1.2 Section 7.11 (Use of Proceeds) of the Credit Agreement is amended to read as follows:7.11 Use of Proceeds.Use the proceeds of the Credit Extensions (a) to fund payments under theReorganization Plan and (b) to finance working capital, capital expenditures and otherlawful corporate purposes (including the funding of Special Distributions (as defined inSection 8.06(c)); provided that in no event shall the proceeds of theCredit Extensions be used in contravention of any Law or of any Loan Document.1.3 Section 8.06 (Restricted Payments) of the Credit Agreement is amended by deleting the“and” at the end of subsection (b) and amending subsection (c) and incorporating a new subsection(d), in each case to read as follows:(c) the Borrower may declare and make other Restricted Payments in any fiscal yearin an amount not exceed the sum of (i) $25,000,000 plus (ii) an amount equal tothe difference of (A) twenty-five percent (25%) of cumulative Consolidated Net Incomeearned after the Closing Date minus (B) the aggregate amount of RestrictedPayments in excess of $25,000,000 in any fiscal year after the Closing Date (butexcluding Special Distributions for purposes hereof), with unused amounts in any fiscalyear being carried over to succeeding fiscal years; and(d) so long as no Event of Default shall exist immediately before or after givingeffect thereto, the Borrower may make special Restricted Payments ( “SpecialDistributions”) in an aggregate amount of up to $500,000,000 at any time on orbefore February 28, 2009; provided that if the Borrower makes Special Distributions, theBorrower shall not make any Restricted Payments pursuant to subsection (c) above untilafter February 28, 2009.1.4 Section 8.11 (Financial Covenants) of the Credit Agreement is amended incorporating a newsubsection (c) to read as follows:(c) Minimum Liquidity. Permit as of the end of any fiscal quarter of theBorrower minimum liquidity of the Borrower and its Domestic Subsidiaries to be less than$100 million, which may be comprised of a combination of unrestricted readily-availabledomestic cash and Cash Equivalents and undrawn Revolving Commitments, but only to theextent that, if drawn, the Borrower would be in compliance with the financial covenantsunder this Section 8.11 after giving effect thereto on a Pro Forma Basis.2. Conditions Precedent. This Amendment shall become effective upon prior orsimultaneous satisfaction of the following conditions, in form and substance reasonablysatisfactory to the Administrative Agent:(a) receipt by the Administrative Agent of executed copies of the consent and directionletter to this Amendment from the Required Lenders;(b) receipt by the Administrative Agent of executed copies of the signature pages tothis Amendment from the Loan Parties;(c) receipt by the Administrative Agent of favorable opinions of (i) Weil, Gotshal &Manges LLP, legal counsel to the Loan Parties, and (ii) in-house counsel to the Loan Partieswith respect to Pennsylvania law, in each case, addressed to the Administrative Agent andeach Lender, dated as of the date of this Amendment, and in form and substance satisfactoryto the Administrative Agent;
 
 

 
(d) receipt by the Administrative Agent of the following, each of which shall beoriginals or facsimiles (followed promptly by originals), in form and substance satisfactoryto the Administrative Agent and its legal counsel:(i) copies of the Organization Documents of each Loan Party certified to betrue and complete as of a recent date by the appropriate Governmental Authority ofthe state or other jurisdiction of its incorporation or organization, whereapplicable, andcertified by a secretary or assistant secretary of such Loan Party to be trueand correct as of the date of this Amendment, unless a Responsible Officer of theBorrower certifies in a certificate that the Organization Documents previouslydelivered to the Administrative Agent in connection with the Credit Agreement havenot been amended, supplemented or otherwise modified and remain in full force andeffect as of the date hereof;(ii) incumbency certificates identifying the Responsible Officers of the LoanParties who are authorized to execute this Amendment and related documents and toact on the Loan Parties’ behalf in connection with this Agreement and the CreditDocuments, unless a Responsible Officer of the Borrower certifies in a certificatethat the incumbency certificates previously delivered to the Administrative Agent inconnection with the Credit Agreement have not been amended, supplemented orotherwise modified and remain in full force and effect as of the date hereof.(iii) such certificates of resolutions or other action, incumbency certificatesand/or other certificates of Responsible Officers of each Loan Party as theAdministrative Agent may require evidencing the identity, authority and capacity ofeach Responsible Officer thereof authorized to act as a Responsible Officer inconnection with this Amendment; and(iv) such documents and certifications as the Administrative Agent mayreasonably require to evidence that each Loan Party is duly organized or formed, andis validly existing, and in good standing in its state of organization or formation;(e) payment of an amendment fee, for the benefit of each Lender consenting to thisAmendment, in an amount equal to 0.25% of the aggregate Commitments of each such consentingLender and all other fees (including all reasonable fees, expenses and disbursements ofMoore & Van Allen PLLC) due in connection herewith, which fees shall be deemed fully earnedand due and payable on the effective date of this Amendment.3. Effectiveness of Amendment. Upon satisfaction of the condition precedent set forthin Section 2 hereof, all references to the Credit Agreement in each of the Loan Documentsshall hereafter mean the Credit Agreement as amended by this Amendment.
 
 

 
4. Representations and Warranties; Defaults. The Borrower affirms that uponauthorization by the Board of Directors of this Amendment, the following:(a) all necessary action by the Loan Parties to authorize the execution, delivery andperformance of this Amendment has been taken;(b) after giving effect to this Amendment, the representations and warranties set forthin the Credit Agreement and the other Loan Documents are true and correct in all materialrespects as of the date hereof (except those which expressly relate to an earlier period);and(c) after giving effect to this Amendment, no Default or Event of Default shall exist.5. Full Force and Effect. Except as modified hereby, all of the terms and provisionsof the Credit Agreement and the other Loan Documents (including schedules and exhibits thereto)shall remain in full force and effect.6. Affirmation of Liens and Security Interests. The Loan Parties hereby affirm theliens and security interests created and granted in the Loan Documents and agree that thisAmendment is not intended to, nor shall it, adversely affect or impair such liens and securityinterests in any manner.7. Expenses. The Loan Parties agree to pay all reasonable costs and expenses of theAdministrative Agent in connection with the preparation, execution and delivery of this Amendment,including the reasonable fees and expenses of Moore & Van Allen, PLLC.8. Counterparts. This Amendment may be executed in any number of counterparts, eachof which when so executed and delivered shall be deemed an original, and it shall not be necessaryin making proof of this Amendment to produce or account for more than one such counterpart.9. Governing Law. This Amendment shall be governed by, and construed in accordancewith, the law of the State of New York applicable to agreements made and to be performed entirelywithin such state.