TABLE OF CONTENTS

 

1.	CERTAIN DEFINITIONS		1
	1.1	Certain Definitions	1
	1.2	Construction	23
	1.3	Accounting Principles	24
2.	REVOLVING CREDIT FACILITY		24
	2.1	Revolving Credit Commitments	24
	2.2	Nature of Banks’ Obligations with Respect to Revolving Credit Loans	25
	2.3	Commitment Fees	25
	2.4	Revolving Credit Loan Requests	26
	2.5	Making Revolving Credit Loans	27
	2.6	Revolving Credit Notes	27
	2.7	Use of Proceeds	27
	2.8	Letter of Credit Subfacility	27
	2.9	Swing Loans	34
	2.10	Utilization of Commitments in Optional Currencies	37
	2.11	Currency Repayments	40
	2.12	Optional Currency Amounts	40
	2.13	Provisions Relating to Fronting of Optional Currency Loans	40
3.	INTEREST RATES		45
	3.1	Interest Rate Options	45
	3.2	Interest Periods	46
	3.3	Interest After Default	46
	3.4	Euro-Rate Unascertainable	47
	3.5	Selection of Interest Rate Options	48
4.	PAYMENTS		48
	4.1	Payments	48
	4.2	Pro Rata Treatment of Banks	49
	4.3	Interest Payment Dates	49
	4.4	Voluntary Prepayments and Commitment Reductions	50
	4.5	Additional Compensation in Certain Circumstances	52
	4.6	Mandatory Prepayments	54
	4.7	Interbank Market Presumption	54
	4.8	Taxes	55
	4.9	Judgment Currency	56
5.	REPRESENTATIONS AND WARRANTIES		56
	5.1	Representations and Warranties	56

 

i

 

EXCEPT AS SET FORTH ON SCHEDULE 5.1.20:			61
EXCEPT AS DISCLOSED ON THE ANNUAL REPORT (WHICH DISCLOSED ITEMS WILL NOT LIKELY RESULT IN A MATERIAL ADVERSE CHANGE):			62
	5.2	Updates to Schedules	65
6.	CONDITIONS OF LENDING		66
	6.1	First Loans	66
	6.2	Each Additional Loan	68
7.	COVENANTS		68
	7.1	Affirmative Covenants	68
	7.2	Negative Covenants	72
	7.3	Reporting Requirements	80
8.	DEFAULT		85
	8.1	Events of Default	85
	8.2	Consequences of Event of Default	88
9.	THE AGENT		91
	9.1	Appointment	91
	9.2	Delegation of Duties	91
	9.3	Nature of Duties; Independent Credit Investigation	91
	9.4	Actions in Discretion of Administrative Agent; Instructions from the Banks	92
	9.5	Reimbursement and Indemnification of Administrative Agent by the Borrowers	92
	9.6	Exculpatory Provisions	93
	9.7	Reimbursement and Indemnification of Administrative Agent by Banks	93
	9.8	Reliance by Administrative Agent	94
	9.9	Notice of Default	94
	9.10	Notices	94
	9.11	Banks in Their Individual Capacities	94
	9.12	Holders of Notes	94
	9.13	Equalization of Banks	95
	9.14	Successor Administrative Agent	95
	9.15	Administrative Agent’s Fee	95
	9.16	Availability of Funds	96
	9.17	Calculations	96
	9.18	No Reliance on Agent’s Customer Identification Program	96
	9.19	Beneficiaries	96

 

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10.	MISCELLANEOUS		97
	10.1	Modifications, Amendments or Waivers	97
	10.2	No Implied Waivers; Cumulative Remedies; Writing Required	98
	10.3	Reimbursement and Indemnification of Banks by the Borrowers; Taxes	98
	10.4	Holidays	99
	10.5	Funding by Branch, Subsidiary or Affiliate	99
	10.6	Notices	100
	10.7	Severability	101
	10.8	Governing Law	101
	10.9	Prior Understanding	101
	10.10	Duration; Survival	102
	10.11	Successors and Assigns	102
	10.12	Confidentiality	103
	10.13	Counterparts	104
	10.14	Administrative Agent’s or Bank’s Consent	104
	10.15	Exceptions	104
	10.16	Consent to Forum; Waiver of Jury Trial	104
	10.17	Certifications From Banks and Participants	105
	10.18	Public Filings	106
	10.19	Agent Titles	106
	10.20	Joinder of Borrowers and Guarantors	106
	10.21	USA Patriot Act	107

 

iii

 

LIST OF SCHEDULES AND EXHIBITS

 

SCHEDULES

 

SCHEDULE 1.1(B)	-	COMMITMENTS OF BANKS
SCHEDULE 1.1(P)	-	PERMITTED LIENS
SCHEDULE 2.13.1	-	NON-FRONTING BANKS AS OF CLOSING DATE
SCHEDULE 5.1.1	-	QUALIFICATIONS TO DO BUSINESS
SCHEDULE 5.1.2	-	CAPITALIZATION
SCHEDULE 5.1.3	-	SUBSIDIARIES
SCHEDULE 5.1.7	-	LITIGATION
SCHEDULE 5.1.8	-	TITLE TO PROPERTY
SCHEDULE 5.1.13	-	CONSENTS AND APPROVALS
SCHEDULE 5.1.20	-	EMPLOYEE BENEFIT PLAN DISCLOSURES
SCHEDULE 5.1.21	-	EMPLOYMENT MATTERS
SCHEDULE 5.1.25	-	PERFECTION ACTIONS
SCHEDULE 5.1.26	-	PARTNERSHIP AGREEMENTS AND LIMITED LIABILITY COMPANY AGREEMENTS
SCHEDULE 7.2.7	-	RECEIVABLES SALES
EXHIBITS
EXHIBIT 1.1(A)	-	ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(B)	-	BANK JOINDER
EXHIBIT 1.1(G)	-	GUARANTY AND SURETYSHIP AGREEMENT
EXHIBIT 1.1(I)	-	INTERCOMPANY SUBORDINATION AGREEMENT
EXHIBIT 1.1(P)(1)	-	PRICING GRID
EXHIBIT 1.1(P)(2)	-	PLEDGE AGREEMENT
EXHIBIT 1.1(R)	-	REVOLVING CREDIT NOTE
EXHIBIT 1.1(S)(2)	-	SWING LOAN NOTE
EXHIBIT 2.4	-	LOAN REQUEST
EXHIBIT 2.9.2	-	SWING LOAN REQUEST
EXHIBIT 7.3.3	-	COMPLIANCE CERTIFICATE
EXHIBIT 10.20(A)	-	FORM OF BORROWER JOINDER
EXHIBIT 10.20(B)	-	FORM OF GUARANTOR JOINDER

 

iv

 

AMENDED AND RESTATED CREDIT AGREEMENT

 

THIS AMENDED AND RESTATED CREDIT AGREEMENT is dated as of August 14, 2009, and is made by and among TRIUMPH GROUP, INC., a Delaware corporation (“ TGI ”), the other BORROWERS (as hereinafter defined), the GUARANTORS (as hereinafter defined), the BANKS (as hereinafter defined), PNC BANK, NATIONAL ASSOCIATION, in its capacity as Administrative Agent for the Banks under this Agreement (hereinafter referred to in such capacity as the “ Administrative Agent ”), BANK OF AMERICA, N.A., in its capacity as syndication agent for the Banks under this Agreement (hereinafter referred to in such capacity as the “ Syndication Agent ”), CITIZENS BANK OF PENNSYLVANIA, in its capacity as documentation agent for the Banks under this Agreement (herein referred to in such capacity as the “ Documentation Agent ”), and JPMORGAN CHASE BANK, N.A., SOVEREIGN BANK, BRANCH BANKING & TRUST COMPANY AND MANUFACTURERS AND TRADERS TRUST COMPANY, in their capacity as managing agents for the Banks under this Agreement (each hereinafter individually referred to in such capacity as the “ Managing Agent” and collectively referred to in such capacity as the “ Managing Agents ”).

 

WITNESSETH:

 

WHEREAS, certain of the Banks currently provide a revolving credit facility for TGI pursuant to an Amended and Restated Credit Agreement dated as of July 27, 2005, as amended (the “ 2005 Credit Agreement ”); and

 

WHEREAS, the parties hereto are amending and restating the 2005 Credit Agreement on the terms and conditions set forth below;

 

NOW, THEREFORE, the parties hereto, in consideration of their mutual covenants and agreements hereinafter set forth and intending to be legally bound hereby, covenant and agree that the 2005 Credit Agreement is amended and restated in its entirety as follows:

 

1.             CERTAIN DEFINITIONS

 

1.1                                  Certain Definitions .

 

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

 

Additional Bank shall have the meaning assigned to that term in Section 10.11 [Successors and Assigns].

 

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

 

Administrative Agent’s Fee shall have the meaning assigned to that term in Section 9.15.

 

Administrative Agent’s Letter shall have the meaning assigned to that term in Section 9.15.

 

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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.  “Control”, as used in this definition, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, including the power to elect a majority of the directors or trustees of a corporation or trust, as the case may be.

 

Adjusted Funding Target Attainment Percentage shall mean the adjusted funding target attainment percentage as defined in Sections 206(g)(9) of ERISA and 436(j)(2) of the Internal Revenue Code.

 

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

 

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).

 

“ Annual Report ” shall mean TGI’s Annual Report on Form 10-K for the fiscal year ended March 31, 2009.

 

Applicable Pro Forma Reporting Period shall mean with respect to any Permitted Acquisition, the most recent 4-quarter period ending prior to the date of such Permitted Acquisition for which financial statements have been delivered (or were due to be delivered) by the Borrowers in accordance with Sections 7.3.1 or 7.3.2.

 

Assignment and Assumption Agreement shall mean an Assignment and Assumption Agreement by and among a Purchasing Bank, the Transferor Bank and the Administrative Agent, as Administrative Agent and on behalf of the remaining Banks, substantially in the form of Exhibit 1.1(A) .

 

Authorized Officer shall mean those individuals, designated by written notice to the Administrative Agent from TGI, as agent for each Borrower, authorized to execute notices, reports and other documents on behalf of such Borrower required hereunder.  Any Borrower may amend such list of individuals from time to time by having TGI give written notice of such amendment on its behalf to the Administrative Agent.

 

Availability shall mean the sum of (i) the difference between (a) the lesser of (1) the Commitments and (2) the maximum amount of Loans that may be borrowed hereunder while maintaining compliance with the each of the Total Leverage Ratio covenant under Section 7.2.16 and the Senior Leverage Ratio covenant under Section 7.2.17, and (b) the Revolving Facility Usage, plus (ii) cash and Cash Equivalents held by TGI or another Domestic Loan Party and maintained or managed at a Bank or an Affiliate of a Bank.

 

2

 

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

 

Banks 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 Bank.

 

Base Rate shall mean the greatest of (i) 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 rate then being charged commercial borrowers by the Administrative Agent, (ii) the Federal Funds Open Rate plus 1/2% per annum, or (iii) the Daily Euro-Rate plus 1% per annum.

 

Base Rate Option shall mean the Revolving Credit Base Rate Option.

 

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

 

Blocked Person shall have the meaning assigned to such term in Section 5.1.24.2.

 

Borrower Joinder shall have the meaning assigned to such term in Section 10.20.

 

Borrowers shall mean collectively TGI and each of TGI’s Subsidiaries which have executed this Agreement as a Borrower, or which becomes a Borrower pursuant to Section 10.20 hereof, and, if a Foreign Borrower, has not terminated its status as a Borrower pursuant to Section 10.21(ii).

 

Borrowing Date shall mean, with respect to any Loan, the date for the making thereof or the renewal or conversion thereof 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 Euro-Rate Option applies which become subject to the same Interest Rate Option under the same Loan Request by TGI, on behalf of the Borrowers, 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, (ii) all Loans (other than Swing Loans) to which a Base Rate Option applies shall constitute one Borrowing Tranche, and (iii) all Swing Loans shall constitute one Borrowing Tranche.

 

3

 

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 Euro-Rate Option applies, such day must also be a day on which dealings are carried on in the London interbank market, (ii) with respect to advances or payments of Loans or any other matters relating to Loans denominated in an Optional Currency, such day also shall be a day on which dealings in deposits in the relevant Optional Currency are carried on in the applicable interbank market, and (iii) with respect to advances or payments of Loans denominated in an Optional Currency, such day shall also be a day on which all applicable banks into which Loan proceeds may be deposited are open for business and foreign exchange markets are open for business in the principal financial center of the country of such currency.

 

Capital Stock shall mean any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing.

 

Cash Collateralize shall mean, with respect to Letters of Credit Outstanding, that the Borrowers shall 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 Letters of Credit Outstanding.

 

Cash Equivalents shall mean, at any time, (i) any evidence of Indebtedness with a maturity date of ninety (90) days or less issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof; provided , that the full faith and credit of the United States of America is pledged in support thereof; (ii) certificates of deposit or bankers’ acceptances with a maturity of ninety (90) days or less of any financial institution that is a member of the Federal Reserve System having combined capital and surplus and undivided profits of not less than $500,000,000.00; (iii) commercial paper (including variable rate demand notes) with a maturity of ninety (90) days or less issued by a corporation (except any Borrower, any Guarantor or any Affiliate of any of them) organized under the laws of any State of the United States of America or the District of Columbia and rated at least A-1 by Standard & Poor’s Ratings Service, a division of The McGraw-Hill Companies, Inc. or at least P-1 by Moody’s Investors Service, Inc.; (iv) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clause (i) above entered into with any financial institution having combined capital and surplus and undivided profits of not less than $500,000,000.00; (v) repurchase agreements and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States of America or issued by any governmental agency thereof and backed by the full faith and credit of the United States of America, in each case maturing within ninety (90) days or less from the date of acquisition; provided , that , the terms of such agreements comply with the guidelines set forth in the Federal Financial Agreements of Depository Institutions with Securities Dealers and Others, as adopted by the Comptroller of the Currency on October 31, 1985; and (vi) investments in money market funds and mutual funds which invest substantially all of their assets in securities of the types described in clauses (i) through (v) above.

 

4

 

Cash Management Agreements shall have the meaning assigned to such term in Section 2.9.9.

 

Closing Date shall mean August 14, 2009.

 

Commitment shall mean as to any Bank its Revolving Credit Commitment, and as to the Administrative Agent, also its Swing Loan Commitment.  Commitments shall mean the aggregate of the Revolving Credit Commitments of all of the Banks and Swing Loan Commitment of the Administrative Agent. The amount of the Commitment available for Revolving Credit Loans shall be reduced by the amount of the outstanding Swing Loan provided in Section 2.9.1.

 

Commitment Fee shall have the meaning assigned to that term in Section 2.3.

 

Computation Date shall have the meaning assigned to that term in Section 2.10.1.

 

Consideration shall mean with respect to any Permitted Acquisition, the aggregate of (i) the cash paid by any Loan Party, or a Subsidiary thereof, directly or indirectly, to the seller in connection therewith, (ii) the Indebtedness incurred or assumed by any Loan Party or a Subsidiary thereof, whether in favor of the seller or otherwise and whether fixed or contingent, (iii) any Guaranty (whether or not constituting Indebtedness) given or incurred by any Loan Party or a Subsidiary thereof, in connection therewith, and (iv) any other consideration given or obligation incurred by any of the Loan Party or a Subsidiary thereof in connection therewith.

 

Consolidated Adjusted EBITDA shall mean, for any period of determination, Consolidated EBITDA of TGI and its Subsidiaries subject to the following adjustments:

 

(1)           For any period in which TGI or one of its Subsidiaries has completed a Permitted Acquisition, the calculation of Consolidated Adjusted EBITDA for such period shall reflect, on a pro forma basis, the financial performance of the acquired entity or assets, as though the acquisition had been completed at the beginning of the period of determination, provided that any of the following conditions is met with respect to such acquisition:

 

(i)            Either: (a) the financial statements of the seller for the fiscal year immediately preceding the date of such Permitted Acquisition have been audited or (b) the financial statements of the seller for the Applicable Pro Forma Reporting Period have been supported by a third party due diligence report, provided that such audit or due diligence report was performed by a nationally recognized firm (or another firm acceptable to the Administrative Agent) and is in form and substance satisfactory to the Administrative Agent;

 

OR

 

(ii)           the acquired EBITDA for the Applicable Pro Forma Reporting Period is less than (15%) of the Consolidated Adjusted EBITDA for such period, excluding such acquired EBITDA;

 

OR

 

5

 

(iii)                                the Required Banks shall have approved the inclusion of such acquired EBITDA in the computation of “Consolidated Adjusted EBITDA” for the Applicable Pro Forma Reporting Period and subsequent fiscal periods of the Borrowers.

 

(2)                                   For any period in which TGI or one of its Subsidiaries has completed a sale or disposition permitted under Section 7.2.7(vii) [Dispositions of Assets or Subsidiaries], the calculation of Consolidated Adjusted EBITDA for such period shall omit the financial performance of the entity or assets sold or disposed of, as though the acquisition or a sale or disposition had been completed at the beginning of the period of determination.

 

Consolidated Adjusted EBITDA shall be determined at the end of each fiscal quarter for the previous four quarters.

 

Consolidated EBITDA shall mean for any period of determination, Consolidated Net Income (before extraordinary items) for such period

 

(A)                               plus the following:

 

(i)                                      the amount of income tax expense, interest expense, depreciation and amortization expense deducted from earnings in determining such Consolidated Net Income,

 

(ii)                                   other nonrecurring non-cash losses included in such Consolidated Net Income; and

 

(B)                                 less other nonrecurring gains included in such Consolidated Net Income.

 

Consolidated Net Worth shall mean as of any date of determination total stockholders’ equity of TGI and its Subsidiaries as of such date determined and consolidated in accordance with GAAP.

 

Consolidated Interest Expense shall mean for any period of determination the amount of cash interest expense deducted from the earnings of TGI and its Subsidiaries in determining Consolidated Net Income for such period in accordance with GAAP.

 

Consolidated Net Income shall mean for any fiscal period the net income (or loss) after income taxes of TGI and its Subsidiaries for such period determined and consolidated in accordance with GAAP but Consolidated Net Income shall in all events not include the gain from the sale of assets.

 

Consolidated Senior Net Indebtedness shall mean Consolidated Total Net Indebtedness less Subordinated Indebtedness.

 

Consolidated Total Net Indebtedness shall mean as of any date of determination the aggregate of all Indebtedness of TGI and its Subsidiaries as of such date determined and consolidated in accordance with GAAP minus unrestricted cash and Cash Equivalents in excess of $25,000,000.00 which are held by TGI or other Domestic Loan Party and maintained or managed by a Bank or an Affiliate of a Bank.  Consolidated Total Net Indebtedness shall be measured at the end of each fiscal quarter.

 

6

 

Convertible Debt Documents shall mean the Indenture and the Convertible Notes, in each case as amended, supplemented or modified from time to time.

 

Convertible Notes shall mean the $201,250,000 Senior Subordinated Notes due 2026 of the Borrower.

 

Currency Participation shall have the meaning assigned to such term in Section 2.13.1.

 

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

 

Defaulting Bank means any Bank that has (a) failed to fund any portion of the Revolving Loans, participations with respect to Letters of Credit (as provided in Section 2.3), or participations in Swing Line Loans (as provided in Section 2.2.4) 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) otherwise failed to pay over to the Administrative Agent or any other Bank any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute or unless such failure has been cured and all interest accruing as a result of such failure has been fully paid in accordance with the terms hereof, or (c) has been deemed insolvent or become the subject of an Insolvency Proceeding.

 

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

 

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

 

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

 

Domestic shall mean with respect to a Loan Party or a Subsidiary, one which is organized under the laws of a state of the United States of America or the District of Columbia.

 

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

 

Environmental Complaint shall mean any written complaint setting forth a cause of action for personal or property damage or natural resource damage or equitable relief, order, notice of violation, citation, request for information issued pursuant to any Environmental Laws by an Official Body, subpoena or other written notice asserting or threatening a claim relating to, arising out of, or issued pursuant to any of the Environmental Laws or any Environmental Conditions, as the case may be.

 

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Environmental Conditions shall mean any conditions of the environment, including the workplace, the ocean, natural resources (including flora or fauna), soil, surface water, groundwater, any actual or potential drinking water supply sources, substrata or the ambient air, relating to or arising out of, or caused by the use, handling, storage, treatment, recycling, generation, transportation, release, spilling, leaking, pumping, emptying, discharging, injecting, escaping, leaching, disposal, dumping, threatened release or other management or mismanagement of Regulated Substances resulting from the use of, or operations on, the Property.

 

Environmental Laws shall mean all federal, state, local and foreign Laws and regulations, including permits, licenses, authorizations, bonds, orders, judgments, consent decrees issued, or entered into, pursuant thereto, relating to pollution or protection of human health or the environment or employee safety in the workplace.

 

Equivalent Amount shall mean, at any time, as determined by the Administrative Agent or Fronting Bank, as the situation may require (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”): (i) if the Reference Currency and the Equivalent Currency are the same, the amount of such Reference Currency, or (ii) if the Reference Currency and the Equivalent Currency are not the same, the amount of such Equivalent Currency converted from such Reference Currency at the Administrative Agent’s spot selling rate (based on the market rates then prevailing and available to the Administrative Agent) for the sale of such Equivalent Currency for such Reference Currency at a time determined by the Administrative Agent on 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 Group shall mean, at any time, each 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 such Borrower, are treated as a single employer under Section 414 of the Internal Revenue Code.

 

Euro-Rate shall mean the following:

 

(A)  with respect to Dollar Loans comprising any Borrowing Tranche to which the Euro-Rate Option applies for any Interest Period, the interest rate per annum determined by the Administrative Agent by dividing (the resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the rate of interest determined by the Administrative Agent in accordance with its usual procedures (which determination shall be conclusive absent manifest error) to be the average of the London interbank offered rates for U.S. Dollars quoted by the British Bankers’ Association as set forth on  the Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays rates at which US dollar deposits are offered by leading

 

8

 

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”) two (2) Business Days prior to the first day of such Interest Period 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 as such time (which determination shall be conclusive absent manifest error)), by (ii) a number equal to 1.00 minus the Euro-Rate Reserve Percentage.  Such Euro-Rate may also be expressed by the following formula:

 

	Average of London interbank offered rates quoted
	by Bloomberg or appropriate successor as shown on
Euro-Rate =	Bloomberg Page BBAM1
	1.00 - Euro-Rate Reserve Percentage

 

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

 

(B)  with respect to Optional Currency Loans comprising any Borrowing Tranche to which the Euro-Rate Option applies for any Interest Period, the interest rate per annum determined by the 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 9:00 a.m., Pittsburgh time, two (2) Business Days prior to the first day of such Interest Period for delivery on the first day of such Interest Period for a period, and in an amount, comparable to such Interest Period and principal amount of such Borrowing Tranche (“LIBO Rate”) by (ii) a number equal to 1.00 minus the Euro-Rate Reserve Percentage.  Such Euro-Rate may also be expressed by the following formula:

 

		LIBO Rate
Euro-Rate	=	1 - Euro-Rate Reserve Percentage

 

The Euro-Rate shall be adjusted with respect to any Euro-Rate Option outstanding on the effective date of any change in the Euro-Rate Reserve Percentage as of such effective date.  The

 

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Administrative Agent shall give prompt notice to TGI, as agent for all of the Borrowers, of the Euro-Rate as determined or adjusted in accordance herewith, which determination shall be conclusive absent manifest error.  The Euro-Rate for any Loans shall be based upon the Euro-Rate for the currency in which such Loans are requested.

 

Euro-Rate Option shall mean the Revolving Credit Euro-Rate Option.

 

Euro-Rate 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 Bank as required for reserve liquidity, special deposit, or a similar purpose by any governmental or monetary authority of any country or political subdivision thereof (including any central bank), against (A) any category of liabilities that includes deposits by reference to which a Euro-Rate is to be determined, or (B) any category of extension of credit or other assets that includes Loans or Borrowing Tranches to which a Euro-Rate applies.

 

Event of Default shall mean any of the Events of Default described in Section 8.1.

 

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.

 

Expiration Date shall mean, with respect to the Revolving Credit Commitments, January 30, 2013.

 

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

 

Federal Funds Open Rate shall mean the rate per annum determined by the Administrative Agent in accordance with its usual procedures (which determination shall be conclusive absent manifest error) to be the “open” rate for federal funds transactions as of the opening of business for federal funds transactions among members of the Federal Reserve System arranged by federal funds brokers on such day, as quoted by Garvin Guybutler, any successor entity thereto, or any other broker selected by the Administrative Agent, as set forth on the applicable Telerate display page; provided, however; that if such day is not a Business Day, the Federal Funds Open Rate for such day shall be the “open” rate on the immediately preceding

 

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Business Day, or if no such rate shall be quoted by a Federal funds broker at such time, such other rate as determined by the Administrative Agent in accordance with its usual procedures.

 

Foreign shall mean with respect to a Loan Party or a Subsidiary, one which is organized under the laws of a jurisdiction other than a state of the United States of America or the District of Columbia.

 

Fronting Bank shall mean PNC Bank, National Association so long as it remains the Administrative Agent, and its successors and assigns.

 

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

 

Governmental Acts shall have the meaning assigned to that term in Section 2.8.8.

 

Guarantor shall mean a guarantor under the Guaranty and Suretyship Agreement and the other Loan Documents.

 

Guarantor Joinder shall have the meaning assigned to such term in Section 10.20.

 

Guaranty of any Person shall mean any obligation of such Person guaranteeing any liability or obligation of any other Person in any manner, whether directly or indirectly, including any performance bond or other suretyship arrangement and any other form of assurance against loss.

 

Guaranty and Suretyship Agreement shall mean the Amended and Restated Guaranty and Suretyship Agreement dated the Closing Date pursuant to which the Guarantors, jointly and severally (except to the extent limited in Section 27 therein), guaranty (and become sureties for) the Obligations.

 

Historical Statements shall have the meaning assigned to that term in Section 5.1.9(i).

 

Indebtedness shall mean, as to any Person at any time, any and all indebtedness, obligations or liabilities (whether matured or unmatured, liquidated or unliquidated, direct or indirect, absolute or contingent, or joint or several) of such Person for or in respect of all of the following, without duplication:  (i) borrowed money, (ii) amounts raised under or liabilities in respect of any note purchase or acceptance credit facility, (iii) reimbursement obligations under any letter of credit, currency swap agreement, interest rate swap, cap, collar or floor agreement or other interest rate management device, (iv) any other transaction (including forward sale or purchase agreements, capitalized leases and conditional sales agreements) having the commercial effect of a borrowing of money entered into by such Person to finance its operations or capital requirements (but not including trade payables and accrued expenses incurred in the ordinary course of business which are not represented by a promissory note or other evidence of indebtedness), or (v) any Guaranty of Indebtedness for borrowed money.  Without limiting the generality of the foregoing, Indebtedness of TGI and its Subsidiaries, determined on a consolidated basis, shall include, without duplication and without limitation, the obligations of TGI and/or its Subsidiaries (including without limitation, the SP Sub) under the Transaction

 

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Documents (as defined in the Receivables Purchase Agreement); provided   however that the provisions of this sentence shall apply solely for purposes of calculation of financial covenants set forth in this Agreement.

 

Indenture shall mean the indenture pursuant to which the Convertible Notes are issued.

 

IDB’s shall have the meaning assigned to such term in clause (xi) of the definition of “Permitted Liens”.

 

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 such Person or otherwise relating to the liquidation, dissolution, winding-up or relief of such Person, of (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 or any substantial portion of its creditors; undertaken under any Law.

 

Interest Coverage Ratio shall mean for any period of determination the ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated Interest Expense for such period.

 

Interest Period shall have the meaning assigned to such term in Section 3.2.

 

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

 

Intercompany Subordination Agreement shall mean a Subordination Agreement among the Loan Parties in the form attached hereto as Exhibit 1.1(I).

 

Interest Rate Option shall mean any Euro-Rate Option or Base Rate Option.

 

Internal Revenue 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.

 

Investment shall mean, with respect to any Subsidiary of TGI or Joint Venture in which the Loan Parties or their Subsidiaries hold an interest, (i) all consideration (whether cash, property, assumption of liabilities or otherwise) paid or given by the Loan Parties or their Subsidiaries for the ownership interests or assets of such Subsidiary or Joint Venture, (ii) any cash or other property contributed by the Loan Parties or their Subsidiaries to the capital of such Subsidiary of Joint Venture, (iii)  any loans made by the Loan Parties or their Subsidiaries to such Subsidiary or Joint Venture, (iv) any Guaranty made by or on behalf of such Loan Party or their Subsidiaries for the benefit of such Subsidiaries or Joint Venture, or (v) any other consideration paid to or provided for the benefit of such Subsidiary or Joint Venture by the Loan Parties or their Subsidiaries.

 

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Joint Venture shall mean any entity in which the Loan Parties or their Subsidiaries, directly or indirectly, hold an ownership interest and the total of the ownership interests held by the Loan Parties and their wholly-owned Subsidiaries is less than 100%.

 

Labor Contracts shall mean all employment agreements, employment contracts, collective bargaining agreements and other agreements among TGI or any Subsidiary of TGI and its employees.

 

Law shall mean any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, opinion, release, ruling, order, injunction, writ, decree or award of any Official Body.

 

Letter of Credit shall have the meaning assigned to that term in Section 2.8.1.

 

Letter of Credit Borrowing shall have the meaning assigned to such term in Section 2.8.3.4.

 

Letter of Credit Fee shall have the meaning assigned to that term in Section 2.8.3.

 

Letters of Credit Outstanding shall mean at any time the sum of (i) the aggregate undrawn face amount of outstanding Letters of Credit and (ii) the aggregate amount of all unpaid and outstanding Reimbursement Obligations and Letter of Credit Borrowings (without duplication).

 

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 Notes, the Guaranty and Suretyship Agreement, the Intercompany Subordination Agreement, the Pledge Agreement each executed by the Borrowers or the Guarantors, as applicable, and the other parties thereto, and any other instruments, certificates or documents delivered or contemplated to be delivered hereunder or thereunder or in connection herewith or therewith, as the same may be supplemented or amended from time to time in accordance herewith or therewith, and Loan Document shall mean any of the Loan Documents.

 

Loan Party shall mean either any Borrower or any Guarantor and Loan Parties shall mean collectively the Borrowers and the Guarantors.

 

Loan Request shall mean a request for Revolving Credit Loans made in accordance with Section 2.4 or a request to select, convert to or renew a Euro-Rate Option in accordance with Section 3.2.

 

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

 

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Managing Agent shall mean individually JPMorgan Chase Bank, N.A., Sovereign Bank, Branch Banking & Trust Company and Manufacturers and Traders Trust Company and their successors and assigns, as a Managing Agent or Managing Agents shall mean collectively JPMorgan Chase Bank, N.A., Sovereign Bank, Branch Banking & Trust Company and Manufacturers and Traders Trust Company and their successors and assigns, as Managing Agents.

 

Material Adverse Change shall mean any set of circumstances or events which (a) has or is reasonably expected to have any material adverse effect whatsoever upon the validity or enforceability of this Agreement or any other Loan Document, (b) is or is reasonably expected to be material and adverse to the business, properties, assets, financial condition or results of operations of TGI and its Subsidiaries taken as a whole, (c) impairs materially or is reasonably expected to impair materially the ability of TGI and its Subsidiaries taken as a whole to duly and punctually pay or perform its Indebtedness, or (d) impairs materially or is reasonably expected to impair materially the ability of the Administrative Agent or any of the Banks, to the extent permitted, to enforce their legal remedies pursuant to this Agreement or any other Loan Document.

 

Material Subsidiary means any Subsidiary of TGI with respect to which either (i) the aggregate Investment (without duplication) by the Borrowers and the Guarantors in such Subsidiary exceeds $10,000,000.00, or (ii) the percentage of Consolidated Adjusted EBITDA over the most recent four (4) quarters then ended attributable to such Subsidiary is greater than 5% of Consolidated Adjusted EBITDA over the same period, provided however that, notwithstanding the foregoing, so long as the SP Sub owns no assets other than trade accounts receivable, related rights, related lock-box bank accounts and proceeds thereof and sufficient other assets that, when added to the foregoing, enables it to satisfy the minimum tangible net worth test set forth in the Receivables Purchase Agreement and any other assets that are necessary or appropriate for the SP Sub to maintain an arm’s-length relationship with the Borrowers and Guarantors, the SP Sub shall not be a Material Subsidiary while the Receivables Facility remains in place.

 

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

 

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 any Borrower or any member of the ERISA Group is then making or accruing an obligation to make contributions or, within the preceding five Plan years, has made or had an obligation to make such contributions.

 

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

 

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Non-Fronting Bank shall mean a  Bank party hereto which (i) is incapable of obtaining an Optional Currency in the ordinary course of its business, (ii) has requested that the Fronting Bank obtain and front its Ratable Share of Optional Currency Loans to the applicable Borrower as required by § 2.13.2, and (iii) has been approved in advance in writing by the Fronting Bank in the Fronting Bank’s sole and absolute discretion, provided however if at any time a Bank’s Ratable Share of the sum of Optional Currency Loans and Letters of Credit Outstandings denominated in Optional Currencies outstanding at any time plus such Loans and Letters of Credit then being requested exceeds the amount approved for such Bank by the Fronting Bank in connection with the approval of such Bank as a Non-Fronting Bank, as indicated in the written approval referenced in clause (iii), as such amount may be from time to time increased in writing from the Fronting Bank, in its sole and absolute discretion, such Bank shall be a Non-Fronting Bank only up to such approved amount.

 

Notes shall mean the Revolving Credit Notes and the Swing Loan Note.

 

Notices shall have the meaning assigned to that term in Section 10.6.

 

Obligation shall mean any obligation or liability of any of the Borrowers or the Guarantors to the Administrative Agent or any of the Banks, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, under or in connection with this Agreement, the Notes, the Letters of Credit, the Administrative Agent’s Letter  or any other Loan Document.  Obligations shall include the Hedge Liabilities but shall not include the liabilities to other Persons under any other Interest Rate Hedge.

 

Official Body shall mean any national, federal, state, local or other government or political subdivision or any agency, authority, bureau, central bank, commission, department or instrumentality of either, or any court or tribunal in each case whether foreign or domestic, with jurisdiction to act with the force of law with respect to pertinent matters.

 

Optional Currency shall mean any of the following currencies: British Pounds Sterling, Euros, Canadian Dollars, Mexican Pesos and any other currency approved by the Administrative Agent and all of the Banks pursuant to Section 2.10.4.

 

Original Currency shall have the meaning assigned to such term in Section 4.9.1.

 

Other Currency shall have the meaning assigned to such term in Section 4.9.1.

 

Overnight Rate shall mean for any day with respect to any Loans in an Optional Currency, the rate of interest per annum as determined by the Administrative Agent at which overnight deposits in the 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.

 

Participation Advance shall mean, with respect to any Bank, such Bank’s payment in respect of its participation in a Letter of Credit Borrowing according to its Ratable Share pursuant to Section  2.8.3.4.

 

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Partnership Interests shall have the meaning given to such term in Section 5.1.3.

 

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

 

Permitted Acquisition shall have the meaning assigned to such term in Section 7.2.6.

 

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 Corporation or P-1 by Moody’s Investors Service, Inc. on the date of acquisition;

 

(iii)                                demand deposits, time deposits, money market account 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 Corporation on the date of acquisition;

 

(iv)                               investments in Cash Equivalents;

 

(v)                                  shares of money market mutual funds that (a) invest substantially all of their assets in the investments described in clauses (i) through (iv) above and/or (b) are otherwise rated at least AAA by Standard & Poor’s or at least Aaa by Moody’s;

 

(vi)                               investments made under Cash Management Agreements;

 

(vii)                            Interest Rate Hedges otherwise permitted hereunder;

 

(viii)                         investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business; and

 

(ix)                                 debt securities as partial consideration for a sale of assets which is permitted hereunder.

 

Permitted Liens shall mean:

 

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

 

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

 

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

 

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

 

(v)                                  Encumbrances consisting of zoning restrictions, easements or other restrictions on the use of real property, none of which materially impairs the use of such property or the value thereof, and none of which is violated in any material respect by existing or proposed structures or land use;

 

(vi)                               Liens, security interests and mortgages in favor of the Administrative Agent for the benefit of the Banks securing the Obligations, including Hedge Liabilities;

 

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

 

(viii)                         Any Lien existing on the date of this Agreement and described on Schedule 1.1(P) ;

 

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

 

(x)                                    The following, (a) if the validity or amount thereof is being contested in good-faith by appropriate and lawful proceedings diligently conducted so long as levy and execution thereon have been stayed and continue to be stayed or (b) if a final judgment is entered and such judgment is discharged within sixty (60) days of entry, and in either case they do not affect the Pledged Collateral or, in the aggregate, materially impair the ability of the Borrowers to perform their Obligations hereunder or under the other Loan Documents:

 

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

 

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

 

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

 

(4)                                   Liens resulting from final judgments or orders described in Section 8.1.6;

 

(xi)                                 subject to Section 7.2.1, Liens on fixed assets securing tax-exempt, fixed-rate industrial development bonds (“IDB’s) or notes or similar financing;

 

(xii)                              Liens on accounts receivable sold pursuant to the arrangements described in Section 7.2.7(vi); and

 

(xiii)                           Liens on the Pool Assets granted by the SP Sub and the Liens granted by the Originators on the Receivables and the Related Rights in accordance with the Receivables Purchase and Sale Agreement, in each case in connection with the Receivables Facility.

 

Person shall mean any individual, natural person, corporation, partnership, 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 Internal Revenue Code and either (i) is maintained by any member of the ERISA Group for employees of any member of the ERISA Group or (ii) has at any time within the preceding five years been maintained by any entity which was at such time a member of the ERISA Group for employees of any entity which was at such time a member of the ERISA Group.

 

Pledge Agreement shall mean the Pledge Agreement in substantially the form of Exhibit 1.1(P)(2) executed and delivered by certain of the owners of each first tier Foreign Subsidiary (other than Triumph Interiors, Ltd. and Airframe Spares and Logistics GmbH, provided that such companies are dissolved as promptly as practicable after the Closing Date in accordance with Section 7.2.6(iii)) to the Administrative Agent for the benefit of the Banks, pursuant to which such parties shall have pledged sixty-five percent (65%) of the outstanding ownership interests of all such first tier Foreign Subsidiaries.

 

Pledged Collateral shall mean the property of the relevant Loan Parties in which security interests are to be granted under the Pledge Agreement.

 

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

 

Pool Assets has the meaning given to such term in the Receivables Purchase Agreement.

 

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

 

Pricing Grid means the chart attached hereto as Exhibit 1.1(P)(1)  which sets forth the rates at which Commitment Fees, Letter Credit Fees and interest rate margins are calculated on the basis of the Total Leverage Ratio.

 

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

 

Prior Security Interest shall mean a valid and enforceable perfected first-priority security interest under the Pledged Collateral.

 

Prohibited Transaction shall mean any prohibited transaction as defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA for which neither an individual nor a class exemption has been issued by the United States Department of Labor.

 

Property shall mean all real property, both owned and leased, of any Loan Party.

 

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 eurodollar rate 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 securing loans to TGI or any Subsidiary or deferred payments by TGI or such Subsidiary for the purchase of such tangible personal property.

 

Purchasing Bank shall mean a Bank which becomes a party to this Agreement by executing an Assignment and Assumption Agreement.

 

Ratable Share shall mean the proportion that a Bank’s Revolving Credit Commitment  bears to the Revolving Credit  Commitments of all of the Banks.

 

Receivables Facility means the receivables financing facility structured by PNC Capital Markets LLC and administered by PNC Bank dated on or about August 7, 2008, evidenced by the Receivables Purchase Agreement and the other Transaction Documents (as defined in the Receivables Purchase Agreement) whereby TGI and certain of its Subsidiaries (collectively, with TGI, the “ Originators ”) from time to time shall sell, transfer, convey, assign or contribute the Receivables (as defined in the Receivables Purchase Agreement) and the Related Rights (as defined in the Receivable Purchase and Sale Agreement) to the SP Sub, which, in turn, shall sell undivided variable percentage interests in the Purchased Interests (as defined in the Receivables Purchase Agreement) to the Purchasers (as defined in the Receivables Purchase Agreement).

 

Receivables Performance Guaranty means the Performance Guaranty executed by TGI on or about August 7, 2008, as a performance guarantor, in favor of PNC Bank, as the Administrator under the Receivables Facility, as the same may be amended, supplemented, restated or otherwise modified from time to time.

 

Receivables Purchase Agreement means that certain Receivables Purchase Agreement, dated on or about August 7, 2008, among the SP Sub, the Borrower, as the Servicer thereunder, PNC Bank, as the Administrator thereunder, and the Purchasers, as the same may be amended, supplemented, restated or otherwise modified from time to time.

 

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Receivables Purchase and Sale Agreement that certain Purchase and Sale Agreement, dated on or about August 7, 2008, amount the SP Sub, the Originators and the Borrower, as the initial Servicer thereunder, as the same may be amended, supplemented, restated or otherwise modified from time to time.

 

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

 

Regulated Substances shall mean any substance, including any solid, liquid, semisolid, gaseous, thermal, thoriated or radioactive material, refuse, garbage, wastes, chemicals, petroleum products, by-products, coproducts, impurities, dust, scrap, heavy metals, any substance defined as a “hazardous substance,” “pollutant,” “pollution,” “contaminant,” “hazardous or toxic substance,” “extremely hazardous substance,” “toxic chemical,” “toxic waste,” “hazardous waste,” “industrial waste,” “residual waste,” “solid waste,” “municipal waste,” “mixed waste,” “infectious waste,” “chemotherapeutic waste,” “medical waste,” “regulated substance” or any related materials, substances or wastes as now or hereafter defined pursuant to any Environmental Laws, ordinances, rules, regulations or other directives of any Official Body, the generation, manufacture, extraction, processing, distribution, treatment, storage, disposal, transport, recycling, reclamation, use, reuse, spilling, leaking, dumping, injection, pumping, leaching, emptying, discharge, escape, release or other management or mismanagement of which is regulated by the Environmental Laws.

 

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

 

Reimbursement Obligation shall have the meaning assigned to such term in Section 2.8.3.1.

 

Reportable Event means a reportable event described in Section 4043 of ERISA and regulations thereunder with respect to a Plan or Multiemployer Plan.

 

Required Banks shall mean (i) if there are no Revolving Credit Loans, Reimbursement Obligations or Letter of Credit Borrowings outstanding, Banks other than Defaulting Banks whose Revolving Credit Commitments aggregate at least 51% of the Revolving Credit Commitments of all of the Banks (other than Defaulting Banks), or (ii) if there are Revolving Credit Loans, Reimbursement Obligations, or Letter of Credit Borrowings outstanding, any Bank or group of Banks other than Defaulting Banks if the sum of the Revolving Credit Loans, Reimbursement Obligations and Letter of Credit Borrowings of such Banks (other than Defaulting Banks) then outstanding aggregates at least 51% of the total amount of the Revolving Credit Loans, Reimbursement Obligations and Letter of Credit Borrowings then outstanding.  Reimbursement Obligations and Letter of Credit Borrowings shall be deemed, for purposes of this definition, to be in favor of the Administrative Agent and not a participating Bank if such Bank has not made its Participation Advance in respect thereof and shall be deemed to be in favor of such Bank to the extent of its Participation Advance if it has made its Participation Advance in respect thereof.

 

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Revolving Credit Base Rate Option shall mean the option of the Borrowers, exercisable by TGI as their agent, to have Revolving Credit Loans bear interest at the rate and under the terms and conditions set forth in Section 3.1.1(i).

 

Revolving Credit Commitment shall mean, as to any Bank 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,” and thereafter on Schedule I to the most recent Assignment and Assumption Agreement, and Revolving Credit Commitments shall mean the aggregate Revolving Credit Commitments of all of the Banks.  The aggregate amount of the Revolving Credit Commitments is subject to the provisions of Section 2.1.2.

 

Revolving Credit Euro-Rate Option shall mean the option of the Borrowers, exercisable by TGI as their agent, to have Revolving Credit Loans bear interest at the rate and under the terms and conditions set forth in Section 3.1.1(ii).

 

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 Banks or one of the Banks to the Borrowers pursuant to Section 2.1 or 2.8.4(i) hereof.

 

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

 

Revolving Facility Usage shall mean at any time the sum of the Revolving Credit Loans and Swing Loans outstanding and the Letters of Credit Outstanding.

 

Senior Leverage Ratio shall mean, as of any date of determination, the ratio of Consolidated Senior Net Indebtedness as of such date to Consolidated Adjusted EBITDA for the four fiscal quarters then ended.

 

Settlement shall have the meaning assigned to such term in Section 2.14.2.

 

Shares shall have the meaning assigned to that term in Section 5.1.2.

 

SP Sub means Triumph Receivables, LLC, a wholly owned, bankruptcy remote Subsidiary of the Borrower.

 

Subordinated Indebtedness shall mean (i) Indebtedness of TGI under the Convertible Debt Documents (provided that such Indebtedness shall at all times be subordinated pursuant to the subordination provisions contained therein), (ii) Subordinated Indebtedness to the extent permitted under Section 7.2.1.1(ii)(y) and (iii) any other subordinated Indebtedness of the Loan Parties provided that such Indebtedness is subordinated to the Indebtedness under the Loan Documents on typical market terms for similar subordinated Indebtedness (including maturity dates which extend beyond 365 days after the Expiration Date, appropriate standstill provisions and the like), acceptable to, and approved in writing by, the Administrative Agent.

 

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Subsidiary of any Person at any time shall mean (i) any corporation or trust of which 50% or more (by number of shares or number of votes) of the outstanding capital stock or shares of beneficial interest normally entitled to vote for the election of one or more directors or trustees (regardless of any contingency which does or may suspend or dilute the voting rights) is at such time owned directly or indirectly by such Person or one or more of such Person’s Subsidiaries, or (ii) any partnership of which such Person is a general partner or of which 50% or more of the partnership interests is at the time directly or indirectly owned by such Person or one or more of such Person’s Subsidiaries, (iii) any limited liability company of which such Person is a managing member or of which 50% or more of the limited liability company interests is at the time directly or indirectly owned by such Person or one or more of such Person’s Subsidiaries, or (iv) any corporation, trust, partnership, limited liability company or other entity which is controlled or capable of being controlled by such Person or one or more of such Person’s Subsidiaries.

 

Subsidiary Shares shall have the meaning assigned to that term in Section 5.1.3.

 

Swing Loan Commitment shall mean PNC Bank’s commitment to make Swing Loans to the Borrowers in an aggregate Dollar Equivalent principal amount of up to $30,000,000.

 

Swing Loan Conversion Date shall have the meaning assigned to such term in Section 2.9.4.

 

Swing Loan Note shall have the meaning assigned to such term in Section 2.9.3.

 

Swing Loan Repayment Date shall have the meaning assigned to such term in Section 2.9.2.

 

Swing Loan Request shall mean a request for Swing Loans made in accordance with Section 2.9.2.

 

Swing Loans shall have the meaning assigned to such term in Section 2.9.1.

 

Syndication Agent shall mean Bank of America, N.A., and its successors and assigns, as Syndication Agent.

 

TGI shall have the meaning assigned to such term in the introductory paragraph of this Agreement.

 

Total Leverage Ratio shall mean, for any date of determination, the ratio of Consolidated Total Net Indebtedness as of such date to Consolidated Adjusted EBITDA for the four fiscal quarters then ended.

 

Transferor Bank shall mean the selling Bank pursuant to an Assignment and Assumption Agreement.

 

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.

 

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1.2                                  Construction .

 

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

 

1.2.1                         Number; Inclusion .

 

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

 

1.2.2                         Determination .

 

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

 

1.2.3                         Administrative Agent’s Discretion and Consent .

 

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

 

1.2.4                         Documents Taken as a Whole .

 

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

 

1.2.5                         Headings .

 

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

 

1.2.6                         Implied References to this Agreement .

 

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

 

1.2.7                         Persons .

 

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

 

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1.2.8                         Modifications to Documents .

 

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

 

1.2.9                         From, To and Through .

 

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

 

1.2.10                   Shall; Will .

 

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

 

1.3                                  Accounting Principles .

 

Where the character or amount of any asset or liability or item of income or expense is required to be determined or any consolidation or other accounting computation is required to be made for the purposes of this Agreement, this shall be done in accordance with GAAP as in effect on the Closing Date, to the extent applicable, except as otherwise expressly provided in this Agreement. If there are any changes in GAAP after the Closing Date that would affect the computation of the financial covenants in Sections 7.2.15, 7.2.16 and 7.2.17, such changes shall only be followed, with respect to such financial covenants, from and after the date this Agreement shall have been amended to take into account any such changes.

 

2.                                        REVOLVING CREDIT FACILITY

 

2.1                                  Revolving Credit Commitments .

 

2.1.1                         General .

 

Subject to the terms and conditions hereof and relying upon the representations and warranties herein set forth, each Bank severally agrees to make Revolving Credit Loans in either Dollars or one or more Optional Currencies to the Borrowers 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 Bank shall not exceed such Bank’s Revolving Credit Commitment minus such Bank’s Ratable Share of the Dollar Equivalent amount of the then outstanding Swing Loans and the Dollar Equivalent amount of Letters of Credit Outstanding, (ii) the aggregate Dollar Equivalent amount of Loans in Optional Currencies outstanding shall not exceed $200,000,000, and (iii) no Loan to which the Base Rate Option applies shall be made in an Optional Currency.  Within such limits of time and amount and subject to the other provisions of this Agreement, the Borrowers may borrow, repay and reborrow pursuant to this Section 2.1.

 

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2.1.2                         Right to Increase Commitments.

 

Provided that there is no Event of Default or Potential Default, if the Borrowers wish to increase the Revolving Credit Commitments, TGI, as agent for the Borrowers, shall notify the Administrative Agent thereof, provided that any such increase shall be in a minimum of $10,000,000 and the aggregate of all such increases shall not exceed $50,000,000.   Each Bank shall have the right at any time within thirty (30) days following such notice to increase its respective Revolving Credit Commitment so as to provide such added commitment pro rata in accordance with such Bank’s Ratable Share, and any portion of such requested increase which is not provided by any Bank shall be available to the other Banks, and thereafter, to the extent not provided by the Banks, to any additional bank proposed by TGI, which is approved by the Administrative Agent (which approval shall not be unreasonably withheld) and which becomes a party to this Agreement pursuant to Section 10.11.  In the event of any such increase in the aggregate Revolving Credit Commitments effected pursuant to the terms of this subsection 2.1.2, new Notes shall, to the extent necessary, be executed and delivered by the Borrowers in exchange for the surrender of the existing Notes.

 

2.2                                  Nature of Banks’ Obligations with Respect to Revolving Credit Loans .

 

Each Bank shall be obligated to participate in each request for Revolving Credit Loans pursuant to Section 2.4 in accordance with its Ratable Share.  The aggregate Dollar Equivalent amount of each Bank’s Revolving Credit Loans outstanding hereunder to the Borrowers at any time shall never exceed its Revolving Credit Commitment minus its Ratable Share of the Dollar Equivalent amount of Letter of Credit Outstandings, subject to Section 4.6.1.  The obligations of each Bank hereunder are several.  The failure of any Bank to perform its obligations hereunder shall not affect the Obligations of the Borrowers to any other party nor the several obligations of the other Banks to the Borrowers; nor shall any other party be liable for the failure of such Bank to perform its obligations hereunder.  Without in any way limiting the immediately preceding sentence, on condition that a Non-Fronting Bank first advances to the Fronting Bank the Dollar Equivalent of such Non-Fronting Bank’s Ratable Share of a Revolving Credit Loan denominated in an Optional Currency and is otherwise in compliance with the provisions of this Agreement relating to Non-Fronting Banks, the Fronting Bank shall fund the Ratable Share of  such Revolving Credit Loan denominated in an Optional Currency on behalf of Non-Fronting Bank.  The Banks 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 Borrowers agree to pay to the Administrative Agent in Dollars for the account of each Bank, as consideration for such Bank’s Revolving Credit Commitment hereunder, a nonrefundable commitment fee (the “ Commitment Fee ”), calculated on a per annum (365 or 366 days, as appropriate, and actual days elapsed) basis under the Pricing Grid, on the average daily difference between the amount of (i) such Bank’s Revolving Credit Commitment as the same may be constituted from time to time and (ii) the principal amount of such Bank’s Ratable Share of Revolving Facility Usage, in each case, as determined for the immediately preceding fiscal quarter (or shorter period commencing with the Closing Date or ending with the Expiration Date); provided, however, that any Commitment Fee

 

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accrued with respect to the Revolving Credit Commitment of a Defaulting Bank during the period prior to the time such Bank became a Defaulting Bank and unpaid at such time shall not be payable by the Borrowers so long as such Bank is a Defaulting Bank except to the extent that such Commitment Fee shall otherwise have been due and payable by the Borrowers prior to such time; and provided further that no Commitment Fee shall accrue on the Revolving Credit Commitment of a Defaulting Bank so long as such Bank is a Defaulting Bank.  All Commitment Fees shall be payable quarterly in arrears on the first Business Day of each October, January, April and July for the immediately  preceding quarter and on the Expiration Date or upon acceleration of the Notes.  For purposes of this computation, PNC Bank’s outstanding Swing Loans shall be deemed to be borrowed amounts under its Revolving Credit Commitment.

 

2.4                                  Revolving Credit Loan Requests .

 

Except as otherwise provided herein, TGI, on behalf of the Borrowers may from time to time prior to the Expiration Date request the Banks to make Revolving Credit Loans, or renew or convert the Interest Rate Option applicable to existing Revolving Credit Loans pursuant to Section 3.2, by delivering to the Administrative Agent, not later than (i) 2:00 p.m., Pittsburgh time, three (3) Business Days prior to the proposed Borrowing Date with respect to the making of Revolving Credit Loans in Dollars to which the Euro-Rate Option applies or the date of conversion to or the renewal of the Euro-Rate Option for any such Loans and four (4) Business Days prior to the proposed Borrowing Date with respect to the making of Revolving Credit Loans in an Optional Currency or the date of conversion to or renewal of the Euro-Rate Option for Revolving Credit Loans in an Optional Currency; and (ii) 10:30 a.m., Pittsburgh time on 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 Revolving Credit Loan to which the Euro-Rate Option applies, of a duly completed request therefor substantially in the form of Exhibit 2.4 or a request by telephone immediately confirmed in writing by letter, or facsimile 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 Revolving Credit Loan Request shall be irrevocable and shall specify (i) the proposed Borrowing Date; (ii) the aggregate amount of the proposed Revolving Credit Loans (expressed in the currency in which such Loans shall be funded) comprising each Borrowing Tranche, the Dollar Equivalent amount of which shall be in integral multiples of $500,000 and not less than $2,000,000 for each Borrowing Tranche to which the Euro-Rate Option applies and not less than the lesser of $200,000 or the maximum amount available for Borrowing Tranches to which the Base Rate Option applies; (iii) whether the Euro-Rate Option or Base Rate Option shall apply to the proposed Revolving Credit Loans comprising the Borrowing Tranche; and (iv) the currency in which such Loans shall be funded if the Borrowers are electing the Euro-Rate Option; and (v) in the case of a Borrowing Tranche to which the Euro-Rate Option applies, an appropriate Interest Period for the proposed Revolving Credit Loans comprising such Borrowing Tranche.  If TGI (i) fails to specify an interest rate option to be applicable to a Borrowing Tranche of Loans, the Borrowers shall be deemed to have requested the Base Rate Option with respect to such Borrowing Tranche, or (ii) elects the Euro-Rate option but fails to specify an Interest Period to apply to the applicable Revolving Credit Loans, such Interest Period shall be 1 month.

 

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2.5                                  Making Revolving Credit Loans .

 

The Administrative Agent shall, promptly after receipt by it of a Loan Request pursuant to Section 2.4, notify the Banks of its receipt of such Loan Request specifying: (i) the proposed Borrowing Date and the time and method of disbursement of such Revolving Credit Loans; (ii) the currencies in which such Revolving Credit Loans are to be made, the amount(s) and type(s) of each and the applicable Interest Period(s) (if any); and (iii) the apportionment among the Banks of the Revolving Credit Loans as determined by the Administrative Agent in accordance with Section 2.2.  Each Bank shall remit the principal amount of each Revolving Credit Loan to the Administrative Agent in the appropriate currencies such that the Administrative Agent shall, to the extent the Banks have made funds available to it for such purposes, fund such Revolving Credit Loans to the Borrowers in U.S. Dollars and/or Optional Currencies, as applicable, and in immediately available funds at the Principal Office prior to 2:00 p.m., Pittsburgh time, on the Borrowing Date, provided that if any Bank 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 Bank on the Borrowing Date and such Bank shall be subject to the repayment obligation in Section 9.16.

 

2.6                                  Revolving Credit Notes .

 

The Obligation of the Borrowers to repay the aggregate unpaid principal amount of the Revolving Credit Loans made by each Bank, together with interest thereon, shall be evidenced by a Revolving Credit Note dated the Closing Date payable to the order of such Bank in a face amount equal to the Revolving Credit Commitment of such Bank.

 

2.7                                  Use of Proceeds .

 

The proceeds of the Revolving Credit Loans shall be used for the purpose of refinancing existing indebtedness, including the obligations under the 2005 Credit Agreement, and for general corporate purposes, including acquisitions permitted hereunder.

 

2.8                                  Letter of Credit Subfacility .

 

2.8.1                         Issuance of Letters of Credit .

 

TGI, as agent for the Borrowers, may request the issuance of a letter of credit (each a “ Letter of Credit ”) which may be denominated in either Dollars or an Optional Currency for itself or on behalf of another Loan Party or a non-Loan Party Subsidiary by delivering or having such other Loan Party deliver to the Administrative Agent a completed application and agreement for letters of credit in such form as the Administrative Agent may specify from time to time by no later than 10:00 a.m., Pittsburgh time, at least five (5) Business Days, or such shorter period as may be agreed to by the Administrative Agent, in advance of the proposed date of issuance.  All letters of credit issued and outstanding as of the Closing Date under the 2005 Credit Agreement shall be deemed to have been issued under this Agreement. Subject to the terms and conditions hereof and in reliance on the agreements of the other Banks set forth in this Section 2.8, the Administrative Agent will issue a Letter of Credit provided that each Letter of Credit shall (A) have a maximum maturity of twelve (12) months from the date of issuance, and (B) in no event expire later than one Business Day prior to the Expiration Date and provided that

 

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in no event shall (i) the Dollar Equivalent amount of Letters of Credit Outstanding exceed, at any one time, $30,000,000 or (ii) the Dollar Equivalent Revolving Facility Usage exceed, at any one time, the Revolving Credit Commitments.

 

Notwithstanding any other provision hereof, the Administrative Agent shall not be required to issue any Letter of Credit, if any Bank is at such time a Defaulting Bank hereunder, unless Administrative Agent has entered into satisfactory arrangements with the Borrowers or such Bank to eliminate the Administrative Agent’s  risk with respect to such Bank (it being understood that the Administrative Agent would consider the Borrowers providing cash collateral to the Administrative Agent, for the benefit of the Administrative Agent as issuer of Letters of Credit, to secure the Defaulting Bank’s Ratable Share of the Letter of Credit a satisfactory arrangement.

 

2.8.2                         Letter of Credit Fees .

 

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

 

2.8.3                         Disbursements, Reimbursement .

 

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

 

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

 

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Credit by 12:00 noon, Pittsburgh time, on the Drawing Date, the Administrative Agent will promptly notify each Bank thereof, and the Borrowers shall be deemed to have requested that Revolving Credit Loans be made by the Banks in Dollars under the Base Rate Option to be disbursed on the Drawing Date under such Letter of Credit, subject to the amount of the unutilized portion of the Revolving Credit Commitment and subject to the conditions set forth in Section 6.2 [Each Additional Loan] other than any notice requirements.  Any notice given by the Administrative Agent pursuant to this Section 2.8.3.2 may be oral if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

2.8.3.3                Each Bank shall upon any notice pursuant to Section 2.8.3.2 make available to the Administrative Agent an amount in Dollars in immediately available funds equal to its Ratable Share of the Dollar Equivalent amount of the drawing, whereupon the participating Banks shall (subject to Section 2.8.3.4) each be deemed to have made a Revolving Credit Loan in Dollars to the Borrowers under the Base Rate Option in that amount.  If any Bank so notified fails to make available in Dollars to the Administrative Agent for the account of the Administrative Agent the amount of such Bank’s Ratable Share of such Dollar Equivalent amount by no later than 2:00 p.m., Pittsburgh time on the Drawing Date, then interest shall accrue on such Bank’s obligation to make such payment, from the Drawing Date to the date on which such Bank makes such payment (i) at a rate per annum equal to the Federal Funds Effective Rate during the first three days following the Drawing Date and (ii) at a rate per annum equal to the rate applicable to Loans under the Revolving Credit Base Rate Option on and after the fourth day following the Drawing Date.  The Administrative Agent will promptly give notice of the occurrence of the Drawing Date, but failure of the Administrative Agent to give any such notice on the Drawing Date or in sufficient time to enable any Bank to effect such payment on such date shall not relieve such Bank from its obligation under this Section 2.8.3.3.

 

2.8.3.4                With respect to any unreimbursed drawing that is not converted into Revolving Credit Loans to the Borrowers under the Base Rate Option in whole or in part as contemplated by Section 2.8.3.2, because of the Borrowers’ failure to satisfy the conditions set forth in Section 6.2 [Each Additional Loan] other than any notice requirements or for any other reason, the Borrowers shall be deemed to have incurred from the Administrative Agent a borrowing (each a “Letter of Credit Borrowing”) in Dollars equal to the Dollar Equivalent amount of such drawing.  Such Letter of Credit Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the rate per annum applicable to the Revolving Credit Loans under the Base Rate Option.  Each Bank’s payment to the Administrative Agent pursuant to Section 2.8.3.3 shall be deemed to be a payment in respect of its participation in such Letter of Credit Borrowing and shall constitute a “Participation Advance” from such Bank in satisfaction of its participation obligation under this Section 2.8.3.

 

2.8.4                         Repayment of Participation Advances .

 

2.8.4.1                Upon (and only upon) receipt by the Administrative Agent for its account of immediately available funds from the Borrowers (i) in reimbursement of any payment made by the Administrative Agent under the Letter of Credit with respect to which any Bank has made a Participation Advance to the Administrative Agent, or (ii) in payment of interest on such a payment made by the Administrative Agent under such a Letter of Credit, the Administrative

 

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Agent will pay to each Bank, in the same funds as those received by the Administrative Agent, the amount of such Bank’s Ratable Share of such funds, except the Administrative Agent shall retain the amount of the Ratable Share of such funds of any Bank that did not make a Participation Advance in respect of such payment by Administrative Agent.

 

2.8.4.2                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 the payments made by any Loan Party to the Administrative Agent pursuant to Section 2.8.4.1 in reimbursement of a payment made under the Letter of Credit or interest or fee thereon, each Bank shall, on demand of the Administrative Agent, forthwith return to the Administrative Agent 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 Bank to the Administrative Agent, at a rate per annum equal to the Federal Funds Effective Rate in effect from time to time.

 

2.8.5                         Documentation .

 

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

 

2.8.6                         Determinations to Honor Drawing Requests .

 

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

 

2.8.7                         Nature of Participation and Reimbursement Obligations .

 

Each Bank’s obligation in accordance with this Agreement to make the Revolving Credit Loans or Participation Advances, as contemplated by Section 2.8.3, as a result of a drawing under a Letter of Credit, and the Obligations of the Borrowers to reimburse the Administrative Agent 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 2.8 under all circumstances, including the following circumstances:

 

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

 

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(ii)                                   the failure of any Loan Party or any other Person to comply, in connection with a Letter of Credit Borrowing, with the conditions set forth in Section 2.1 [Revolving Credit Commitments], 2.5 [Revolving Credit Loan Requests], 2.6 [Making Revolving Credit Loans] or 6.2 [Each Additional Loan] or as otherwise set forth in this Agreement for the making of a Revolving Credit Loan, it being acknowledged that such conditions are not required for the making of a Letter of Credit Borrowing and the obligation of the Banks to make Participation Advances under Section 2.8.3;

 

(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 Bank against any beneficiary of a Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, cross-claim, defense or other right which any Loan Party or any Bank 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 Administrative Agent or its Affiliates or any Bank or any other Person or, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between any Loan Party or Subsidiaries of a Loan Party and the beneficiary for which any Letter of Credit was procured);

 

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

 

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

 

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

 

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

 

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

 

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(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.

 

2.8.8                         Indemnity .

 

In addition to amounts payable as provided in Section 9.5 [Reimbursement of Administrative Agent by Borrowers, Etc.], the Borrowers hereby agree to protect, indemnify, pay and save harmless the Administrative Agent and any of Administrative Agent’s Affiliates that has issued a Letter of Credit from and against any and all claims, demands, liabilities, damages, taxes, penalties, interest, judgments, losses, costs, charges and expenses (including reasonable fees, expenses and disbursements of counsel and allocated costs of internal counsel) which the Administrative Agent or any of Administrative Agent’s Affiliates may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit, other than as a result of (A) the gross negligence or willful misconduct of the Administrative Agent as determined by a final judgment of a court of competent jurisdiction or (B) the wrongful dishonor by the Administrative Agent or any of Administrative Agent’s Affiliates of a proper demand for payment made under any Letter of Credit, except if  such dishonor resulted from any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or governmental authority (all such acts or omissions herein called “Governmental Acts”).

 

2.8.9                         Liability for Acts and Omissions .

 

As between any Loan Party and the Administrative Agent, or the Administrative Agent’s Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit.  In furtherance and not in limitation of the foregoing, the Administrative Agent shall not be responsible for any of the following including any losses or damages to any Loan Party or other Person or property relating therefrom:  (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for an issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the Administrative Agent or the Administrative Agent’s Affiliates shall have been notified thereof); (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply

 

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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 Administrative Agent or the Administrative Agent’s Affiliates, as applicable, including any Governmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the Administrative Agent’s or the Administrative Agent’s Affiliates rights or powers hereunder.  Nothing in the preceding sentence shall relieve the Administrative Agent from liability for the Administrative Agent’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 Administrative Agent or the Administrative Agent’s Affiliates be liable to any Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit.

 

Without limiting the generality of the foregoing, the Administrative Agent and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the Administrative Agent 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 Administrative Agent 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 Administrative Agent 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 to such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.

 

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

 

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put the Administrative Agent or the Administrative Agent’s Affiliates under any resulting liability to the Borrowers or any Bank.

 

2.9                                  Swing Loans .

 

2.9.1                         Making Swing Loans .

 

Subject to the terms and conditions hereof, PNC Bank may in its discretion make swing line loans in Dollars (the “ Swing Loans ”) to the Borrowers from time to time prior to the Expiration Date in an aggregate outstanding principal amount up to the amount of the Swing Loan Commitment for periods requested by TGI, as agent for the Borrowers, and agreed to by PNC Bank; provided , that, no Swing Loan shall be made if, after giving effect to the making of such Swing Loan and the simultaneous application of the proceeds thereof, (x) the aggregate Dollar Equivalent Revolving Facility Usage would exceed the aggregate amount of the Revolving Credit Commitments of all of the Banks or (y) the aggregate amount of all Revolving Credit Loans made by a Bank plus such Bank’s Ratable Share of the amount of Swing Loans and Letter of Credit Outstandings then outstanding would exceed its Revolving Credit Commitment.  Within the foregoing limits, the Borrowers may, prior to the Expiration Date borrow, repay and reborrow under the Swing Loan Commitment, subject to and in accordance with the terms and limitations hereof.  The interest rate for a Swing Loan shall be the rate that is mutually agreed by TGI, on behalf of the Borrowers, and PNC Bank at the time such Swing Loan is made or, absent such an agreement, at the Base Rate.

 

2.9.2                         Swing Loan Request .

 

TGI, as agent for the Borrowers, may request a Swing Loan to be made on any Business Day.  Each request for a Swing Loan shall be in the form of a  Swing Loan Request (or a request by telephone immediately confirmed in writing, it being understood that PNC Bank may rely on the authority of any individual making such telephonic request without the necessity of receipt of such written confirmation) and received by the Administrative Agent not later than 1:00 p.m. (Pittsburgh time) on the Business Day such Swing Loan is to be made for Swing Loans  specifying (i)  the amount to be borrowed, (ii) the requested Borrowing Date, and (iii) the date such Swing Loan is to be repaid, if applicable (the “ Swing Loan Repayment Date ”).  The request for such Swing Loan shall be irrevocable.  Provided that all applicable conditions precedent contained herein have been satisfied, PNC Bank shall, not later than 4:00 p.m., Pittsburgh time, on the date specified in TGI’s request for such Swing Loan, make such Swing Loan by crediting any Borrower’s deposit account with PNC Bank.

 

2.9.3                         Swing Loan Note .

 

The obligation of the Borrowers to repay the Swing Loans shall be evidenced by a promissory note of the Borrowers dated the date hereof, payable to the order of PNC Bank in the principal amount of the Swing Loan Commitment and substantially in the form of Exhibit 1.1(S)(2)  (as amended, supplemented or otherwise modified from time to time, the “ Swing Loan Note ”).

 

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2.9.4                         Repayment .

 

Swing Loans shall be repaid on the earlier of (i) the Expiration Date or (ii) the Swing Loan Repayment Date for such Swing Loan, or in the case of any Swing Loan at any time upon demand by the Administrative Agent (any such date being the “ Swing Loan Conversion Date ”).  Unless TGI, on behalf of the Borrowers, shall have notified the Administrative Agent prior to 11:00 a.m., Pittsburgh time, on such Swing Loan Conversion Date that the Borrowers intend to repay such Swing Loan with funds other than the proceeds of a Revolving Credit Loan, the Borrowers shall be deemed to have given notice to the Administrative Agent requesting the Banks to make Revolving Credit Loans in U.S. Dollars in an amount determined by PNC Bank in its sole discretion as the U.S. Dollar Equivalent at the prevailing market rate of such Swing Loans, which Revolving Credit Loans shall earn interest at the Base Rate in effect on the Swing Loan Conversion Date in an aggregate amount equal to the amount of such Swing Loan plus interest thereon, and the Banks shall, on the Swing Loan Conversion Date, make Revolving Credit Loans (without the requirement that they comply with the conditions for Revolving Credit Loans in Section 2.4 [Revolving Credit Loan Requests], which shall earn interest at the Base Rate, in an aggregate amount equal to the amount of such Swing Loan plus interest thereon, the proceeds of which shall be applied directly by the Administrative Agent to repay PNC Bank for such Swing Loan then due plus accrued interest thereon; and provided, further, that if for any reason the proceeds of such Revolving Credit Loans are not received by PNC Bank on the Swing Loan Conversion Date in an aggregate amount equal to the amount of such Swing Loan then due plus accrued interest, the Borrowers shall reimburse PNC Bank on the day immediately following the Swing Loan Conversion Date, in same day funds, in an amount equal to the excess of the amount of such Swing Loan then due over the aggregate amount of such Revolving Credit Loans, if any, received plus accrued interest thereon.

 

2.9.5                         Participations .

 

In the event that the Borrowers shall fail to repay PNC Bank as provided in Section 2.9.4, the Administrative Agent shall promptly notify each Bank of the unpaid amount of such Swing Loan and of such Bank’s respective participation therein in an amount equal to such Bank’s Ratable Share of such Swing Loan.  Each Bank shall make available to the Administrative Agent for payment to PNC Bank an amount equal to its respective participation therein (including without limitation its Ratable Share of accrued but unpaid interest thereon, provided that the interest rate payable by the participating Banks shall not exceed the Base Rate), in Dollars and in same day funds at the office of the Administrative Agent specified in such notice.  If such notice is delivered by the Administrative Agent by 11:00 a.m., Pittsburgh time, each Bank shall make funds available to the Administrative Agent on that Business Day.  If such notice is delivered after 11:00 a.m., Pittsburgh time, each Bank shall make funds available to the Administrative Agent on the next Business Day.  In the event that any Bank fails to make available to the Administrative Agent the amount of such Bank’s participation in such unpaid amount as provided herein, PNC Bank shall be entitled to recover such amount on demand from such Bank together with interest thereon at a rate per annum equal to the Federal Funds Effective Rate for each day during the period between the date such participation amount is required to be paid and the date on which such Bank makes available its participation in such unpaid amount. The failure of any Bank to make available to the Administrative Agent its Ratable Share of any such unpaid amount shall not relieve any other Bank of its obligations hereunder to make available to the

 

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Administrative Agent its Ratable Share of such unpaid amount on the Swing Loan Conversion Date. The Administrative Agent shall distribute to each Bank which has paid all amounts payable by it under this Section 2.9.5 with respect to the unpaid amount of any Swing Loan, such Bank’s Ratable Share (based on its participation in such Swing Loan and interest thereon) of all payments received by the Administrative Agent from any of the Borrowers in repayment of such Swing Loan when such payments are received. Notwithstanding anything to the contrary herein, each Bank which has paid all amounts payable by it under this Section 2.9.5 shall have a direct right to repayment of such amounts from the Borrowers subject to the procedures for repaying Banks set forth in this Section 2.9.5 and the provisions of Section 4.

 

2.9.6                         Termination .

 

In the event the Revolving Credit Commitments are terminated in accordance with the terms hereof, the Swing Loan Commitment shall also be terminated automatically.  In the event the Borrowers reduce the Revolving Credit Commitments to less than the Swing Loan Commitment, the Swing Loan Commitment shall immediately be reduced to an amount equal to the Revolving Credit Commitment.  In the event the Borrowers reduce the Revolving Credit Commitments to less than the outstanding principal amount of the Swing Loans, the Borrowers shall immediately repay the amount by which the outstanding Swing Loans exceeds the Swing Loan Commitment as so reduced plus accrued interest thereon.

 

2.9.7                         Minimum Amounts .

 

At no time shall there be more than one (1) outstanding Swing Loan, except as to Swing Loans made pursuant to Section 2.9.9.  Each Swing Loan shall be in an original principal amount of $25,000, except as to Swing Loans made pursuant to Section 2.9.9, as to which there shall be no minimum.

 

2.9.8                         Prepayment .

 

The Borrowers shall have the right at any time and from time to time to prepay the Swing Loans, in whole or in part, without premium or penalty (but in any event subject to Section 4.5.2), upon prior written, facsimile or telephonic notice to PNC Bank given by TGI on the Borrowers’ behalf no later than 11:00 a.m., Pittsburgh time, on the date of any proposed prepayment.  Each notice of prepayment shall specify the Swing Loan to be prepaid and the amount to be prepaid, shall be irrevocable and shall commit the Borrowers to prepay such amount on such date, with accrued interest thereon and any other amounts owed hereunder.

 

2.9.9                         Swing Loans Under Cash Management Agreements .

 

In addition to making Swing Loans pursuant to the foregoing provisions of this Section 2.9.9, without the requirement for a specific request from the Borrowers pursuant to Section 2.9.2, PNC Bank may make Swing Loans to the Borrowers in accordance with the provisions of the agreements between TGI and PNC Bank relating to TGI’s deposit, sweep and other accounts at PNC Bank and related arrangements and agreements regarding the management and investment of TGI’s cash assets as in effect from time to time (the “ Cash Management Agreements ”) to the extent of the daily aggregate net negative balance in TGI’s accounts which are subject to the provisions of the Cash Management Agreements.  Swing Loans made pursuant

 

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to this Section 2.9.9 in accordance with the provisions of the Cash Management Agreements shall (i) be subject to the limitations as to aggregate amount set forth in Section 2.9.1, (ii) not be subject to the limitations as to number or individual amount set forth in Sections 2.9.7 or the repayment provisions of Section 2.9.4, (iii) be payable by the Borrowers, both as to principal and interest, at the times set forth in the Cash Management Agreements (but in no event later than the Expiration Date), (iv) not be made at any time after PNC Bank has received written notice of the occurrence of a Potential Default or Event of Default, (v) if not repaid by the Borrowers in accordance with the provisions of the Cash Management Agreements, be subject to each Bank’s obligation to purchase participating interests therein pursuant to Section 2.9.5, and (vi) except as provided in the foregoing subsections (i) through (v), be subject to all of the terms and conditions of this Section 2.9. The Borrowers acknowledge and agree that each Borrower materially benefits from the arrangements made pursuant to this Section 2.9.9 and the Cash Management Agreements, and each Borrower shall be jointly and severally liable, subject to Section 10.20, for all Obligations, including without limitation, those arising from the operation of this Section 2.9.9.

 

2.9.10                 Nature of Obligations .

 

Each Bank’s obligation to purchase participating interests pursuant to Section 2.9.5 in the event that the Borrowers shall fail to repay PNC Bank as provided in Section 2.9.4 in the amount required under such Section shall be absolute and unconditional and shall not be affected by any circumstance including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Bank may have against any other Bank or any Borrower, or any Borrower may have against any Bank or any other Person, as the case may be, for any reason whatsoever; (ii) the occurrence or continuance of a Potential Default or Event of Default; (iii) any adverse change in the condition (financial or otherwise) of any of the Borrowers; (iv) any breach of his Agreement by any party hereto; (v) the failure to satisfy any condition to the making of any Loan hereunder; or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

 

2.9.11                 Indemnity .

 

Each Bank shall ratably in accordance with its Ratable Share, indemnify PNC Bank, its affiliates and their respective directors, officers, agents and employees (to the extent not reimbursed by the Borrowers) against any cost, expense (including reasonable counsel fees and expenses), claim, demand, action, loss or liability (except any of the foregoing that results from the indemnitees’ gross negligence or willful misconduct) that such indemnities may suffer or incur in connection with this Section 2.9 or any action taken or omitted by such indemnities hereunder.

 

2.10                            Utilization of Commitments in Optional Currencies .

 

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

 

The Administrative Agent will determine the Dollar Equivalent amount of (i) proposed Revolving Credit Loans or Letters of Credit to be denominated in an Optional Currency as of the requested Borrowing Date or date of issuance, as the case may be, (ii)  Letters

 

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of Credit Outstanding denominated in an Optional Currency as of the last Business Day of each month, and (iii) outstanding Revolving Credit Loans denominated in an Optional Currency as of the end of each Interest Period or on any other Business Day selected by the Administrative Agent and as frequently as the Administrative Agent desires, in the case of Revolving Credit Loans, in consultation with the Fronting Bank (each such date under clauses (i) through (iii), a “ Computation Date ”).

 

2.10.2                   Notices From Banks That Optional Currencies Are Unavailable to Fund New Loans .

 

The Banks shall be under no obligation to make the Revolving Credit Loans requested by the Borrowers which are denominated in an Optional Currency if any Bank (other than a Non-Fronting Bank) notifies the Administrative Agent by 5:00 p.m. (Pittsburgh time) four (4) Business Days prior to the Borrowing Date for such Revolving Credit Loans that such Bank cannot provide its share of such Revolving Credit Loans in such Optional Currency because (i) the making, maintenance or funding of such Optional Currency Loan has been made impracticable or unlawful by compliance by such Bank 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) after making all reasonable efforts, deposits of the relevant amount in the relevant Optional Currency for the relevant Interest Period are not available to such Bank with respect to such Loan in the London interbank market.  In the event the Administrative Agent receives a timely notice from a Bank pursuant to the preceding sentence, the Administrative Agent will notify TGI, as agent for the Borrowers, no later than 12:00 noon (Pittsburgh time) three (3) 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 Banks of the same.  If TGI receives a notice described in the preceding sentence, the Borrowers may, by notice from TGI to the Administrative Agent not later than 5:00 p.m. (Pittsburgh time) three (3) Business Days prior to the Borrowing Date for such Revolving Credit Loans, either (a) withdraw the Loan Request for such Revolving Credit Loans, in which event the Administrative Agent will promptly notify each Bank of the same and the Banks shall not make such Revolving Credit Loans, or (b) request that the Revolving Credit Loans referred to in its Loan Request be made in Dollars or in a different Optional Currency in an amount equal to the Dollar Equivalent or other Optional Currency Equivalent Amount of such Revolving Credit Loans and shall (A) in the case of Revolving Credit Loans denominated in Dollars, bear interest under the Base Rate Option or the Euro-Rate Option, as elected by the Borrowers, or (B) in the case of Revolving Credit Loans denominated in an Optional Currency, bear interest under the Euro-Rate Option, in which event the Administrative Agent shall promptly deliver a notice to each Bank stating: (X) that such Revolving Credit Loans shall be made in the applicable currency and shall bear interest under the Base Rate Option or the Euro-Rate Option, as applicable, (Y) the aggregate amount of such Revolving Credit Loans, and (Z) such Bank’s Ratable Share of such Revolving Credit Loans.  If the Borrowers do not withdraw such Loan Request before such time as provided in clause (a) or request before such time that the requested Revolving Credit Loans referred to in its Loan Request be made in Dollars or a different Optional Currency as provided in clause (b), then (i) the Borrowers shall be deemed to have withdrawn such Loan Request and (ii) the Administrative Agent shall promptly deliver a notice to each Bank thereof and the Banks shall not make such Revolving Credit Loans.

 

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

 

If TGI, as agent for the Borrowers, delivers a Loan Request requesting that the Banks renew the Euro-Rate Option with respect to an outstanding Borrowing Tranche of Revolving Credit Loans denominated in an Optional Currency, the Banks shall be under no obligation to renew such Euro-Rate Option if any Bank (other than a Non-Fronting Bank) 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 Bank cannot continue to provide Revolving Credit Loans in such Optional Currency because (i) the making, maintenance or funding of such Optional Currency Loan has been made impracticable or unlawful by compliance by such Bank 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) after making all reasonable efforts, deposits of the relevant amount in the relevant Optional Currency for the relevant Interest Period are not available to such Bank with respect to such Loan in the London interbank market.  In the event the Administrative Agent receives a timely notice from a Bank pursuant to the preceding sentence, the Administrative Agent will notify TGI, as agent for the Borrowers, 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 Banks of the same.  If the Administrative Agent shall have so notified TGI that any such renewal 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 Base Rate Loans 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 TGI, as agent for the Borrowers, and the Banks 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 Bank’s Ratable Share thereof.

 

2.10.4                 Requests for Additional Optional Currencies .

 

TGI, on behalf of the Borrowers, may deliver to the Administrative Agent and the Fronting Bank 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 Banks (other than the Non-Fronting Banks) in the applicable interbank market.  The Administrative Agent will promptly notify the Fronting Bank and the Banks of any such request promptly after the Administrative Agent receives such request.  The Administrative Agent, the Fronting Bank and each Bank (other than the Non-Fronting Banks) may grant or accept such request in their sole discretion.  The Administrative Agent will promptly notify TGI of the acceptance or rejection by the Administrative Agent, the Fronting Bank and each of the Banks of the Borrowers’ request.  The requested currency shall be approved as an Optional Currency hereunder only if the Administrative Agent, the Fronting Bank and all of the Banks (other than the Non-Fronting Banks) approve of the Borrowers’ request.

 

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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 Borrowers to effect payment of a Loan in the Optional Currency in which such Loan was made, or if the Borrowers default in their obligations to do so, the Required Banks may at their option permit such payment to be made (i) at and to a different location, subsidiary, affiliate or correspondent of the Administrative Agent, or (ii) in the Dollar Equivalent, or (iii) in an Equivalent Amount of such other currency (freely convertible into Dollars) as the Required Banks may solely at their option designate.  Upon any events described in (i) through (iii) of the preceding sentence, the Borrowers shall make such payment. In all events, whether described in such clauses (i) through (iii), whether the Borrowers make such required payments, or otherwise, and (a) the Borrowers, jointly and severally, agree to hold each Bank (including, without limitation, the Fronting Bank) harmless from and against any loss incurred by any Bank arising from the cost to such Bank 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 and (b) each Non-Fronting Bank agrees to hold the Fronting Bank harmless from and against any loss incurred by the Fronting Bank arising from the cost to the Fronting Bank of any premium, any costs of exchange, the cost of hedging and covering the Optional Currency in which such Loan was originally made, for such Non-Fronting Bank, 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 Borrowers or Non-Fronting Banks hereunder, the Borrowers’ and Non-Fronting Banks’ respective obligations under this Section 2.11 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 TGI on behalf of the Borrowers for Loans in an Optional Currency or voluntary prepayments of less than the full amount of an Optional Currency Borrowing Tranche, engage in reasonable rounding of the Optional Currency amounts requested to be loaned or repaid; and, in such event, the Administrative Agent shall promptly notify TGI and the Banks of such rounded amounts and Borrowers’ request or notice shall thereby be deemed to reflect such rounded amounts.

 

2.13                            Provisions Relating to Fronting of Optional Currency Loans .

 

2.13.1                   Optional Currency Loan Fronting.

 

(i)                                      Any Bank that is incapable of obtaining an Optional Currency in the ordinary course of business shall request in writing to the Fronting Bank that the Fronting Bank accept such Bank as a Non-Fronting Bank. Any such acceptance or rejection by the Fronting Bank of such request shall be at the Fronting Bank’s sole and absolute discretion. If the Fronting

 

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Bank elects to accept such requesting Bank as a Non-Fronting Bank, the Fronting Bank shall indicate the maximum Dollar Equivalent of aggregate Optional Currencies for which the Fronting Bank will act as Fronting Bank for such Non-Fronting Bank, which amount may be increased only upon written consent of the Fronting Bank, which consent may be given or withheld at the Fronting Bank’s sole and absolute discretion. The Fronting Bank’s agreement to act as Fronting Bank for a Non-Fronting Bank may be subject to any condition, including without limitation, the payment of fees and/or the granting of security, all of which shall be as described in a separate agreement between the Fronting Bank and the Non-Fronting Bank, which separate agreement, if any, together with this Agreement shall govern the relationship between the Fronting Bank and such Non-Fronting Bank, provided however that any such separate agreement shall not affect the Borrowers’ right and duties hereunder. Upon written request from TGI, on behalf of the Borrowers, the Fronting Bank will provide to TGI a list of all Non-Fronting Banks as of such date, together with the maximum Dollar Equivalent which the Fronting Bank has agreed to front for each.  As of the Closing Date, the Non-Fronting Banks shall be those Banks set forth on Schedule 2.13. 1 hereto and the maximum Dollar Equivalent which the Fronting Bank has agreed to fund for such Non-Fronting Bank shall be the amount set forth on such schedule opposite the applicable Non-Fronting Bank’s name.  Notwithstanding anything else in this Agreement or in any separate agreement with any Non-Fronting Bank to the contrary, the Fronting Bank shall have no obligation to act as Fronting Bank for any request for a Loan denominated in an Optional Currency made after the Fronting Bank ceases to be the Administrative Agent hereunder.

 

(ii)                                   Upon receipt of notice from the Administrative Agent to the Banks pursuant to Section 2.5 [Making Revolving Credit Loans], with respect to the request for each Optional Currency Loan, the Fronting Bank will determine the Dollar Equivalent amount of each such Non-Fronting Bank’s Ratable Share of such Optional Currency Loan and will notify the Administrative Agent and each Non-Fronting Bank (by 2:00 p.m. two (2) Business Day prior to the date such Loan is to be borrowed) thereof. Each Non-Fronting Bank shall make available to the Fronting Bank its Ratable Share of the Optional Currency Loan in same day funds, on or before 11:00 a.m., Pittsburgh time, on the proposed Borrowing Date, except that such Non-Fronting Bank shall remit its Ratable Share of such Loan in the Dollar Equivalent of such Optional Currency Loan amount at prevailing market rates as determined by the Fronting Bank and identified in the notice to such Non-Fronting Bank provided above in this Section 2.13.1 (such required payment, referred to herein as a “Currency Participation”). The Fronting Bank shall have no obligation to make any advance of Optional Currencies on behalf of a Non-Fronting Bank with respect to a Loan Request unless and until the Fronting Bank has received the corresponding payment in immediately available funds from the Non-Fronting Bank as described in the preceding sentence. Unless the Fronting Bank shall have been notified by a Non-Fronting Bank (by no later than 5:00 p.m. on the day that is two (2) Business Days prior to the date such Optional Currency Loan is to be borrowed, that such Non-Fronting Bank will not make available to the Fronting Bank the amount which would constitute the Dollar Equivalent amount of such Non-Fronting Bank’s Ratable Share of the requested Loan, the Fronting Bank may (but shall have no obligation to) assume that such Non-Fronting Bank will make such amount available to the Fronting Bank on the date the Fronting Bank makes such amount available to the Borrowers and, in reliance upon such assumption, the Fronting Bank may make available to the Administrative Agent a corresponding amount. The giving of any notification referred to in the immediately preceding sentence by a Non-Fronting Bank shall not relieve such Non-Fronting

 

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Bank of its obligation to make the Dollar Equivalent amount of its Ratable Share of each Optional Currency Loan hereunder. In the event that any Non-Fronting Bank fails to make available to the Fronting Bank such Non-Fronting Bank’s Currency Participation as provided herein, the Fronting Bank shall be entitled to recover such Currency Participation on demand from such Non-Fronting Bank together with interest thereon at a rate per annum equal to (a) for the first three (3) Business Days after such demand, the Federal Funds Effective Rate, and (b) thereafter, the rate then applicable to such Revolving Credit Loan for each day during the period between the date such Currency Participation is required to be paid and the date on which such Non-Fronting Bank makes such Currency Participation.  If any Non-Fronting Bank fails to timely pay to the Fronting Bank its Currency Participation, such Non-Fronting Bank shall be deemed to have assigned to the Fronting Bank any and all payments of principal and interest owing by the Borrowers to such Non-Fronting Bank with respect to Loans made by such Non-Fronting Bank and any other amount owing by the Borrowers to such Non-Fronting Bank under this Agreement, in an amount equal to the Dollar Equivalent amount of the relevant Currency Participation plus accrued interest thereon as provided in the immediately preceding sentence.  The failure of any Non-Fronting Bank to make a Currency Participation shall not relieve an