exv10w1






Exhibit 10.1





$150,000,000 REVOLVING CREDIT FACILITY




AMENDED AND RESTATED CREDIT AGREEMENT



by and among



SPARTECH CORPORATION



and



THE LENDERS PARTY HERETO



PNC CAPITAL MARKETS LLC,

BANK OF AMERICA MERRILL LYNCH and

WELLS FARGO BANK, National Association

as Joint Lead Arrangers and Co-Syndication Agents



PNC CAPITAL MARKETS LLC,

as Sole Bookrunner



and



PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent



Dated as
of June 9, 2010



 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Page
	 
	1.	 	CERTAIN DEFINITIONS	 	 	1	 
	 	 	 	1.1	 	 	Certain Definitions	 	 	1	 
	 	 	 	1.2	 	 	Construction	 	 	25	 
	 	 	 	1.3	 	 	Accounting Principles	 	 	25	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2.	 	REVOLVING CREDIT AND SWING LOAN FACILITIES	 	 	26	 
	 	 	 	2.1	 	 	Revolving Credit Commitments	 	 	26	 
	 

	 	 	 	 	 	 	2.1.1	 	 	Revolving Credit Loans
	 	 	26	 
	 

	 	 	 	 	 	 	2.1.2	 	 	Swing Loan Commitment
	 	 	26	 
	 	 	 	2.2	 	 	Nature of Lenders’ Obligations with Respect to Revolving Credit Loans	 	 	26	 
	 	 	 	2.3	 	 	Commitment Fees	 	 	26	 
	 	 	 	2.4	 	 	[Intentionally Omitted]	 	 	27	 
	 	 	 	2.5	 	 	Revolving Credit Loan Requests; Swing Loan Requests	 	 	27	 
	 

	 	 	 	 	 	 	2.5.1	 	 	Revolving Credit Loan Requests
	 	 	27	 
	 

	 	 	 	 	 	 	2.5.2	 	 	Swing Loan Requests
	 	 	27	 
	 	 	 	2.6	 	 	Making Revolving Credit Loans and Swing Loans; Presumptions by the
Administrative Agent; Repayment of Revolving Credit Loans; Borrowings to Repay
Swing Loans	 	 	28	 
	 

	 	 	 	 	 	 	2.6.1	 	 	Making Revolving Credit Loans
	 	 	28	 
	 

	 	 	 	 	 	 	2.6.2	 	 	Presumptions by the Administrative Agent
	 	 	28	 
	 

	 	 	 	 	 	 	2.6.3	 	 	Making Swing Loans
	 	 	28	 
	 

	 	 	 	 	 	 	2.6.4	 	 	Repayment of Revolving Credit Loans
	 	 	29	 
	 

	 	 	 	 	 	 	2.6.5	 	 	Borrowings to Repay Swing Loans
	 	 	29	 
	 	 	 	2.7	 	 	Notes	 	 	29	 
	 	 	 	2.8	 	 	Use of Proceeds	 	 	29	 
	 	 	 	2.9	 	 	Letter of Credit Subfacility	 	 	29	 
	 

	 	 	 	 	 	 	2.9.1	 	 	Issuance of Letters of Credit
	 	 	29	 
	 

	 	 	 	 	 	 	2.9.2	 	 	Letter of Credit Fees
	 	 	30	 
	 

	 	 	 	 	 	 	2.9.3	 	 	Disbursements, Reimbursement
	 	 	30	 
	 

	 	 	 	 	 	 	2.9.4	 	 	Repayment of Participation Advances
	 	 	32	 
	 

	 	 	 	 	 	 	2.9.5	 	 	Documentation
	 	 	32	 
	 

	 	 	 	 	 	 	2.9.6	 	 	Determinations to Honor Drawing Requests
	 	 	32	 
	 

	 	 	 	 	 	 	2.9.7	 	 	Nature of Participation and Reimbursement Obligations
	 	 	32	 
	 

	 	 	 	 	 	 	2.9.8	 	 	Indemnity
	 	 	34	 
	 

	 	 	 	 	 	 	2.9.9	 	 	Liability for Acts and Omissions
	 	 	34	 
	 

	 	 	 	 	 	 	2.9.10	 	 	Issuing Lender Reporting Requirements
	 	 	36	 
	 	 	 	2.10	 	 	Utilization of Commitments in the Optional Currency	 	 	36	 
	 

	 	 	 	 	 	 	2.10.1	 	 	Periodic Computations of Dollar Equivalent Amounts of Revolving
Credit Loans
	 	 	36	 
	 

	 	 	 	 	 	 	2.10.2	 	 	Notice From Lenders That Optional Currency is Unavailable to Fund New
Loans
	 	 	36	 
	 

	 	 	 	 	 	 	2.10.3	 	 	Notices from Lenders That an Optional Currency is Unavailable to Fund
Renewals of the LIBOR Rate Option
	 	 	36	 
	 	 	 	2.11	 	 	Currency Repayments	 	 	37	 
	 	 	 	2.12	 	 	Optional Currency Amounts	 	 	37	 






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	 	 	 	2.13	 	 	Requests for Additional Optional Currencies	 	 	38	 
	 	 	 	2.14	 	 	Reduction of Revolving Credit Commitment	 	 	38	 
	 	 	 	2.15	 	 	Increase in Revolving Credit Commitments	 	 	38	 
	 

	 	 	 	 	 	 	2.15.1	 	 	Increasing Lenders and New Lenders
	 	 	38	 
	 

	 	 	 	 	 	 	2.15.2	 	 	Treatment of Outstanding Loans and Letters of Credit
	 	 	39	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	3.	 	[INTENTIONALLY OMITTED]	 	 	40	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	4.	 	INTEREST RATES	 	 	40	 
	 	 	 	4.1	 	 	Interest Rate Options	 	 	40	 
	 

	 	 	 	 	 	 	4.1.1	 	 	Revolving Credit Interest Rate Options; Swing Line Interest Rate
	 	 	40	 
	 

	 	 	 	 	 	 	4.1.2	 	 	Rate Quotations
	 	 	40	 
	 	 	 	4.2	 	 	Interest Periods	 	 	41	 
	 

	 	 	 	 	 	 	4.2.1	 	 	Amount of Borrowing Tranche
	 	 	41	 
	 

	 	 	 	 	 	 	4.2.2	 	 	Renewals
	 	 	41	 
	 	 	 	4.3	 	 	Interest After Default	 	 	41	 
	 

	 	 	 	 	 	 	4.3.1	 	 	Letter of Credit Fees, Interest Rate
	 	 	41	 
	 

	 	 	 	 	 	 	4.3.2	 	 	Other Obligations
	 	 	41	 
	 

	 	 	 	 	 	 	4.3.3	 	 	Acknowledgment
	 	 	41	 
	 	 	 	4.4	 	 	LIBOR Rate Unascertainable; Illegality; Increased Costs; Deposits Not
Available	 	 	41	 
	 

	 	 	 	 	 	 	4.4.1	 	 	Unascertainable
	 	 	41	 
	 

	 	 	 	 	 	 	4.4.2	 	 	Illegality; Increased Costs; Deposits Not Available
	 	 	42	 
	 

	 	 	 	 	 	 	4.4.3	 	 	Administrative Agent’s and Lender’s Rights
	 	 	42	 
	 	 	 	4.5	 	 	Selection of Interest Rate Options	 	 	43	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	5.	 	PAYMENTS	 	 	 	 	43	 
	 	 	 	5.1	 	 	Payments	 	 	43	 
	 	 	 	5.2	 	 	Pro Rata Treatment of Lenders	 	 	43	 
	 	 	 	5.3	 	 	Sharing of Payments by Lenders	 	 	44	 
	 	 	 	5.4	 	 	Presumptions by Administrative Agent	 	 	45	 
	 	 	 	5.5	 	 	Interest Payment Dates	 	 	45	 
	 	 	 	5.6	 	 	Voluntary Prepayments	 	 	45	 
	 

	 	 	 	 	 	 	5.6.1	 	 	Right to Prepay
	 	 	45	 
	 

	 	 	 	 	 	 	5.6.2	 	 	Replacement of a Lender
	 	 	46	 
	 	 	 	5.7	 	 	Mandatory Prepayments; Reduction of Commitments	 	 	47	 
	 

	 	 	 	 	 	 	5.7.1	 	 	Asset Sales
	 	 	47	 
	 

	 	 	 	 	 	 	5.7.2	 	 	Equity Issuance
	 	 	47	 
	 

	 	 	 	 	 	 	5.7.3	 	 	Debt Incurrence
	 	 	47	 
	 

	 	 	 	 	 	 	5.7.4	 	 	Extraordinary Receipt
	 	 	48	 
	 

	 	 	 	 	 	 	5.7.5	 	 	Excess Cash Flow
	 	 	48	 
	 

	 	 	 	 	 	 	5.7.6	 	 	Application Among Interest Rate Options; Reduction of Commitments
	 	 	49	 
	 	 	 	5.8	 	 	Increased Costs	 	 	49	 
	 

	 	 	 	 	 	 	5.8.1	 	 	Increased Costs Generally
	 	 	49	 
	 

	 	 	 	 	 	 	5.8.2	 	 	Capital Requirements
	 	 	49	 






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	 	 	 	 	 	 	5.8.3	 	 	Certificates for Reimbursement; Repayment of
Outstanding Loans; Borrowing of New Loans
	 	 	50	 
	 

	 	 	 	 	 	 	5.8.4	 	 	Delay in Requests
	 	 	50	 
	 

	 	 	 	 	 	 	5.8.5	 	 	Compensation Deadline
	 	 	50	 
	 	 	 	5.9	 	 	Taxes	 	 	50	 
	 

	 	 	 	 	 	 	5.9.1	 	 	Payments Free of Taxes
	 	 	50	 
	 

	 	 	 	 	 	 	5.9.2	 	 	Payment of Other Taxes by the Borrower
	 	 	51	 
	 

	 	 	 	 	 	 	5.9.3	 	 	Indemnification by the Borrower
	 	 	51	 
	 

	 	 	 	 	 	 	5.9.4	 	 	Evidence of Payments
	 	 	51	 
	 

	 	 	 	 	 	 	5.9.5	 	 	Status of Lenders
	 	 	51	 
	 	 	 	5.10	 	 	Indemnity	 	 	52	 
	 	 	 	5.11	 	 	Settlement Date Procedures	 	 	53	 
	 	 	 	5.12	 	 	Currency Fluctuations	 	 	53	 
	 	 	 	5.13	 	 	Judgment Currency	 	 	53	 
	 

	 	 	 	 	 	 	5.13.1	 	 	Currency Conversion Procedures for Judgments
	 	 	53	 
	 

	 	 	 	 	 	 	5.13.2	 	 	Indemnity in Certain Events
	 	 	54	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	6.	 	REPRESENTATIONS AND WARRANTIES	 	 	54	 
	 	 	 	6.1	 	 	Representations and Warranties	 	 	54	 
	 

	 	 	 	 	 	 	6.1.1	 	 	Organization and Qualification; Power
and Authority; Compliance With Laws; Title to
Properties; Event of Default
	 	 	54	 
	 

	 	 	 	 	 	 	6.1.2	 	 	Subsidiaries and Owners; Investment Companies
	 	 	54	 
	 

	 	 	 	 	 	 	6.1.3	 	 	Validity and Binding Effect
	 	 	55	 
	 

	 	 	 	 	 	 	6.1.4	 	 	No Conflict; Material Agreements; Consents
	 	 	55	 
	 

	 	 	 	 	 	 	6.1.5	 	 	Litigation
	 	 	55	 
	 

	 	 	 	 	 	 	6.1.6	 	 	Financial Statements
	 	 	56	 
	 

	 	 	 	 	 	 	6.1.7	 	 	Margin Stock
	 	 	56	 
	 

	 	 	 	 	 	 	6.1.8	 	 	Full Disclosure
	 	 	56	 
	 

	 	 	 	 	 	 	6.1.9	 	 	Taxes
	 	 	57	 
	 

	 	 	 	 	 	 	6.1.10	 	 	Patents, Trademarks, Copyrights, Licenses, Etc.
	 	 	57	 
	 

	 	 	 	 	 	 	6.1.11	 	 	Liens in the Collateral
	 	 	57	 
	 

	 	 	 	 	 	 	6.1.12	 	 	Insurance
	 	 	57	 
	 

	 	 	 	 	 	 	6.1.13	 	 	ERISA Compliance
	 	 	57	 
	 

	 	 	 	 	 	 	6.1.14	 	 	Environmental Compliance
	 	 	58	 
	 

	 	 	 	 	 	 	6.1.15	 	 	Solvency
	 	 	58	 
	 	 	 	6.2	 	 	Updates to Schedules	 	 	58	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	7.	 	CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT	 	 	58	 
	 	 	 	7.1	 	 	First Loans and Letters of Credit	 	 	58	 
	 

	 	 	 	 	 	 	7.1.1	 	 	Deliveries
	 	 	58	 
	 

	 	 	 	 	 	 	7.1.2	 	 	Payment of Fees
	 	 	60	 
	 	 	 	7.2	 	 	Each Loan or Letter of Credit	 	 	60	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	8.	 	COVENANTS	 	 	60	 
	 	 	 	8.1	 	 	Affirmative Covenants	 	 	60	 
	 

	 	 	 	 	 	 	8.1.1	 	 	Preservation of Existence, Etc.
	 	 	60	 
	 

	 	 	 	 	 	 	8.1.2	 	 	Payment of Liabilities, Including Taxes, Etc.
	 	 	60	 
	 

	 	 	 	 	 	 	8.1.3	 	 	Maintenance of Insurance
	 	 	60	 






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	 	 	 	 	 	 	8.1.4	 	 	Maintenance of Properties and Leases
	 	 	61	 
	 

	 	 	 	 	 	 	8.1.5	 	 	Visitation Rights
	 	 	61	 
	 

	 	 	 	 	 	 	8.1.6	 	 	Keeping of Records and Books of Account
	 	 	61	 
	 

	 	 	 	 	 	 	8.1.7	 	 	Compliance with Laws; Use of Proceeds
	 	 	61	 
	 

	 	 	 	 	 	 	8.1.8	 	 	Further Assurances
	 	 	61	 
	 

	 	 	 	 	 	 	8.1.9	 	 	Anti-Terrorism Laws
	 	 	62	 
	 

	 	 	 	 	 	 	8.1.10	 	 	Grant of Mortgage Collateral
	 	 	62	 
	 

	 	 	 	 	 	 	8.1.11	 	 	Minimum Borrower and Guarantor
Consolidated Total Operating Income and Consolidated Total Assets	 	 	62	 
	 

	 	 	 	 	 	 	8.1.12	 	 	Modification to Fixed Charge
Coverage Ratio	 	 	62	 
	 	 	 	8.2	 	 	Negative Covenants	 	 	62	 
	 

	 	 	 	 	 	 	8.2.1	 	 	Liens	 	 	62	 
	 

	 	 	 	 	 	 	8.2.2	 	 	Disposition of Assets
	 	 	64	 
	 

	 	 	 	 	 	 	8.2.3	 	 	Consolidations and Mergers
	 	 	65	 
	 

	 	 	 	 	 	 	8.2.4	 	 	Loans and Investments
	 	 	65	 
	 

	 	 	 	 	 	 	8.2.5	 	 	Limitation on Indebtedness
	 	 	66	 
	 

	 	 	 	 	 	 	8.2.6	 	 	Consolidated Net Worth
	 	 	66	 
	 

	 	 	 	 	 	 	8.2.7	 	 	Fixed Charge Coverage Ratio
	 	 	66	 
	 

	 	 	 	 	 	 	8.2.8	 	 	Leverage Ratio
	 	 	66	 
	 

	 	 	 	 	 	 	8.2.9	 	 	Sale/Leasebacks
	 	 	66	 
	 

	 	 	 	 	 	 	8.2.10	 	 	Transactions with Affiliates
	 	 	66	 
	 

	 	 	 	 	 	 	8.2.11	 	 	Use of Proceeds
	 	 	66	 
	 

	 	 	 	 	 	 	8.2.12	 	 	Guarantees
	 	 	66	 
	 

	 	 	 	 	 	 	8.2.13	 	 	Restricted Payments
	 	 	67	 
	 

	 	 	 	 	 	 	8.2.14	 	 	ERISA
	 	 	67	 
	 

	 	 	 	 	 	 	8.2.15	 	 	Change in Business
	 	 	67	 
	 

	 	 	 	 	 	 	8.2.16	 	 	Accounting Changes	 	 	67	 
	 

	 	 	 	 	 	 	8.2.17	 	 	Amendment and Waivers of Subordinated Debt
	 	 	68	 
	 

	 	 	 	 	 	 	8.2.18	 	 	Capital Expenditures
	 	 	68	 
	 

	 	 	 	 	 	 	8.2.19	 	 	Senior Note Documents
	 	 	68	 
	 	 	 	8.3	 	 	Reporting Requirements	 	 	68	 
	 

	 	 	 	 	 	 	8.3.1	 	 	Quarterly Financial Statements
	 	 	68	 
	 

	 	 	 	 	 	 	8.3.2	 	 	Annual Financial Statements
	 	 	69	 
	 

	 	 	 	 	 	 	8.3.3	 	 	Certificate of the Borrower
	 	 	69	 
	 

	 	 	 	 	 	 	8.3.4	 	 	Notices
	 	 	69	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	9.	 	DEFAULT	 	 	 	 	70	 
	 	 	 	9.1	 	 	Events of Default	 	 	70	 
	 

	 	 	 	 	 	 	9.1.1	 	 	Payments Under Loan Documents
	 	 	70	 
	 

	 	 	 	 	 	 	9.1.2	 	 	Breach of Warranty
	 	 	70	 
	 

	 	 	 	 	 	 	9.1.3	 	 	Breach of Negative Covenants or Visitation Rights
	 	 	70	 
	 

	 	 	 	 	 	 	9.1.4	 	 	Breach of Other Covenants
	 	 	70	 
	 

	 	 	 	 	 	 	9.1.5	 	 	Defaults in Other Agreements or Indebtedness
	 	 	70	 
	 

	 	 	 	 	 	 	9.1.6	 	 	Final Judgments or Orders
	 	 	71	 
	 

	 	 	 	 	 	 	9.1.7	 	 	Loan Document Unenforceable
	 	 	71	 
	 

	 	 	 	 	 	 	9.1.8	 	 	Uninsured Losses; Proceedings Against Assets
	 	 	71	 
	 

	 	 	 	 	 	 	9.1.9	 	 	Events Relating to Plans and Benefit Arrangements
	 	 	71	 
	 

	 	 	 	 	 	 	9.1.10	 	 	Change of Control
	 	 	71	 
	 

	 	 	 	 	 	 	9.1.11	 	 	Relief Proceedings
	 	 	71	 
	 	 	 	9.2	 	 	Consequences of Event of Default	 	 	72	 






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	 	 	 	 	 	 	9.2.1	 	 	Events of Default Other Than Bankruptcy, Insolvency or
Reorganization Proceedings
	 	 	72	 
	 

	 	 	 	 	 	 	9.2.2	 	 	Bankruptcy, Insolvency or Reorganization Proceedings
	 	 	72	 
	 

	 	 	 	 	 	 	9.2.3	 	 	Set-off
	 	 	72	 
	 

	 	 	 	 	 	 	9.2.4	 	 	Application of Proceeds
	 	 	73	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	10.	 	THE ADMINISTRATIVE AGENT	 	 	73	 
	 	 	 	10.1	 	 	Appointment and Authority	 	 	73	 
	 	 	 	10.2	 	 	Rights as a Lender	 	 	73	 
	 	 	 	10.3	 	 	Exculpatory Provisions	 	 	73	 
	 	 	 	10.4	 	 	Reliance by Administrative Agent	 	 	74	 
	 	 	 	10.5	 	 	Delegation of Duties	 	 	74	 
	 	 	 	10.6	 	 	Resignation of Administrative Agent	 	 	74	 
	 	 	 	10.7	 	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	75	 
	 	 	 	10.8	 	 	No Other Duties, etc.	 	 	76	 
	 	 	 	10.9	 	 	Administrative Agent’s Fee	 	 	76	 
	 	 	 	10.10	 	 	Authorization to Release Collateral and Guarantors	 	 	76	 
	 	 	 	10.11	 	 	No Reliance on Administrative Agent’s Customer Identification Program	 	 	76	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	11.	 	MISCELLANEOUS	 	 	76	 
	 	 	 	11.1	 	 	Modifications, Amendments or Waivers	 	 	76	 
	 

	 	 	 	 	 	 	11.1.1	 	 	Increase of Commitment
	 	 	77	 
	 

	 	 	 	 	 	 	11.1.2	 	 	Extension of Payment; Reduction of Principal Interest or Fees;
Modification of Terms of Payment
	 	 	77	 
	 

	 	 	 	 	 	 	11.1.3	 	 	Release of Collateral or Guarantor
	 	 	77	 
	 

	 	 	 	 	 	 	11.1.4	 	 	Miscellaneous
	 	 	77	 
	 	 	 	11.2	 	 	No Implied Waivers; Cumulative Remedies	 	 	77	 
	 	 	 	11.3	 	 	Expenses; Indemnity; Damage Waiver	 	 	77	 
	 

	 	 	 	 	 	 	11.3.1	 	 	Costs and Expenses
	 	 	77	 
	 

	 	 	 	 	 	 	11.3.2	 	 	Indemnification by the Borrower
	 	 	78	 
	 

	 	 	 	 	 	 	11.3.3	 	 	Reimbursement by Lenders
	 	 	79	 
	 

	 	 	 	 	 	 	11.3.4	 	 	Waiver of Consequential Damages, Etc.
	 	 	79	 
	 

	 	 	 	 	 	 	11.3.5	 	 	Payments
	 	 	79	 
	 	 	 	11.4	 	 	Holidays	 	 	79	 
	 	 	 	11.5	 	 	Notices; Effectiveness; Electronic Communication	 	 	79	 
	 

	 	 	 	 	 	 	11.5.1	 	 	Notices Generally
	 	 	79	 
	 

	 	 	 	 	 	 	11.5.2	 	 	Electronic Communications
	 	 	80	 
	 

	 	 	 	 	 	 	11.5.3	 	 	Change of Address, Etc.
	 	 	80	 
	 	 	 	11.6	 	 	Severability	 	 	80	 
	 	 	 	11.7	 	 	Duration; Survival	 	 	80	 
	 	 	 	11.8	 	 	Successors and Assigns	 	 	81	 
	 

	 	 	 	 	 	 	11.8.1	 	 	Successors and Assigns Generally
	 	 	81	 
	 

	 	 	 	 	 	 	11.8.2	 	 	Assignments by Lenders
	 	 	81	 
	 

	 	 	 	 	 	 	11.8.3	 	 	Register
	 	 	83	 
	 

	 	 	 	 	 	 	11.8.4	 	 	Participations
	 	 	83	 
	 

	 	 	 	 	 	 	11.8.5	 	 	Limitations upon Participant Rights Successors and Assigns Generally.	 	 	83	 
	 

	 	 	 	 	 	 	11.8.6	 	 	Certain Pledges; Successors and Assigns Generally
	 	 	84	 
	 	 	 	11.9	 	 	Confidentiality	 	 	84	 






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	 	 	 	 	 	 	11.9.1	 	 	General
	 	 	84	 
	 

	 	 	 	 	 	 	11.9.2	 	 	Sharing Information With Affiliates of the Lenders
	 	 	84	 
	 	 	 	11.10	 	 	Counterparts; Integration; Effectiveness	 	 	84	 
	 

	 	 	 	 	 	 	11.10.1	 	 	Counterparts; Integration; Effectiveness
	 	 	84	 
	 

	 	 	11.11	 	 	CHOICE OF LAW; SUBMISSION TO JURISDICTION;
   WAIVER OF VENUE; SERVICE OF PROCESS; WAIVER OF JURY TRIAL
	 	 	85	 
	 

	 	 	 	 	 	 	11.11.1	 	 	Governing Law
	 	 	85	 
	 

	 	 	 	 	 	 	11.11.2	 	 	SUBMISSION TO JURISDICTION
	 	 	85	 
	 

	 	 	 	 	 	 	11.11.3	 	 	WAIVER OF VENUE
	 	 	86	 
	 

	 	 	 	 	 	 	11.11.4	 	 	SERVICE OF PROCESS
	 	 	86	 
	 

	 	 	 	 	 	 	11.11.5	 	 	WAIVER OF JURY TRIAL
	 	 	86	 
	 	 	 	11.12	 	 	USA Patriot Act Notice	 	 	86	 
	 	 	 	11.13	 	 	Joinder of Loan Party	 	 	86	 






vi









 






LIST OF SCHEDULES AND EXHIBITS




	 	 	 	 	 

	SCHEDULES
	 	 	 	 
	 
	 	 	 	 
	SCHEDULE 1.1(A)

	 	-
	 	PRICING GRID
	SCHEDULE 1.1(B)

	 	-
	 	COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES
	SCHEDULE 2.9

	 	-
	 	LETTERS OF CREDIT
	SCHEDULE 6.1.1

	 	-
	 	QUALIFICATIONS TO DO BUSINESS
	SCHEDULE 6.1.2

	 	-
	 	SUBSIDIARIES
	SCHEDULE 6.1.5

	 	-
	 	LITIGATION
	SCHEDULE 6.1.14

	 	-
	 	ENVIRONMENTAL DISCLOSURES
	SCHEDULE 7.1.1

	 	-
	 	OPINION OF COUNSEL
	SCHEDULE 8.1.3

	 	-
	 	INSURANCE REQUIREMENTS RELATING TO COLLATERAL
	SCHEDULE 8.2.1

	 	-
	 	PERMITTED LIENS
	SCHEDULE 8.2.5

	 	-
	 	PERMITTED INDEBTEDNESS
	SCHEDULE
8.2.12

	 	-
	 	PERMITTED GUARANTEES
	 
	 	 	 	 
	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)(1)

	 	-
	 	INDEMNITY
	EXHIBIT 1.1(N)(1)

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

	 	-
	 	SWING LOAN NOTE
	EXHIBIT 1.1(S)

	 	-
	 	SECURITY AGREEMENT
	EXHIBIT 2.5.1

	 	-
	 	LOAN REQUEST
	EXHIBIT 2.5.2

	 	-
	 	SWING LOAN REQUEST
	EXHIBIT 2.15

	 	-
	 	LENDER JOINDER
	EXHIBIT 8.3.3

	 	-
	 	QUARTERLY COMPLIANCE CERTIFICATE







vii











 





AMENDED AND RESTATED CREDIT AGREEMENT




     THIS AMENDED AND RESTATED CREDIT AGREEMENT (as hereafter amended, the “Agreement”) is dated as
of June ___, 2010, and is made by and among SPARTECH CORPORATION, a Delaware corporation (the
“Borrower”), each of the GUARANTORS (as hereinafter defined), the LENDERS (as hereinafter defined),
and PNC BANK, NATIONAL ASSOCIATION, in its capacity as administrative agent for the Lenders under
this Agreement (hereinafter referred to in such capacity as the “Administrative Agent”).



     The Borrower, various financial institutions and Bank of America, N.A., as administrative
agent, are parties to that certain Fourth Amended and Restated Credit Agreement, dated as of June
2, 2006, as heretofore amended, modified and supplemented from time to time (the “Existing Credit
Agreement”).



     The Borrower has requested the Lenders to provide a revolving credit facility to the Borrower
in an aggregate principal amount not to exceed $150,000,000 pursuant to this Agreement, which
amends and restates the Existing Credit Agreement. 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:



          Acquisition means any transaction or series of related transactions for the purpose of
or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the
assets of a Person, or of any business or division of a Person, (b) the acquisition of assets of a
Person that is accompanied by a long term supply agreement, (c) the acquisition of in excess of 50%
of the Equity Interests of any Person, or otherwise causing any Person to become a Subsidiary, or
(d) a merger or consolidation or any other combination with another Person (other than a Person
that is a Subsidiary) provided that the Borrower or the Subsidiary is the surviving entity.




          Administrative Agent shall mean PNC Bank, National Association, 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 Section10.9
[Administrative Agent’s Fee].




          Affiliate as to any Person shall mean 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 10% or more of any class of the voting or other Equity Interests of






 









 







such Person, or (iii) 10% 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.




          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:




          (A) the percentage spread to be added to the Base Rate applicable to Revolving Credit Loans
under the 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 Base Rate Spread”, or




          (B) 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.




          Asset Sale shall have the meaning specified in Section 8.2.2 [Disposition of Assets].




          Assignment and Assumption Agreement shall mean an assignment and assumption agreement
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).




          Authorized Officer shall mean, with respect to any Loan Party, the Chief Executive
Officer, President, Chief Financial Officer, Treasurer, Assistant Treasurer or Controller 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.







-2-









 








          Base Rate shall mean, for any day, a fluctuating per annum rate of interest equal to
the highest of (a) the Federal Funds Open Rate, plus 0.5%, and (b) the Prime Rate, and (c)
the Daily LIBOR Rate, plus 100 basis points (1.0%). Any change in the Base Rate (or any
component thereof) shall take effect at the opening of business on the day such change occurs.




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




          Borrower shall mean Spartech Corporation, 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 Interest Period and
which are denominated either in Dollars or in the same Optional Currency shall constitute one
Borrowing Tranche, and (ii) all Loans to which a Base Rate Option applies shall constitute one
Borrowing Tranche.




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




          Calyon Term Loan means the term loan made to the Borrower by Calyon New York Branch in
the original principal amount of 20,000,000 Euros pursuant to that certain Term Loan Agreement
dated as of February 16, 2005, as amended.




          Capital Expenditure shall mean with respect to any person for any period, the
aggregate amount of all expenditures by such Person and its Subsidiaries for the acquisition or
leasing (pursuant to a Capital Lease) of fixed or capital assets that are required to be
capitalized under GAAP on a balance sheet of such Person.




          Capital Lease means, as of any date, any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with GAAP to be
capitalized on the balance sheet of the lessee.







-3-









 








          Capitalized Lease Obligations means, with respect to any Person, all outstanding
obligations of such Person in respect of Capital Leases, taken at the capitalized amount thereof
accounted for as indebtedness in accordance with GAAP.




          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.




          Change of Control means that (a) any Person or group (within the meaning of Rule13d-5
of the SEC under the Exchange Act) shall become the Beneficial Owner of 20% or more of the Voting
Equity Interests of the Borrower, or (b) a majority of the members of the Board of Directors of the
Borrower shall cease to be Continuing Members.




          Closing Date shall mean the Business Day on which the first Loan shall be made, which
shall be June ___, 2010.




          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.




          Collateral shall mean any collateral in which a Lien is granted by any Person to the
Collateral Agent to secure the Senior Secured Obligations pursuant to the Collateral Documents.




          Collateral Agent shall mean PNC in its capacity as collateral agent for the Creditors,
or any successor thereto under the Intercreditor Agreement.




          Collateral Documents shall mean the Security Agreement, any Mortgage Instrument, and
any document related thereto.




          Commitment shall mean as to any Lender the aggregate of its Revolving Credit
Commitment and, in the case of PNC, its 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 8.3.3 [Certificate
of the Borrower].




          Computation Date shall have the meaning specified in Section 2.10 [Utilization of
Commitments in Optional Currency].




          Consolidated EBITDA for any period of determination shall mean Consolidated Net Income
for such period plus all amounts deducted in the computation thereof on account of







-4-









 







(a) Consolidated Interest Expense, (b) depreciation and amortization expenses and other non-cash
charges (including but no limited to expensing of stock options, fixed asset write-offs and
impairment of good will), (c) income and profits taxes, and (d) cash restructuring expenses not to
exceed $5,000,000.




          Consolidated Indebtedness means, at any date, all Indebtedness of the Borrower and its
Subsidiaries, determined on a consolidated basis.




          Consolidated Interest Expense for any period means the sum for the Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP, of all amounts which
would be deducted in computing Consolidated Net Income on account of interest on Indebtedness
(including imputed interest in respect of Capitalized Lease Obligations and amortization of debt
discount and expense).




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




          (a) the proceeds of any life insurance policy;




          (b) any gains arising from (i) the sale or other disposition of any assets (other than current
assets) to the extent that the aggregate amount of the gains during such period exceeds the
aggregate amount of the losses during such period from the sale, abandonment or other disposition
of assets (other than current assets), (ii) any write-up of assets or (iii) the acquisition of
outstanding securities of the Borrower or any Subsidiary;




          (c) any amount representing any interest in the undistributed earnings of any other Person
(other than a Subsidiary);




          (d) any earnings, prior to the date of acquisition, of any Person acquired in any manner, and
any earnings of any Subsidiary acquired prior to its becoming a Subsidiary;




          (e) any earnings of a successor to or transferee of the assets of the Borrower prior to its
becoming such successor or transferee;




          (f) any deferred credit (or amortization of a deferred credit) arising from the acquisition of
any Person; and




          (g) any extraordinary gains not covered by clause (b) above.




          Consolidated Net Worth shall mean, at any date, on a consolidated basis for the
Borrower and its Subsidiaries, (a) the sum of (i) capital stock taken at par or stated value plus
(ii) capital in excess of par or stated value relating to capital stock plus (iii) retained
earnings (or minus any retained earning deficit) minus (b) the sum of treasury stock, capital stock
subscribed for and unissued and other contra-equity accounts, all determined in accordance with
GAAP.




          Consolidated
Total Operating Income shall mean, for any period, on a consolidated basis in
accordance with GAAP for the Borrower and its Subsidiaries, earnings before







-5-









 







Consolidated Interest Expense and income taxes for such period, plus all amounts deducted for other
non-cash charges (including but not limited to expensing of stock options, fixed asset write-offs
and impairments of goodwill) for such period.



          Consolidated
Total Assets shall mean, at  any date, for the Borrower and its
Subsidiaries, the total assets as of such date which would be shown
as assets on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with GAAP.




          Continuing Member means a member of the Board of Directors of the Borrower who either
(a) was a member of the Borrower’s Board of Directors on the Closing Date and has been such
continuously thereafter, or (b) became a member of such Board of Directors after the Closing Date
and whose election or nomination for election was approved by a vote of the majority of the
Continuing Members then members of the Borrower’s Board of Directors.




          Creditor has the meaning specified in the Intercreditor Agreement.




          Daily LIBOR Rate shall mean, for any day, the rate per annum determined by the
Administrative Agent by dividing (x) the Published Rate by (y) a number equal to 1.00 minus the
LIBOR Reserve Percentage on such day.




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




          Defaulting Lender shall mean any Lender that (a) has failed to fund any portion of the
Loans, participations with respect to Letters of Credit, or participations in Swing Line Loans
required to be funded by it hereunder within one Business Day of the date required to be funded by
it hereunder unless such failure has been cured and all interest accruing as a result of such
failure has been fully paid in accordance with the terms hereof, (b) has otherwise failed to pay
over to the Administrative Agent or any other Lender any other amount required to be paid by it
hereunder within one Business Day of the date when due, unless the subject of a good faith dispute
or unless such failure has been cured and all interest accruing as a result of such failure has
been fully paid in accordance with the terms hereof, (c) has failed at any time to comply with the
provisions of Section 5.3 with respect to purchasing participations from the other Lenders, whereby
such Lender’s share of any payment received, whether by setoff or otherwise, is in excess of its
Ratable Share of such payments due and payable to all of the Lenders, or (d) has since the date of
this Agreement been deemed insolvent by an Official Body or become the subject of a bankruptcy,
receivership, conservatorship or insolvency proceeding, or has a parent company that since the date
of this Agreement been deemed insolvent by an Official Body or become the subject of a bankruptcy,
receivership, conservatorship or insolvency proceeding.




          Dividends means, with respect to any Person, dividends or other distributions of
assets, properties, cash, rights, obligations or securities on account of any shares of any class
of its capital stock.




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




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







-6-









 








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




          Drawing Date shall have the meaning specified in Section 2.9.3 [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 relating to: (i) pollution or pollution control; (ii) protection of human health from exposure
to regulated substances; (iii) protection of the environment and/or natural resources; (iv)
employee safety in the workplace; (v) 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; (vi) the presence of contamination; (vii) the protection of endangered or threatened
species; and (viii) the protection of environmentally sensitive areas.




          Equity Interest means shares of capital stock (whether denominated as common stock or
preferred stock), beneficial, partnership or membership interests, participations or other
equivalents (regardless of how designated) of or in a corporation, partnership, limited liability
company or equivalent entity, whether voting or non-voting.




          Equivalent Amount shall mean, at any time, as determined by the Administrative Agent
(which determination shall be conclusive absent manifest error) with respect to an amount of any
currency (the “Reference Currency”) which is to be computed as an equivalent amount of another
currency (the “Equivalent Currency”), the amount of such Equivalent Currency converted from such
Reference Currency using the average spot rate quoted to the Administrative Agent (based on market
rates then prevailing and available to the Administrative Agent) or the commercial market rate of
exchange, as determined by the Administrative Agent, for the sale of such Equivalent Currency for
such Reference Currency at a time determined by Administrative Agent of the second Business Day
immediately preceding the event for which such calculation is made.




          Equivalent Currency shall have the meaning assigned to such term in the definition of
“Equivalent Amount”.




          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 shall mean (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







-7-









 







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.”




          Excess Cash Flow shall mean, for any period for the Borrower and its Subsidiaries on a
consolidated basis, an amount equal to the sum of, without duplication, in each case for such
period (a) the sum of (i) Consolidated EBITDA (excluding for purposes of the determination of
Excess Cash Flow only, the addition of any cash restructuring expenses), (ii) interest income
received in cash, and (iii) net decrease (if any) in working capital minus (b) the sum of (i)
Restricted Payments, (ii) aggregate amount of federal, state, local and foreign income taxes paid
in cash, (iii) unfinanced cash portion of Capital Expenditures, (iv) amounts expended for Permitted
Acquisitions, (v) scheduled principal repayments of Indebtedness (other than Indebtedness of the
Borrower or any Subsidiary owing to the Borrower or another Subsidiary) and, without duplication,
payments of such Indebtedness which result in a permanent reduction of any commitment related
thereto, (vi) interest and fees in respect of any Indebtedness (other than Indebtedness of the
Borrower or any Subsidiary owing to the Borrower or another Subsidiary) actually paid in cash, and
(vii) net increases (if any) in working capital.




          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), 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 5.9.5 [Status of Lenders], except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new







-8-









 







lending office (or assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 5.9.1 [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 has the meaning specified in the introductory paragraphs
hereto.




          Expiration Date shall mean, with respect to the Revolving Credit Commitments, June
9, 2014.




          Extraordinary Receipt means any cash received by or paid to or for the account of any
Person in excess of $1,000,000 not in the ordinary course of business, including tax refunds,
pension plan reversions, proceeds of insurance (other than proceeds of business interruption
insurance to the extent such proceeds constitute compensation for lost earnings), condemnation
awards (and payments in lieu thereof), indemnity payments and any purchase price adjustments;
provided, however, that an Extraordinary Receipt shall not include cash receipts
from proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments
to the extent that such proceeds, awards or payments are received by any Person in respect of any
third party claim against such Person and applied to pay (or to reimburse such Person for its prior
payment of) such claim and the costs and expenses of such Person with respect thereto.




          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.




          Federal Funds Open Rate for any day shall mean the rate per annum (based on a year of
360 days and actual days elapsed) which is the daily federal funds open rate as quoted by ICAP
North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for that day
opposite the caption “OPEN” (or on such other substitute Bloomberg Screen that displays such rate),
or as set forth on such other recognized electronic source used for the purpose of displaying such
rate as selected by the Administrative Agent (for purposes of this definition, an “Alternate
Source”) (or if such rate for such day does not appear on the Bloomberg Screen BTMM (or any
substitute screen) or on any Alternate Source, or if there shall at any time, for any reason, no
longer exist a Bloomberg Screen BTMM (or any substitute screen) or any Alternate Source, a
comparable replacement rate determined by the Administrative Agent at such time (which
determination shall be conclusive absent manifest error); provided however, that if such day is not
a Business Day, the Federal Funds Open Rate







-9-









 







for such day shall be the “open” rate on the immediately preceding Business Day. If and when the
Federal Funds Open Rate changes, the rate of interest with respect to any advance to which the
Federal Funds Open Rate applies will change automatically without notice to the Borrower, effective
on the date of any such change.




          Fixed Charge Coverage Ratio shall mean, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the ratio of (a) the sum of (i) Consolidated
EBITDA, minus (ii) Capital Expenditures, minus (iii) income tax expense, to (b) the sum of (i) cash
Consolidated Interest Expense, plus (ii) Dividends, plus (iii) Stock Redemptions, plus (iv)
scheduled installment payments of principal of Consolidated Indebtedness, excluding (x) principal
payments made in 2010 with respect to the Calyon Term Loan, (y) principal payments made in 2010 to
satisfy the Noteholders under the Note Purchase Agreement related to the 6.82% Senior Notes due
2011 as set forth in Section 7.1.1(x), and (z) scheduled principal payments for
amortization payments under the Note Purchase Agreement related to the 6.58% Senior Notes due 2016,
in each case for the four consecutive fiscal quarters most recently ended.




          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.




          Foreign Subsidiary means each Subsidiary of the Borrower which is organized under the
laws of any jurisdiction other than, and which is conducting the majority of its business outside
of, the United States or any state thereof.




          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 means, collectively, (a) each Domestic Subsidiary of the Borrower in
existence on the Closing Date other than (i) each Inactive Subsidiary, (ii) each Domestic
Subsidiary that has no assets other than the capital stock or other ownership interest of another
Domestic Subsidiary, and (b) each Domestic Subsidiary of the Borrower formed or acquired after the
Closing Date (other than a Domestic Subsidiary that has no assets other than the capital stock or
other ownership interest of another Domestic Subsidiary) that executes a Guaranty Joinder pursuant
to Section 11.13.




          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 or Guarantees 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







-10-









 







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.




          Inactive Subsidiary means any Subsidiary of the Borrower which does not actively
conduct business and which does not own any material assets.




          Increasing Lender shall have the meaning assigned to that term in Section 2.15
[Increase in Revolving Credit Commitments].




          Indebtedness means, as to any Person at a particular time, without duplication, all of
the following, whether or not included as indebtedness or liabilities in accordance with GAAP:




          (a) all obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




          (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments;




          (c) net obligations of such Person under (i) any Interest Rate Hedge, foreign currency
exchange transaction, currency swap transaction, cross-currency rate swap transaction, currency
options, spot contracts, or any other similar transactions, and (ii) commodity swaps, commodity
options, forward commodity contracts and any other similar transactions;




          (d) all obligations of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business);




          (e) accrued obligations in respect of earn-out or similar payments payable in cash or which
may be payable in cash at the seller’s or obligee’s option;




          (f) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse;




          (g) Capitalized Lease Obligations and Synthetic Lease Obligations;




          (h) obligations in respect of Redeemable Stock;




          (i) any “withdrawal liability” of such Person as such term is defined under Part I of Subtitle
E of Title IV of ERISA; and







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          (j) all Guarantees of such Person in respect of any of the foregoing.




          For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date. The amount of any Synthetic Lease Obligation as of any date shall be deemed to be the amount
of Attributable Indebtedness in respect thereof as of such date.




          Indemnified Taxes shall mean Taxes other than Excluded Taxes.




          Indemnitee shall have the meaning specified in Section 11.3.2 [Indemnification by the
Borrower].




          Indemnity shall mean the Indemnity Agreement in the form of Exhibit 1.1(I)(1)
relating to possible environmental liabilities associated with any of the owned real property of
the Loan Parties or their Subsidiaries which becomes subject to a Mortgage Instrument.




          Internal Control Event means a weakness in, or fraud that involves management or other
employees who have a significant role in, the Borrower’s internal controls over financial
reporting, in each case as described in the Securities Laws, the result of which could,
individually or in the aggregate, reasonably be expected to have a Material Adverse Change.




          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.




          Intercreditor Agreement means that certain Amended and Restated Intercreditor and
Collateral Agency Agreement dated as of June 9, 2010, among PNC, as Collateral Agent, the
Administrative Agent on behalf of each of the Lenders, and the Noteholders and consented to by the
Borrower and each Granting Party, as hereafter may be amended, modified or supplemented from time
to time in accordance with the terms thereof, which Intercreditor







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Agreement amends and restates that certain Intercreditor and Collateral Agency Agreement, dated as
of September 10, 2008, among inter alia, Bank of America, as the predecessor the collateral
agent and administrative agent and the Noteholders and consented to by the Borrower and each
Granting Party.




          Interest Period shall mean the period of time selected by the Borrower in connection
with (and to apply to) any election permitted hereunder by the Borrower to have Revolving Credit
Loans bear interest under the LIBOR Rate Option. Subject to the last sentence of this definition,
such period shall be one, two, three or six Months. Such 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 Interest Period which would otherwise end on a
date which is not a Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, (B) the Borrower shall not select, convert to or renew an Interest
Period for any portion of the Loans that would end after the Expiration Date, and (C) with respect
to Revolving Credit Loans which bear interest at an Optional Currency, only the one Month period
shall apply to such Loans.




          Interest Rate Hedge shall mean an interest rate exchange, collar, cap, swap,
adjustable strike cap, adjustable strike corridor or similar agreements entered into by the Loan
Parties or their Subsidiaries in order to provide protection to, or minimize the impact upon, the
Borrower, the Guarantor and/or their Subsidiaries of increasing floating rates of interest
applicable to Indebtedness.




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




          IRS shall mean the Internal Revenue Service.




          Issuing Lender shall mean PNC, in its individual capacity as issuer of Letters of
Credit hereunder, and Bank of America, N.A. with respect to the Letters of Credit set forth on
Schedule 2.9 (but excluding any Letters of Credit issued by Bank of America, N.A. after the date
hereof), and their respective successors.




          Joint Venture shall mean a corporation, partnership, limited liability company or
other entity 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.




          Lender Provided Interest Rate Hedge shall mean an Interest Rate Hedge which is
provided by any Lender or its Affiliate and with respect to which the Administrative Agent
confirms: (i) is documented in a standard International Swap Dealer Association Agreement, and







-13-









 







(ii) provides for the method of calculating the reimbursable amount of the provider’s credit
exposure in a reasonable and customary manner.




          Lenders shall mean the financial institutions named on Schedule 1.1(B) and
their respective successors and assigns as permitted hereunder, each of which is referred to herein
as a Lender. For the purpose of any Loan Document which provides for the granting of a security
interest or other Lien to the 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 2.9.1 [Issuance of
Letters of Credit].




          Letter of Credit Borrowing shall have the meaning specified in Section 2.9.3
[Disbursements, Reimbursement].




          Letter of Credit Fee shall have the meaning specified in Section 2.9.2 [Letter of
Credit Fees].




          Letter of Credit Obligation shall mean, 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 2.9.1 [Issuance
of Letters of Credit].




          “Leverage Ratio” means, as of any date of determination, for the Borrower and its
Subsidiaries on a consolidated basis, the ratio of (a) Consolidated Indebtedness as of such date to
(b) Consolidated EBITDA for the four consecutive fiscal quarters most recently ended. For purposes
of calculating the Leverage Ratio as at any date, Consolidated EBITDA shall be calculated on a pro
forma basis (as certified by the Borrower to the Administrative Agent) assuming that all Permitted
Acquisitions made, and all divestitures completed, during the four consecutive fiscal quarters then
most recently ended had been made on the first day of such period, without adjustment for expected
cost savings or other synergies; provided however, subject to the Borrower obtaining a
similar agreement from the Noteholders to permit such treatment, Consolidated EBITDA with respected
to Permitted Acquisitions and permitted Asset Sales shall be calculated for purposes of the
Leverage Ratio based upon a pro forma condensed income statement in a manner acceptable to the
Administrative Agent in its reasonable discretion which excludes (i)
historical expenses which will not be continuing, and (ii) income related to assets which are disposed of by the Borrower and its
Subsidiaries, each of the foregoing as allowed under SEC Regulation S-X.




          LIBOR Rate shall mean the following:




          (A) with respect to Dollar Loans comprising any Borrowing Tranche to which the LIBOR Rate
Option applies for any Interest Period, the interest rate per annum determined







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




	 	 	 	 	 	 	 

	 

	 	 	 	London interbank offered rates quoted by Bloomberg
	 	 
	LIBOR Rate

	 	=
	 	or appropriate successor as shown on Bloomberg Page BBAM1	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	1.00 - LIBOR Reserve Percentage	 	 






          (B) with respect to Optional Currency Loans comprising any Borrowing Tranche to which the
LIBOR Rate Option applies for any Interest Period, the interest rate per annum determined by the
Administrative Agent by dividing (i) the rate of interest per annum determined by the
Administrative Agent in accordance with its usual procedures (which determination shall be
conclusive absent manifest error) to be the rate of interest per annum for deposits in the relevant
Optional Currency which appears on the relevant Bloomberg Page (or, if no such quotation is
available on such Bloomberg Page, on the appropriate such other substitute Bloomberg page that
displays rates at which the relevant Optional Currency deposits are offered by leading banks in the
London interbank deposit market) or the rate which is quoted by another source selected by the
Administrative Agent which has been approved by the British Bankers’ Association as an authorized
information vendor for the purpose of displaying such rates at which such Optional Currency
deposits are offered by leading banks in the London interbank deposit market (an “Optional Currency
Alternate Source”), at approximately 11:00 a.m., London time, two (2) Business Days prior to the
first day of such Interest Period for delivery on the first day of such Interest Period for a
period, and in an amount, comparable to such Interest Period and principal amount of such Borrowing
Tranche (“LIBO Rate”) by (ii) a number equal to 1.00 minus the LIBOR Rate Reserve
Percentage. Such LIBOR Rate may also be expressed by the following formula:




	 	 	 	 	 	 	 

	LIBOR Rate

	 	=
	 	LIBO Rate
 

	 	  
	 

	 	 	 	1 - LIBOR Rate Reserve Percentage	 	 






          The LIBOR Rate shall be adjusted with respect to any Loan to which the LIBOR Rate Option
applies that is outstanding on the effective date of any change in the LIBOR Reserve Percentage as
of such effective date. The Administrative Agent shall give prompt notice to the







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Borrower of the LIBOR Rate as determined or adjusted in accordance herewith, which determination
shall be conclusive absent manifest error.




          LIBOR Rate Option shall mean the option of the Borrower to have Loans bear interest at
the rate and under the terms set forth in Section 4.1.1(ii) [Revolving Credit LIBOR Rate Option].




          LIBOR Reserve Percentage shall mean the maximum percentage (expressed as a decimal
rounded upward to the nearest 1/100 of 1%) as determined by the Administrative Agent which is in
effect during any relevant period, (i) as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the reserve requirements (including supplemental,
marginal and emergency reserve requirements) with respect to eurocurrency funding (currently
referred to as “Eurocurrency Liabilities”) of a member bank in such System; and (ii) to be
maintained by a Lender as required for reserve liquidity, special deposit, or a similar purpose by
any governmental or monetary authority of any country or political subdivision thereof (including
any central bank), against (A) any category of liabilities that includes deposits by reference to
which a LIBOR Rate is to be determined, or (B) any category of extension of credit or other assets
that includes Loans or Borrowing Tranches to which a LIBOR Rate applies.




          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 Indemnity, the Mortgage Instruments, the Notes, the Security Agreement, and
any other instruments, certificates or documents 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 or Swing Loan.




          Majority Creditors has the meaning specified in the Intercreditor Agreement.




          Material Adverse Change means (a) a material adverse change in, or a material adverse
effect upon, the operations, business, properties, liabilities (actual or contingent) or condition
(financial or otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries taken as
a whole, (b) an impairment of the ability of any Loan Party to perform its payment or other
material obligations under any Loan Document to which it is a party, or (c) a







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material adverse effect upon the legality, validity, binding effect or enforceability against any
Loan Party of any Loan Document to which it is a party.




          Month, with respect to an 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 Interest Period. If any LIBOR Rate Interest Period begins on a day of a calendar month for
which there is no numerically corresponding day in the month in which such Interest Period is to
end, the final month of such Interest Period shall be deemed to end on the last Business Day of
such final month.




          Mortgage Instrument has the meaning specified in Section 8.1.10.




          Mortgaged Property has the meaning specified in Section 8.1.10.




          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.




          Net Cash Proceeds shall mean:




          (a) with respect to any Asset Sale by the Borrower or any of its Subsidiaries, or any
Extraordinary Receipt received or paid to the account of the Borrower or any of its Subsidiaries,
the excess, if any, of (i) the sum of cash and cash equivalents received in connection with such
transaction (including any cash or cash equivalents received by way of deferred payment pursuant
to, or by monetization of, a note receivable or otherwise, but only as and when so received) over
(ii) the sum of (A) the principal amount of any Indebtedness that is secured by the applicable
asset and that is required to be repaid in connection with such transaction (other than
Indebtedness under the Loan Documents), (B) the reasonable and customary out-of-pocket expenses
incurred by the Borrower or such Subsidiary in connection with such transaction and (C) taxes
reasonably estimated to be actually payable as a result of the relevant transaction; provided that,
if the amount of any estimated taxes pursuant to subclause (C) exceeds the amount of taxes actually
required to be paid in cash in respect of such Asset Sale, the aggregate amount of such excess
shall constitute Net Cash Proceeds; and




          (b) with respect to the sale or issuance of any Equity Interest by the Borrower or any of its
Subsidiaries, or the incurrence or issuance of any Indebtedness by the Borrower or any of its
Subsidiaries, the excess of (i) the sum of the cash and cash equivalents received in connection
with such transaction over (ii) the underwriting discounts and commissions, and other reasonable
and customary out-of-pocket expenses, incurred by the Borrower or such Subsidiary in connection
therewith.




          New Lender shall have the meaning assigned to that term in Section 2.15 [Increase in
Revolving Credit Commitments].




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







-17-









 








          Noteholders shall mean, collectively, the holders, from time to time, of (a) the
Borrower’s 6.58% Senior Notes due September 15, 2016 and (b) the Borrower’s 6.82% Senior Notes due
June 5, 2011. Following repayment of the 6.82% Senior Notes due June 5, 2011, any references to
such 6.82% Senior Notes and the related Note Purchase Agreement are no longer applicable to this
Agreement.




          Note Purchase Agreements shall mean, collectively, (a) that certain Amended and
Restated Note Purchase Agreement dated as of September 10, 2008 (initially dated September 15,
2004), among the Borrowers and the purchasers named therein in respect of the Borrower’s 6.58%
Senior Notes due 2016, as amended, and (b) that certain Amended and Restated Note Purchase Agreement dated as
of September 10, 2008 (initially dated June 5, 2006), among the Borrowers and the purchasers named
therein in respect of the Borrower’s 6.82% Senior Notes due 2011 as amended. Following repayment of the 6.82%
Senior Notes due June 5, 2011, any references to such 6.82% Senior Notes and the related Note
Purchase Agreement are no longer applicable to this Agreement.




          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.




          Obligation(s) shall mean any obligation or liability of any of the Loan Parties or any
of their Subsidiaries, 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 Lender Provided Interest Rate Hedge
with the Loan Parties or any of their Subsidiaries, and (iii) any Other Lender Provided Financial
Service Product with the Loan Parties or any of their Subsidiaries.




          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).




          Optional Currency shall mean any the following currencies: (a) pounds sterling, (b)
Euro, (c) Canadian dollar, (d) Mexican peso, and (e) such other currencies which are readily
available as approved by Administrative Agent in its reasonable discretion and each Lender under
Section 2.13.




          Original Currency shall have the meaning assigned to such term in Section 5.13.




          Other Currency shall have the meaning assigned to such term in Section 5.13.




          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







-18-









 







products or services to any of the Loan Parties or their Subsidiaries: (a) credit cards, (b) credit
card processing services, (c) debit cards, (d) purchase cards, (e) ACH transactions, (f) cash
management, including overdrafts, controlled disbursement, accounts or services, (g) foreign
currency exchange transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions, and (h) commodity swaps,
commodity options, forward commodity contracts and any other similar transactions.




          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.




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




          Participant has the meaning specified in Section 11.8.4 [Participations].




          Participation Advance shall have the meaning specified in Section 2.9.3
[Disbursements, Reimbursement].




          Payment Date shall mean the first day of each calendar quarter after the date hereof
and on the Expiration Date or upon acceleration of the Notes.




          Payment In Full shall mean the indefeasible 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 shall mean 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 Acquisition means an Acquisition (a) which is non-hostile, (b) which occurs
when no Potential Default or Event of Default exists or will result therefrom, (c) after giving
effect to which, (i) the Leverage Ratio determined on a Pro Forma Basis as of the date of such
Acquisition is not greater than 3.00 to 1.00, and (ii) no Potential Default or Event of Default
will exist, including as a result of any breach of any financial covenant set forth in this
Agreement (in each case determined as of the date of such Acquisition on a Pro Forma Basis, and (d)
after giving effect to all consideration paid and costs and expenses incurred in







-19-









 







connection with such Acquisition, the Borrower has the ability to borrow at least an additional
$25,000,000 of Revolving Credit Loans.




          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




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




          Permitted Liens shall have the meaning specified in Section 8.2.1 [Liens].




          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 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.




          PNC shall mean PNC Bank, National Association, its successors and assigns.




          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 the interest rate per annum announced from time to time by the
Administrative Agent at its Principal Office as its then prime rate, which rate may not be the
lowest or most favorable rate then being charged commercial borrowers or others by the
Administrative Agent. Any change in the Prime Rate shall take effect at the opening of business on
the day such change is announced.




          Principal Office shall mean the main banking office of the Administrative Agent in
Pittsburgh, Pennsylvania.







-20-









 








          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
Permitted Liens.




          Pro Forma Basis shall mean, with respect to the calculation of financial covenants on
a pro forma basis in connection with any proposed Specified Event, the calculation of such
financial covenant as if such Specified Event had occurred, and any Indebtedness of the Borrower
incurred in connection with such Specified Event had been incurred, on the first day of the period
of four consecutive fiscal quarters of the Borrower ending on or immediately prior to the date of
such Specified Event for which financial statements have been delivered to the Lenders in
accordance with this Agreement.




          Published Rate shall mean the rate of interest published each Business Day in The Wall
Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates” for
a one month period (or, if no such rate is published therein for any reason, then the Published
Rate shall be the rate at which U.S. dollar deposits are offered by leading banks in the London
interbank deposit market for a one month period as published in another publication selected by the
Administrative Agent).




          Purchase Money Security Interest shall mean Liens upon tangible personal property and
any related software and intangibles securing loans to any Loan Party or Subsidiary of a Loan Party
or deferred payments by such Loan Party or Subsidiary for the purchase of such tangible personal
property and any related software and intangibles.




          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.




          Redeemable Stock means any Equity Interest of the Borrower or any of its Subsidiaries
which prior to the Expiration Date may be (a) mandatorily redeemable, (b) redeemable at the option
of the holder thereof, or (c) convertible into Indebtedness.




          Reimbursement Obligation shall have the meaning specified in Section 2.9.3
[Disbursements, Reimbursement].




          Reinvestment Property shall have the meaning specified in Section 5.7 [Mandatory
Prepayments].




          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.




          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,







-21-









 







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 Lenders (other than any Defaulting Lender) having more
than 50% of the aggregate amount of the Revolving Credit Commitments of the Lenders (excluding any
Defaulting Lender) or, after the termination of the Revolving Credit Commitments, the outstanding
Revolving Credit Loans and Ratable Share of Letter of Credit Obligations of the Lenders (excluding
any Defaulting Lender).




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




          Restricted Payments means (i) the authorization, declaration or payment of any
Dividend, (ii) the payment, purchase or redemption of principal of or interest on any Subordinated
Debt, (iii) Stock Redemptions, and (iv) any voluntary or optional prepayment or voluntary or
optional redemption of the Borrower’s 6.58% Senior Notes due September 15, 2016.




          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 “Amount of
Commitment for Revolving Credit Loans,” as such Commitment is thereafter assigned or modified and
Revolving Credit Commitments shall mean the aggregate Revolving Credit 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 Dollar Equivalent
Amount of the outstanding Revolving Credit Loans, the outstanding Swing Loans, and the Letter of
Credit Obligations.




          “Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, the Sarbanes-Oxley Act of 2002, and the applicable accounting and auditing principles, rules,
standards and practices promulgated, approved or incorporated by the U.S. Securities and Exchange
Commission or the Public Company Accounting Oversight Board.




          Security Agreement shall mean the Amended and Restated Security Agreement dated as of
June 9, 2010 in substantially the form of Exhibit 1.1(S) executed and delivered by each
of the Loan Parties to the Collateral Agent as security for the Senior Secured Obligations, which
Security Agreement amends and restates that certain Security Agreement dated as of September 10,
2008, in favor of Bank of America, N.A., as collateral agent.




          Senior Note Documents shall mean the Note Purchase Agreements, the Borrower’s 6.58%
Senior Notes due 2016, the Borrower’s 6.82% Senior Notes due 2011, and all other documents and
instruments executed and delivered pursuant thereto. Following repayment







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of the 6.82% Senior Notes due June 5, 2011, any references to such 6.82% Senior Notes and the
related Note Purchase Agreement are no longer applicable to this Agreement.




          Senior Secured Obligations has the meaning specified in the Intercreditor Agreement.




          Settlement Date shall mean the Business Day on which the Administrative Agent elects
to effect settlement pursuant Section 5.11 [Settlement Date Procedures].




          Solvent shall mean, with respect to any Person on any date of determination, taking
into account such right of reimbursement, contribution or similar right available to such Person
from other Persons, 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.




          Specified Event shall mean any Restricted Payment, Capital Expenditure, or
Acquisition.




          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 6.1.6(i) [Historical
Statements].




          Stock Redemptions means with respect to any Person any and all funds, cash or other
payments made in respect of the redemption, repurchase or acquisition of such capital stock
(specifically including, without limitation, a Treasury Stock Purchase), unless such capital stock
shall be redeemed or acquired through the exchange of such capital stock with capital stock of the
same class or options or warrants to purchase such capital stock.




          Subordinated Debt means any Indebtedness of the Borrower or any Subsidiary which is
expressly subordinated to the Obligations, at all times pursuant to terms satisfactory to the
Required Lenders.




          Subsidiary of any Person at any time shall mean any corporation, trust, partnership,
any limited liability company or other business entity (i) of which more than 50% of







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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 6.1.2
[Subsidiaries and Owners; Investment Companies].




          Swing Loan Commitment shall mean PNC’s commitment to make Swing Loans to the Borrower
pursuant to Section 2.1.2 [Swing Loan Commitment] hereof in an aggregate principal amount up to
$10,000,000.




          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 2.5.2 [Swing Loan Requests] hereof.




          Swing Loans shall mean collectively and Swing Loan shall mean separately all
Swing Loans or any Swing Loan made by PNC to the Borrower pursuant to Section 2.1.2 [Swing Loan
Commitment] hereof.




          Synthetic Lease Obligation means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).




          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.




          Treasury Stock Purchase means any purchase, redemption, retirement, defeasance or
other acquisition (including any sinking fund or similar deposit for such purpose) by the Borrower
or any Subsidiary of the Borrower of its capital stock or any warrants, rights or options to
acquire such capital stock.




          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.




          Voting Equity Interests of any Person means any Equity Interests of any class or
classes having ordinary voting power for the election of at least a majority of the members of the
board of directors, managing general partners or the equivalent governing body of such Person,
irrespective of whether, at the time, any Equity Interests of any other class or classes or such
entity shall have or might have voting power by reason of the happening of any contingency.







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          Wholly-Owned Subsidiary means any corporation in which (other than directors’
qualifying shares required by law) 100% of the capital stock of each class having ordinary voting
power, and 100% of the capital stock of every other class, in each case, at the time as of which
any determination is being made, is owned, beneficially and of record, by the Borrower, or by one
or more of the other Wholly-Owned Subsidiaries, or both.




     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: (i) 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”; (ii)
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; (iii) article,
section, subsection, clause, schedule and exhibit references are to this Agreement or other Loan
Document, as the case may be, unless otherwise specified; (iv) reference to any Person includes
such Person’s successors and assigns; (v) 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; (vi) 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”;
(vii) 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, (viii) 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 (ix) unless otherwise specified, all references herein to times of day shall be
references to Eastern 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 6.1.6(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 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.



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2. REVOLVING CREDIT AND SWING LOAN FACILITIES




     2.1 Revolving Credit Commitments.



          2.1.1
Revolving Credit Loans. Subject to the terms and conditions hereof and relying upon the representations and warranties
herein set forth, each Lender severally agrees to make Revolving Credit Loans in either Dollars or
an Optional Currency to the Borrower at any time or from time to time on or after the date hereof
to the Expiration Date; provided that (i) after giving effect to each such Loan the
aggregate Dollar Equivalent amount of Revolving Credit 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 of the outstanding Swing Loans, (ii) no Revolving Credit Loan to which the Base
Rate Option applies shall be made in an Optional Currency, (iii) the aggregate maximum Dollar
Equivalent amount of all Revolving Credit Loans denominated in an Optional Currency permitted
hereunder at any time outstanding shall not exceed $10,000,000, and (iv) the Revolving Facility
Usage 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 2.1.1.




          2.1.2 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, PNC
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
$10,000,000 (the “Swing Loan Commitment”), provided that after giving effect to such Loan, the
Revolving Facility Usage 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 2.1.2.




     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 outstanding Swing Loans and 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.



     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, and actual days elapsed) multiplied by the
average daily difference between the amount of (i) the Revolving Credit Commitments (for purposes
of this computation, PNC’s



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Swing Loans shall be deemed to be borrowed amounts under its Revolving Credit Commitment) and (ii)
the Revolving Facility Usage; provided, however, that any Commitment Fee accrued
with respect to the Revolving Credit Commitment of a Defaulting Lender during the period prior to
the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the
Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such
Commitment Fee shall otherwise have been due and payable by the Borrower prior to such time; and
provided further that no Commitment Fee shall accrue with respect to the Revolving
Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. Subject to
the proviso in the directly preceding sentence, 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.



          2.5.1
Revolving Credit Loan Requests. Except as otherwise provided herein, the Borrower may from time to time prior to the
Expiration Date request the Lenders to make Revolving Credit Loans, or renew or convert the
Interest Rate Option applicable to existing Revolving Credit Loans pursuant to Section 4.2
[Interest Periods], by delivering to the Administrative Agent, not later than 11:00 a.m., (i) 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; (ii) four (4) Business Days prior to the proposed Borrowing Date
with respect to the making of Revolving Credit Loans in an Optional Currency or the date of
conversion to or renewal of the LIBOR Rate Option for Revolving Credit Loans in an Optional
Currency; and (iii) on the same Business Day as to either the proposed Borrowing Date with respect
to the making of a Revolving Credit Loan to which the Base Rate Option applies or the last day of
the preceding Interest Period with respect to the conversion to the Base Rate Option for any Loan,
of a duly completed request therefor substantially in the form of Exhibit 2.5.1 or a
request by telephone immediately confirmed in writing by letter, 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 Interest
Period, which amounts shall be the Dollar Equivalent Amount of (x) integral multiples of $500,000
and not less than $1,000,000 for each Borrowing Tranche under the LIBOR Rate Option, and (y)
integral multiples of $100,000 not less than $500,000 for each Borrowing Tranche under the Base
Rate Option.




          2.5.2 Swing Loan Requests. Except as otherwise provided herein, the Borrower may from time to time prior to the
Expiration Date request PNC to make Swing Loans by delivery to PNC not later than 12:00 noon on the
proposed Borrowing Date of a duly completed request therefor substantially in the form of Exhibit 2.5.2 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







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Borrowing Date and the principal amount of such Swing Loan, which shall be not less than $100,000.




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



          2.6.1 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 (or, if applicable, the Optional Currency) 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 2.6.2 [Presumptions by the Administrative Agent].




          2.6.2 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 2.6.1 [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 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.




          2.6.3 Making Swing Loans. So long as PNC elects to make Swing Loans, PNC shall, after receipt by it of a Swing Loan
Request pursuant to Section 2.5.2, [Swing Loan Requests] fund such Swing Loan to the Borrower in
U.S. Dollars and immediately available funds at the Principal Office prior to 4:00 o’clock p.m. on
the Borrowing Date.







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




          2.6.5 Borrowings to Repay Swing Loans. PNC may, at its option, exercisable at any time for any reason whatsoever, demand repayment of
the Swing Loans, and each Lender shall make a Revolving Credit Loan in an amount equal to such
Lender’s Ratable Share of the aggregate principal amount of the outstanding Swing Loans, plus, if
PNC 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 minus its
Ratable Share of outstanding Swing Loans and Letter of Credit Obligations. Revolving Credit Loans
made pursuant to the preceding sentence shall bear interest at the Base Rate Option and shall be
deemed to have been properly requested in accordance with Section 2.5.1 [Revolving Credit Loan
Requests] without regard to any of the requirements of that provision. PNC 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 2.6.5 and of the apportionment among the
Lenders, and the Lenders shall be unconditionally obligated to fund such Revolving Credit Loans
(whether or not the conditions specified in Section 2.5.1 [Revolving Credit Loan Requests] are then
satisfied) by the time PNC so requests, which shall not be earlier than 3:00 p.m. on the Business
Day next after the date the Lenders receive such notice from PNC.




     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, shall 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 or Swing Loan Commitment,
as applicable, of such Lender.



     2.8 Use of Proceeds. The proceeds of the Loans shall be used (i) to refinance existing Indebtedness, (ii) for
working capital and capital expenditure needs of the Loan Parties, (iii) to make Permitted
Acquisitions, and (iv) for general corporate purposes of the Loan Parties, including the payment of
fees and expenses associated with the closing of the transactions contemplated hereunder.



     2.9 Letter of Credit Subfacility.



          2.9.1 Issuance of Letters of Credit. 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
1:00 p.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
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







-29-









 







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 (A) be issued in U.S. Dollars and have a maximum maturity
of twelve (12) months from the date of issuance, and (B) in no event expire later than the
Expiration Date and provided further that in no event shall (i) the Letter of Credit Obligations
exceed, at any one time, $30,000,000 (the “Letter of Credit Sublimit”) or (ii) 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.




     From and after the Closing Date, the letters of credit issued by Bank of America, N.A. under
the Existing Credit Agreement as set forth on Schedule 2.9 shall be deemed to be issued
under this Agreement and be included within the Letters of Credit.



     Notwithstanding any other provision hereof, no Issuing Lender shall be required to issue any
Letter of Credit, if any Lender is at such time a Defaulting Lender hereunder, unless such Issuing
Lender has entered into satisfactory arrangements with the Borrower or such Defaulting Lender to
eliminate the Issuing Lender’s risk with respect to such Defaulting Lender (it being understood
that the Issuing Lender would consider the Borrower or the Defaulting Lender providing cash
collateral to the Administrative Agent, for the benefit of the Issuing Lender, to secure the
Defaulting Lender’s Ratable Share of the Letter of Credit, a satisfactory arrangement).



          2.9.2 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, and (ii) to
the Issuing Lender for its own account a fronting fee equal to 0.125% 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 (other than Letter of Credit Borrowings) 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.




          2.9.3 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 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.







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               2.9.3.1 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 sometimes be referred to as a “Reimbursement
Obligation”) the Issuing Lender prior to 1:00 p.m. 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 1:00 p.m.
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 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 Loan or Letter of Credit] other than any
notice requirements. Any notice given by the Administrative Agent or Issuing Lender pursuant to
this Section 2.9.3.1 may be oral if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding effect of such
notice.



               2.9.3.2 Each Lender shall upon any notice pursuant to Section 2.9.3.1 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 2.9.3 [Disbursement; Reimbursement]) each be deemed to have made a Revolving
Credit Loan under the Base Rate Option to the Borrower in that amount. If any Lender so notified
fails to make available 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. 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 (i) at a rate per annum equal to the
Federal Funds Effective Rate during the first three (3) days following the Drawing Date and (ii) at
a rate per annum equal to the rate applicable to Loans under the Revolving Credit 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 2.9.3.1 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 2.9.3.2.



               2.9.3.3 With respect to any unreimbursed drawing that is not converted into Revolving Credit
Loans under the Base Rate Option to the Borrower in whole or in part as contemplated by Section
2.9.3.1, because of the Borrower’s failure to satisfy the conditions set forth in Section 7.2 [Each
Loan or Letter of Credit] other than any notice requirements, or for any other reason, the Borrower
shall be deemed to have incurred from the 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 Base Rate Option. Each Lender’s payment to the
Administrative Agent for the account of the Issuing Lender pursuant to Section 2.9.3
[Disbursements, Reimbursement] shall be deemed to be a



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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
2.9.3.




          2.9.4 Repayment of Participation Advances.




               2.9.4.1 Upon (and only upon) receipt by the Administrative Agent for the account of the
Issuing Lender of immediately available funds from the Borrower (i) 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 (ii) 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.



               2.9.4.2 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.



          2.9.5 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.




          2.9.6 Determinations to Honor Drawing Requests. In determining whether to honor any request for drawing under any Letter of Credit by the
beneficiary thereof, the 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.




          2.9.7 Nature of Participation and Reimbursement Obligations. Each Lender’s obligation in accordance with this Agreement to make the Revolving Credit Loans
or Participation Advances, as contemplated by Section 2.9.3 [Disbursements, Reimbursement], as a







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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; Swing Loan Requests], 2.6 [Making Revolving Credit Loans and
Swing Loans; Etc.] or 7.2 [Each Loan or Letter of Credit] or as otherwise set forth in this
Agreement for the making of a Revolving Credit Loan, it being acknowledged that such conditions are
not required for the making of a Letter of Credit Borrowing and the obligation of the Lenders to
make Participation Advances under Section 2.9.3 [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;




          (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;




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          (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.




          2.9.8 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
(A) 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 (B) 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 Official Body.




          2.9.9 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 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







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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 its Affiliates, as applicable, including any act or omission
of any Official Body, 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 (i) 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, (ii) 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; (iii) 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; (iv) 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; (v) 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 (vi) 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 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,
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







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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.




          2.9.10 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 Utilization of Commitments in the Optional Currency.



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




          2.10.2 Notice From Lenders That Optional Currency is Unavailable to Fund New Loans. The Lenders shall be under no obligation to make the Revolving Credit Loans requested by the
Borrower which are denominated in an Optional Currency if any Lender notifies the Administrative
Agent by 5:00 p.m., Pittsburgh time, at least three (3) Business Days prior to the Borrowing Date
for such Revolving Credit Loans that such Lender cannot provide its share of such Revolving Credit
Loans in such Optional Currency. In the event the Administrative Agent timely receives a notice
from a Lender pursuant to the preceding sentence, the Administrative Agent will notify the Borrower
no later than 12:00 noon, Pittsburgh time, two (2) Business Days prior to the Borrowing Date for
such Revolving Credit Loans that the Optional Currency is not then available for such Revolving
Credit Loans, and the Administrative Agent shall promptly thereafter notify the Lenders of the
same. If the Borrower receives a notice described in the preceding sentence, the Borrower may, by
notice to the Administrative Agent not later than 5:00 p.m., Pittsburgh time, one (1) Business Day
prior to the Borrowing Date for such Revolving Credit Loans, withdraw the Loan Request for such
Revolving Credit Loans. If the Borrower withdraws such Loan Request, the Administrative Agent will
promptly notify each Lender of the same and the Lenders shall not make such Revolving Credit Loans.
If the Borrower does not withdraw such Loan Request before such time, (i) the Borrower shall be
deemed to have requested that the Revolving Credit Loans referred to in its Loan Request shall be
made in Dollars in an amount equal to the Dollar Equivalent amount of such Revolving Credit Loans
and shall bear interest under the Base Rate Option, and (ii) the Administrative Agent shall
promptly deliver a notice to each Lender stating: (A) that such Revolving Credit Loans shall be
made in Dollars and shall bear interest under the Base Rate Option, (B) the aggregate amount of such
Revolving Credit Loans, and (C) such Lender’s Ratable Share of such Revolving Credit Loans.




          2.10.3 Notices from Lenders That an Optional Currency is Unavailable to Fund Renewals of
the LIBOR Rate Option. If the Borrower delivers a Loan Request requesting that







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the Lenders renew the LIBOR Rate Option with respect to an outstanding Borrowing Tranche of
Revolving Credit Loans denominated in an Optional Currency, the Lenders shall be under no
obligation to renew such LIBOR Rate Option if any Lender delivers to the Administrative Agent a
notice by 5:00 p.m., Pittsburgh time, four (4) Business Days prior to effective date of such
renewal that such Lender cannot continue to provide Revolving Credit Loans in such Optional
Currency. In the event the Administrative Agent timely receives a notice from a Lender pursuant to
the preceding sentence, the Administrative Agent will notify the Borrower promptly, but no later
than 12:00 noon, Pittsburgh time, three (3) Business Days prior to the renewal date that the
renewal of such Revolving Credit Loans in such Optional Currency is not then available, and the
Administrative Agent shall promptly thereafter notify the Lenders of the same. If the
Administrative Agent shall have so notified the Borrower that any such continuation of Optional
Currency Loans is not then available, any notice of renewal with respect thereto shall be deemed
withdrawn, and such Optional Currency Loans shall be redenominated into the Base Rate Option in
Dollars with effect from the last day of the Interest Period with respect to any such Optional
Currency Loans. The Administrative Agent will promptly notify the Borrower and the Lenders of any
such redenomination, and in such notice, the Administrative Agent will state the aggregate Dollar
Equivalent amount of the redenominated Optional Currency Loans as of the Computation Date with
respect thereto and such Lender’s Ratable Share thereof.




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



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



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



     2.14 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
$5,000,000 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.



     2.15 Increase in Revolving Credit Commitments.



          2.15.1 Increasing Lenders and New Lenders. The Borrower may, at any time, but not more often than three (3) times after the Closing Date,
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”), and/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:




               2.15.1.1 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.



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



               2.15.1.3 Aggregate Revolving Credit Commitments. After giving effect to such
increase, the total Revolving Credit Commitments shall not exceed $200,000,000.



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               2.15.1.4 Minimum Revolving Credit Commitments. After giving effect to such increase,
the aggregate amount of the Revolving Credit Commitments provided by the New Lenders and the
Increasing Lenders shall be at least $20,000,000.



               2.15.1.5 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, (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, and (iii) such additional Loan Documents or
amendments to Loan Documents as are consistent with the increase in the Revolving Credit
Commitments.



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



               2.15.1.7 Approval of New Lenders. Any New Lender shall be subject to the approval of
the Administrative Agent and the Borrower.



               2.15.1.8 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.



               2.15.1.9 New Lenders—Joinder. Each New Lender shall execute a lender joinder in
substantially the form of Exhibit 2.15 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.



          2.15.2 Treatment of Outstanding Loans and Letters of Credit.




               2.15.2.1 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.



               2.15.2.2 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 (i)
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



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participation of each other Lender in such Letter of Credit shall be adjusted accordingly and (ii)
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 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 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 eight (8)
Borrowing Tranches in the aggregate among all of the Loans and provided further that if an
Event of Default or Potential Default exists and is continuing, the Borrower may not request,
convert to, or renew the LIBOR Rate Option for any Loans. If at any time the designated rate
applicable to any Loan made by any Lender exceeds such Lender’s highest lawful rate, the rate of
interest on such Lender’s Loan shall be limited to such Lender’s highest lawful rate. Interest on
the principal amount of each Loan made in an Optional Currency shall be paid by the Borrower in
such Optional Currency.



          4.1.1 Revolving Credit Interest Rate Options; Swing Line Interest Rate. The Borrower shall have the right to select from the following Interest Rate Options
applicable to the Revolving Credit Loans (except that no Loan to which a Base Rate shall apply may
be made in an Optional Currency):




          (i) Revolving Credit Base Rate Option: A fluctuating rate per annum (computed on the
basis of a year of 365 or 366 days, as the case may be, and actual days elapsed) equal to the Base
Rate plus the Applicable Margin, such interest rate to change automatically from time to time
effective as of the effective date of each change in the Base Rate; or




          (ii) Revolving Credit LIBOR Rate Option: A rate per annum computed on the basis of a
year of 360 days and actual days elapsed (provided, that for Loans made in an Optional Currency for
which a 365-day basis is the only market practice available to the Administrative Agent, such rate
shall be calculated on the basis of a year of 365 or 366 days for the actual days elapsed) equal to
the LIBOR Rate plus the Applicable Margin.



Subject to Section 4.3 [Interest After Default], only the Base Rate Option applicable to Revolving
Credit Loans shall apply to the Swing Loans.




          4.1.2 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







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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 four (4) Business Days prior to the
effective date of such Interest Rate Option, with respect to an Optional Currency Loan, and at
least three (3) Business Days prior to the effective date of such LIBOR Rate Option with respect to
a Dollar Loan, by delivering a Loan Request. The notice shall specify an Interest Period during
which such Interest Rate Option shall apply. Notwithstanding the preceding sentence, the following
provisions shall apply to any selection of, renewal of, or conversion to a LIBOR Rate Option:



          4.2.1 Amount of Borrowing Tranche. Each Borrowing Tranche of Loans under the LIBOR Rate Option shall be in integral multiples of
$500,000 and not less than $1,000,000; and




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




     4.3 Interest After Default. To the extent permitted by Law, upon the occurrence of an Event of Default and until such time
such Event of Default shall have been cured or waived, and at the discretion of the Administrative
Agent or upon written demand by the Required Lenders to the Administrative Agent:



          4.3.1 Letter of Credit Fees, Interest Rate. The Letter of Credit Fees and the rate of interest for each Loan otherwise applicable pursuant
to Section 2.9.2 [Letter of Credit Fees] or Section 4.1 [Interest Rate Options], respectively,
shall be increased by two percent (2.0%) per annum;




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




          4.3.3 Acknowledgment. The Borrower acknowledges that the increase in rates referred to in this Section 4.3 reflects,
among other things, the fact that such Loans or other amounts have become a substantially greater
risk given their default status and that the Lenders are entitled to additional compensation for
such risk; and all such interest shall be payable by Borrower upon demand by Administrative Agent.




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



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







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          (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 4.4.3 [Administrative Agent’s and Lender’s Rights].




          4.4.2 Illegality; Increased Costs; Deposits Not Available. If at any time any Lender shall have determined that:




          (i) the making, maintenance or funding of any Loan to which a 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 or in
the Optional Currency (as applicable) for the relevant 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 4.4.3 [Administrative
Agent’s and Lender’s Rights].




          4.4.3 Administrative Agent’s and Lender’s Rights. In the case of any event specified in Section 4.4.1 [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 4.4.2 [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 (A) the Lenders, in the case of such notice given by the Administrative
Agent, or (B) 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 or select an Optional Currency (as applicable)
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 4.4.1 [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 Base Rate Option otherwise available with respect to such Loans.
If any Lender notifies the Administrative Agent of a determination under Section 4.4.2 [Illegality; Increased Costs;
Deposits Not Available], the Borrower shall,







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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 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 Base
Rate Option otherwise available with respect to such Loan upon such specified date.




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



5. PAYMENTS




     5.1 Payments. All payments and prepayments to be made in respect of principal, interest, Commitment Fees,
Letter of Credit Fees, Administrative Agent’s Fee or other fees or amounts due from the Borrower
hereunder shall be payable prior to 1:00 p.m. Pittsburgh time on the date when due without
presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the
Borrower, and without set-off, counterclaim or other deduction of any nature, and an action
therefor shall immediately accrue. Such payments shall be made to the Administrative Agent at the
Principal Office for the account of PNC 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, except that
payments of principal or interest shall be made in the currency in which such Loan was made, 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 1:00 p.m. Pittsburgh time 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 due in Dollars, or the Overnight Rate in the case of Loans or other
amounts due in an Optional Currency, with respect to the amount of such payments for each day held
by the Administrative Agent and not 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 (including the Equivalent Amounts of the
applicable currencies where such computations are required) and shall be deemed an “account
stated.”



     5.2 Pro Rata Treatment of Lenders. Each borrowing of Revolving Credit Loans 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, Letter
of Credit Fees, or other fees (except for the Administrative Agent’s Fee and the Issuing Lender’s
fronting fee) or amounts due from the Borrower hereunder to the Lenders with respect to the
Commitments and Loans, shall (except as otherwise may be provided with respect to a Defaulting
Lender and except as provided in



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Section 4.4.3 [Administrative Agent’s and Lender’s Rights] in the case of an event specified in
Section 4.4 [LIBOR Rate Unascertainable; Etc.], 5.6.2 [Replacement of a Lender] or 5.8 [Increased
Costs]) be payable ratably among the Lenders entitled to such payment in accordance with the amount
of principal, interest, Commitment Fees, Letter of Credit Fees, and other fees or amounts then due
or payable such Lenders as set forth in this Agreement. Notwithstanding any of the foregoing, each
borrowing or payment or prepayment by the Borrower of principal, interest, fees or other amounts
from the Borrower with respect to Swing Loans shall be made by or to PNC according to Section 2.6.5
[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 the pro-rata share of
the amount such Lender is entitled thereto, 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).



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.



Any Lender that fails at any time to comply with the provisions of this Section 5.3 shall be deemed
a Defaulting Lender until such time as it performs its obligations hereunder and is not otherwise a
Defaulting Lender for any other reason. A Defaulting Lender shall be deemed to have assigned any
and all payments due to it from the Borrower, whether on account of or relating to outstanding
Loans, Letters of Credit, interest, fees or otherwise, to the remaining non-defaulting Lenders for application to, and reduction of, their respective Ratable Share of all
outstanding Loans and other unpaid Obligations of any of the Loan Parties. The Defaulting







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Lender hereby authorizes the Administrative Agent to distribute such payments to the non-defaulting
Lenders in proportion to their respective Ratable Share of all outstanding Loans and other unpaid
Obligations of any of the Loan Parties to which such Lenders are entitled. A Defaulting Lender
shall be deemed to have satisfied the provisions of this Section 5.3 when and if, as a result of
application of the assigned payments to all outstanding Loans and other unpaid Obligations of any
of the Loan Parties to the non-defaulting Lenders, the Lenders’ respective Ratable Share of all
outstanding Loans and unpaid Obligations have returned to those in effect immediately prior to such
violation of this Section 5.3.




     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 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 Interest Period for those Loans and, if such Interest Period is
longer than three (3) Months, also on the 90th day of such Interest Period. Interest on mandatory
prepayments of principal under Section 5.7 [Mandatory Prepayments] shall be due on the date such
mandatory prepayment is due. Interest on the principal amount of each Loan or other monetary
Obligation shall be due and payable on demand after such principal amount or other monetary
Obligation becomes due and payable (whether on the stated Expiration Date, upon acceleration or
otherwise).



     5.6 Voluntary Prepayments.



          5.6.1 Right to Prepay. The Borrower shall have the right at its option from time to time to prepay the Loans in the
currency in which such Loan was made in whole or part without premium or penalty (except as
provided in Section 5.6.2 [Replacement of a Lender] below, in Section 5.8 [Increased Costs] 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 no later than 1:00 p.m. on the date of
prepayment 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




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     (z) the total principal amount and the currency of such prepayment, which
shall not be less than the lesser of (i) the Revolving Facility Usage or (ii)
$100,000 for any Swing Loan or $500,000 for any Revolving Credit Loan that is a
LIBOR Rate Loan and $100,000 for any Revolving Credit Loan that is a Base Rate Loan.



               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 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 4.4.3 [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, after giving effect to the allocations in the preceding sentence, first to Loans
to which the Base Rate Option applies, then to Loans to which the LIBOR Rate Option applies, and
then to the Optional Currency Loans. Any prepayment hereunder shall be subject to the Borrower’s
Obligation to indemnify the Lenders under Section 5.10 [Indemnity].



          5.6.2 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 Defaulting Lender, (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:




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




          (ii) such Lender shall have received payment of an amount equal to the outstanding principal
of its Loans and Participation Advances, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including any amounts under
Section 5.10 [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);




          (iii) in the case of any such assignment resulting from a claim for compensation under Section
5.8.1 [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;




          (iv) such assignment does not conflict with applicable Law; and




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          (v) in the case of an assignment by a Non-Consenting Lender referred to in Section 11.1, the
indemnification provisions in Sections 5.10 and 11.3 shall continue to survive such assignment.



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 Mandatory Prepayments; Reduction of Commitments.



          5.7.1 Asset Sales. If the Borrower or any of its Subsidiaries makes an Asset Sale (other
than any Asset Sale permitted by Section 8.2.2) which results in the realization by such Person of
Net Cash Proceeds in excess of $1,000,000, then at such time as the aggregate Net Cash Proceeds of
all such Asset Sales from and after the Closing Date exceed fifteen percent (15%) of the Borrower’s
Consolidated Net Worth, as calculated at the time of such Asset Sale, the Borrower shall
immediately prepay an aggregate principal amount of Loans equal to the Net Cash Proceeds in excess
of 15% of the Borrower’s Consolidated Net Worth (such prepayments to be applied as set forth in
Section 5.7.6 below and to be subject to the Intercreditor Agreement). After the occurrence of an
Event of Default or a Potential Default (and subject to the rights of the Agent and the Lenders
with respect thereto), the Borrower shall immediately prepay an aggregate principal amount of Loans
equal to the Net Cash Proceeds of all Asset sales (such prepayment to be applied as set forth in
Section 5.7.6 below and to be subject to the Intercreditor Agreement and in each case to be reduced
by any amounts to be paid to the other Creditors pursuant to the Intercreditor Agreement) such that
(i) if the Leverage Ratio as of the last fiscal quarter prior to such Asset Sale is greater than or
equal to 3.50 to 1.00, 75% of the Net Cash Proceeds, (ii) if the Leverage Ratio as of the last
fiscal quarter prior to such Asset Sale is less than 3.50 to 1.00 but greater than or equal to 2.50
to 1.00, 50% of the Net Cash Proceeds, and (iii) if the Leverage Ratio as of the last fiscal
quarter prior to such Asset Sale is less than 2.50 to 1.00, 0% of the Net Cash Proceeds.




          5.7.2 Equity Issuance. Upon the sale or issuance by the Borrower or any of its
Subsidiaries of any of its Equity Interests, the Borrower shall prepay an aggregate principal
amount of Loans equal to 85% of all Net Cash Proceeds received therefrom (reduced by any amounts
required to be paid to the other Creditors pursuant to the Intercreditor Agreement) immediately
upon receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set
forth in Section 5.7.6 below and to be subject to the Intercreditor Agreement). In the event that
the Noteholders agree to eliminate mandatory prepayment of Indebtedness owed to the Noteholders in
connection with the sale or issuance by the Borrower or any of its Subsidiaries of any of its
Equity Interests, as evidenced by an amendment to the applicable indenture in form satisfactory to
the Administrative Agent, then the prepayment requirements set forth in this Section 5.7.2 shall
terminate on the effectiveness of the agreement of the Noteholders.




          5.7.3 Debt Incurrence. Upon the incurrence or issuance by the Borrower or any of its
Subsidiaries of any Indebtedness, the Borrower shall prepay an aggregate principal amount of Loans
equal to 100% of all Net Cash Proceeds received therefrom (reduced by any amounts required to be
paid to the other Creditors pursuant to the Intercreditor Agreement) immediately upon receipt
thereof by the Borrower or such Subsidiary (such prepayments to be




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applied as set forth in Section
5.7.6 below and to be subject to the Intercreditor Agreement). In the event that the Noteholders
agree to eliminate mandatory prepayment of Indebtedness owed to the Noteholders in connection with
the incurrence or issuance by the Borrower or any of its Subsidiaries of any Indebtedness, as
evidenced by an amendment to the applicable indenture in form satisfactory to the Administrative
Agent, then the prepayment requirements set forth in this Section 5.7.3 shall terminate on the
effectiveness of the agreement of the Noteholders.




          5.7.4 Extraordinary Receipt. Upon any Extraordinary Receipt received by or paid to or for
the account of the Borrower or any of its Subsidiaries, and not otherwise included in Sections
5.7.1, 5.7.2 or 5.7.3 of this Section 5.7, the Borrower shall prepay an aggregate principal amount
of Loans equal to 100% of all Net Cash Proceeds received therefrom (reduced by any amounts required
to be paid to the other Creditors pursuant to the Intercreditor Agreement) immediately upon receipt
thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in Section
5.7.6 below and to be subject to the Intercreditor Agreement); provided , however , that with
respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or
indemnity payments, at the election of the Borrower, and so long as no Event of Default shall have
occurred and be continuing, the Borrower or such Subsidiary may apply such cash proceeds within 180
days after the receipt thereof to replace or repair the equipment, fixed assets or real property in
respect of which such cash proceeds were received or contractually agree to such replacement or
repair within such 180 day period pursuant to definitive agreement (and, if so contractually
committed, actually utilized within 270 days of the date of receipt of such cash proceeds); and
provided further , however , that any Net Cash Proceeds not subject to such definitive agreement or
so applied as required above shall be immediately applied to the prepayment of the Loans as set
forth in this Section 5.7.6.




          5.7.5 Excess Cash Flow. After the occurrence of an Event of Default or a Potential Default
and within 15 days after the date that the audited financial statements are required to be
delivered pursuant to Section 8.3.2, commencing with the audited financial statements for fiscal
year ending October 31, 2010, and by each such date for each fiscal year thereafter, the Borrower
shall prepay Loans in an aggregate principal amount equal to (i) if the Leverage Ratio as of the
last fiscal quarter of such fiscal year is greater than or equal to 3.50 to 1.00, 75% of the Excess
Cash Flow, if any, for the immediately preceding fiscal year, (ii) if the Leverage Ratio as of the
last fiscal quarter of such fiscal year is less than 3.50 to 1.00 but greater than or equal to 2.50
to 1.00, 50% of the Excess Cash Flow, if any, for the immediately preceding fiscal year, and (iii)
if the Leverage Ratio as of the last fiscal quarter of such fiscal year is less than 2.50 to 1.00,
0% of the Excess Cash Flow for the immediately preceding fiscal year, provided that the Excess Cash
Flow
mandatory prepayment provisions in the Note Purchase Agreements are similar to this 5.7.5 (such
prepayment to be applied as set forth in Section 5.7.6 below and to be subject to the Intercreditor
Agreement and in each case to be reduced by any amounts to be paid to the other Creditors pursuant
to the Intercreditor Agreement). In the event that the Noteholders agree to eliminate mandatory
prepayment of Indebtedness owed to the Noteholders in connection with Excess Cash Flow, as
evidenced by an amendment to the applicable indenture in form satisfactory to the Administrative
Agent, then the prepayment requirements set forth in this Section 5.7.5 shall terminate on the
effectiveness of the agreement of the Noteholders.





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          5.7.6 Application Among Interest Rate Options; Reduction of Commitments. All prepayments
required pursuant to this Section 5.7 shall first be applied in accordance with the terms of the
Intercreditor Agreement, and with respect to all payments made on the Obligations, shall be applied
among the Interest Rate Options to the principal amount of the Loans subject to the Base Rate
Option, then to Loans subject to a LIBOR Rate Option. In accordance with Section 5.10 [Indemnity],
the Borrower shall indemnify the Lenders for any loss or expense, including loss of margin,
incurred with respect to any such prepayments applied against Loans subject to a LIBOR Rate Option
on any day other than the last day of the applicable Interest Period. The Revolving Credit
Commitments of the Lenders shall be permanently reduced on a pro rata basis by the amount of each
of the prepayments made pursuant to this Section 5.7.




     5.8 Increased Costs.



          5.8.1 Increased Costs Generally. If any Change in Law shall:




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




          5.8.2 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




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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 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.




          5.8.3 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 5.8.1 [Increased Costs Generally] or 5.8.2 [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.




          5.8.4 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).




          5.8.5 Compensation Deadline. Notwithstanding anything in this Section 5.8 to the contrary, if any Lender fails to
notify the Borrower of any event which will entitle such Lender to compensation pursuant to this
Section 5.8 within 180 days after such Lender obtains knowledge of such event, then such Lender
shall not be entitled to any compensation from the Borrower for any such increased cost or
reduction of return arising prior to the date which is 180 days before the date on which such
Lender notifies the Borrower of such event.




     5.9 Taxes.



          5.9.1 Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Borrower hereunder or under any other Loan 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





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had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower shall timely pay the full amount
deducted to the relevant Official Body in accordance with applicable Law.




          5.9.2 Payment of Other Taxes by the Borrower. Without limiting the provisions of
Section 5.9.1 [Payments Free of Taxes] above, the Borrower shall timely pay any Other Taxes to the
relevant Official Body in accordance with applicable Law.




          5.9.3 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 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.




          5.9.4 Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to an 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.




          5.9.5 Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the Law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
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 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.





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          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) two (2) duly completed valid originals 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) two (2) duly completed valid originals of IRS Form W-8ECI,




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




          (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, or




          (v) To the extent that any Lender is not a Foreign Lender, such Lender shall submit to the
Administrative Agent two (2) originals of an IRS Form W-9 or any other form prescribed by
applicable Law demonstrating that such Lender is not a Foreign Lender.




     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 anticipated profits, any foreign exchange losses
and any loss or expense arising from the liquidation or reemployment of funds obtained by it to
maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained
or from the performance of any foreign exchange contract) which such Lender sustains or incurs as a
consequence of any:



          (i) 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 Interest Period (whether or not such
payment or prepayment is mandatory, voluntary or automatic and whether or not such payment or
prepayment is then due),




          (ii) attempt by the Borrower to revoke (expressly, by later inconsistent notices or otherwise)
in whole or part any Loan Requests under Section 2.5 [Revolving Credit Loan Requests; Swing Loan
Requests] or Section 4.2 [Interest Periods] or notice relating to prepayments under Section 5.6
[Voluntary Prepayments], or





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          (iii) default by the Borrower in the performance or observance of any covenant or condition
contained in this Agreement or any other Loan Document.




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




     5.11 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 PNC may make Swing Loans as provided in Section 2.1.2 [Swing Loan Commitments] hereof during
the period between Settlement Dates. 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”). 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 on [Mandatory Prepayment Dates] 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 2.1.2 [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.



     5.12 Currency Fluctuations. If on any Computation Date the Dollar Equivalent
Revolving Facility Usage is equal to or greater than the Revolving Credit Commitments as a result
of a change in exchange rates between one (1) or more Optional Currencies and Dollars, then the
Administrative Agent shall notify the Borrower of the same. The Borrower shall pay or prepay
(subject to Borrower’s indemnity obligations under Sections 5.8 and 5.10) within one (1) Business
Day after receiving such notice such that the Dollar Equivalent Revolving Facility Usage shall not
exceed the aggregate Revolving Credit Commitments after giving effect to such payments or
prepayments.



     5.13 Judgment Currency.



          5.13.1 Currency Conversion Procedures for Judgments. If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or under a Note in any
currency (the “Original Currency”) into another currency (the “Other Currency”), the





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parties hereby
agree, to the fullest extent permitted by Law, that the rate of exchange used shall be that at
which in accordance with normal banking procedures each Lender could purchase the Original Currency
with the Other Currency after any premium and costs of exchange on the Business Day preceding that
on which final judgment is given.




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




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:



          6.1.1 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,
except where the failure to do so would not cause a Material Adverse Change, (iii) is duly licensed
or qualified and in good standing in each jurisdiction listed on Schedule 6.1.1 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, except where the failure
to do so would not cause 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 6.1.14 [Environmental
Matters]) in all jurisdictions in which any Loan Party or Subsidiary of any Loan Party is presently
or will be doing business except where the failure to do so would not 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.




          6.1.2 Subsidiaries and Owners; Investment Companies. Schedule 6.1.2 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”), and (ii) any options, warrants or other rights outstanding to purchase any such equity




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interests referred to in clause (i). 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 and all such Subsidiary Equity Interests have been validly issued, fully paid
and nonassessable. The Loan Parties represent and warrant that all Domestic Subsidiaries in
existence on the Closing Date other than Inactive Subsidiaries are executing and delivering this
Agreement, the Guaranty Agreement and the Security Agreement. 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.”




          6.1.3 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
subject to Debtor Relief Laws and equitable principles.




          6.1.4 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.




          6.1.5 Litigation. Except as set forth on Schedule 6.1.5, there are no
actions, suits, proceedings or investigations pending or, to the knowledge of any Loan Party,
threatened against such Loan Party or any Subsidiary of such Loan Party at law or 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.





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          6.1.6 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
fiscal years ended October 31, 2007, 2008 and 2009. 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 May 1, 2010 (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 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 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 October 31, 2009, no Material Adverse
Change has occurred.




          6.1.7 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.




          6.1.8 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. 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 projected financial information,





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the Loan Parties represent only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the time such
information was stated or certified.




          6.1.9 Taxes. All federal, state, local and other tax returns required to have been
filed with respect to each Loan Party and each Subsidiary of each Loan Party have been filed, and
payment or
adequate provision has been made for the payment of all taxes, fees, assessments and other
governmental charges which have or may become due pursuant to said returns or to assessments
received, except to the extent that such taxes, fees, assessments and other charges are being
contested in good faith by appropriate proceedings diligently conducted and for which such reserves
or other appropriate provisions, if any, as shall be required by GAAP shall have been made.




          6.1.10 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.




          6.1.11 Liens in the Collateral. The Liens in the Collateral granted to the Collateral
Agent pursuant to the Collateral Documents constitute and will continue to constitute Prior
Security Interests. All filing fees and other expenses in connection with the perfection of such
Liens have been or will be paid by the Borrower.




          6.1.12 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.




          6.1.13 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



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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.




          6.1.14 Environmental Compliance. The Borrower and its Subsidiaries conduct in the
ordinary course of business a review of the effect of existing Environmental Laws and claims
alleging potential liability or responsibility for violation of any Environmental Law on their
respective businesses, operations and properties, and as a result thereof the Loan Parties
represent that, except as disclosed on Schedule 6.1.14, such Environmental Laws and claims
could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Change.




          6.1.15 Solvency. Before and after giving effect to the initial Loans hereunder, each
of the Loan Parties is solvent.




     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. No Schedule shall
be deemed to have been amended, modified or superseded by any such correction or update, nor shall
any breach of warranty or representation resulting from the inaccuracy or incompleteness of any
such Schedule be deemed to have been cured thereby, unless and until the Required Lenders, in their
sole and absolute discretion, shall have accepted in writing such revisions or updates to such
Schedule; provided however, that the Borrower may update Schedules 6.1.1 and 6.1.2 without any
Lender approval in connection with any transaction permitted under Sections 8.2.2 [Dispositions of
Assets], 8.2.3 [Consolidations and Mergers], and 8.2.4 [Loans and Investments].



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.



          7.1.1 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 (w) all representations and warranties of the Loan Parties set forth in
this Agreement are true and correct in all material respects, (x) the Loan Parties are in
compliance with each of the covenants and conditions hereunder, (y) no Event of Default or
Potential Default exists, and (z) no Material Adverse Change has occurred since the date of the
last audited financial statements of the Borrower delivered to the Administrative Agent;




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          (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) The Intercreditor Agreement shall have been executed and delivered by Collateral Agent,
the Administrative Agent on behalf of each of the Lenders and the Noteholders and consented to by
the Borrower and each other Loan Party;




          (v) A written opinion of counsel for the Loan Parties, dated the Closing Date and as to the
matters set forth in Schedule 7.1.1;




          (vi) 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 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 and
lender loss payee;




          (vii) 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 Authorized Officer of
Borrower;




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




          (ix) Evidence that the Existing Credit Agreement has been amended and restated by this
Agreement, and all outstanding obligations thereunder have been settled or paid and all Liens
securing such obligations have been assigned to the Collateral Agent as security for the Senior
Secured Obligations, which include the Obligations. The Loan Parties and the other parties hereto
intend that no novation shall occur with respect to the obligations so amended and restated, and
that such Liens shall continue as security for the Senior Secured Obligations, as a portion thereof
are amended and restated pursuant to this Agreement;




          (x) Evidence that the Borrower has caused to be satisfied all obligations owed to the
Noteholders under the Note Purchase Agreement related to the 6.82% Senior Notes due 2011.




          (xi) Execution and delivery to the Administrative Agent by Bank of America, N.A. and the Loan
Parties, and consented to by the Majority Creditors (as defined in the Intercreditor Agreement
dated September 10, 2008), of an Assignment Agreement in form and




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substance acceptable to the
Administrative Agent, whereby Bank of America, N.A. assigns its rights as collateral agent under
the Security Agreement dated September 10, 2008, to PNC.




          (xii) A Lien search in acceptable scope and with acceptable results;




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




          7.1.2 Payment of Fees. The Borrower shall have paid all fees payable on or before the
Closing Date as required by this Agreement, the Administrative Agent’s Letter or any other Loan
Document.




     7.2 Each Loan or Letter of Credit. At the time of making any Loans or issuing,
extending or increasing any Letters of Credit and after giving effect to the proposed extensions of
credit: (i) the representations, warranties of the Loan Parties shall then be true and correct,
(ii) no Event of Default or Potential Default shall have occurred and be continuing, (iii) the
making of the Loans or issuance, extension or increase 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 (iv) 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




     8.1 Affirmative 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
affirmative covenants:



          8.1.1 Preservation of Existence, Etc. Each Loan Party shall, and shall cause each of
its Subsidiaries (other than Inactive Subsidiaries) to, maintain its legal existence as a
corporation, limited partnership or limited liability company and its license or qualification and
good standing in each jurisdiction in which its ownership or lease of property or the nature of its
business makes such license or qualification necessary, except as otherwise expressly permitted in
Section 8.2.3 [Consolidations and Mergers] or where the failure to do so would not cause a Material
Adverse Change.




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




          8.1.3 Maintenance of Insurance. Each Loan Party shall maintain with financially sound
and reputable insurance companies not Affiliates of the Borrower, insurance with respect to its
properties and business against loss or damage of the kinds customarily




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insured against by Persons
engaged in the same or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons. The Loan Parties shall comply with the
covenants and provide the endorsement set forth on Schedule 8.1.3 relating to property and
related insurance policies covering the Collateral.




          8.1.4 Maintenance of Properties and Leases. Each Loan Party shall, and shall cause
each of its Subsidiaries to, maintain in good repair, working order and condition (ordinary wear
and tear excepted) in accordance with the general practice of other businesses of similar character
and size, all of those properties useful or necessary to its business, and from time to time, such
Loan Party will make or cause to be made all appropriate repairs, renewals or replacements thereof
except where the failure to do so would not cause a Material Adverse Change.




          8.1.5 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.




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




          8.1.7 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 8.1.7 if any failure to comply with any Law would not
result in fines, penalties, remediation costs, other similar liabilities or injunctive relief which
in the aggregate would 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.




          8.1.8 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,
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.





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          8.1.9 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.




          8.1.10 Grant of Mortgage Collateral. If requested by the Majority Creditors at any time
after the Closing Date, the Borrower and each other Loan Party shall enter into and deliver to the
Collateral Agent a mortgage, deed of trust or other security document, in form and substance
acceptable to the Collateral Agent (a “Mortgage Instrument”), with respect to each owned real
property that has an aggregate fair market value of at least $3,000,000 (the “Mortgaged Property”)
to secure the Senior Secured Obligations, together with such title insurance policies, evidence of
insurance, insurance certificates and endorsements, surveys, appraisals, consents, estoppels,
waivers, subordination agreements, bond resolutions, officers certificates, corporate documents,
opinions of counsel, and other documents and instruments as the Collateral Agent shall reasonably
request. At the time the Borrower or such other Loan Party executes and delivers any Mortgage
Instrument, the Loan Parties also shall execute and deliver an Indemnity in favor of the Agent and
the Lenders with respect to the Mortgaged Property subject to such Mortgage Instrument.




          8.1.11 Minimum Borrower and Guarantor Consolidated Total Operating Income and Consolidated Total Assets. The
Borrower shall cause either (a) at least 75% of the Consolidated Total Operating Income to be generated by the
Borrower and the Guarantors
or (ii) at least 75% of the Consolidated Total Assets to be owned by the Borrower and the Guarantors.



          8.1.12	Modification to Fixed Charge Coverage Ratio.
In the event that Required Lenders obtain credit approval
to modify the definition of Fixed Charge Coverage Ratio and the
related financial covenant ratio levels to be consistent with the
corresponding definition and financial covenant ratio levels set forth in the
Note Purchase Agreement for the Borrower’s 6.58% Senior Notes due 2016,
then upon Borrower’s receipt of notice from the Administrative Agent of
such credit approval, the Loan Parties shall within twenty (20) days of
such notice execute and deliver an amendment to this Agreement to effect
such changes to the definition of Fixed Charge Coverage Ratio and the related
financial covenant ratio levels.





     8.2 Negative Covenants. The Loan Parties, jointly and severally, covenant and agree that
until Payment In Full, the Loan Parties shall not, nor shall they permit any Subsidiary to,
directly or indirectly:



          8.2.1 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following
(collectively, “Permitted Liens”):




     (a) Liens in respect of property of the Borrower or a Subsidiary existing on the Closing Date
and described in Schedule 8.2.1, and any renewals or extensions thereof, provided
(i) the property covered thereby is not changed and (ii) the amount of Indebtedness secured thereby
is not increased; provided further, the Lien in favor of Satake USA Inc. which does not
constitute a Purchase Money Security Interest shall be released within 60 days after the Closing
Date
unless the Borrower is contesting in good faith its obligations to Satake USA Inc.,
and until such time as such Lien is released, the Lenders may withhold from available
borrowing under the Revolving Credit Commitment an amount sufficient to satisfy the
obligations owed to Satake USA Inc secured by such Lien;





     (b) Liens in respect of property acquired or constructed by the Borrower or a Subsidiary after
the Closing Date, which are created at the time of or within 180 days after acquisitions or
completion of construction of such property to secure Indebtedness assumed or incurred to finance
all or any part of the purchase price or cost of construction of such property, provided that in
any such case;



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     (i) no such Lien shall extend to or cover any other property of the Borrower or such
Subsidiary, as the case may be, and



     (ii) the aggregate principal amount of Indebtedness secured by all such Liens in respect of
any such property shall not exceed the cost of such property and any improvements then being
financed;



     (c) Liens in respect to property acquired by the Borrower or a Subsidiary after the Closing
Date, existing on such property at the time of acquisition thereof (and not created in anticipation
thereof), or in the case of any Person that after the Closing Date becomes a Subsidiary or is
consolidated with or merged with or into the Borrower or a Subsidiary or sells, leases or otherwise
disposes of all or substantially all of its property to the Borrower or a Subsidiary, Liens
existing at the time such Person becomes a Subsidiary or is so consolidated or merged or effects
such sale, lease or other disposition of property (and not created in anticipation thereof),
provided that in any such case no such Lien shall extend to or cover any other property of the
Borrower or such Subsidiary, as the case may be;



     (d) Liens securing Indebtedness owed by a Subsidiary to the Borrower or to a Wholly-Owned
Subsidiary which is a Guarantor;



     (e) Liens for taxes not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;



     (f) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 days
or which are being contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the applicable Person;



     (g) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any Lien
imposed by ERISA;



     (h) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or
litigation), performance bonds and other obligations of a like nature incurred in the ordinary
course of business;



     (i) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person; and



     (j) Liens in respect of property of the Borrower and its Domestic Subsidiaries to secure the
Senior Secured Obligations.



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     For purposes of this Section 8.2.1, any Lien existing in respect of property at the time such
property is acquired or in respect of property of a Person at the time such Person is acquired,
consolidated or merged with or into the Borrower or a Subsidiary shall be deemed to have been
created at that time.



          8.2.2 Disposition of Assets. Make any sale, transfer, lease (as lessor), loan or other
disposition of any property or assets (an “Asset Sale”), other than the following:




     (a) Asset Sales in the ordinary course of business;



     (b) Asset Sales of property or assets by a Subsidiary to the Borrower or a Wholly-Owned
Subsidiary that is a Guarantor;



     (c) other Asset Sales, provided that in each case



     (i) immediately before and after giving effect thereto, no Event of Default shall have
occurred and be continuing, and



     (ii) the aggregate net book value of the property or assets disposed of in such Asset Sale and
all other Asset Sales by the Borrower and its Subsidiaries during the immediately preceding twelve
months does not exceed 15% of Consolidated Net Worth (as of the last day of the quarterly
accounting period ending on or most recently prior to the last day of such twelve month period);
provided, however, there shall be excluded for purposes of this Section 8.2.2 only,
the aggregate net book value of the property and assets of certain Subsidiaries previously
disclosed in the Borrower’s Second Quarter 2009 Update to the Lenders, dated June 15, 2009, in
writing to be disposed of by the Borrower in three separate Asset Sales so long as all the proceeds
and consideration of such Asset Sales consist of (A) notes not to exceed (x) $10,000,000 in
aggregate principal amount for all such Asset Sales and (y) $5,000,000 in aggregate principal
amount for any one such Asset Sale and/or (B) cash.



     For purposes of this Section 8.2.2, any Voting Equity Interests of a Subsidiary that are the
subject of an Asset Sale shall be valued at the greater of (x) the fair market value of such shares
as determined in good faith by the board of directors of the Borrower and (y) the aggregate net
book value of the assets of such Subsidiary multiplied by a fraction of which the numerator is the
aggregate number of Voting Equity Interests of such Subsidiary disposed of in such Asset Sale and
the denominator is the aggregate number of Voting Equity Interests of such Subsidiary outstanding
immediately prior to such Asset Sale.



          8.2.3 Consolidations and Mergers. Consolidate with or merge with any other corporation or
convey, transfer or lease all or substantially all of its assets in a single transaction or series
of transactions to any Person except a Subsidiary may consolidate with or merge with any other
corporation or convey or transfer all or substantially all of its assets to (a) the Borrower
(provided that the Borrower shall be the continuing or surviving corporation) or a then existing
Wholly-Owned Subsidiary that is a Subsidiary Guarantor, and (b) any Person in an Asset Sale
involving all of the outstanding stock or all or substantially all of the assets of such
Subsidiary, in either case subject to the limitation of Section 8.2.2.




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          8.2.4 Loans and Investments. Purchase or acquire, or make any commitment therefor, any
capital stock, equity interest, or any obligations or other securities of, or any interest in, any
Person, or make or commit to make any Acquisitions, or make or commit to make any advance, loan,
extension of credit or capital contribution to or any other investment in, any Person including any
Affiliate of the Borrower (collectively, “Investments”), except for:




     (a) Investments held by the Borrower or any Subsidiary in the form of cash equivalents or
short term marketable securities and Permitted Investments;



     (b) extensions of credit in the nature of accounts receivable or notes receivable arising from
the sale or lease of goods or services in the ordinary course of business;



     (c) extensions of credit by the Borrower to any of its Wholly-Owned Subsidiaries or by any of
its Wholly-Owned Subsidiaries to another of its Wholly-Owned Subsidiaries;



     (d) pledges or deposits as required in the ordinary course of business in connection with
workmen’s compensation, unemployment insurance and other social security legislation;



     (e) advances, loans, extensions of credit or investments in the ordinary course of business;
provided that the aggregate amount thereof shall not exceed $15,000,000;



     (f) Investments incurred in order to consummate Permitted Acquisitions;



     (g) purchases and other acquisitions by the Borrower of stock of the Borrower to the extent
permitted by Section 8.2.13; and



     (h) notes received as part of the purchase price of three Asset Sales excluded from that
calculation as set forth in Section 8.2.2(c)(ii) not to exceed the amounts permitted thereunder.



          8.2.5 Limitation on Indebtedness. Create, assume, incur, guarantee, permit to exist or
otherwise become liable in respect of any Indebtedness unless immediately before and after giving
effect thereto no Potential Default or Event of Default exists or would result therefrom; provided,
however, notwithstanding anything herein to the contrary, in no event shall the aggregate amount of
Indebtedness outstanding at any time of all Subsidiaries (excluding (i) Guarantees permitted
pursuant to clauses (a), (b), (c) and (d) of Section 8.2.12, (ii) Indebtedness described on
Schedule 8.2.5, but no increase of any such Indebtedness, (iii) Indebtedness of a
Subsidiary that is a Guarantor owed to the Borrower or any Guarantor or Indebtedness of a
Subsidiary that is not a Guarantor owed to the Borrower or any other Subsidiary, (iv) Indebtedness
under the Loan Documents and the Note Purchase Agreements, and (v) Indebtedness of a Subsidiary
secured by Liens permitted pursuant to clause (h) of Section 8.2.1, exceed $5,000,000 in aggregate
amount.




          8.2.6 Consolidated Net Worth. Permit Consolidated Net Worth at any time to be less than
the sum of (i) $350,000,000 plus (ii) 50% of Consolidated Net Income for each fiscal quarter
beginning with the fiscal quarter ending on April 30, 2006 (excluding any fiscal quarter in which
Consolidated Net Income is not positive) plus (iii) 85% of the net proceeds of






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any equity issued by
the Borrower after January 31, 2006, minus (iv) non-cash impairment charges for goodwill,
intangible and fixed assets at such time of determination.




          8.2.7 Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio to be less than
(a) 1.75 to 1.00 for the fiscal quarter ending May 1, 2010, and (b) 2.25 to 1.00 at the end of any
fiscal quarter thereafter.




          8.2.8 Leverage Ratio. Permit the Leverage Ratio to exceed any time from the last day of
the fiscal quarter ending May 1, 2010 and at all times thereafter the ratio of 3.5 to 1.0.




          8.2.9 Sale/Leasebacks. Sell, lease, transfer or otherwise dispose of (collectively, a
“transfer”) any asset on terms whereby the asset or a substantially similar asset is or may be
leased or reacquired by the Borrower or any Subsidiary over a period in excess of three years,
unless after giving effect to such transaction and the incurrence of Attributable Debt in respect
thereof, the aggregate Attributable Debt in connection with all sale and leaseback transactions of
the Borrower and its Subsidiaries entered into after the September 10, 2008 in accordance with the
provisions of this Section 8.2.9, does not exceed $10,000,000.




          8.2.10 Transactions with Affiliates. Enter into any transaction with any Affiliate of the
Borrower (other than a Subsidiary), except upon fair and reasonable terms no less favorable to the
Borrower or such Subsidiary than would obtain in an comparable arm’s-length transaction with a
Person not an Affiliate of the Borrower.




          8.2.11 Use of Proceeds. Use any portion of any Loan proceeds or any Letter of Credit,
directly or indirectly, (i) to purchase or carry margin stock, (ii) to repay or otherwise refinance
indebtedness of the Borrower or others incurred to purchase or carry margin stock or (iii) to
extend credit for the purpose of purchasing or carrying any margin stock.




          8.2.12 Guarantees. Create, incur, assume or suffer to exist any Guarantees except:




     (a) endorsements for collection or deposit in the ordinary course of business;



     (b) Guarantees of Indebtedness of the Borrower and its Subsidiaries to the extent such
Indebtedness is permitted hereunder, provided that all Guarantees in respect of Swap Contracts
shall arise under contracts entered into in the ordinary course of business as bona fide hedging
transactions;



     (c) Guarantees of the Borrower and its Subsidiaries existing as of the Closing Date and listed
in Schedule 8.2.12; and



     (d) Guarantees of the Borrower or any Subsidiary in respect of the obligations (which do not
constitute Indebtedness) of (i) in the case of the Borrower, any Subsidiary, and (ii) in the case
of any Subsidiary, the Borrower or any Subsidiary of such Subsidiary or any other Subsidiary.



          8.2.13 Restricted Payments. Declare or make any Restricted Payment except that (a) any
Subsidiary may declare and pay Dividends to (x) the Borrower, (y) a Guarantor, and






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(z) the parent
of such Subsidiary; and (b) provided no Event of Default exists or would result therefrom, the
Borrower may pay Dividends not to exceed $1,650,000 in aggregate amount during any fiscal quarter.
In the event that the Noteholders agree to comparable restrictions on the Borrower’s ability to pay Stock Redemptions and
Dividends, the Borrower may pay Stock Redemptions and Dividends to its shareholders, provided that
prior to and after giving effect to any such Stock Redemption or Dividend: (i) no Potential Default
or Event of Default exists or would result therefrom,  (ii) the Borrower is in
compliance on a
Pro Forma Basis with the Fixed Charge Coverage Ratio as required under Section 8.2.7 at the level
required at the time any such Stock Redemption or Dividend is made
which solely for purposes of this Section 8.2.13, shall include scheduled principal
payments for amortization payments under the Note Purchase Agreement related to the 6.58%
Senior Notes due 2016,  and (iii) the Leverage Ratio determined on a Pro Forma Basis as of
the date of such Dividend or Stock Redemption is not greater than 3.00 to 1.00; provided
however, with respect to clause (iii), so long as the Leverage Ratio determined on a Pro Forma
Basis is not greater than 3.50 to 1.00 but is greater than 3.00 to 1.00 directly due to the
effect of an Acquisition occurring in the immediately preceding fiscal quarter, then the
Borrower may pay a regularly-scheduled Dividend in an aggregate amount no greater than
the aggregate Dividend paid in the immediately preceding fiscal quarter.




          8.2.14 ERISA. (a) Engage in a prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted or could reasonably be expected to
result in liability of the Borrower in an aggregate amount in excess of $2,000,000; or (b) engage
in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.




          8.2.15 Change in Business. Engage in any material line of business substantially different
from those lines of business carried on by the Borrower and its Subsidiaries on the date hereof.




          8.2.16 Accounting Changes. Make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal year of the Borrower or of
any Subsidiary.




          8.2.17 Amendment and Waivers of Subordinated Debt. Change or permit any Subsidiary to
change or amend (or take any action or fail to take any action the result of which is an effective
amendment or change) or accept any waiver or consent with respect to, any document, instrument or
agreement relating to any Subordinated Debt that would result in (a) an increase in the principal,
interest, overdue interest, fees or other amounts payable under any Subordinated Debt, (b) an
acceleration of any date fixed for payment or prepayment of principal, interest, fees or other
amounts payable under any Subordinated Debt (including, without limitation, as a result of any
redemption), (c) a change in any of the subordination provisions of any Subordinated Debt, or (d)
any other change in any term or provision of any Subordinated Debt that could reasonably be
expected to have an adverse effect on the interest of the Lenders.




          8.2.18 Capital Expenditures. Permit Capital Expenditures of the Borrower and its
Subsidiaries during (a) fiscal year 2010 to exceed $28,000,000, and (b) fiscal year 2011 and
thereafter to exceed $32,000,000. In the event that the Noteholders agree to eliminate the maximum
Dollar amount restrictions on the Borrower’s ability to make Capital Expenditures, the Borrower and
its Subsidiaries may make Capital Expenditures, provided that prior to and after giving effect to
any such Capital Expenditure, the Borrower is in compliance on a Pro Forma Basis with the Fixed
Charge Coverage Ratio as required under Section 8.2.7 at the level required at the time any such
Capital Expenditure is made.




          8.2.19 Senior Note Documents. Except as otherwise provided in the Intercreditor Agreement,
change or permit any Subsidiary to change or amend (or take any action or fail to take any action
the result of which is an effective amendment or change) or







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accept any waiver or consent with
respect to, any Senior Note Document that would result in (a) an increase in the principal,
interest, overdue interest, fees or other amounts payable under any Senior Note Document, (b) an
acceleration of any date fix for payment or prepayment of principal, interest, overdue interest,
fees or other amounts payable under any Senior Note Document, (c) the terms and provisions of the
Senior Note Documents, including without limitation the negative covenants and the events of
default, being more restrictive to the Borrower and its Subsidiaries than the terms and provisions
of this Agreement, or (d) the Borrower or any Subsidiary being subject to any prohibition or
limitation on making any payment or prepayment under the Loan Documents.




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



          8.3.1 Quarterly Financial Statements. As soon as available and in any event within
forty-five (45) calendar days after the end of each of the first three fiscal quarters in each
fiscal year, financial statements of the Borrower, consisting of a consolidated balance sheet as of
the end of such fiscal quarter and related consolidated statements of income, 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.




          8.3.2 Annual Financial Statements. As soon as available and in any event within
ninety (90) days after the end of each fiscal year of the Borrower, financial statements of the
Borrower consisting of a consolidated balance sheet as of the end of such fiscal year, and related
consolidated statements of income, 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.




          8.3.3 Certificate of the Borrower.
Concurrently with the financial statements of the Borrower furnished to the Administrative
Agent and to the Lenders pursuant to Sections 8.3.1 [Quarterly Financial Statements] and 8.3.2
[Annual Financial Statements], a certificate (each a “Compliance Certificate”) of the Borrower
signed by the Chief Executive Officer, President or Chief Financial Officer of the Borrower, in the
form of Exhibit 8.3.3.




          8.3.4 Notices.




               8.3.4.1 within five days after any Authorized Officer of the Borrower knows or has reason to
know of the occurrence of any Event of Default or Potential Default;



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               8.3.4.2 within ten days after any Authorized Officer of the Borrower knows or has reason to
know of any matter that has resulted or could reasonably be expected to result in a Material
Adverse Change, including (i) any breach or non-performance of, or any default under, a contractual
obligation of the Borrower or any Subsidiary that, individually or in the aggregate, has resulted
or could reasonably be expected to result in a Material Adverse Change; (ii) any dispute,
litigation, or suspension between the Borrower or any Subsidiary and any Official Body that,
individually or in the aggregate, has resulted or could reasonably be expected to result in a
Material Adverse Change; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary, including pursuant to any
applicable Environmental Laws that, individually or in the aggregate, has resulted or could
reasonably be expected to result in a Material Adverse Change;



               8.3.4.3 within ten days after any Authorized Officer of the Borrower knows or has reason to
know of the occurrence of any ERISA Event;



               8.3.4.4 within ten days after any Authorized Officer of the Borrower knows or has reason to
know of any material change in accounting policies or financial reporting practices by the Borrower
or any Subsidiary; and



               8.3.4.5 of the determination by the independent certified public accountants providing the
opinion required under Section 8.3.2 (in connection with its preparation of such opinion) or the
Borrower’s determination at any time of the occurrence or existence of any Internal Control Event.



               8.3.4.6 as soon as practicable, and in any event within 90 days after the commencement of each
fiscal year, a consolidated plan and financial forecast for such fiscal year, including without
limitation, a forecasted consolidated balance sheet, consolidated income statement and consolidated
statement of cash flow of the Borrower for such fiscal year.



     Each notice pursuant to this Section 8.3.4 shall be accompanied by a statement of a Authorized
Officer of the Borrower setting forth details known to the Borrower of the occurrence referred to
therein and stating what action the Borrower has taken and proposes to take with respect thereto.
Each notice pursuant to Section 8.3.4 shall describe with particularity any and all provisions of
this Agreement and any other Loan Document that have been breached.



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):



          9.1.1 Payments Under Loan Documents. The Borrower shall fail to pay any principal of
any Loan (including scheduled installments, mandatory prepayments or the payment due at maturity)
or any Reimbursement Obligation on the date on which such principal or Reimbursement Obligation
becomes due in accordance with the terms hereof, or the Borrower shall fail to pay any interest or
other amount owing hereunder or under the other Loan







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Documents within three (3) Business Days after
the date on which such amount becomes due in accordance with the terms hereof or thereof;




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




          9.1.3 Breach of Negative Covenants or Visitation Rights. Any of the Loan Parties
shall default in the observance or performance of any covenant contained in Section 8.1.5
[Visitation Rights] or Section 8.2 [Negative Covenants] other than Sections 8.2.4, 8.2.12, 8.2.14,
8.2.15 or 8.2.16;




          9.1.4 Breach of Other Covenants. Any of the Loan Parties shall default in the
observance or performance of any other covenant, condition or provision hereof or of any other Loan
Document and such default shall continue unremedied for a period of thirty (30) days;




          9.1.5 Defaults in Other Agreements or Indebtedness. A default or event of default
shall occur at any time under the terms of any other agreement involving borrowed money or the
extension of credit or any other Indebtedness under which any Loan Party or Subsidiary of any Loan
Party may be obligated as a borrower or guarantor in excess of $7,500,000 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 or causes the
acceleration of any Indebtedness in excess of $7,500,000 (whether or not such right shall have been
waived) or the termination of any commitment to lend;




          9.1.6 Final Judgments or Orders. Any final judgments or orders for the payment of
money in excess of $3,000,000 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;




          9.1.7 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 in any material respect thereof or shall in any way be terminated (except in accordance with
its terms) or become or be declared ineffective or inoperative or shall in any way be challenged or
contested or cease to give or provide the respective Liens, security interests, rights, titles,
interests, remedies, powers or privileges intended to be created thereby;




          9.1.8 Uninsured Losses; Proceedings Against Assets. There shall occur any material
uninsured damage to or loss, theft or destruction of any of the Collateral in excess of $7,500,000,
or the Collateral or any other of the Loan Parties’ or any of their Subsidiaries’ assets having a
value in excess of $7,500,000 are attached, seized, levied upon or subjected to a writ or







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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;




          9.1.9 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 $2,000,000, 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 $1,000,000;




          9.1.10 Change of Control. There occurs a Change of Control with respect to the
Borrower.




          9.1.11 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 sixty (60) 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.




     9.2 Consequences of Event of Default.



          9.2.1 Events of Default Other Than Bankruptcy, Insolvency or Reorganization
Proceedings. If an Event of Default specified under Sections 9.1.1 through 9.1.10 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




          9.2.2 Bankruptcy, Insolvency or Reorganization Proceedings. If an Event of Default
specified under Section 9.1.11 [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 due and payable,





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




          9.2.3 Set-off. If an Event of Default shall 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 application; provided that the failure to
give such notice shall not affect the validity of such setoff and application; and




          9.2.4 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 any Lender Provided Interest Rate Hedge or 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




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          (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 PNC to act on its behalf as the Administrative Agent 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 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





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[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 (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) 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, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in Section 7 [Conditions
of Lending and Issuance of Letters of Credit] or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the 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



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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; 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 (i) 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 (ii) 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 PNC resigns as Administrative Agent under this Section 10.6, PNC 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 PNC as the retiring
Issuing Lender and Administrative Agent and PNC 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 PNC, if any,
outstanding at the time of such succession or make other arrangement satisfactory to PNC to
effectively assume the obligations of PNC 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



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from time to time deem appropriate,
continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.




     10.8 No Other Duties, etc. Anything herein to the contrary notwithstanding, none of
the Joint Lead Arrangers, Co-Syndication Agents or Sole Bookrunner listed on the cover page hereof
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 (i) any Collateral consisting of assets or
Equity Interests sold or otherwise disposed of in a sale or other disposition or transfer permitted
under Sections 8.2.2 [Disposition of Assets] or 8.2.3 [Consolidations and Mergers], and (ii) 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 Sections 8.2.2 [Disposition of
Assets] or 8.2.3 [Consolidations and Mergers].



     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: (i) any identity verification
procedures, (ii) any recordkeeping, (iii) comparisons with government lists, (iv) customer notices
or (v) other procedures required under the CIP Regulations or such other Laws.



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
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:



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          11.1.1 Increase of Commitment. Increase the amount of the Revolving Credit Commitment
of any Lender hereunder without the consent of such Lender;




          11.1.2 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 (excluding the due date of any mandatory
prepayment of a 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, without the consent of each Lender directly affected thereby;




          11.1.3 Release of Collateral or Guarantor. Except for sales of assets permitted by
Section 8.2.2 [Disposition of Assets], release all or substantially all of the Collateral or any
Guarantor from its Obligations under the Guaranty Agreement without the consent of all Lenders
(other than Defaulting Lenders); or




          11.1.4 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 Lenders (other than Defaulting Lenders);



provided that no agreement, waiver or consent which would modify the interests, rights or
obligations of the Administrative Agent or the Issuing Lender may be made 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 11.1.1 through 11.1.4 above, the consent of the Required Lenders is obtained but the
consent of one or more of such other Lenders whose consent is required is not obtained (each a
“Non-Consenting Lender”), then the Borrower shall have the right to replace any such Non-Consenting
Lender with one or more replacement Lenders pursuant to Section 5.6.2 [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.



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





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pay all reasonable
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
reasonable 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), and shall pay all fees and time charges for attorneys who may be
employees of 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 in
connection with any examinations authorized under Section 8.1.5.




          11.3.2 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 or nonperformance 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 Loan Parties 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






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Loan Party has obtained a final and nonappealable judgment
in its favor on such claim as determined by a court of competent jurisdiction.




          11.3.3 Reimbursement by Lenders. To the extent that the Borrower for any reason fails
to indefeasibly pay any amount required under Sections 11.3.1 [Costs and Expenses] or 11.3.2
[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.




          11.3.4 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 11.3.2 [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.




          11.3.5 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.



          11.5.1 Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in Section 11.5.2 [Electronic
Communications]), all notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by






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certified or registered mail or
sent by telecopier (i) if to a Lender, to it at its address set forth in its administrative
questionnaire, or (ii) if to any other Person, to it at its address set forth on Schedule
1.1(B).




          Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next Business Day
for the recipient). Notices delivered through electronic communications to the extent provided in
Section 11.5.2 [Electronic Communications], shall be effective as provided in such Section.




          11.5.2 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.




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




     11.6 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 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



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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.



          11.8.1 Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and their respective successors and
assigns permitted hereby, except that neither the Borrower nor any other Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the 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 11.8.2 [Assignments by Lenders], (ii) by way of participation in accordance with the
provisions of Section 11.8.4 [Participations], or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of Section 11.8.6 [Certain Pledges; Successors and
Assigns Generally] (and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon
any Person (other than the parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent
provided in Section 11.8.4 [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.




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




          (i) Minimum Amounts.




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



               (B) in any case not described in clause (i)(A) of this Section 11.8.2, the aggregate amount of
the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable
Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and Assumption
Agreement with respect to such assignment is delivered to the 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, in the case of any assignment in respect of the Revolving Credit Commitment
of the assigning Lender, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to
be unreasonably withheld or delayed).



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          (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 or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
provided that the Borrower shall be deemed to have consented to any such assignment unless it shall
object thereto by written notice to the Administrative Agent within five (5) Business Days after
having received notice thereof; and



               (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.




          (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 11.8.3
[Register], from and after the effective date specified in each Assignment and Assumption
Agreement, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption Agreement, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption Agreement, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption Agreement covering all of
the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a
party hereto) but shall continue to be entitled to the benefits of Sections 4.4 [LIBOR Rate
Unascertainable; Illegality; Increased Costs; Deposits Not Available], 5.8 [Increased Costs], 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 comply with this Section 11.8.2 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with Section 11.8.4 [Participations].




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          11.8.3 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, at any
reasonable time and from time to time upon reasonable prior notice.




          11.8.4 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 11.1.1
[Increase of Commitment, Etc.], 11.1.2 [Extension of Payment, Etc.], or 11.1.3 [Release of
Collateral or Guarantor]). Subject to Section 11.8.5 [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] to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to Section 11.8.2 [Assignments by Lenders]. To the extent
permitted by Law, each Participant also shall be entitled to the benefits of Section 9.2.3 [Setoff]
as though it were a Lender; provided such Participant agrees to be subject to Section 5.3
[Sharing of Payments by Lenders] as though it were a Lender.




          11.8.5 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
such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 5.9.5 [Status of Lenders] as though it were a Lender.




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




     11.9 Confidentiality.



          11.9.1 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.




          11.9.2 Sharing Information With Affiliates of the Lenders. Each Loan Party
acknowledges that from time to time financial advisory, investment banking and other services may
be offered or provided to the Borrower or one or more of its Affiliates (in connection with this
Agreement or otherwise) by any Lender or by one or more Subsidiaries or Affiliates of such Lender
and each of the Loan Parties hereby authorizes each Lender to share any information delivered to
such Lender by such Loan Party and its Subsidiaries pursuant to this Agreement to any such
Subsidiary or Affiliate subject to the provisions of Section 11.9.1 [General].




     11.10 Counterparts; Integration; Effectiveness.



          11.10.1 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




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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.



          11.11.1 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.




          11.11.2 SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF OHIO SITTING IN CUYAHOGA COUNTY AND OF THE UNITED STATES
DISTRICT COURT OF THE NORTHERN DISTRICT OF OHIO, 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 OHIO STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT THAT THE 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.




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          11.11.3 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.




          11.11.4 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.




          11.11.5 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.



     11.13 Joinder of Loan Party. Any Subsidiary of the Borrower that is not a Foreign
Subsidiary which is required to join this Agreement as a Borrower or Guarantor pursuant to Section
8.2.4 [Loans and Investments] shall execute and deliver to the Administrative Agent (i) a Joinder
Agreement in substantially the form attached hereto as Exhibit 1.1(G)(1) pursuant to which it shall
join as a Guarantor each of the documents to which the Guarantors are parties; (ii) documents in
the forms described in Section 7.1 [First Loans] modified as appropriate to relate to such
Subsidiary; and (iii) documents necessary to grant the Administrative Agent a Lien



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on the
Collateral and create a security interest in favor of the Administrative Agent for the benefit of
the Lenders in all personal property held by such Subsidiary. In the case of a Permitted
Acquisition, the Loan Parties cause such Joinder
Agreement and related documents to be delivered to the Administrative Agent at the time of the
closing of such Permitted Acquisition. In the case of a newly formed Person required to join this
Agreement pursuant to Section 8.2.4, the Loan Parties shall deliver such Joinder Agreement and
related documents to the Administrative Agent within five (5) Business Days after the date of the
filing of such Subsidiary’s articles of incorporation if the Subsidiary is a corporation, the date
of the filing of its certificate of limited partnership if it is a limited partnership or the date
of its organization if it is an entity other than a limited partnership or corporation.




[SIGNATURE PAGES FOLLOW]





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[SIGNATURE PAGE TO AMENDED AND RESTATED 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.



	 	 	 	 	 
	 	SPARTECH CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]




	 	 	 	 	 
	 	ATLAS ALCHEM PLASTICS, INC.

ALCHEM PLASTICS CORPORATION

ALCHEM PLASTICS, INC.

SPARTECH PLASTICS, LLC

By: Spartech Corporation, its sole member

POLYMER EXTRUDED PRODUCTS, INC.

SPARTECH POLYCAST, INC.

SPARTECH TOWNSEND, INC.

SPARTECH POLYCOM, INC.

FRANKLIN-BURLINGTON PLASTICS, INC.

SPARTECH CMD, LLC

By: Spartech Plastics LLC, its managing member

SPARTECH FCD, LLC

By: Polymer Extruded Products, Inc., its managing

member

SPARTECH SPD, LLC

By: Spartech Plastics, LLC, its managing member

SPARTECH MEXICO HOLDING COMPANY

SPARTECH MEXICO HOLDING COMPANY TWO

SPARTECH MEXICO HOLDINGS, LLC

By: Spartech Mexico Holding Company, its sole member

CREATIVE FORMING, INC.

PEPAC HOLDINGS, INC.

SPARTECH RESEARCH AND DEVELOPMENT, LLC

By: Spartech Corporation, its sole member

 	 
	 	By:  	 	 
	 	 	Randy C. Martin 	 
	 	 	Vice President for all of the above 	 



 









 






	 	 	 	 	 



[SIGNATURE PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT]




	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION,

Individually and as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[OTHER LENDERS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: