loans or capital leases 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.



     Ratable Share shall mean the proportion that a Lender’s Commitment (excluding the
Swing Loan Commitment) bears to the Commitments (excluding the Swing Loan Commitment) of all of the
Lenders. If the Commitments have terminated or expired, the Ratable Shares shall be determined
based upon the Commitments (excluding the Swing Loan Commitment) most recently in effect, giving
effect to any assignments.



     Reimbursement Obligation shall have the meaning specified in Section 2.9(c)
[Disbursements, Reimbursement].



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



16









 





     Relief Proceeding shall mean any proceeding seeking a decree or order for relief in
respect of any Loan Party or Subsidiary of a Loan Party in a voluntary or 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 Subsidiary of a Loan Party for
any substantial part of its property, or for the winding-up or liquidation of its affairs, or an
assignment for the benefit of its creditors.



     Required Lenders shall mean



     (i) if there are no Loans, Reimbursement Obligations or Letter of Credit Borrowings
outstanding, Complying Lenders whose Commitments (excluding the Swing Loan Commitments) aggregate
at least 51% of the Commitments (excluding the Swing Loan Commitments) of all of the Complying
Lenders, or



     (ii) if there are Loans, Reimbursement Obligations, or Letter of Credit Borrowings
outstanding, any group of Complying Lenders if the sum of the Loans (excluding the Swing Loans),
Reimbursement Obligations and Letter of Credit Borrowings of such Lenders then outstanding
aggregates at least 51% of the total principal amount of all of the Loans (excluding the Swing
Loans), Reimbursement Obligations and Letter of Credit Borrowings of all of the Complying Lenders
then outstanding.



     Required Share shall have the meaning assigned to such term in Section 5.11
[Settlement Date Procedures].



     Revolving Credit Commitment shall mean, as to any Lender at any time, the amount
initially set forth opposite its name on Schedule 1.1(B) in the column labeled “
Commitment” as such Commitment is thereafter assigned or modified and Revolving Credit
Commitments shall mean the aggregate Commitments of all of the Lenders.



     Revolving Credit Loans shall mean collectively and Revolving Credit Loan shall
mean 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 2.9.3
[Disbursements, Reimbursement].



     Revolving Facility Usage shall mean at any time the sum of the outstanding Revolving
Credit Loans and the Letter of Credit Obligations.



     Security Agreement shall mean the Security Agreement in substantially the form of
Exhibit 1.1(S) executed and delivered by each of the Loan Parties to the Administrative
Agent for the benefit of the Lenders.



     Security Documents shall mean the Security Agreement, the Pledge Agreement and all
other documents, instruments, and agreements sufficient to provide the Administrative Agent for the
benefit of the Lenders with a first priority perfected Lien, subject only to Permitted Liens, on
the Collateral; provided however that the Lenders acknowledge that the security interest granted to
Lenders by the Loan Parties on the Non-Perfected Collateral shall not be perfected.



17









 





     Settlement Date shall mean such day upon which the Administrative Agent elects to
effect settlement pursuant to Section 5.11 [Settlement Date Procedures].



     Solvent shall mean, 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 realize upon its assets and 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 shall mean Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc.



     Statements shall have the meaning specified in Section 6.1(f)(i) [Historical
Statements].



     Subsidiary of any Person at any time shall mean any corporation, trust, partnership,
any limited liability company or other business entity (i) of which 50% or more of the outstanding
voting securities or other interests 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, or (ii) which is controlled or capable of being controlled by such Person or one or
more of such Person’s Subsidiaries.



     Subsidiary Equity Interests shall have the meaning specified in Section 6.1(b)
[Subsidiaries and Owners; Investment Companies].



     Swing Loan Commitment shall mean Citizens Bank’s commitment to make Swing Loans to the
Borrower pursuant to Section 2.1(b) [Swing Loan Commitment] hereof in an aggregate principal amount
up to $15,000,000.



     Swing Loan Note shall mean the Swing Loan Note of the Borrower in the form of
Exhibit 1.1(N)(2) evidencing the Swing Loans, together with all amendments, extensions,
renewals, replacements, refinancings or refundings thereof in whole or in part.



     Swing Loan Request shall mean a request for Swing Loans made in accordance with
Section 2.5(b) [Swing Loan Requests] hereof.



18









 





     Swing Loans shall mean collectively and Swing Loan shall mean separately all
Swing Loans or any Swing Loan made by Citizens Bank to the Borrower pursuant to Section 2.1(b)
[Swing Loan Commitment] hereof.



     Taxes shall mean 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.



     USA Patriot Act shall mean 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.




	 	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: (a) references to
the plural include the singular, the plural, the part and the whole and the words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”; (b)
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; (c) article,
section, subsection, clause, schedule and exhibit references are to this Agreement or other Loan
Document, as the case may be, unless otherwise specified; (d) reference to any Person includes such
Person’s successors and assigns; (e) 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; (f) 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”;
(g) the words “asset” and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights, (h) section headings herein and in each other Loan Document are
included for convenience and shall not affect the interpretation of this Agreement or such Loan
Document, and (i) unless otherwise specified, all references herein to times of day shall be
references to Eastern Standard Time.




	 	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 Statements
referred to in Section 6.1(f)(i) [Historical Statements]. In the event of any change after the
date hereof in GAAP, and if such change would affect the computation of any of the financial
covenants set forth in Section 8.2 [Negative Covenants], then



19









 







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 preserve the original
intent thereof, but would allow compliance therewith to be determined in accordance with the
Borrower’s financial statements at that time, provided that, until so amended such financial
covenants shall continue to be computed in accordance with GAAP prior to such change therein.



2. REVOLVING CREDIT AND SWING LOAN FACILITIES





	 	2.1	 	Revolving Credit Commitments.





     (a) 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 to the Borrower at any time or from time to time on or after the date hereof
to the Expiration Date; provided that after giving effect to such Loan: (i) the aggregate amount of
Loans from such Lender shall not exceed such Lender’s Revolving Credit Commitment minus such
Lender’s Ratable Share of the Letter of Credit Obligations and (ii) the Revolving Facility Usage
plus the outstanding Swing Loans shall not exceed the Revolving Credit Commitments. 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.



     (b) Swing Loan Commitment. 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, Citizens Bank may, at its option, cancelable at any time for
any reason whatsoever, make swing loans (the “Swing Loans”) to the Borrower at any time or from
time to time after the date hereof to, but not including, the Expiration Date, in an aggregate
principal amount up to but not in excess of $15,000,000 (the “Swing Loan Commitment”), provided
that the aggregate principal amount of Citizens Bank’s Swing Loans and the Revolving Credit Loans
of all the Lenders at any one time outstanding 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(b).




	 	2.2	 	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 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 Letter of Credit Obligations. The obligations of each Lender hereunder are several. 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.



20









 






	 	2.3	 	Commitment Fees.





     Accruing from the date hereof until the Expiration Date, the Borrower agrees to pay to the
Administrative Agent for the account of each Lender according to its Ratable Share, a nonrefundable
commitment fee (the “Commitment Fee”) equal to the Applicable Commitment Fee Rate (computed on the
basis of a year of 360 days, as the case may be, and actual days elapsed) times the average daily
difference between the amount of (i) the Revolving Credit Commitments (for purposes of this
computation, Citizens Bank’s Swing Loans shall be deemed to be borrowed amounts under its Revolving
Credit Commitment) and the (ii) the Revolving Facility Usage. All Commitment Fees shall be payable
in arrears on each Payment Date.




	 	2.4	 	Intentionally Omitted.






	 	2.5	 	Revolving Credit Loan Requests; Swing Loan Requests.





     (a) 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 Administrative Agent, not later
than 10:00 a.m.: (i) at least three (3) Business Days prior to the proposed Borrowing Date with
respect to the making of Revolving Credit Loans to which the LIBOR Rate Option applies or the
conversion to or the renewal of the LIBOR Rate Option for any Loans; and (ii) the same Business Day
to either the proposed Borrowing Date with respect to the making of a Revolving Credit Loan to
which the Alternative Base Rate Option applies or the last day of the preceding LIBOR Interest
Period with respect to the conversion to the Alternative Base Rate Option for any Loan, of a duly
completed request therefor substantially in the form of Exhibit 2.5(a) or a request by
telephone immediately confirmed in writing by hand delivered letter, email, pdf or facsimile or
telex in such form (each, a “Loan Request”), it being understood that the Administrative Agent may
rely on the authority of any individual making such a telephonic request without the necessity of
receipt of such written confirmation. Each Loan Request shall be irrevocable and shall specify the
aggregate amount of the proposed Loans comprising each Borrowing Tranche, and, if applicable, the
LIBOR Interest Period, which amounts shall be in integral multiples of $1,000,000 and not less than
$3,000,000 for each Borrowing Tranche under the LIBOR Rate Option and not less than the lesser of
$3,000,000 or the maximum amount available for Borrowing Tranches under the Alternative Base Rate
Option.



     (b) Swing Loan Requests. Except as otherwise provided herein, the Borrower may from
time to time prior to the Expiration Date request Citizens Bank to make Swing Loans by delivery to
Citizens Bank not later than 1:00 o’clock p.m. New York City time on the proposed Borrowing Date of
a duly completed request therefor substantially in the form of Exhibit 2.5(b) hereto or a
request by telephone immediately confirmed in writing by letter, facsimile or telex (each, a “Swing
Loan Request”), it being understood that the Administrative Agent may rely on the authority of any
individual making such a telephonic request without the necessity of receipt of such written
confirmation. 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 not less than
$1,000,000; provided however, such amount may be less if such Swing Loan is provided via Citizen
Bank’s automated cash sweep service.




21











 






	 	2.6	 	Making Revolving Credit Loans and Swing Loans; Presumptions by the
Administrative Agent; Repayment of Revolving Credit Loans; Borrowings to Repay Swing
Loans.





     (a) Making Revolving Credit Loans. The Administrative 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 the information
provided by the Borrower and the apportionment among the Lenders of the requested Revolving Credit
Loans as determined by the Administrative Agent in accordance with Section 2.2 [Nature of Lenders’
Obligations with Respect to Revolving Credit Loans]. Each Lender shall remit the principal amount
of each Revolving Credit Loan to the Administrative Agent such that the Administrative Agent is
able to, and the Administrative Agent shall, to the extent the Lenders have made funds available to
it for such purpose and subject to Section 7.2 [Each Loan or Letter of Credit], fund such Revolving
Credit Loans to the Borrower in U.S. Dollars and immediately available funds at the Principal
Office prior to 2:00 p.m., on the applicable Borrowing Date; provided that if any Lender fails to
remit such funds to the Administrative Agent in a timely manner, the Administrative 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 2.6(b)
[Presumptions by the Administrative Agent].



     (b) Presumptions by the Administrative Agent. Unless the Administrative Agent shall
have received notice from a Lender prior to the proposed date of any Loan that such Lender will not
make available to the Administrative Agent such Lender’s share of such Loan, the Administrative
Agent may assume that such Lender has made such share available on such date in accordance with
Section 2.6(a) [Making Revolving Credit Loans] and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Loan available to the Administrative Agent, then the applicable Lender
and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective
Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation and (ii) in the case of a payment to be made by the Borrower, the interest
rate applicable to Loans under the Alternative Base Rate Option. If such Lender pays its share of
the applicable Loan to the Administrative Agent, then the amount so paid shall constitute such
Lender’s Loan. Any payment by the Borrower shall be without prejudice to any claim the Borrower
may have against a Lender that shall have failed to make such payment to the Administrative Agent.



     (c) Making Swing Loans. So long as Citizens Bank elects to make Swing Loans, Citizens
Bank shall, after receipt by it of a Swing Loan Request pursuant to Section 2.5(b) [Swing Loan
Requests], fund such Swing Loan to the Borrower in U.S. Dollars and immediately available funds at
the Principal Office on the Borrowing Date.



     (d) Repayment of Revolving Credit Loans. The Borrower shall repay the Revolving
Credit Loans together with all outstanding interest thereon on the Expiration Date.



22









 





     (e) Borrowings to Repay Swing Loans. Citizens 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 Citizens 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 Alternative Base Rate Option and shall be deemed to
have been properly requested in accordance with Section 2.5(a) [Revolving Credit Loan Requests]
without regard to any of the requirements of that provision. Citizens Bank shall provide notice to
the Lenders (which may be telephonic or written notice by letter, facsimile or telex) that such
Revolving Credit Loans are to be made under this Section 2.6(e) 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(a) [Revolving Credit Loan Requests] are
then satisfied) by the time Citizens Bank so requests, which shall not be earlier than 3:00 p.m.
New York City time on the Business Day next after the date the Lenders receive such notice from
Citizens Bank.




	 	2.7	 	Notes.





     The Obligation of the Borrower to repay the aggregate unpaid principal amount of the Revolving
Credit Loans and Swing Loans made to it by each Lender, together with interest thereon, may, if
requested, be evidenced by a revolving credit Note and a swing Note, dated the Closing Date payable
to the order of such Lender in a face amount equal to the Revolving Credit Commitment and Swing
Loan Commitment, as applicable, of such Lender.




	 	2.8	 	Use of Proceeds.





     The proceeds of the Loans shall be used for working capital and general corporate purposes
including: (a) refinancing the Borrower’s Existing Credit Agreement and (b) financing Permitted
Acquisitions and the acquisition of all or substantially all of the assets of Diamondback.




	 	2.9	 	Letter of Credit Subfacility.





     (a) Issuance of Letters of Credit. On the Closing Date, the outstanding Letters of
Credit previously issued by Citizens Bank under the Existing Credit Agreement that are set forth on
Schedule 2.9 (the “Existing Letters of Credit”) will automatically, without any action on
the part of any Person, be deemed to be Letters of Credit issued hereunder for the account of the
Borrower for all purposes of this Agreement and the other Loan Documents. In addition, Borrower
may at any time prior to the Expiration Date request the issuance of a standby or trade letter of
credit (each a “Letter of Credit”) on behalf of itself or another Loan Party, or the amendment or
extension of an existing Letter of Credit, by delivering or having such other Loan Party deliver to
the Issuing Lender (with a copy to the Administrative Agent) a completed application and agreement
for letters of credit, or request for such amendment or extension, as applicable, in such form as
the Issuing Lender may specify from time to time by no later than 10:00 a.m. at least three (3)
Business Days, or such shorter period as may be agreed to by the Issuing Lender, in advance of the
proposed date of issuance. Promptly after receipt of any letter



23









 







of credit application, the Issuing Lender shall confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit
application and if not, such Issuing Lender will provide Administrative Agent with a copy thereof.
Unless the Issuing Lender has received notice from any lender, Administrative Agent or any Loan
party, at least one day prior to the requested date of issuance, amendment or extension of the
applicable Letter of Credit, that one or more applicable conditions in Section 7 [Conditions of
Lending and Issuance of Letters of Credit] is not satisfied, then, subject to the terms and
conditions hereof and in reliance on the agreements of the other Lenders set forth in this Section
2.9, the Issuing Lender or any of the Issuing Lender’s Affiliates will issue a Letter of Credit or
agree to such amendment or extension, provided that each Letter of Credit shall (i) have a maximum
maturity of twelve (12) months from the date of issuance, and (ii) in no event expire later than
three (3) Business Days prior to the Expiration Date and provided further that in no event shall
(A) the Letter of Credit Obligations exceed, at any one time, $25,000,000 (the “Letter of Credit
Sublimit”) or (B) the Revolving Facility Usage exceed, at any one time, the Revolving Credit
Commitments. Each request by the Borrower for the issuance, amendment or extension of a Letter of
Credit shall be deemed to be a representation by the Borrower that it shall be in compliance with
the preceding sentence and with Section 7 [Conditions of Lending and Issuance of Letters of Credit]
after giving effect to the requested issuance, amendment or extension of such Letter of Credit.
Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to the
beneficiary thereof, the applicable Issuing Lender will also deliver to Borrower and Administrative
Agent a true and complete copy of such Letter of Credit or amendment.



     (b) Letter of Credit Fees. The Borrower shall pay (i) to the Administrative Agent for
the ratable account of the Lenders a fee (the “Letter of Credit Fee”) equal to the Applicable
Letter of Credit Fee Rate as in effect from time to time, and (ii) to the Issuing Lender for its
own account a fronting fee equal to 1/8% per annum (in each case computed on the basis of a year of
360 days and actual days elapsed), which fees shall be computed on the daily average Letter of
Credit Obligations and shall be payable quarterly in arrears on each Payment Date following
issuance of each Letter of Credit. The Borrower shall also pay to the Issuing Lender for the
Issuing Lender’s sole account the Issuing Lender’s then in effect customary fees and administrative
expenses payable with respect to the Letters of Credit as the Issuing Lender may generally charge
or incur from time to time in connection with the issuance, maintenance, amendment (if any),
assignment or transfer (if any), negotiation, and administration of Letters of Credit.



     (c) Disbursements, Reimbursement. 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 Issuing Lender a participation in such Letter of Credit (including the Existing
Letters 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.




     (i) In the event of any request for a drawing under a Letter of Credit by the
beneficiary or transferee thereof, the Issuing Lender will promptly notify the Borrower and
the Administrative Agent thereof. Provided that it shall have received such notice, the
Borrower shall reimburse (such obligation to reimburse the Issuing Lender shall



24









 







sometimes be referred to as a “Reimbursement Obligation”) the Issuing Lender prior to
12:00 noon, Pittsburgh time on each date that an amount is paid by the Issuing Lender under
any Letter of Credit (each such date, a “Drawing Date”) by paying to the Administrative
Agent for the account of the Issuing Lender an amount equal to the amount so paid by the
Issuing Lender. In the event the Borrower fails to reimburse the Issuing Lender (through
the Administrative Agent) for the full amount of any drawing under any Letter of Credit by
12:00 noon, Pittsburgh time, on the Drawing Date, the Administrative 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 under the Alternative 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] other than any notice requirements. Any notice
given by the Administrative Agent or Issuing Lender pursuant to this Section 2.9(c)(i) 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.




     (ii) Each Lender shall upon any notice pursuant to Section 2.9(c)(i) make available to
the Administrative Agent for the account of the Issuing Lender an amount in immediately
available funds equal to its Ratable Share of the amount of the drawing, whereupon the
participating Lenders shall (subject to Section 2.9(c) [Disbursement; Reimbursement]) each
be deemed to have made a Revolving Credit Loan under the Alternative Base Rate Option to the
Borrower in that amount. If any Lender so notified fails to make available to the
Administrative Agent for the account of the Issuing Lender the amount of such Lender’s
Ratable Share of such amount by no later than 2:00 p.m., Pittsburgh time on the Drawing
Date, then interest shall accrue on such Lender’s obligation to make such payment, from the
Drawing Date to the date on which such Lender makes such payment (A) at a rate per annum
equal to the Federal Funds Effective Rate during the first three (3) days following the
Drawing Date and (B) at a rate per annum equal to the rate applicable to Loans under the
Revolving Credit Alternative Base Rate Option on and after the fourth day following the
Drawing Date. The Administrative Agent and the Issuing Lender will promptly give notice (as
described in section (i) above) of the occurrence of the Drawing Date, but failure of the
Administrative Agent or the Issuing Lender 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 (ii).




     (iii) With respect to any unreimbursed drawing that is not converted into Revolving
Credit Loans under the Alternative Base Rate Option to the Borrower in whole or in part as
contemplated by Section 2.9(c)(i), because of the Borrower’s failure to satisfy the
conditions set forth in Section 7.2 [Each Additional Loan] other than any notice
requirements, or for any other reason, the Borrower shall be deemed to have incurred from
the Issuing Lender a borrowing (each a “Letter of Credit Borrowing”) in the 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 Alternative Base Rate Option. Each Lender’s payment to the Administrative
Agent for the account of the Issuing Lender pursuant



25









 







under this Section 2.9(c) shall be deemed to be a payment in respect of its
participation in such Letter of Credit Borrowing (each a “Participation Advance”) from such
Lender in satisfaction of its participation obligation under this Section 2.9(c).



     (d) Repayment of Participation Advances.




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




     (ii) If the Administrative 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, any portion of any payment made by any Loan Party to the Administrative Agent
for the account of the Issuing Lender pursuant to this Section in reimbursement of a payment
made under the Letter of Credit or interest or fee thereon, each Lender shall, on demand of
the Administrative Agent, forthwith return to the Administrative Agent for the account of
the Issuing Lender the amount of its Ratable Share of any amounts so returned by the
Administrative Agent plus interest thereon from the date such demand is made to the date
such amounts are returned by such Lender to the Administrative Agent, at a rate per annum
equal to the Federal Funds Effective Rate in effect from time to time.



     (e) Documentation. Each Loan Party agrees to be bound by the terms of the Issuing
Lender’s application and agreement for letters of credit and the Issuing Lender’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, the Issuing Lender 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.



     (f) Determinations to Honor Drawing Requests. In determining whether to honor any
request for drawing under any Letter of Credit by the beneficiary thereof, the Issuing Lender 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.



     (g) Nature of Participation and Reimbursement Obligations. Each Lender’s obligation
in accordance with this Agreement to make the Revolving Credit Loans or



26









 







Participation Advances, as contemplated by Section 2.9(c) [Disbursements, Reimbursement], as a
result of a drawing under a Letter of Credit, and the Obligations of the Borrower to reimburse the
Issuing Lender upon a draw under a Letter of Credit, shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of this Section 2.9 under
all circumstances, including the following circumstances:




     (i) any set-off, counterclaim, recoupment, defense or other right which such Lender may
have against the Issuing Lender or any of its Affiliates, the Borrower or any other Person
for any reason whatsoever, or which any Loan Party may have against the Issuing Lender or
any of its Affiliates, any Lender 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 Sections 2.1 [Revolving Credit
Commitments], 2.5 [Revolving Credit Loan Requests], 2.6 [Making Revolving Credit Loans] or
7.2 [Each Additional Loan] 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 2.9(c) [Disbursements, Reimbursement];




     (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 Issuing Lender or its Affiliates or any Lender or any other
Person, 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 provision
of services relating to a Letter of Credit, in each case even if the Issuing Lender or any
of its Affiliates has been notified thereof;




     (vi) payment by the Issuing Lender 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;



27









 






     (vii) the solvency of, or any acts or 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;




     (viii) any failure by the Issuing Lender or any of its Affiliates to issue any Letter
of Credit in the form requested by any Loan Party, unless the Issuing Lender has received
written notice from such Loan Party of such failure within three Business Days after the
Issuing Lender shall have furnished such Loan Party and the Administrative Agent 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.



     (h) Indemnity. The Borrower hereby agrees to protect, indemnify, pay and save
harmless the Issuing Lender and any of its 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 Issuing Lender or any of its 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 or willful misconduct of the Issuing
Lender as determined by a final non-appealable judgment of a court of competent jurisdiction or
(ii) the wrongful dishonor by the Issuing Lender or any of Issuing Lender’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.



     (i) Liability for Acts and Omissions. As between any Loan Party and the Issuing
Lender, or the Issuing Lender’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 the foregoing, the Issuing Lender shall not be



28









 







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 Issuing
Lender or its 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 Issuing Lender or the its Affiliates, as applicable, including any act or
omission of any governmental authority, and none of the above shall affect or impair, or prevent
the vesting of, any of the Issuing Lender’s or its Affiliates rights or powers hereunder. Nothing
in the preceding sentence shall relieve the Issuing Lender from liability for the Issuing Lender’s
gross negligence or willful misconduct in connection with actions or omissions described in such
clauses (i) through (viii) of such sentence. In no event shall the Issuing Lender or its
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 Issuing Lender and each of its
Affiliates (A) may rely on any oral or other communication believed in good faith by the Issuing
Lender 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 Issuing Lender 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 Issuing Lender
or its 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



29









 







is the subject of 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
and subject to such limitations, any action taken or omitted by the Issuing Lender or its
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 Issuing
Lender or its Affiliates under any resulting liability to the Borrower or any Lender.



     (j) Issuing Lender Reporting Requirements. Each Issuing Lender shall, on the first
Business Day of each month, provide to Administrative Agent and Borrower a schedule of the Letters
of Credit issued by it, in form and substance satisfactory to Administrative Agent, showing the
date of issuance of each Letter of Credit, the account party, the original face amount (if any),
and the expiration date of any Letter of Credit outstanding at any time during the preceding month,
and any other information relating to such Letter of Credit that the Administrative Agent may
request.




	 	2.10	 	Reduction of Revolving Credit Commitment.





     The Borrower shall have the right at any time after the Closing Date upon five (5) days’ prior
written notice to the Administrative Agent to permanently reduce (ratably among the Lenders in
proportion to their Ratable Shares) the Revolving Credit Commitments, in a minimum amount of
$3,000,000 and whole multiples of $1,000,000, or to terminate completely the Revolving Credit
Commitments, without penalty or premium except as hereinafter set forth; provided that any such
reduction or termination shall be accompanied by prepayment of the Notes, together with outstanding
Commitment Fees, and the full amount of interest accrued on the principal sum to be prepaid (and
all amounts referred to in Section 5.10 [Indemnity] hereof) to the extent necessary to cause the
aggregate Revolving Facility Usage after giving effect to such prepayments to be equal to or less
than the Revolving Credit Commitments as so reduced or terminated. Any notice to reduce the
Revolving Credit Commitments under this Section 2.10 shall be irrevocable.




	 	2.11	 	Increase in Revolving Credit Commitments.





     (a) Increasing Lenders and New Lenders. The Borrower may request that (1) the current
Lenders increase their Revolving Credit Commitments (any current Lender which elects to increase
its Revolving Credit Commitment shall be referred to as an “Increasing Lender”) or (2) one or more
new lenders (each a “New Lender”) join this Agreement and provide a Revolving Credit Commitment
hereunder, subject to the following terms and conditions:




     (i) No Obligation to Increase. No current Lender shall be obligated to
increase its Revolving Credit Commitment and any increase in the Revolving Credit Commitment
by any current Lender shall be in the sole discretion of such current Lender.




     (ii) Defaults. There shall exist no Events of Default or Potential Default on
the effective date of such increase after giving effect to such increase.



30









 






     (iii) Aggregate Revolving Credit Commitments. After giving effect to such
increase, the total Revolving Credit Commitments shall not exceed $325,000,000.




     (iv) Minimum Revolving Credit Commitments. After giving effect to such
increase, the aggregate amount of the Revolving Credit Commitments provided by the Lenders
shall increase by no less than $25,000,000 and the amount of the Revolving Credit
Commitments provided by each of the New Lenders and each of the Increasing Lenders shall be
at least $5,000,000.




     (v) Resolutions; Opinion. The Loan Parties shall deliver to the Administrative
Agent on or before the effective date of such increase the following documents in a form
reasonably acceptable to the Administrative Agent: (1) certifications of their corporate
secretaries with attached resolutions certifying that the increase in the Revolving Credit
Commitment has been approved by such Loan Parties, and (2) an opinion of counsel addressed
to the Administrative Agent and the Lenders addressing the authorization and execution of
the Loan Documents by, and enforceability of the Loan Documents against, the Loan Parties.




     (vi) Notes. The Borrower shall execute and deliver (1) to each Increasing
Lender who so requests a replacement revolving credit Note reflecting the new amount of such
Increasing Lender’s Revolving Credit Commitment after giving effect to the increase (and any
prior Note issued to such Increasing Lender shall be deemed to be terminated) and (2) to
each New Lender who so requests a revolving credit Note reflecting the amount of such New
Lender’s Revolving Credit Commitment.




     (vii) Approval of New Lenders. Any New Lender shall be subject to the approval
of the Administrative Agent.




     (viii) Increasing Lenders. Each Increasing Lender shall confirm its agreement
to increase its Revolving Credit Commitment pursuant to an acknowledgement in a form
acceptable to the Administrative Agent, signed by it and the Borrower and delivered to the
Administrative Agent at least five (5) days before the effective date of such increase.




     (ix) New Lenders—Joinder. Each New Lender shall execute a lender joinder in
substantially the form of Exhibit 2.11 pursuant to which such New Lender shall join
and become a party to this Agreement and the other Loan Documents with a Revolving Credit
Commitment in the amount set forth in such lender joinder.



     (b) Treatment of Outstanding Loans and Letters of Credit. 




     (i) Repayment of Outstanding Loans; Borrowing of New Loans. On the effective
date of such increase, the Borrower shall repay all Loans then outstanding, subject to the
Borrower’s indemnity obligations under Section 5.10 [Indemnity]; provided that it
may borrow new Loans with a Borrowing Date on such date. Each of the Lenders shall
participate in any new Loans made on or after such date in accordance with their respective
Ratable Shares after giving effect to the increase in Revolving Credit Commitments
contemplated by this Section 2.11.



31









 






     (ii) Outstanding Letters of Credit. Repayment of Outstanding Loans; Borrowing of
New Loans. On the effective date of such increase, each Increasing Lender and each New
Lender (A) will be deemed to have purchased a participation in each then outstanding Letter
of Credit equal to its Ratable Share of such Letter of Credit and the participation of each
other Lender in such Letter of Credit shall be adjusted accordingly and (B) will acquire,
(and will pay to the Administrative Agent, for the account of each Lender, in immediately
available funds, an amount equal to) its Ratable Share of all outstanding Participation
Advances.



3. INTENTIONALLY OMITTED




4. INTEREST RATES





	 	4.1	 	Interest Rate Options.





     The Borrower shall pay interest in respect of the outstanding unpaid principal amount of the
Loans as selected by it from the Alternative Base Rate Option or LIBOR 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 LIBOR 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 if an Event of
Default or Potential Default exits and is continuing, the Borrower may not request, convert to, or
renew the LIBOR Rate Option for any Loans and the Required Lenders may demand that all existing
Borrowing Tranches bearing interest under the LIBOR Rate Option shall be converted immediately to
the Alternative Base Rate Option, subject to the obligation of the Borrower to pay any indemnity
under Section 5.10 [Indemnity] in connection with such conversion. 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.



     (a) Revolving Credit Interest Rate Options; Swing Line Interest Rate.




     (i) Revolving Credit Interest Rates. The Borrower shall have the right to
select from the following Interest Rate Options applicable to the Revolving Credit Loans:




     (A) Revolving Credit Alternative Base Rate Option. A fluctuating rate
per annum (computed on (1) the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed if the Alternative Base Rate is based on the Prime Rate
or (2) the basis of a year of 360 days and actual days elapsed if the Alternative
Base Rate is based on the Federal Funds Effective Rate) equal to the Alternative
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
Alternative Base Rate; or



32









 






     (B) Revolving Credit LIBOR Rate Option: A rate per annum (computed on
the basis of a year of 360 days and actual days elapsed) equal to the LIBOR Rate
plus the Applicable Margin.




     (ii) Swing Loan Interest Rate. The Swing Loans shall bear interest at a
fluctuating rate per annum (computed on the basis of a year of 360 days and actual days
elapsed) equal to the Alternative Base Rate as in effect from time to time.



     (b) Rate Quotations. The Borrower may call the Administrative Agent on or before the
date on which a Loan Request is to be delivered to receive an indication of the rates then in
effect, but it is acknowledged that such projection shall not be binding on the Administrative
Agent or the Lenders nor affect the rate of interest which thereafter is 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 LIBOR Rate Option, the
Borrower shall notify the Administrative Agent thereof at least three (3) Business Days prior to
the effective date of such LIBOR Rate Option by delivering a Loan Request. The notice shall
specify an LIBOR 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 LIBOR Rate Option:



     (a) Amount of Borrowing Tranche. Each Borrowing Tranche of Loans under the LIBOR Rate
Option shall be in integral multiples of $1,000,000 and not less than $3,000,000; and



     (b) Renewals. In the case of the renewal of a LIBOR Rate Option at the end of an
LIBOR Interest Period, the first day of the new LIBOR Interest Period shall be the last day of the
preceding LIBOR 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; provided, however, the
Administrative Agent shall provide notice to the Borrower of its intent to charge such increased
interest but such increased interest shall be retroactively applied to the date of the Event of
Default:



     (a) Letter of Credit Fees, Interest Rate. The Letter of Credit Fees and the rate of
interest for each Loan otherwise applicable pursuant to Section 2.9(b) [Letter of Credit Fees] or
Section 4.1 [Interest Rate Options], respectively, shall bear interest otherwise payable under the
Alternative Base Rate Option plus an additional 2.0% per annum;



     (b) 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
Revolving Credit Alternative Base Rate Option plus an additional 2.0% per annum from the time such
Obligation becomes due and payable and until it is paid in full; and



33









 





     (c) 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
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 on each
Payment Date.




	 	4.4	 	LIBOR Rate Unascertainable; Illegality; Increased Costs; Deposits Not
Available.





     (a) Unascertainable. If on any date on which a LIBOR Rate would otherwise be
determined, the Administrative Agent shall have determined that:




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




     (ii) a contingency has occurred which materially and adversely affects the London
interbank eurodollar market relating to the LIBOR Rate, the Administrative Agent shall have
the rights specified in Section 4.4(c) [Administrative Agent’s and Lender’s Rights].



     (b) 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 LIBOR Rate Option applies
has been made impracticable or unlawful by compliance by such Lender in good faith with any
Law or any interpretation or application thereof 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 LIBOR 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
for the relevant LIBOR Interest Period for a Loan, or to banks generally, to which a LIBOR
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 Administrative Agent shall have the rights specified in Section 4.4(c) [Administrative
Agent’s and Lender’s Rights].



     (c) Administrative Agent’s and Lender’s Rights. In the case of any event specified in
Section 4.4(a) [Unascertainable] above, the Administrative Agent shall promptly so notify the
Lenders and the Borrower thereof, and in the case of an event specified in Section 4.4(b)
[Illegality; Increased Costs; Deposits Not Available] above, such Lender shall promptly so notify
the Administrative Agent and endorse a certificate to such notice as to the specific circumstances
of such notice, and the Administrative 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



34









 







Lenders, in the case of such notice given by the Administrative 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 LIBOR Rate Option shall be suspended until the Administrative Agent shall have later notified the
Borrower, or such Lender shall have later notified the Administrative Agent, of the Administrative
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 Administrative Agent makes a
determination under Section 4.4(a) [Unascertainable] and the Borrower has previously notified the
Administrative Agent of its selection of, conversion to or renewal of a LIBOR Rate Option and such
Interest Rate Option has not yet gone into effect, such notification shall be deemed to provide for
selection of, conversion to or renewal of the Alternative Base Rate Option otherwise available with
respect to such Loans. If any Lender notifies the Administrative Agent of a determination under
Section 4.4(b) [Illegality; Increased Costs; Deposits Not Available], the Borrower shall, subject
to the Borrower’s indemnification Obligations under Section 5.10 [Indemnity], as to any Loan of the
Lender to which a LIBOR Rate Option applies, on the date specified in such notice either convert
such Loan to the Alternative Base Rate Option otherwise available with respect to such Loan or
prepay such Loan in accordance with Section 5.6 [Voluntary Prepayments]. Absent due notice from
the Borrower of conversion or prepayment, such Loan shall automatically be converted to the
Alternative 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 LIBOR Interest Period to apply to any Borrowing Tranche
of Loans under the LIBOR Rate Option at the expiration of an existing LIBOR 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 Revolving
Credit Alternative Base Rate Option, as applicable, commencing upon the last day of the existing
LIBOR Interest Period.



5. PAYMENTS





	 	5.1	 	Payments.





     All payments and prepayments to be made in respect of principal, interest, Commitment Fees,
Facility Fees, Letter of Credit Fees, Administrative Agent’s Fee or other fees or amounts due from
the Borrower hereunder shall be payable prior to 11:00 a.m. 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
therefor shall immediately accrue. Such payments shall be made to the Administrative Agent at the
Principal Office for the account of Citizens Bank with respect to the Swing Loans and for the
ratable accounts of the Lenders with respect to the Revolving Credit Loans in U.S. Dollars and in
immediately available funds, and the Administrative 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. by the Administrative Agent with respect to the Loans and such payments are not
distributed to the Lenders on the same day received by the Administrative Agent, the Administrative
Agent shall pay the Lenders the Federal Funds Effective Rate with respect to the amount of such
payments for each day held by the Administrative Agent and not



35









 







distributed to the Lenders. The Administrative 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 and shall be deemed an “account stated.”




	 	5.2	 	Pro Rata Treatment of Lenders.





     Each borrowing shall be allocated to each Lender according to its Ratable Share, and each
selection of, conversion to or renewal of any Interest Rate Option and each payment or prepayment
by the Borrower with respect to principal, interest, Commitment Fees, Facility Fees, Letter of
Credit Fees, or other fees (except for the Administrative Agent’s Fee) or amounts due from the
Borrower hereunder to the Lenders with respect to the Loans, shall (except as provided in Section
4.4(c) [Administrative Agent’s and Lender’s Rights] in the case of an event specified in Sections
4.4 [LIBOR Rate Unascertainable; Etc.], 5.6(b) [Replacement of a Lender] or 5.8 [Increased Costs;
Indemnity]) 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 Citizens Bank according to Section 2.6(e) [Borrowings to Repay Swing Loans].




	 	5.3	 	Sharing of Payments by Lenders.





     If any Lender shall, by exercising any right of setoff, counterclaim or banker’s lien, by
receipt of voluntary payment, by realization upon security, or by any other non-pro rata source,
obtain payment in respect of any principal of or interest on any of its Loans or other obligations
hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of
its Loans and accrued interest thereon or other such obligations greater than its Ratable Share
thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the
Loans and such other obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them, provided that:




     (i) if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, 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; and




     (ii) the provisions of this Section 5.3 shall not be construed to apply to (x) any
payment made by the Loan Parties pursuant to and in accordance with the express terms of the
Loan Documents or (y) any payment obtained by a Lender as consideration for the assignment
of or sale of a participation in any of its Loans or Participation Advances to any assignee
or participant, other than to the Borrower or any Subsidiary thereof (as to which the
provisions of this Section 5.3 shall apply).



36









 




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





	 	5.4	 	Presumptions by Administrative Agent.





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




	 	5.5	 	Interest Payment Dates.





     Interest on Loans to which the Alternative Base Rate Option applies shall be due and payable
in arrears on each Payment Date. Interest on Loans to which the LIBOR Rate Option applies shall be
due and payable on the last day of each LIBOR Interest Period for those Loans and, if such LIBOR
Interest Period is longer than three (3) Months, also on the 90th, 180th and 270th day, as
applicable, of such LIBOR Interest Period. Interest on the principal amount of each Loan or other
monetary Obligation shall be due and payable each Payment Date (whether on the stated Expiration
Date, upon acceleration or otherwise).




	 	5.6	 	Voluntary Prepayments.





     (a) 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
5.6(b) [Replacement of a Lender] below, in Section 5.8 [Increased Costs; Indemnity] and Section
5.10 [Indemnity]). Whenever the Borrower desires to prepay any part of the Loans, it shall provide
a prepayment notice to the Administrative Agent by 1:00 p.m. at least one (1) Business Day prior to
the date of prepayment of the Revolving Credit Loans, New York time, on the date of prepayment of
Swing Loans, setting forth the following information:




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




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



37









 






     (z) the total principal amount of such prepayment, which shall not be less than the
lesser of (i) the Facility Usage or (ii) $3,000,000, and in integral multiples of
$1,000,000.



     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 except with respect to
Loans to which the Alternative 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.
Except as provided in Section 4.4(c) [Administrative Agent’s and Lender’s Rights], if the Borrower
prepays a Loan but fails to specify the applicable Borrowing Tranche which the Borrower is
prepaying, the prepayment shall be applied first to Loans to which the Alternative Base Rate Option
applies, then to Loans to which the LIBOR Rate Option applies. Any prepayment hereunder shall be
subject to the Borrower’s Obligation to indemnify the Lenders under Section 5.10 [Indemnity].



     (b) Replacement of a Lender. In the event any Lender (i) gives notice under Section
4.4 [LIBOR Rate Unascertainable, Etc.], (ii) requests compensation under Section 5.8 [Increased
Costs], 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 5.9 [Taxes], (iii) is a Non-Complying Lender or
otherwise, (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 Administrative 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 11.8 [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:




     (A) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 11.8 [Successors and Assigns];




     (B) 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 5.10 [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);




     (C) in the case of any such assignment resulting from a claim for compensation under
Section 5.8(a) [Increased Costs Generally] or payments required to be made pursuant to
Section 5.9 [Taxes], such assignment will result in a reduction in such compensation or
payments thereafter; and




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



38









 




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.





	 	5.7	 	Intentionally Omitted.
	 
	 	5.8	 	Increased Costs.





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




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the LIBOR Rate) or the Issuing Lender;




     (ii) subject any Lender or the Issuing Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any Loan under the LIBOR Rate Option made by it, or change the basis of taxation of payments
to such Lender or the Issuing Lender in respect thereof (except for Indemnified Taxes or
Other Taxes covered by Section 5.9 [Taxes] and the imposition of, or any change in the rate
of, any Excluded Tax payable by such Lender or the Issuing Lender); or




     (iii) impose on any Lender, the Issuing Lender or the London interbank market any other
condition, cost or expense affecting this Agreement or Loan under the LIBOR 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 LIBOR Rate Option (or of maintaining its obligation to make any such
Loan), or to increase the cost to such Lender or the Issuing Lender 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 Issuing Lender hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender or the Issuing Lender and delivery to Borrower of a detailed calculation of
such cost, the Borrower will pay to such Lender or the Issuing Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Lender, as the case may
be, for such additional costs incurred or reduction suffered.




     (b) Capital Requirements. If any Lender or the Issuing Lender determines that any
Change in Law affecting such Lender or the Issuing Lender or any lending office of such Lender or
such Lender’s or the Issuing Lender’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 Issuing Lender’s
capital or on the capital of such Lender’s or the Issuing Lender’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
Issuing Lender, to a level below that which such Lender or the Issuing Lender or such Lender’s or
the Issuing Lender’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or the Issuing Lender’s policies and the policies of



39









 







such Lender’s or the Issuing Lender’s holding company with respect to capital adequacy), then
from time to time the Borrower will pay to such Lender or the Issuing Lender, as the case may be,
such additional amount or amounts as will compensate such Lender or the Issuing Lender or such
Lender’s or the Issuing Lender’s holding company for any such reduction suffered.



     (c) Certificates for Reimbursement; Repayment of Outstanding Loans; Borrowing of New
Loans. A certificate of a Lender or the Issuing Lender setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Lender or its holding company, as the case may
be, as specified in Sections 5.8(a) [Increased Costs Generally] or 5.8(b) [Capital Requirements]
and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the Issuing Lender, as the case may be, the amount shown as due on any such
certificate within ten (10) days after receipt thereof.



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




	 	5.9	 	Taxes.





     (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Borrower hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required by applicable Law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or Issuing 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.



     (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
Section 5.9(a) [Payments Free of Taxes] above, the Borrower shall timely pay any Other Taxes to the
relevant Official Body in accordance with applicable Law.



     (c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent, each Lender and the Issuing Lender, within ten (10) days after demand therefor, 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) paid by the Administrative
Agent, such Lender or the Issuing Lender, as the case may



40









 







be, and any penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Official Body. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or the Issuing Lender (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or
the Issuing Lender, shall be conclusive absent manifest error.



     (d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Official Body, the Borrower shall deliver to the
Administrative 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 Administrative Agent.



     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the Law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable Law or reasonably requested by
the Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable Law as will permit such payments to be made 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 Administrative 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
Administrative 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 Administrative Agent,
shall deliver such other documentation prescribed by applicable Law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to
determine whether or not such Lender is subject to backup withholding or information reporting
requirements.



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




     (i) duly completed copies of 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,



41









 






     (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.




	 	5.10	 	Indemnity.





     In addition to the compensation or payments required by Section 5.8 [Increased Costs]or
Section 5.9 [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 a LIBOR Rate Option) which such Lender sustains or
incurs as a consequence of any:



     (a) payment, prepayment, conversion or renewal of any Loan to which a LIBOR Rate Option
applies on a day other than the last day of the corresponding LIBOR 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),



     (b) 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 Requests; Swing Loan
Requests] or Section 4.2 [Interest Periods] or notice relating to prepayments under Section 5.6
[Voluntary Prepayments], or



     (c) 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.



     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.



42









 






	 	5.11	 	Settlement Date Procedures.





     In order to minimize the transfer of funds between the Lenders and the Administrative Agent,
the Borrower may borrow, repay and reborrow Swing Loans and Citizens Bank may make Swing Loans as
provided in Section 2.1(b) [Swing Loan Commitment] hereof during the period between Settlement
Dates. Not later than 11:00 a.m., New York time on each Settlement Date, the Administrative Agent
shall 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 2:00 p.m., Pittsburgh time, on such Settlement
Date, each Lender shall pay to the Administrative Agent the amount equal to the difference between
its Required Share and its Revolving Credit Loans, and the Administrative Agent shall pay to each
Lender its Ratable Share of all payments made by the Borrower to the Administrative Agent with
respect to the Revolving Credit Loans. The Administrative Agent shall also effect settlement in
accordance with the foregoing sentence on the proposed Borrowing Dates for Revolving Credit Loans
and may at its option 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
5.11 shall relieve the Lenders of their obligations to fund Revolving Credit Loans on dates other
than a Settlement Date pursuant to Section 2.1(b) [Swing Loan Commitment]. The Administrative
Agent may at any time at its option for any reason whatsoever require each Lender to pay
immediately to the Administrative Agent such Lender’s Ratable Share of the outstanding Revolving
Credit Loans and each Lender may at any time require the Administrative Agent to pay immediately to
such Lender its Ratable Share of all payments made by the borrower to the Administrative Agent with
respect to the Revolving Credit Loans.



6. REPRESENTATIONS AND WARRANTIES





	 	6.1	 	Representations and Warranties.





     The Loan Parties, jointly and severally, represent and warrant to the Administrative Agent and
each of the Lenders as follows:



     (a) Organization and Qualification; Power and Authority; Compliance With Laws; Title to
Properties; Event of Default. Each Loan Party and each Subsidiary of each Loan Party (i) is a
corporation, partnership or limited liability company duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, (ii) has the lawful power to own or
lease its properties and to engage in the business it presently conducts or proposes to conduct,
(iii) is duly licensed or qualified and in good standing in each jurisdiction listed on
Schedule 6.1(a) and in all other jurisdictions 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
if failure to be licensed or qualified in such jurisdiction could be expected to result in a
Material Adverse Change, (iv) 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 Loan Documents to which
it is a party, and all such actions have been duly authorized by all necessary proceedings on its
part, (v) is in compliance in all material respects with all applicable Laws (other than
Environmental Laws which are specifically addressed in Section 6.1(n) [Environmental Matters]) in
all jurisdictions in which any Loan Party or Subsidiary of any Loan Party is presently or will be



43









 







doing business except where the failure to do so would not constitute a Material Adverse
Change, and (vi) has good and marketable title to or valid leasehold interest in all properties,
assets and other rights which it purports to own or lease or which are reflected as owned or leased
on its books and records, free and clear of all Liens and encumbrances except Permitted Liens. No
Event of Default or Potential Default exists or is continuing.



     (b) Subsidiaries and Owners; Investment Companies. Schedule 6.1(b) states (i) the
name of each of the Borrower’s Subsidiaries, its jurisdiction of organization and the amount,
percentage and type of equity interests in such Subsidiary (the “Subsidiary Equity Interests”),
(ii) the name of each holder of an equity interest in the Borrower, the amount, percentage and type
of such equity interest (the “Borrower Equity Interests”), and (iii) any options, warrants or other
rights outstanding to purchase any such equity interests referred to in clause (i) or (iii)
(collectively the “Equity Interests”). The Borrower and each Subsidiary of the Borrower has good
and marketable title to all of the Subsidiary Equity Interests it purports to own, free and clear
in each case of any Lien (other than pursuant to the Pledge Agreement) and all such Subsidiary
Equity Interests been validly issued, fully paid and nonassessable. None of the Loan Parties or
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.”



     (c) Validity and Binding Effect. This Agreement and each of the other Loan Documents
(i) has been duly and validly executed and delivered by each Loan Party, and (ii) constitutes, or
will constitute, legal, valid and binding obligations of each Loan Party which is or will be a
party thereto, enforceable against such Loan Party in accordance with its terms.



     (d) No Conflict; Material Agreements; Consents. 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). There is no default under such material agreement
(referred to above) and none of the Loan Parties or their Subsidiaries is bound by any contractual
obligation, or subject to any restriction in any organization document, or any requirement of Law
which could result in a Material Adverse Change. 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.



     (e) 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



44









 







such Loan Party at law or in equity before any Official Body which individually or in the
aggregate may result in any Material Adverse Change. 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 may result in any Material Adverse Change.



     (f) Financial Statements.




     (i) Historical Statements. The Borrower has delivered to the Administrative
Agent copies of its audited consolidated year-end financial statements for and as of the end
of the three (3) fiscal years ended December 31, 2007. In addition, the Borrower has
delivered to the Administrative 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, 2008 (all such annual and interim statements being collectively referred to as the
“Statements”). The Statements were compiled from the books and records maintained by the
Borrower’s management, are correct and complete in all material respects and fairly
represent the consolidated financial condition of the Borrower and its Subsidiaries as of
the respective dates thereof and the results of operations for the fiscal periods then ended
and have been prepared in accordance with GAAP consistently applied, subject (in the case of
the interim statements) to normal year-end audit adjustments.




     (ii) Accuracy of Financial Statements. Neither the Borrower nor any Subsidiary
of the Borrower has any material liabilities, contingent or otherwise, or forward or
long-term commitments that are not disclosed in the Statements or in the notes thereto, and
except as disclosed therein there are no unrealized or anticipated losses from any
commitments of the Borrower or any Subsidiary of the Borrower which may cause a Material
Adverse Change. Since December 31, 2007, no Material Adverse Change has occurred.



     (g) 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, T or X as promulgated by the Board of
Governors of the Federal Reserve System). 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 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.



     (h) Full Disclosure. Neither this Agreement nor any other Loan Document, nor any
certificate, statement, agreement or other documents furnished to the Administrative Agent or any
Lender in connection herewith or therewith, 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; provided
that, with respect to any projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be reasonable at the



45









 







time. There is no fact known to any Loan Party which materially adversely affects the
business, property, assets, financial condition, results of operations or prospects of any Loan
Party or Subsidiary of any Loan Party which has not been set forth in this Agreement or in the
certificates, statements, agreements or other documents furnished in writing to the Administrative
Agent and the Lenders prior to or at the date hereof in connection with the transactions
contemplated hereby; provided that, with respect to any projected financial information,
the Borrower represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.



     (i) 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 material 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.



     (j) 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.



     (k) Liens in the Collateral. The Liens in the Collateral granted to the
Administrative Agent for the benefit of the Lenders pursuant to the Patent, Trademark and Copyright
Assignment, the Pledge Agreement, the Security Agreement delivered pursuant to Section 8.1(j)
hereof constitute and will continue to constitute first priority perfected Liens subject only to
Permitted Liens; provided however that the Lenders acknowledge that the security interest granted
to Lenders by the Loan Parties on the Non-Perfected Collateral shall not be perfected and provided
further that the Loan Parties shall cause the Administrative Agent’s lien to be noted on all
vehicle titles (other than those vehicles that constitute Non-Perfected Collateral) and shall cause
such vehicle titles to be delivered to the Administrative Agent within 120 days of the Closing
Date, which date may be extended by the Administrative Agent, such extension not unreasonably to be
denied if Borrower is diligently seeking to achieve such registration and in compliance with
Administrative Agent’s requests in connection therewith. All filing fees and other expenses in
connection with the perfection of such Liens have been or will be paid by the Borrower.



     (l) Insurance. The properties of each Loan Party and each of its Subsidiaries are
insured pursuant to policies and other bonds which are valid and in full force and effect and which
provide adequate coverage from reputable and financially sound insurers in amounts sufficient to
insure the assets and risks of each such Loan Party and Subsidiary in accordance with prudent
business practice in the industry of such Loan Parties and Subsidiaries.




46












 





     (m) ERISA Compliance. 




     (i) Each Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Code and other federal or state Laws. Each Plan that is intended to qualify
under Section 401(a) of the Code has received a favorable determination letter from the IRS
or an application for such a letter is currently being processed by the IRS with respect
thereto and, to the best knowledge of Borrower, nothing has occurred which would prevent, or
cause the loss of, such qualification. Borrower and each ERISA Affiliate have made all
required contributions to each Plan subject to Section 412 of the Code, and no application
for a funding waiver or an extension of any amortization period pursuant to Section 412 of
the Code has been made with respect to any Plan.




     (ii) No ERISA Event has occurred or is reasonably expected to occur; (A) no Pension
Plan has any unfunded pension liability (i.e. excess of benefit liabilities over the current
value of that Pension Plan’s assets, determined in accordance with the assumptions used for
funding the Pension Plan for the applicable plan year); (B) neither Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of
ERISA with respect to any Pension Plan (other than premiums due and not delinquent under
Section 4007 of ERISA); (C) neither Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability (and no event has occurred which, with the giving
of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (D) neither Borrower nor any
ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or
4212(c) of ERISA.



     (n) Environmental Matters. Each Loan Party is and, to the knowledge of each
respective Loan Party and each of its Subsidiaries is and has been in compliance with applicable
Environmental Laws except (i) where any non-compliance could not result in a Material Adverse
Change and the costs associated with any such non-compliance is less than $50,000 and (ii) as
disclosed on Schedule 6.1(n); provided that such matters so disclosed on Schedule
6.1(n) could not in the aggregate result in a Material Adverse Change.



     (o) Solvency. The Borrower is Solvent. After giving effect to the transactions
contemplated by the Loan Documents, including all Indebtedness incurred thereby, the Liens granted
by the Borrower in connection therewith and the payment of all fees related thereto, the Borrower
will be Solvent, determined as of the Closing Date.




	 	6.2	 	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
Administrative 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,



47









 







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 Issuing Lender to issue Letters of
Credit hereunder is subject to the performance by each of the Loan Parties of its Obligations to be
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.





     (a) Deliveries. On the Closing Date, the Administrative Agent shall have received
each of the following in form and substance satisfactory to the Administrative Agent:




     (i) A certificate of each of the Loan Parties signed by an Authorized Officer, dated
the Closing Date stating that the Loan Parties are in compliance with each of their
representations, warranties, covenants and conditions hereunder and no Event of Default or
Potential Default exists and no Material Adverse Change has occurred since the date of the
last audited financial statements of the Borrower delivered to the Administrative Agent;




     (ii) 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: (A) all action taken
by each Loan Party in connection with this Agreement and the other Loan Documents; (B) the
names of the Authorized Officers authorized to sign the Loan Documents and their true
signatures; and (C) copies of its organizational documents as in effect on the Closing Date
certified by the appropriate state official where such documents are filed in a state office
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 or qualified to
do business;




     (iii) This Agreement and each of the other Loan Documents signed by an Authorized
Officer and all appropriate financing statements and appropriate stock powers and
certificates evidencing the pledged Collateral;




     (iv) A written opinion of counsel for the Loan Parties, dated the Closing Date and as
to the matters set forth in Schedule 7.1(a);




     (v) Evidence that adequate insurance, including flood insurance if applicable, required
to be maintained under this Agreement is in full force and effect, with additional insured,
mortgagee and lender loss payable special endorsements attached thereto in form and
substance satisfactory to the Administrative Agent and its counsel naming the Administrative
Agent as additional insured, mortgagee and lender loss payee;




     (vi) A duly completed Compliance Certificate as of the last day of the fiscal quarter
of Borrower most recently ended prior to the Closing Date, signed by an



48









 







Authorized Officer of Borrower, demonstrating pro forma compliance with the financial
covenants contained in this Agreement;




     (vii) All material consents required to effectuate the transactions contemplated
hereby;




     (viii) Evidence that the Existing Credit Agreement has been terminated, and all
outstanding obligations thereunder have been paid and all Liens securing such obligations
and commitments have been released;




     (ix) A Lien search in acceptable scope and with acceptable results for each Loan Party;




     (x) Evidence of casualty and liability insurances for each of the Loan Parties,
together with mortgagee, lender loss payee and additional insured endorsement in favor of
the Lenders, all of which shall be acceptable to the Administrative Agent;




     (xi) The Chief Financial Officer of the Borrower shall have delivered a certificate in
form and substance satisfactory to the Administrative Agent as to the capital adequacy and
solvency of the Borrower and its Subsidiaries after giving effect to the transactions
contemplated hereby;




     (xii) Such other documents in connection with such transactions as the Administrative
Agent or said counsel may reasonably request.



     (b) Payment of Fees. The Borrower shall have paid all fees payable on or before the
Closing Date.




	 	7.2	 	Each Loan or Letter of Credit.





     At the time of making any Loans or issuing any Letters of Credit and after giving effect to
the proposed extensions of credit: the representations, warranties and covenants of the Loan
Parties shall then be true and no Event of Default or Potential Default shall have occurred and be
continuing; 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 Lenders; and the
Borrower shall have delivered to the Administrative Agent a duly executed and completed Loan
Request or to the Issuing Lender an application for a Letter of Credit, as the case may be.



8. COVENANTS




     The Loan Parties, jointly and severally, covenant and agree that until Payment in Full, the
Loan Parties shall comply at all times with the following covenants:




	 	8.1	 	Affirmative Covenants.





     (a) 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



49









 







its ownership or lease of property or the nature of its business makes such license or
qualification necessary, except (i) as otherwise expressly permitted in Section 8.2(f)
[Liquidations, Mergers, Etc.] or (ii) where failure to maintain such qualification or license would
not result in a Material Adverse Change.



     (b) 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 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.



     (c) 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, all as
reasonably determined by the Administrative Agent. The Loan Parties shall comply with the
covenants and provide the endorsement set forth on Schedule 8.1(c) relating to property and
related insurance policies covering the Collateral.



     (d) 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.



     (e) Visitation Rights. Each Loan Party shall, and shall cause each of its
Subsidiaries to, permit any of the officers or authorized employees or representatives of the
Administrative 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, provided that each Lender shall provide the Borrower and the Administrative
Agent with reasonable notice prior to any visit or inspection. 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 Administrative Agent.



     (f) 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



50









 







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.



     (g) Compliance with Laws; Use of Proceeds. Each Loan Party shall, and shall cause
each of its Subsidiaries to, comply with all applicable Laws, including all Environmental Laws, in
all respects; provided that it shall not be deemed to be a violation of this Section 8.1(g) if any
failure to comply with any Law would not in the aggregate constitute a Material Adverse Change.
The Loan Parties will use the Letters of Credit and the proceeds of the Loans only in accordance
with Section 2.8 [Use of Proceeds] and as permitted by applicable Law.



     (h) Further Assurances. Each Loan Party shall, from time to time, at its expense,
faithfully preserve and protect the Administrative Agent’s Lien on and Prior Security Interest in
the Collateral and all other real and personal property of the Loan Parties whether now owned or
hereafter acquired as a continuing first priority perfected Lien, subject only to Permitted Liens,
provided however that the Lenders acknowledge that the security interest granted to Lenders by the
Loan Parties on the Non-Perfected Collateral shall not be perfected, and shall do such other acts
and things as the Administrative 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 Collateral,
including, upon the request of the Administrative Agent, delivering executed landlord waivers to
the Administrative Agent, in form and substance satisfactory to Administrative Agent in its sole
discretion, for any of the Loan Party’s real property that is leased.



     (i) Anti-Terrorism Laws. None of the Loan Parties is or shall be: (i) a Person with
whom any Lender is restricted from doing business under Executive Order No. 13224 or any other
Anti-Terrorism Law, (ii) engaged in any business involved in making or receiving any contribution
of funds, goods or services to or for the benefit of such a Person or in any transaction that
evades or avoids, or has the purpose of evading or avoiding, the prohibitions set forth in any
Anti-Terrorism Law, or (iii) otherwise in violation of any Anti-Terrorism Law. The Loan Parties
shall provide to the Lenders any certifications or information that a Lender requests to confirm
compliance by the Loan Parties with Anti-Terrorism Laws.



     (j) Collateral and Additional Collateral; Execution and Delivery of Additional and
Ancillary Security Documents.




     (i) Pursuant to the Loan Documents, the Loan Parties shall grant, or cause to be
granted, to the Administrative Agent, for the benefit of the Lenders, a first priority
security interest in and lien on, subject only to Permitted Liens (A) all Collateral, and
(B) all other assets of the Loan Parties, whether owned on the Closing Date or subsequently
acquired; provided however that the Lenders acknowledge that the security interest granted
to Lenders by the Loan Parties on the Non-Perfected Collateral shall not be perfected;
provided, however, the Loan Parties shall cause the Administrative Agent’s
lien to be noted on all vehicle titles (other than those vehicles that constitute
Non-Perfected Collateral) and shall cause such vehicle titles to be delivered to the
Administrative Agent within 120 days of the Closing Date, which date may be extended by the
Administrative Agent, such extension not unreasonably to be denied if Borrower is



51









 







diligently seeking to achieve such registration and in compliance with Administrative
Agent’s requests in connection therewith;




     (ii) Without limiting the generality of the foregoing, each applicable Loan Party which
owns or leases any real property that is acquired after the Closing Date shall promptly
execute and deliver any and all Mortgages, an Indemnity Agreement , other Security Documents
and Ancillary Security Documents reasonably requested by the Agent to grant a first priority
Lien (subject only to Permitted Liens), in such Loan Party’s interest in such real property
in favor of the Administrative Agent, for the ratable benefit of the Lenders, as security
for the Obligations. In furtherance of the foregoing, the Loan Parties shall diligently
cooperate with and assist, at their own expense, the Administrative Agent in procuring any
and all Mortgages, an Indemnity Agreement, Security Documents and Ancillary Security
Documents. Each Loan Party hereby appoints any officer or agent of the Administrative Agent
as its true and lawful attorney, for it and in its name, place and stead, to make, execute,
deliver, and cause to be recorded or filed any or all such Mortgages, deeds of trust,
assignments, pledges, security interests, financing statements and additional documents and
agreements relating thereto, granting unto said attorney full power to do any and all things
said attorney may consider reasonably necessary or appropriate to be done with respect to
the Mortgages as fully and effectively as such Loan Party might or could do, and hereby
ratifying and confirming all its said attorney shall lawfully do or cause to be done by
virtue hereof. This power of attorney is coupled with an interest and shall be irrevocable
for the terms of this Agreement and all transactions hereunder. All costs and expenses
incurred by the Administrative Agent in connection with the exercise of the rights under
this Section shall be paid by the Loan Parties on demand of the Administrative Agent. The
Loan Parties, the Lenders and the Administrative Agent agree that without any further action
on the part of any of them, upon execution and/or delivery, the Mortgages, other Security
Documents and the Ancillary Security Documents shall become Loan Documents and the assets
that are subject to the Mortgages and the other Security Documents shall become collateral
for the Obligations. Upon request of the Administrative Agent after the occurrence of a
Potential Default or an Event of Default, the Loan Parties shall use commercially reasonable
efforts to obtain a landlord’s agreement, mortgage agreement or bailee letter, as
applicable, from the lessor of each lease property or mortgagee of owned property or with
respect to any warehouse, processor or other location where Collateral is located, which
agreement or letter shall contain a waiver of subordination of all Liens or claims that the
landlord, mortgagee or bailee may assert against the Collateral at that location, and shall
otherwise be satisfactory in form and substance to the Administrative Agent;




     (iii) The Loan Parties shall cause the Administrative Agent’s lien to be noted on all
vehicle titles acquired after the Closing Date (other than those vehicles that constitute
Non-Perfected Collateral) and shall cause such vehicle titles to be delivered to the
Administrative Agent cause all vehicle titles (other than those vehicles that constitute
Non-Perfected Collateral) to be delivered to the Administrative Agent promptly upon any Loan
Party acquiring such vehicle.



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	 	8.2	 	Negative Covenants.





     (a) 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(a) (including any
Permitted Refinancing thereof);




     (iii) Capitalized and operating leases as and to the extent permitted hereunder;




     (iv) Indebtedness secured by Purchase Money Security Interests; provided that
the aggregate amount of loans, capital leases and deferred payments secured by such Purchase
Money Security Interests shall not exceed $10,000,000 (excluding for the purpose of this
computation any loans or deferred payments secured by Liens described on Schedule
1.1(P));




     (v) Indebtedness of a Loan Party to another Loan Party which is subordinated pursuant
to the Intercompany Subordination Agreement;




     (vi) Any (i) Hedging Obligations or (ii) Indebtedness under any Other Lender Provided
Financial Services Product;




     (vii) Additional Indebtedness in an aggregate amount not to exceed $150,000,000,
provided that each of the following requirements is met:




     (A) such Indebtedness is incurred in connection with acquisition of all or
substantially all of the assets of Diamondback;




     (B) no Potential Default or Event of Default shall exist immediately prior to
and after giving effect to the issuance of such Indebtedness;




     (C) such Indebtedness shall have a maturity date at least six (6) months after
the Expiration Date;




     (D) such Indebtedness shall contain terms no more restrictive than those set
forth in this Agreement;




     (E) such Indebtedness shall be subordinated to the all Obligations and
Indebtedness under this Agreement and shall be on terms and conditions that are
reasonably satisfactory to the Administrative Agent; and




     (F) the Borrower shall deliver a certificate to the Administrative Agent
demonstrating pro forma compliance with all covenants before and after giving effect
to the issuance of such Indebtedness;




     (viii) Guarantees of any Indebtedness permitted under this Section 8.2(a); and



53









 






     (ix) Trade payable and accrued expenses incurred in the ordinary course of business
which are not represented by a promissory note or other evidence of indebtedness which are
more than ninety (90) days past due.



     (b) 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.



     (c) 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 Guaranties of Indebtedness of the Loan Parties permitted hereunder.



     (d) 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;




     (v) investments existing as of the Closing Date and as set forth on Schedule
8.2(d);




     (vi) investments or interests (debt or equity) received from Persons other than
Affiliates as a result of claims against any such Persons in any Relief Proceeding
pertaining to any such Person;




     (vii) extensions of credit in the nature of accounts receivable, goods receivable or
notes receivable arising from the sale or lease off goods or services or purchase of
supplies, equipment or other goods in the ordinary course of business;




     (viii) loans and investments as permitted under Section 8.2(f) [Liquidations, Mergers,
Consolidations, Acquisitions] of this Agreement;




     (ix) prepayments of inventory and supplies made in the ordinary course of business; and



54









 






     (x) loans and advances for travel and entertainment expenses, relocation costs and
similar purposes to officers and employees of the Loan Parties, all of which are incurred in
the ordinary course of business, up to a maximum of $100,000 to any officer or employee at
any one time outstanding and up to a maximum of $300,000 in the aggregate at any one time
outstanding.



     (e) Dividends and Related Distributions. Each of the Loan Parties shall not, and
shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to
make or pay, any dividend or other distribution of any nature (whether in cash, property,
securities or otherwise) on account of or in respect of its shares of capital stock, partnership
interests or limited liability company interests on account of the purchase, redemption, retirement
or acquisition of its shares of capital stock (or warrants, options or rights therefor),
partnership interests or limited liability company interests; provided, however, so
long as no Potential Default or Event of Default has occurred and is continuing or would be caused
thereby, (i) the Borrower may make dividend payments or other distributions to its shareholders,
and (ii) the other Loan Parties may make dividend payments or other distributions to the Borrower.



     (f) 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 other than the Borrower may consolidate, merge or liquidate into
another Loan Party which is wholly-owned by one or more of the other Loan Parties; and




     (ii) any Loan Party may acquire, whether by purchase or by merger: (A) all of the
ownership interests of another Person or (B) substantially all of the assets of another
Person or of a business or division of another Person (each an “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 shall execute a Guarantor Joinder and join this Agreement as a Guarantor
on or before the date of such Permitted Acquisition;




     (B) the Loan Parties, such Person and its owners, as applicable, shall grant
Liens in the assets of or acquired from and stock or other ownership interests in
such Person on or before the date of such Permitted Acquisition;




     (C) the board of directors or other equivalent governing body of (a) the Loan
Parties and (b) the owner of the assets being acquired pursuant to such Permitted
Acquisition shall have approved such Permitted Acquisition and shall have delivered
to the Administrative Agent written evidence of the approval of such board of
directors (or equivalent body);




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



55









 






     (E) if the Loan Parties are acquiring substantially all of the assets of
another Person or of a business or division of another Person or are acquiring all
of the ownership interests of another Person, then the assets of such Person or the
assets of such division shall be substantially the same as, or shall support or be
complementary to, the lines of business conducted by the Loan Parties and shall
comply with Section 8.2(j) [Continuation of or Change in Business];




     (F) the Consideration paid by the Loan Parties for any Permitted Acquisition
shall not exceed $50,000,000;




     (G) the Consolidated EBITDA of the Loan Parties shall increase after giving
effect to such Permitted Acquisition and any Loan associated therewith;




     (H) that the Loan Parties shall have, after giving effect to such Permitted
Acquisition and any Loan associated therewith, at least $20,000,000 of Availability.




     (iii) the Borrower shall demonstrate that the Loan Parties shall (A) be in compliance
with the Fixed Charge Coverage Ratio covenant contained in Section 8.2(n) and (B) have a
ratio of consolidated total liabilities to Consolidated EBITDA of less than 2.50 to 1.00,
after giving effect to such Permitted Acquisition (including in such computation
Indebtedness or other liabilities assumed or incurred in connection with such Permitted
Acquisition) by delivering at least five (5) Business Days prior to such Permitted
Acquisition a certificate in the form of Exhibit 8.2(f) evidencing such compliance;
and




     (iv) the Loan Parties shall deliver to the Administrative Agent at least five (5)
Business Days before such Permitted Acquisition copies of any agreements entered into or
proposed to be entered into by such Loan Parties in connection with such Permitted
Acquisition and shall deliver to the Administrative Agent such other information about such
Person or its assets as any Loan Party may reasonably require.




     (v) In addition to the above Permitted Acquisitions, any Loan Party may acquire all or
substantially all of the assets of Diamondback, provided that each of the following
requirements is met:




     (A) if the Loan Parties are acquiring the ownership interests in such Person,
such Person shall execute a Guarantor Joinder and join this Agreement as a Guarantor
on or before the date of such acquisition;




     (B) the Loan Parties, such Person and its owners, as applicable, shall grant
Liens in the assets of or acquired from and stock or other ownership interests in
such Person on or before the date of such acquisition;




     (C) the board of directors or other equivalent governing body of (a) the Loan
Parties and (b) the owner of the assets being acquired pursuant to such acquisition
shall have approved such acquisition and shall have delivered to the



56









 







Administrative Agent written evidence of the approval of such board of
directors (or equivalent body);




     (D) no Potential Default or Event of Default shall exist immediately prior to
and after giving effect to such acquisition;




     (E) the total Consideration paid by the Loan Parties in connection with such
acquisition shall not exceed $275,000,000;




     (F) the Borrower shall have delivered the final acquisition documents to the
Administrative Agent ten (10) business days prior to such acquisition, which
documentation shall be in form and substance satisfactory to the Administrative
Agent in its sole discretion; and




     (G) the Borrower shall deliver a certificate to the Administrative Agent
demonstrating compliance with all covenants before and after giving effect to such
acquisition.



     (g) 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, 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
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 such Loan
Party to another Loan Party;




     (iv) any sale, transfer or lease of assets in any fiscal year in an aggregate amount
not to exceed $7,500,000 in such fiscal year;




     (v) any sale, transfer or lease of assets in the ordinary course of business which are
replaced by substitute assets acquired or leased; provided such substitute assets
are subject to the Lenders’ Prior Security Interest;




     (vi) so long as no Event of Default or Potential Default exists and with the
Administrative Agent’s written consent, the sale, transfer or disposition of any Subsidiary
of any Loan Party;



57









 






     (vii) so long as no Event of Default or Potential Default exists and with the
Administrative Agent’s written consent, the dissolution and liquidation of any Subsidiary of
any Loan Party;




     (viii) any disposition of assets resulting from the bona fide exercise by an Official
Body of its actual power of eminent domain or other disposition required by applicable Law.



     (h) Affiliate Transactions. Each of the Loan Parties shall not, and shall not permit
any of its Subsidiaries to, enter into or carry out any transaction (including purchasing property
or services from or selling property or services to any Affiliate of any Loan Party or other
Person) unless such transaction:




     (i) set forth on Schedule 8.2(h);




     (ii) is between or among the Loan Parties and does not involve an Affiliate that is not
a Loan Party; or




     (iii) is not otherwise prohibited by this Agreement, is entered into in the ordinary
course of business upon fair and reasonable arm’s-length terms and conditions which are
fully disclosed to the Administrative Agent and is in accordance with all applicable Law.



     (i) 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
Subsidiaries other than (i) any Subsidiary which has joined this Agreement as Guarantor on the
Closing Date; and (ii) any Subsidiary formed after the Closing Date which joins this Agreement as a
Guarantor by delivering to the Administrative Agent (A) a signed Guarantor Joinder; (B) documents
in the forms described in Section 7.1 [First Loans] modified as appropriate; and (C) documents
necessary to grant and perfect Prior Security Interests to the Administrative Agent for the benefit
of the Lenders in the equity interests of, and Collateral held by, such Subsidiary. Each of the
Loan Parties shall not become or agree to become a party to a Joint Venture.



     (j) 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 their current
businesses, substantially as conducted and operated by such Loan Party or Subsidiary as of the
Closing Date and any other businesses that reasonably relate thereto, and such Loan Party or
Subsidiary shall not permit any material change in such business.



     (k) 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.



     (l) Issuance of Stock. Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, issue any additional shares of its capital stock or any options, warrants
or other rights in respect thereof; provided that the Borrower shall be permitted to issue
additional shares of its capital stock.



58









 





     (m) Changes in Organizational Documents. Each of the Loan Parties shall not, and
shall not permit any of its Subsidiaries to, amend in any respect its certificate of incorporation
(including any provisions or resolutions relating to capital stock), by-laws, certificate of
limited partnership, partnership agreement, certificate of formation, limited liability company
agreement or other organizational documents without providing at least thirty (30) calendar days’
prior written notice to the Administrative Agent and the Lenders and, in the event such change
would be adverse to the Lenders as determined by the Administrative Agent in its sole discretion,
obtaining the prior written consent of the Required Lenders.



     (n) Minimum Fixed Charge Coverage Ratio. The Loan Parties shall not permit the Fixed
Charge Coverage Ratio, calculated as of the end of each fiscal quarter for the most recent four (4)
fiscal quarters then ended, to be less than 1.75 to 1.0.



     (o) Maximum Leverage Ratio. The Loan Parties shall not at any time permit the
Leverage Ratio calculated as of the end of each fiscal quarter for the fiscal quarter then ending
to exceed 3.0 to 1.0.




	 	8.3	 	Reporting Requirements.





     The Loan Parties will furnish or cause to be furnished to the Administrative Agent and each of
the Lenders.



     (a) 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 and its Subsidiaries, consisting of a
consolidated and consolidating balance sheet as of the end of such fiscal quarter and related
consolidated and consolidating statements of income, stockholders’ equity 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.



     (b) 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 and its Subsidiaries, financial
statements of the Borrower consisting of a consolidated and consolidating balance sheet as of the
end of such fiscal year, and related consolidated and consolidating statements of income,
stockholders’ equity 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 recognized
standing satisfactory to the Administrative 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 shall deliver with such financial
statements and certification by their accountants a letter of such accountants to the



59









 







Administrative Agent and the Lenders substantially to the effect that, based upon their
ordinary and customary examination of the affairs of the Borrower, performed in connection with the
preparation of such consolidated financial statements, and in accordance with GAAP, they are not
aware of the existence of any condition or event which constitutes an Event of Default or Potential
Default or, if they are aware of such condition or event, stating the nature thereof.



     (c) Certificate of the Borrower. Concurrently with the financial statements of the
Borrower furnished to the Administrative Agent and to the Lenders pursuant to Sections 8.3(a)
[Quarterly Financial Statements] and 8.3(b) [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(c).



     (d) Notices.




     (i) 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 an
Authorized Officer setting forth the details of such Event of Default or Potential Default
and the action which such Loan Party proposes to take with respect thereto.




     (ii) 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 the
Collateral, involve a claim or series of claims in excess of $2,500,000 or which if
adversely determined would constitute a Material Adverse Change, as reasonably determined by
the Loan Parties.




     (iii) Organizational Documents. Within the time limits set forth in Section
8.2(m) [Changes in Organizational Documents], any amendment to the organizational documents
of any Loan Party.




     (iv) Erroneous Financial Information. Immediately in the event that the
Borrower or its accountants conclude or advise that any previously issued financial
statement, audit report or interim review should no longer be relied upon or that disclosure
should be made or action should be taken to prevent future reliance.




     (v) ERISA Event. Immediately upon the occurrence of any ERISA Event.




     (vi) Other Reports. Promptly upon their becoming available to the Borrower:




     (A) Annual Budget. The annual budget and any forecasts or projections
of the Borrower, to be supplied not later than sixty (60) days prior to commencement
of the fiscal year to which any of the foregoing may be applicable,




     (B) Management Letters. Any reports including management letters
submitted to the Borrower by independent accountants in connection with any annual,
interim or special audit,



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     (C) SEC Reports; Shareholder Communications. Reports, including Forms
10-K, 10-Q and 8-K, registration statements and prospectuses and other shareholder
communications, filed by the Borrower with the Securities and Exchange Commission.




     (D) Other Information. Such other reports and information as any of
the Lenders may from time to time reasonably request.



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):



     (a) 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 or Obligation on the date on which such
amount becomes due in accordance with the terms hereof or under the other Loan Documents, or (ii)
any interest on any Loan, Reimbursement Obligation or Letter of Credit Obligation or any other
amount owing hereunder or under the other Loan Documents within three (3) Business Days of the date
on which such interest or other amount becomes due in accordance with the terms hereof or thereof;



     (b) 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;



     (c) 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(e) [Visitation
Rights] or Section 8.2 [Negative Covenants];



     (d) 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 ten (10) Business Days;



     (e) 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 Subsidiary of any Loan Party may
be obligated as a borrower or guarantor in excess of $5,000,000 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



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or causes the acceleration of any Indebtedness (whether or not such right shall have been
waived) or the termination of any commitment to lend;



     (f) Final Judgments or Orders. Any final judgments or orders for the payment of money
in excess of $5,000,000 in the aggregate 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 thirty (30) days from the date of entry;



     (g) Loan Document Unenforceable. Any 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;



     (h) Uninsured Losses; Proceedings Against Assets. There shall occur any material
uninsured damage to or loss, theft or destruction of any of the Collateral in excess of $5,000,000
or the Collateral or any other of the Loan Parties’ or any of their 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 thirty (30) days thereafter;



     (i) Events Relating to Plans and Benefit Arrangements. (i) An ERISA Event occurs with
respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected
to result in liability of Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan
or the PBGC in an aggregate amount in excess of $5,000,000 or (ii) Borrower or any ERISA Affiliate
fails to pay when due, after the expiration of any applicable grace period, any installment payment
with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in
an aggregate amount in excess of $5,000,000;



     (j) 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 Securities and Exchange
Commission under said Act) 50% or more of the voting capital stock of the Borrower; or (ii) within
a period of twelve (12) consecutive calendar months, individuals who were directors of the Borrower
on the first day of such period shall cease to constitute a majority of the board of directors of
the Borrower;



     (k) Relief Proceedings. (i) A Relief Proceeding shall have been instituted against
any Loan Party or Subsidiary of a Loan Party and such Relief Proceeding shall remain undismissed or
unstayed and in effect for a period of thirty (30) consecutive days or such court shall enter a
decree or order granting any of the relief sought in such Relief Proceeding, (ii) any Loan Party or
Subsidiary of a Loan Party institutes, or takes any action in furtherance of, a Relief Proceeding,
or (iii) any Loan Party or any Subsidiary of a Loan Party ceases to be solvent or admits in writing
its inability to pay its debts as they mature.



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	 	9.2	 	Consequences of Event of Default.





     (a) Events of Default Other Than Bankruptcy, Insolvency or Reorganization Proceedings.
If an Event of Default specified under Sections 9.1(a) through 9.1(j) shall occur and be
continuing, the Lenders and the Administrative Agent shall be under no further obligation to make
Loans and the Issuing Lender shall be under no obligation to issue Letters of Credit and the
Administrative Agent may, and upon the request of the Required Lenders, shall (i) by written notice
to the Borrower, declare the unpaid principal amount of the Notes 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 Administrative 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 Administrative Agent, 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
Administrative Agent and the Lenders, and grants to the Administrative Agent and the Lenders a
security interest in, all such cash as security for such Obligations; and



     (b) Bankruptcy, Insolvency or Reorganization Proceedings. If an Event of Default
specified under Section 9.1(k) [Relief Proceedings] shall occur, the Lenders shall be under no
further obligations to make Loans hereunder and the Issuing Lender shall be under no obligation to
issue Letters of Credit 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 and automatically due and payable, without
presentment, demand, protest or notice of any kind, all of which are hereby expressly waived; and



     (c) Set-off. If an Event of Default shall have occurred and be continuing, each
Lender, the Issuing Lender, and each of their respective Affiliates and any participant of such
Lender or Affiliate which has agreed in writing to be bound by the provisions of Section 5.3
[Sharing of Payments] is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable Law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender, the Issuing Lender or any such Affiliate or
participant to or for the credit or the account of any Loan Party against any and all of the
Obligations of such Loan Party now or hereafter existing under this Agreement or any other Loan
Document to such Lender, the Issuing Lender, Affiliate or participant, irrespective of whether or
not such Lender, Issuing Lender, Affiliate or participant shall have made any demand under this
Agreement or any other Loan Document and although such Obligations of the Borrower or such Loan
Party may be contingent or unmatured or are owed to a branch or office of such Lender or the
Issuing Lender different from the branch or office holding such deposit or obligated on such
Indebtedness. The rights of each Lender, the Issuing Lender and their respective Affiliates and
participants under this Section are in addition to other rights and remedies (including other
rights of setoff) that such Lender, the Issuing Lender or their respective Affiliates and
participants may have. Each Lender and the Issuing Lender agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and



63









 







application; provided that the failure to give such notice shall not affect the validity of
such setoff and application; and



     (d) Application of Proceeds. From and after the date on which the Administrative
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 Administrative Agent from any
sale or other disposition of the Collateral, or any part thereof, or the exercise of any other
remedy by the Administrative Agent, shall be applied as follows:




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




     (ii) second, to the repayment of all Obligations then due and unpaid of the Loan
Parties to the Lenders or their Affiliates incurred under this Agreement or any of the other
Loan Documents or agreements evidencing Other Lender Provided Financial Services
Obligations, whether of principal, interest, fees, expenses or otherwise and to cash
collateralize the Letter of Credit Obligations, in such manner as the Administrative Agent
may determine in its discretion; and




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



10. THE ADMINISTRATIVE AGENT





	 	10.1	 	Appointment and Authority.





     Each of the Lenders and the Issuing Lender hereby irrevocably appoints the Administrative
Agent to act on its behalf hereunder and under the other Loan Documents and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof 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 Administrative Agent, the Lenders and the Issuing Lender, 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 Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated
or unless the context otherwise requires, include the Person serving as the



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Administrative 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 Administrative Agent hereunder and without any
duty to account therefor to the Lenders.




	 	10.3	 	Exculpatory Provisions.





     The Administrative 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 Administrative Agent:



     (a) 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;



     (b) 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 Administrative 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 Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law;
and



     (c) 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 Administrative Agent or any of its Affiliates in any capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.1 [Modifications, Amendments or
Waivers] and 9.2 [Consequences of Event of Default]) or (ii) in the absence of its own gross
negligence or willful misconduct. The Administrative 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 Administrative Agent by the Borrower, a Lender or the
Issuing Lender.



     The Administrative 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



65









 







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
Administrative Agent.




	 	10.4	 	Reliance by Administrative Agent.





     The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (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 Administrative 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 or the Issuing Lender, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the Issuing Lender unless the Administrative Agent
shall have received notice to the contrary from such Lender or the Issuing Lender prior to the
making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.




	 	10.5	 	Delegation of Duties.





     The Administrative 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 Administrative Agent. The Administrative 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 shall apply to any such sub-agent and to
the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.




	 	10.6	 	Resignation of Administrative Agent.





     The Administrative Agent may at any time give notice of its resignation to the Lenders, the
Issuing Lender 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 thirty (30) days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the Issuing Lender, appoint a successor Administrative Agent meeting the qualifications
set forth above; provided that if the Administrative Agent shall notify the Borrower and the
Lenders that no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and



66









 







(a) the retiring Administrative 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 Administrative Agent on behalf of the Lenders or the Issuing Lender under any of the
Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security
until such time as a successor Administrative Agent is appointed) and (b) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the Issuing Lender directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section
10.6. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring (or retired) Administrative Agent, and the retiring Administrative 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 Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Section 10
and Section 11.3 [Expenses; Indemnity; Damage Waiver] shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.



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




	 	10.7	 	Non-Reliance on Administrative Agent and Other Lenders.





     Each Lender and the Issuing Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each Lender and the Issuing Lender also acknowledges
that it will, independently and without reliance upon the Administrative 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.



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	 	10.8	 	No Other Duties, etc.





     Anything herein to the contrary notwithstanding, none of the Lenders listed on the cover page
hereof, if any, shall have any powers, duties or responsibilities under this Agreement or any of
the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a
Lender or the Issuing Lender hereunder.




	 	10.9	 	Administrative Agent’s Fee.





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




	 	10.10	 	Authorization to Release Collateral and Guarantors.





     The Lenders and Issuing Lenders authorize the Administrative Agent to release (a) any
Collateral consisting of assets or equity interests sold or otherwise disposed of in a sale or
other disposition or transfer permitted under Section 8.2(g) [Disposition of Assets or
Subsidiaries] or 8.2(f) [Liquidations, Mergers, Consolidations, Acquisitions], and (b) any
Guarantor from its obligations under the Guaranty Agreement if the ownership interests in such
Guarantor are sold or otherwise disposed of or transferred to persons other than Loan Parties or
Subsidiaries of the Loan Parties in a transaction permitted under Section 8.2(g) [Disposition of
Assets or Subsidiaries] or 8.2(f) [Liquidations, Mergers, Consolidations, Acquisitions].




	 	10.11	 	No Reliance on Administrative 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 Administrative Agent to carry out such Lender’s,
Affiliate’s, participant’s or assignee’s customer identification program, or other obligations
required or imposed under or pursuant to the USA Patriot Act or the regulations thereunder,
including the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “CIP
Regulations”), or any other Anti-Terrorism Law, including any programs involving any of the
following items relating to or in connection with any of the Loan Parties, their Affiliates or
their agents, the Loan Documents or the transactions hereunder or contemplated hereby: (a) any
identity verification procedures, (b) any recordkeeping, (c) comparisons with government lists, (d)
customer notices or (e) other procedures required under the CIP Regulations or such other Laws.



11. MISCELLANEOUS





	 	11.1	 	Modifications, Amendments or Waivers.





     With the written consent of the Required Lenders, the Administrative 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
written waivers or consents hereunder or thereunder. Any such agreement, waiver or



68









 







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:



     (a) Increase of Commitment. Increase the amount of the Revolving Credit Commitment of
any Lender hereunder without the consent of such Lender;



     (b) Extension of Payment; Reduction of Principal Interest or Fees; Modification of Terms
of Payment. Whether or not any Loans are outstanding, extend the Expiration Date or the time
for payment of principal or interest of any Loan, 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, the Commitment Fee or any other fee
payable to any Lender, without the consent of each Lender directly affected thereby;



     (c) Release of Collateral or Guarantor. Except for sales of assets permitted by
Section 8.2(g) [Disposition of Assets or Subsidiaries] (including any disposition of Subsidiaries
permitted thereunder), release all or substantially all of the Collateral or any Guarantor from its
Obligations under the Guaranty Agreement without the consent of all Complying Lenders; or



     (d) Miscellaneous. Amend Section 5.2 [Pro Rata Treatment of Lenders], 10.3
[Exculpatory Provisions, Etc.] or 5.3 [Sharing of Payments by Lenders] or this Section 11.1, alter
any provision regarding the pro rata treatment of the Lenders or requiring all Lenders to authorize
the taking of any action or reduce any percentage specified in the definition of Required Lenders,
in each case without the consent of all of the Complying Lenders;


provided that no agreement, waiver or consent which would modify the interests, rights or
obligations of the Administrative Agent or the Issuing Lender without the written consent of such
Administrative Agent or Issuing Lender, as applicable, and provided, further that, if in
connection with any proposed waiver, amendment or modification referred to in Sections 11.1(a)
through 11.1(d) 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 Borrower shall have the right to replace any such Non-Consenting Lender with one
or more replacement Lenders pursuant to Section 5.6(b) [Replacement of a Lender].





	 	11.2	 	No Implied Waivers; Cumulative Remedies.





     No course of dealing and no delay or failure of the Administrative 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 preclude any further exercise thereof or of any other right,
power, remedy or privilege. The rights and remedies of the Administrative 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.




	 	11.3	 	Expenses; Indemnity; Damage Waiver.





     (a) Costs and Expenses. The Borrower shall pay (i) all out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges



69









 







and disbursements of counsel for the Administrative Agent), and shall pay all fees and time
charges and disbursements for attorneys who may be employees of the Administrative Agent, in
connection with the syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the other Loan Documents
or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all out-of-pocket expenses
incurred by the Issuing Lender in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder, (iii) all out-of-pocket expenses
incurred by the Administrative Agent, any Lender or the Issuing Lender (including the fees, charges
and disbursements of any counsel for the Administrative Agent, any Lender or the Issuing Lender),
in connection with the enforcement or protection of its rights (A) in connection with this
Agreement and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of
such Loans or Letters of Credit, and (iv) all reasonable out-of-pocket expenses of the
Administrative Agent’s regular employees and agents engaged periodically to perform audits of the
Loan Parties’ books, records and business properties.



     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the Issuing Lender, and each Related Party of
any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses
(including the fees, charges and disbursements of any counsel for any Indemnitee), and shall
indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for
attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against
any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the Issuing Lender to honor a
demand for payment under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii) breach of
representations, warranties or covenants of the Borrower under the Loan Documents, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, including any such items or losses relating to or arising under Environmental Laws or
pertaining to environmental matters, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a
claim brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith
of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or
such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction.



70









 





     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under Sections 11.3(a) [Costs and Expenses] or 11.3(b)
[Indemnification by the Borrower] to be paid by it to the Administrative Agent (or any sub-agent
thereof), the Issuing Lender or any Related Party of any of the foregoing, each Lender severally
agrees to pay to the Administrative Agent (or any such sub-agent), the Issuing Lender or such
Related Party, as the case may be, such Lender’s Ratable Share (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against the Administrative Agent (or any such
sub-agent) or the Issuing Lender in its capacity as such, or against any Related Party of any of
the foregoing acting for the Administrative Agent (or any such sub-agent) or Issuing Lender in
connection with such capacity.



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable Law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in Section 11.3(b) [Indemnification by Borrower] shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby.



     (e) Payments. All amounts due under this Section shall be payable not later than ten
(10) days after demand therefor.




	 	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]) 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	 	Notices; Effectiveness; Electronic Communication.





     (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in Section 11.5(b) [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



71









 







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, if confirmation of receipt has been received (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 11.5(b) [Electronic Communications], shall be
effective as provided in such Section.



     (b) Electronic Communications. Notices and other communications to the Lenders and
the Issuing Lender hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent; provided that the foregoing shall not apply to notices to any Lender or the Issuing Lender
if such Lender or the Issuing Lender, as applicable, has notified the Administrative Agent that it
is incapable of receiving notices under such Article by electronic communication. The
Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative 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 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 therefor.



     (c) Change of Address, Etc. Any party hereto may change its address or telecopier
number for notices and other communications hereunder by written notice to the other parties
hereto.




	 	11.6	 	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.




	 	11.7	 	Duration; Survival.





     All representations and warranties of the Loan Parties contained herein or made in connection
herewith shall survive the execution and delivery of this Agreement, the completion



72









 







of the transactions hereunder and Payment In Full. 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 the Notes, Section 5
[Payments] and Section 11.3 [Expenses; Indemnity; Damage Waiver], shall survive Payment in Full.
All other covenants and agreements of the Loan Parties shall continue in full force and effect from
and after the date hereof and until Payment in Full.




	 	11.8	 	Successors and Assigns.





     (a) 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 Administrative 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 11.8(b) [Assignments by Lenders], (ii) by way of participation in accordance with the
provisions of Section 11.8(d) [Participations], or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of Section 11.8(f) [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 11.8(d) [Participations] and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the
Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.



     (b) 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




     (B) in any case not described in clause (i)(A) of this Section 11.8(b), 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 Administrative 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, unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is



73









 







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.




     (iii) Required Consents. No consent shall be required for any assignment
except for the consent of the Administrative Agent (which shall not be unreasonably withheld
or delayed) and:




     (A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (x) an Event of Default has occurred and is
continuing at the time of such assignment (y) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund or (z) such assignment is made during the
primary syndication period;




     (B) the consent of the Issuing Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more Letters of
Credit (whether or not then outstanding).




     (iv) Assignment and Assumption Agreement. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption Agreement,
together with a processing and recordation fee of $3,500, and the assignee, if it is not a
Lender, shall deliver to the Administrative Agent an administrative questionnaire provided
by the Administrative Agent and any forms required under Section 5.9 [Taxes].




     (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.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 11.8(c)
[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 Sections 4.4 [LIBOR Rate
Unascertainable; Illegality; Increased Costs; Deposits Not Available], 5.8 [Increased Costs;
Indemnity], and 11.3 [Expenses, Indemnity; Damage Waiver] 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


74









 






comply with this Section 11.8(b) 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 11.8(d)
[Participations].




     (c) Register. The Administrative 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 Administrative
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, (as to
such Lender’s Commitment only), at any reasonable time and from time to time upon reasonable prior
notice.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative 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 Administrative Agent and the Lenders, Issuing Lender 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 Sections 11.1(a)
[Increase of Commitment], 11.1(b) [Extension of Payment, Etc.], or 11.1(c) [Release of Collateral
or Guarantor]). Subject to Section 11.8(e) [Limitations upon Participant Rights Successors and
Assigns Generally], the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 4.4 [LIBOR Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available] and
5.8 [Increased Costs; Indemnity] to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to Section 11.8(b) [Assignments by Lenders]. To the extent
permitted by Law, each Participant also shall be entitled to the benefits of Section 9.2(c)
[Setoff] as though it were a Lender; provided such Participant agrees to be subject to
Section 5.3 [Sharing of Payments by Lenders] as though it were a Lender.



     (e) Limitations upon Participant Rights Successors and Assigns Generally. A
Participant shall not be entitled to receive any greater payment under Sections 5.8 [Increased
Costs], 5.9 [Taxes] or 11.3 [ Expenses; Indemnity; Damage Waiver] 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 5.9 [Taxes] unless the Borrower is notified of the participation sold to



75









 







such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 5.9(e) [Status of Lenders] as though it were a Lender.



     (f) 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.




	 	11.9	 	Confidentiality.





     (a) General. Each of the Administrative Agent, the Lenders and the Issuing Lender
agrees to maintain the confidentiality of the Information, except that Information may be disclosed
(i) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers,
employees, agents, advisors and other representatives (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (ii) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory authority, such as
the National Association of Insurance Commissioners), (iii) to the extent required by applicable
Laws or regulations or by any subpoena or similar legal process, (iv) to any other party hereto,
(v) in connection with the exercise of any remedies hereunder or under any other Loan Document or
any action or proceeding relating to this Agreement or any other Loan Document or the enforcement
of rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially
the same as those of this Section, to (A) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or (B) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to the Borrower and its obligations, (vii) with the consent of the Borrower or (viii) to the extent
such Information (Y) becomes publicly available other than as a result of a breach of this Section
or (Z) becomes available to the Administrative Agent, any Lender, the Issuing Lender or any of
their respective Affiliates on a nonconfidential basis from a source other than the Borrower or the
other Loan Parties. Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.



     (b) 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 to any such Subsidiary or Affiliate
subject to the provisions of Section 11.9(a) [General].



76









 






	 	11.10	 	Counterparts; Integration; Effectiveness.





     (a) Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents, and any separate letter agreements with respect to
fees payable to the Administrative Agent, constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof including any prior confidentiality agreements
and commitments. Except as provided in Section 7 [Conditions Of Lending And Issuance Of Letters Of
Credit], this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or e-mail shall be effective
as delivery of a manually executed counterpart of this Agreement.




	 	11.11	 	CHOICE OF LAW; SUBMISSION TO JURISDICTION; WAIVER OF VENUE; SERVICE OF PROCESS; WAIVER
OF JURY TRIAL.





     (a) Governing Law. This Agreement shall be deemed to be a contract under the Laws of
the State of New York without regard to its conflict of laws principles. Each standby Letter of
Credit issued under this Agreement shall be subject either to the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the International Chamber of
Commerce (the “ICC”) at the time of issuance (“UCP”) or the rules of the International Standby
Practices (ICC Publication Number 590) (“ISP98”), as determined by the Issuing Lender, and each
trade Letter of Credit shall be subject to UCP, and in each case to the extent not inconsistent
therewith, the Laws of the State of New York without regard to is conflict of laws principles.



     (b) 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 COMMONWEALTH 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



77









 







RIGHT THAT THE ADMINISTRATIVE 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.



     (c) 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
11.11. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT 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.



     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.5 [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.



     (e) 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.




	 	11.12	 	USA Patriot Act Notice.





     Each Lender that is subject to the USA Patriot Act and the Administrative Agent (for itself
and not on behalf of any Lender) hereby notifies Loan Parties that pursuant to the requirements of
the USA Patriot Act, it is required to obtain, verify and record information that identifies the
Loan Parties, which information includes the name and address of Loan Parties and other information
that will allow such Lender or Administrative Agent, as applicable, to identify the Loan Parties in
accordance with the USA Patriot Act.



78









 





[SIGNATURE PAGE 1 OF 3 OF THE CREDIT AGREEMENT]




     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.



	 	 	 	 	 
	ATTEST:	 	BORROWER:
	 
	 	 	 	 
	 	 	SUPERIOR WELL SERVICES, INC.
	 
	 	 	 	 
	/s/ Meghan A. Ratchford

	 	By:
	 	/s/ Thomas W. Stoelk
	 

	 	 	 	 
	Name: Meghan A. Ratchford

Title:   Assistant Controller

	 	 	 	Name: Thomas W. Stoelk

Title:   VP of Finance
	 
	 	 	 	 
	 	 	GUARANTORS:
	 
	 	 	 	 
	 	 	SUPERIOR WELL SERVICES GP, L.L.C.
	 
	 	 	 	 
	 

	 	By:
	 	Superior Well Services, Inc., its sole
member
	 
	 	 	 	 
	/s/ Meghan A. Ratchford


	 	By:
	 	/s/ Thomas W. Stoelk

	 

	 	 	 	 
	Name: Meghan A. Ratchford

Title:   Assistant Controller

	 	 	 	Name: Thomas W. Stoelk

Title:   VP of Finance
	 
	 	 	 	 
	 	 	SUPERIOR WELL SERVICES, LTD.
	 
	 	 	 	 
	 

	 	By:

By:
	 	Superior Well Services GP, L.L.C., its
general partner

Superior Well Services, Inc., its sole
member
	 
	 	 	 	 
	/s/ Meghan A. Ratchford

	 	By:
	 	/s/ Thomas W. Stoelk
	 

	 	 	 	 
	Name: Meghan A. Ratchford

Title:   Assistant Controller

	 	 	 	Name: Thomas W. Stoelk

Title:   VP of Finance
	 
	 	 	 	 
	 	 	SWSI FLUIDS, L.L.C.
	 
	 	 	 	 
	 

	 	By:
	 	Superior Well Services, Inc., its sole
member
	 
	 	 	 	 
	/s/ Meghan A. Ratchford

	 	By:
	 	/s/ Thomas W. Stoelk
	 

	 	 	 	 
	Name: Meghan A. Ratchford

Title:   Assistant Controller

	 	 	 	Name: Thomas W. Stoelk

Title:   VP of Finance






 









 






[SIGNATURE PAGE 2 OF 3 OF THE CREDIT AGREEMENT]




	 	 	 	 	 
	 	LENDERS:



CITIZENS BANK OF PENNSYLVANIA, 
individually
and as Administrative Agent

 	 
	 	By:  	/s/ Joseph F. King
 	 
	 	 	Name:  	Joseph F. King 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	KEYBANK NATIONAL ASSOCIATION,

individually and as Co-Documentation Agent

 	 
	 	By:  	/s/ Todd Coker
 	 
	 	 	Name:  	Todd Coker 	 
	 	 	Title:  	Assistant Vice President 	 
	 
	 	ROYAL BANK OF CANADA, 
individually and as
Co-Documentation Agent

 	 
	 	By:  	/s/ Jay T. Sartain
 	 
	 	 	Name:  	Jay T. Sartain 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By:  	/s/ Christian Barrow
 	 
	 	 	Name:  	Christian Barrow 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



[SIGNATURE PAGE 3 OF 3 OF THE CREDIT AGREEMENT]




	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Brett R. Schweikle
 	 
	 	 	Name:  	Brett R. Schweikle     	 
	 	 	Title:  	Vice President 	 
	 
	 	FIRST COMMONWEALTH BANK

 	 
	 	By:  	/s/ Anthony Cardone
 	 
	 	 	Name:  	Anthony Cardone    	 
	 	 	Title:  	Vice President Corporate Finance 	 
	 
	 	S&T BANK

 	 
	 	By:  	/s/ Gregory R. Boyer
 	 
	 	 	Name:  	Gregory R. Boyer     	 
	 	 	Title:  	Vice President 	 
	 
	 	FIRST NATIONAL BANK OF PENNSYLVANIA

 	 
	 	By:  	/s/ John L. Hayes
 	 
	 	 	Name:  	John L. Hayes      	 
	 	 	Title:  	SVP 	 
	 
	 	TRISTATE CAPITAL BANK

 	 
	 	By:  	/s/ James P. Nickel
 	 
	 	 	Name:  	James P. Nickel    	 
	 	 	Title:  	Senior Vice President 	 
	 




 












 





SCHEDULE 1.1(A)




PRICING GRID




VARIABLE PRICING AND FEES BASED ON LEVERAGE RATIO

(PRICING EXPRESSED IN BASIS POINTS)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Revolving	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Credit	 	 
	 	 	 	 	 	 	 	 	 	 	Letter of	 	Alternative	 	Revolving
	 	 	 	 	 	 	Commitment	 	Credit	 	Base Rate	 	Credit LIBOR
	Level	 	Leverage Ratio	 	Fee	 	Fee	 	Spread	 	Rate Spread
	 	I	 	 	Less than 1.0 to 1.0
	 	 	20	 	 	 	150	 	 	 	0	 	 	 	150	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	II	 	Greater than or
equal to 1.0 to 1.0
but less than 1.5
to 1.0
	 	 	25	 	 	 	175	 	 	 	0	 	 	 	175	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	III	 	Greater than or
equal to 1.5 to 1.0
but less than 2.0
to 1.0
	 	 	30	 	 	 	200	 	 	 	0	 	 	 	200	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	IV	 	Greater than or
equal to 2.0 to 1.0
but less than 2.5
to 1.0
	 	 	35	 	 	 	225	 	 	 	25	 	 	 	225	 
	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	V	 	 	Greater than or
equal to 2.5 to 1.0
	 	 	40	 	 	 	250	 	 	 	50	 	 	 	250	 






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



     1. The Applicable Margin, the Applicable Commitment Fee Rate and the Applicable Letter of
Credit Fee Rate shall be determined on the Closing Date based on the Leverage Ratio computed on
such date pursuant to a Compliance Certificate to be delivered on the Closing Date; provide
however, until such time as the Borrower shall have delivered a Compliance Certificate to the
Lender demonstrating compliance with the financial covenants contained in the Agreement for the
fiscal quarter ending December 31, 2008, the Applicable Margin, Applicable Commitment Fee Rate and
the Applicable Letter of Credit Rate shall be no less than that associated with Level III of the
pricing grid.



     2. The Applicable Margin, the Applicable Commitment Fee Rate and the Applicable Letter of
Credit Fee Rate shall be recomputed as of the end of each fiscal quarter ending after the Closing
Date 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 Rate computed as of a quarter end shall be effective on the date on which the Compliance
Certificate evidencing such computation is due to be delivered under Section 8.3(c) [Certificate of
the Borrower]; provide however, until such time as the Borrower shall have
delivered a Compliance Certificate to the Lender demonstrating compliance with the financial
covenants contained therein for the fiscal quarter ending December 31, 2008, or each fiscal quarter
thereafter the Applicable Margin, Applicable Commitment Fee Rate and the Applicable Letter of
Credit Rate shall be no less than that associated with Level III of the pricing grid.



     3. If, as a result of any restatement of or other adjustment to the financial statements of
the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the Leverage
Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper
calculation of the Leverage Ratio would have resulted in higher pricing for such period, the
Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for
the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after
the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower
under the Bankruptcy Code of the United States, automatically and without further action by the
Administrative Agent, any Lender or the Issuing Lender), an amount equal to the excess of the
amount of interest and fees that should have been paid for such period over the amount of interest
and fees actually paid for such period. This paragraph shall not limit the rights of the
Administrative Agent, any Lender or the Issuing Lender, as the case may be, under Section 2.9
[Letter of Credit Subfacility] or 4.3 [Interest After Default] or 9 [Default]. The Borrower’s
obligations under this paragraph shall survive the termination of the Commitments and the repayment
of all other Obligations hereunder.



2









 





SCHEDULE 1.1(B)




COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES




Part 1 — Commitments of Lenders and Addresses for Notices to Lenders and Administrative Agent




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount of	 	 
	 	 	 	 	Commitment for	 	 
	Lender	 	Revolving Credit Loans	 	Ratable Share
	Name:

	 	Citizens Bank of Pennsylvania
	 	$	65,000,000	 	 	 	26.000000000	%
	Address:

	 	525 William Penn Place	 	 	 	 	 	 	 	 
	 

	 	Pittsburgh, Pennsylvania 15219-7112	 	 	 	 	 	 	 	 
	Attention:

	 	Joseph King	 	 	 	 	 	 	 	 
	Telephone:

	 	(412) 867-2413	 	 	 	 	 	 	 	 
	Telecopy:

	 	(412) 552-6309	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	KeyBank National Association
	 	$	40,000,000	 	 	 	16.000000000	%
	Address:

	 	127 Public Square	 	 	 	 	 	 	 	 
	 

	 	Cleveland, Ohio 44114	 	 	 	 	 	 	 	 
	Attention:

	 	Todd Coker, Assistant Vice President	 	 	 	 	 	 	 	 
	Telephone:

	 	(214) 414-2618	 	 	 	 	 	 	 	 
	Telecopy:

	 	(214) 414-2621	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	Royal Bank of Canada
	 	$	40,000,000	 	 	 	16.000000000	%
	Address:

	 	3900 Williams Tower	 	 	 	 	 	 	 	 
	 

	 	2800 Post Oak Blvd	 	 	 	 	 	 	 	 
	 

	 	Houston, Texas 77056	 	 	 	 	 	 	 	 
	Attention:

	 	Jay Sartain	 	 	 	 	 	 	 	 
	Telephone:

	 	(713) 403-5688	 	 	 	 	 	 	 	 
	Telecopy:

	 	(713) 403-5624	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	Bank of America, N.A.
	 	$	25,000,000	 	 	 	10.000000000	%
	Address:

	 	301 Grant Street, Suite 4300	 	 	 	 	 	 	 	 
	 

	 	Pittsburgh, Pennsylvania 15219	 	 	 	 	 	 	 	 
	Attention:

	 	Ed McKenney	 	 	 	 	 	 	 	 
	Telephone:

	 	(412) 255-3764	 	 	 	 	 	 	 	 
	Telecopy:

	 	(412) 255-3765	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	PNC Bank, National Association
	 	$	25,000,000	 	 	 	10.000000000	%
	Address:

	 	249 Fifth Avenue	 	 	 	 	 	 	 	 
	 

	 	Pittsburgh, PA 15222	 	 	 	 	 	 	 	 
	Attention:

	 	Brett Schweikle, Vice President	 	 	 	 	 	 	 	 
	Telephone:

	 	(412) 762-2604	 	 	 	 	 	 	 	 
	Telecopy:

	 	(412) 762-4718	 	 	 	 	 	 	 	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount of	 	 
	 	 	 	 	Commitment for	 	 
	Lender	 	Revolving Credit Loans	 	Ratable Share
	Name:

	 	First Commonwealth Bank
	 	$	20,000,000	 	 	 	8.000000000	%
	Address:

	 	437 Grant Street	 	 	 	 	 	 	 	 
	 

	 	Pittsburgh, Pennsylvania 15219	 	 	 	 	 	 	 	 
	Attention:

	 	Anthony Cardone, Vice President	 	 	 	 	 	 	 	 
	Telephone:

	 	(412) 690-2205	 	 	 	 	 	 	 	 
	Telecopy:

	 	(412) 690-2222	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	S&T Bank
	 	$	15,000,000	 	 	 	6.000000000	%
	Address:

	 	800 Philadelphia Street	 	 	 	 	 	 	 	 
	 

	 	Indiana, Pennsylvania 15701	 	 	 	 	 	 	 	 
	Attention:

	 	Greg R. Boyer, Vice President	 	 	 	 	 	 	 	 
	Telephone:

	 	(724) 465-1445	 	 	 	 	 	 	 	 
	Telecopy:

	 	(724) 465-3400	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	First National Bank of Pennsylvania
	 	$	10,000,000	 	 	 	4.000000000	%
	Address:

	 	4140 East State Street	 	 	 	 	 	 	 	 
	 

	 	Hermitage, Pennsylvania 16148	 	 	 	 	 	 	 	 
	Attention:

	 	John L. Hayes, Senior Vice President	 	 	 	 	 	 	 	 
	Telephone:

	 	(412) 359-2617	 	 	 	 	 	 	 	 
	Telecopy:

	 	(412) 231-3584	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	TriState Capital Bank
	 	$	10,000,000	 	 	 	4.000000000	%
	Address:

	 	One Oxford Centre, Suite 2700	 	 	 	 	 	 	 	 
	 

	 	Pittsburgh, Pennsylvania 15219	 	 	 	 	 	 	 	 
	Attention:

	 	James P. Nickel, Senior Vice President	 	 	 	 	 	 	 	 
	Telephone:

	 	(412) 304-0321	 	 	 	 	 	 	 	 
	Telecopy:

	 	(412) 304-0391	 	 	 	 	 	 	 	 
	 

	 	Total
	 	$	250,000,000	 	 	 	100	%






2









 






SCHEDULE 1.1(B)




COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES




Part 2 — Addresses for Notices to Borrower and Guarantors:




BORROWER:




Name: Superior Well Services, Inc.

Address:

1380 Rt. 286 East, Suite # 121

Indiana, PA 15701

Attention: Thomas W. Stoelk

Telephone: (724) 403-9100

Telecopy: (724) 465-8907




GUARANTORS:




Name: Superior Well Services, Ltd.

Address:

1380 Rt. 286 East, Suite # 121

Indiana, PA 15701

Attention: Thomas W. Stoelk

Telephone: (724) 403-9100

Telecopy: (724) 465-8907




Name: Superior GP, L.L.C.

Address:

1380 Rt. 286 East, Suite # 121

Indiana, PA 15701

Attention: Thomas W. Stoelk

Telephone: (724) 403-9100

Telecopy: (724) 465-8907




Name: SWSI Fluids, L.L.C.

Address:

1380 Rt. 286 East, Suite # 121

Indiana, PA 15701

Attention: Thomas W. Stoelk

Telephone: (724) 403-9100

Telecopy: (724) 465-8907




3









 





SCHEDULE 8.1(c)




INSURANCE REQUIREMENTS RELATING TO THE COLLATERAL




COVENANTS:




     At the request of the Administrative Agent, the Loan Parties shall deliver to the
Administrative Agent and each of the Lenders (x) on the Closing Date and annually thereafter an
original certificate of insurance signed by the Loan Parties’ independent insurance broker
describing and certifying as to the existence of the insurance on the Collateral required to be
maintained by this Agreement and the other Loan Documents, together with a copy of the endorsement
described in the next sentence attached to such certificate and (y) from time to time a summary
schedule indicating all insurance then in force with respect to each of the Loan Parties. Such
policies of insurance shall contain special endorsements, in form and substance acceptable to the
Administrative Agent, which shall include the provisions set forth below. The applicable Loan
Parties shall notify the Administrative Agent promptly of any occurrence causing a material loss or
decline in value of the Collateral and the estimated (or actual, if available) amount of such loss
or decline. Any monies received by the Administrative Agent constituting insurance proceeds or
condemnation proceeds pursuant to any mortgage may, at the option of the Administrative Agent, (i)
be applied by the Administrative Agent to the payment of the Loans in such manner as the
Administrative Agent may reasonably determine, or (ii) be disbursed to the applicable Loan Parties
on such terms as are deemed appropriate by the Administrative Agent for the repair, restoration
and/or replacement of property in respect of which such proceeds were received.



ENDORSEMENT:




     (a) specify the Administrative Agent and it successors and assigns as an additional insured,
mortgagee and lender loss payee as its interests may appear, with the understanding that any
obligation imposed upon the insured (including the liability to pay premiums) shall be the sole
obligation of the applicable Loan Parties and not that of the insured;



     (b) provide that the interest of the Lenders shall be insured regardless of any breach or
violation by the applicable Loan Parties of any warranties, declarations or conditions contained in
such policies or any action or inaction of the applicable Loan Parties or others insured under such
policies;



     (c) provide a waiver of any right of the insurers to set off or counterclaim or any other
deduction, whether by attachment or otherwise;



     (d) provide that any and all rights of subrogation which the insurers may have or acquire
shall be, at all times and in all respects, junior and subordinate to the prior payment in full of
the Indebtedness hereunder and that no insurer shall exercise or assert any right of subrogation
until such time as the Indebtedness hereunder has been paid in full and the Commitments have
terminated;



 









 





     (e) provide, except in the case of public liability insurance and workmen’s compensation
insurance, that all insurance proceeds for losses of less than $5,000,000 shall be adjusted with
and payable to the applicable Loan Parties and that all insurance proceeds for losses of $5,000,000
or more shall be adjusted with and payable to the Administrative Agent;



     (f) include effective waivers by the insurer of all claims for insurance premiums against the
Administrative Agent;



     (g) provide that no cancellation of such policies for any reason (including non-payment of
premium) nor any change therein shall be effective until at least thirty (30) days after receipt by
the Administrative Agent of written notice of such cancellation or change;



     (h) be primary without right of contribution of any other insurance carried by or on behalf of
any additional insureds with respect to their respective interests in the Collateral; and



     (i) provide that inasmuch as the policy covers more than one insured, all terms, conditions,
insuring agreements and endorsements (except limits of liability) shall operate as if there were a
separate policy covering each insured.




2