TABLE OF CONTENTS

 

				Page
Section
1.	CERTAIN DEFINITIONS			1
	1.1	Certain Definitions		1
	1.2	Construction		28
		1.2.1	Number; Inclusion	29
		1.2.2	Determination	29
		1.2.3	Agent’s Discretion and Consent	29
		1.2.4	Documents Taken as a Whole	29
		1.2.5	Headings	29
		1.2.6	Implied References to this Agreement	29
		1.2.7	Persons	29
		1.2.8	Modifications to Documents	30
		1.2.9	From, To and Through	30
		1.2.10	Shall; Will	30
	1.3	Accounting Principles		30
2.	REVOLVING CREDIT AND SWING LOAN FACILITIES			31
	2.1	Revolving Credit Commitments		31
		2.1.1	Revolving Credit Loans	31
	2.2	Swing Loan Commitment		31
		2.2.1	Swing Loans	31
	2.3	Nature of Lenders’ Obligations with Respect to Revolving Credit Loans		31
	2.4	Commitment Fees		32
	2.5	Revolving Credit Loan Requests; Swing Loan Requests		32
		2.5.1	Revolving Credit Loan Requests	32
		2.5.2	Swing Loan Requests	33
	2.6	Making Revolving Credit Loans and Swing Loans		33
		2.6.1	Making Revolving Credit Loans	33
		2.6.2	Making Swing Loans	34
	2.7	Swing Loan Note		34
	2.8	Use of Proceeds		34
	2.9	Borrowings to Repay Swing Loans		34
	2.10	Letter of Credit Subfacility		34
		2.10.1	Issuance of Letters of Credit	34
		2.10.2	Letter of Credit Fees	35
		2.10.3	Disbursements, Reimbursement	35
		2.10.4	Repayment of Participation Advances	37
		2.10.5	Documentation	37
		2.10.6	Determinations to Honor Drawing Requests	37
		2.10.7	Nature of Participation and Reimbursement Obligations	38
		2.10.8	Indemnity	39
		2.10.9	Liability for Acts and Omissions	40
		2.10.10	Cash Collateral	41

 

 

	2.11	Utilization of Commitments in Optional Currencies		41
		2.11.1	Periodic Computations of Dollar Equivalent Amounts of Loans and Letters of Credit Outstanding	41
		2.11.2	Notices From Lenders That Optional Currencies Are Unavailable to Fund New Loans	41
		2.11.3	Notices From Lenders That Optional Currencies Are Unavailable to Fund Renewals of the Euro-Rate Option	42
		2.11.4	European Monetary Union	43
		2.11.5	Requests for Additional Optional Currencies	43
	2.12	Currency Repayments		44
	2.13	Optional Currency Amounts		44
	2.14	Right to Increase Revolving Credit Commitments		44
3.	[INTENTIONALLY OMITTED.]			45
4.	INTEREST RATES			45
	4.1	Interest Rate Options		45
		4.1.1	Revolving Credit Interest Rate Options	45
		4.1.2	Rate Quotations	46
	4.2	Interest Periods		46
		4.2.1	Amount of Borrowing Tranche	46
		4.2.2	Renewals	46
	4.3	Interest After Default		46
		4.3.1	Letter of Credit Fees, Interest Rate	46
		4.3.2	Other Obligations	47
		4.3.3	Acknowledgment	47
	4.4	Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available		47
		4.4.1	Unascertainable	47
		4.4.2	Illegality; Increased Costs; Deposits Not Available	47
		4.4.3	Agent’s and Lender’s Rights	48
	4.5	Selection of Interest Rate Options		48
5.	PAYMENTS			49
	5.1	Payments		49
	5.2	Pro Rata Treatment of Lenders		49
	5.3	Interest Payment Dates		50
	5.4	Voluntary Prepayments, Mandatory Prepayments		50
		5.4.1	Right to Prepay	50
		5.4.2	Replacement of a Lender	51
		5.4.3	Change of Lending Office	52
		5.4.4	Voluntary Reduction of Revolving Credit Commitments	52
		5.4.5	Application Among Interest Rate Options	52
		5.4.6	Mandatory Prepayment - Currency Fluctuations	53
		5.4.7	Expiration Date	53
	5.5	Additional Compensation in Certain Circumstances		53

 

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		5.5.1	Increased Costs Generally. If any Change in Law shall:	53
		5.5.2	Capital Requirements	54
		5.5.3	Certificates for Reimbursement; Repayment of Outstanding Loans; Borrowing of New Loans	54
		5.5.4	Delay in Requests	54
		5.5.5	Additional Costs with Respect to Loans in Optional Currencies	55
	5.6	Taxes		55
		5.6.1	Payments Free of Taxes	55
		5.6.2	Payment of Other Taxes by the Borrower	55
		5.6.3	Indemnification by the Borrower	55
		5.6.4	Evidence of Payments	56
		5.6.5	Status of Lenders	56
		5.6.6	Refund	57
	5.7	Indemnity		57
	5.8	Interbank Market Presumption		58
	5.9	Notes		58
	5.10	Settlement Date Procedures		58
	5.11	Judgment Currency		59
		5.11.1	Currency Conversion Procedures for Judgments	59
		5.11.2	Indemnity in Certain Events	59
6.	REPRESENTATIONS AND WARRANTIES			60
	6.1	Representations and Warranties		60
		6.1.1	Organization and Qualification	60
		6.1.2	[Intentionally Omitted.]	60
		6.1.3	Subsidiaries	60
		6.1.4	Power and Authority	60
		6.1.5	Validity and Binding Effect	61
		6.1.6	No Conflict	61
		6.1.7	Litigation	61
		6.1.8	Title to Properties	61
		6.1.9	Financial Statements	62
		6.1.10	Use of Proceeds; Margin Stock; Section 20 Subsidiaries	62
		6.1.11	Full Disclosure	63
		6.1.12	Taxes	63
		6.1.13	Consents and Approvals	63
		6.1.14	No Event of Default; Compliance with Instruments	63
		6.1.15	Patents, Trademarks, Copyrights, Licenses, Etc.	64
		6.1.16	Insurance	64
		6.1.17	Compliance with Laws	64
		6.1.18	[Intentionally Omitted]	64
		6.1.19	Investment Companies; Regulated Entities	64
		6.1.20	Plans and Benefit Arrangements	64
		6.1.21	Employment Matters	65
		6.1.22	Environmental and Safety Matters	66

 

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		6.1.23	Senior Debt Status	66
		6.1.24	Anti-Terrorism Laws	66
		6.1.25	Solvency	67
		6.1.26	Security Interests	67
		6.1.27	Status of the Pledged Collateral	68
	6.2	Continuation of Representations		68
	6.3	Updates to Schedules		68
7.	CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT			68
	7.1	First Loans and Letters of Credit		69
		7.1.1	Officer’s Certificate	69
		7.1.2	Secretary’s Certificate	69
		7.1.3	Delivery of Loan Documents	70
		7.1.4	Opinion of Counsel	70
		7.1.5	Legal Details	70
		7.1.6	Payment of Fees	70
		7.1.7	Consents	70
		7.1.8	Officer’s Certificate Regarding MACs; Solvency	70
		7.1.9	No Violation of Laws	71
		7.1.10	No Actions or Proceedings	71
		7.1.11	Compliance Certificate	71
		7.1.12	Lien Searches	71
		7.1.13	Filing Receipts	71
		7.1.14	Insurance	71
		7.1.15	Existing Agreement	72
		7.1.16	Other Conditions	72
	7.2	Each Additional Loan or Letter of Credit		72
8.	COVENANTS			72
	8.1	Affirmative Covenants		72
		8.1.1	Preservation of Existence, Etc.	72
		8.1.2	Payment of Liabilities, Including Taxes, Etc.	73
		8.1.3	Maintenance of Insurance	73
		8.1.4	Maintenance of Properties and Leases	73
		8.1.5	Maintenance of Patents, Trademarks, Etc.	73
		8.1.6	Visitation Rights	73
		8.1.7	Keeping of Records and Books of Account	74
		8.1.8	Plans and Benefit Arrangements	74
		8.1.9	Compliance with Laws	74
		8.1.10	Use of Proceeds	74
		8.1.11	[Intentionally Omitted]	75
		8.1.12	Tax Shelter Regulations	75
		8.1.13	Anti-Terrorism Laws	75
		8.1.14	Further Assurances	75
	8.2	Negative Covenants		75
		8.2.1	Indebtedness	76

 

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		8.2.2	Liens	77
		8.2.3	Guaranties	77
		8.2.4	Loans and Investments	77
		8.2.5	[Intentionally Omitted].	78
		8.2.6	Liquidations, Mergers, Consolidations, Acquisitions	78
		8.2.7	Dispositions of Assets or Subsidiaries	80
		8.2.8	[Intentionally Omitted].	81
		8.2.9	Subsidiaries, Partnerships and Joint Ventures	81
		8.2.10	Continuation of or Change in Business	81
		8.2.11	Plans and Benefit Arrangements	81
		8.2.12	Fiscal Year	82
		8.2.13	Changes in Organizational Documents	82
		8.2.14	[Intentionally Omitted]	82
		8.2.15	Maximum Leverage Ratio	82
		8.2.16	Minimum Interest Coverage Ratio	82
	8.3	Reporting Requirements		82
		8.3.1	Quarterly Financial Statements	82
		8.3.2	Annual Financial Statements	83
		8.3.3	Certificate of the Borrower	83
		8.3.4	Notice of Default	84
		8.3.5	Notice of Litigation	84
		8.3.6	Agreements Regarding Pledged Collateral	84
		8.3.7	Budgets, Forecasts, Other Reports and Information	84
		8.3.8	Tax Shelter Provisions	85
		8.3.9	Notices Regarding Plans and Benefit Arrangements	85
9.	DEFAULT			86
	9.1	Events of Default		86
		9.1.1	Payments Under Loan Documents	87
		9.1.2	Breach of Warranty	87
		9.1.3	Breach of Negative Covenants or Visitation Rights	87
		9.1.4	Breach of Other Covenants	87
		9.1.5	Defaults in Other Agreements or Indebtedness	87
		9.1.6	Final Judgments or Orders	87
		9.1.7	Loan Document Unenforceable	88
		9.1.8	Uninsured Losses; Proceedings Against Assets	88
		9.1.9	Notice of Lien or Assessment	88
		9.1.10	Insolvency	88
		9.1.11	Events Relating to Plans and Benefit Arrangements	88
		9.1.12	Cessation of Business	89
		9.1.13	Change of Control	89
		9.1.14	Involuntary Proceedings	89
		9.1.15	Voluntary Proceedings	90
	9.2	Consequences of Event of Default		90

 

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		9.2.1	Events of Default Other Than Bankruptcy, Insolvency or Reorganization Proceedings	90
		9.2.2	Bankruptcy, Insolvency or Reorganization Proceedings	90
		9.2.3	Set-off	91
		9.2.4	Intentionally Omitted	91
		9.2.5	Application of Proceeds; Collateral Sharing	91
		9.2.6	Other Rights and Remedies	92
		9.2.7	Notice of Sale	92
10.	THE AGENT			93
	10.1	Appointment and Authority		93
	10.2	Rights as a Lender		93
	10.3	Exculpatory Provisions		93
	10.4	Reliance by Agent		94
	10.5	Delegation of Duties		94
	10.6	Resignation of Agent		95
	10.7	Non-Reliance on Administrative Agent and Other Lenders		95
	10.8	Reimbursement and Indemnification of Agent by the Borrower		96
	10.9	Exculpatory Provisions; Limitation of Liability		97
	10.10	Reimbursement and Indemnification of Agent by Lenders		97
	10.11	Equalization of Lenders		98
	10.12	Agent’s Fee		99
	10.13	Availability of Funds		99
	10.14	Calculations		99
	10.15	No Reliance on Agent’s Customer Identification Program		100
	10.16	Certain Releases of Pledged Collateral		100
11.	MISCELLANEOUS			100
	11.1	Modifications, Amendments or Waivers		100
		11.1.1	Increase of Commitment; Extension of Expiration Date	101
		11.1.2	Extension of Payment; Reduction of Principal Interest or Fees; Modification of Terms of Payment	101
		11.1.3	Release of Collateral or Guarantor	101
		11.1.4	Miscellaneous	101
	11.2	No Implied Waivers; Cumulative Remedies; Writing Required		101
	11.3	Reimbursement and Indemnification of Lenders by the Borrower; Taxes		102
	11.4	Holidays		103
	11.5	Funding by Branch, Subsidiary or Affiliate		103
		11.5.1	Notional Funding	103
		11.5.2	Actual Funding	103
	11.6	Notices; Effectiveness; Electronic Communication		104
		11.6.1	Notices Generally	104
		11.6.2	Electronic Communications	104
		11.6.3	Change of Address, Etc.	105
	11.7	Severability		105
	11.8	Governing Law		105

 

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	11.9	Prior Understanding		105
	11.10	Duration; Survival		105
	11.11	Successors and Assigns		106
		11.11.1	Successors and Assigns Generally	106
		11.11.2	Assignments by Lenders	106
		11.11.3	Register	108
		11.11.4	Participations	108
		11.11.5	Limitations upon Participant Rights Successors and Assigns Generally	109
		11.11.6	Certain Pledges; Successors and Assigns Generally	109
	11.12	Confidentiality		109
		11.12.1	General	109
		11.12.2	Sharing Information With Affiliates of the Lenders	110
	11.13	Counterparts		110
	11.14	Agent’s or Lender’s Consent		110
	11.15	Exceptions		110
	11.16	Consent To Forum; Waiver Of Jury Trial		111
		11.16.1	Submission To Jurisdiction	111
		11.16.2	Waiver Of Venue	111
		11.16.3	Service Of Process	111
		11.16.4	Waiver Of Jury Trial	112
	11.17	USA Patriot Act. Certification from Lenders and Participants		112
	11.18	Joinder of Guarantors		112

 

vii

 

CREDIT AGREEMENT

 

THIS CREDIT AGREEMENT is dated as of June 16, 2009, and is made by and among COVANCE INC., a Delaware corporation, each of the GUARANTORS (as hereinafter defined), the LENDERS (as hereinafter defined), and PNC BANK, NATIONAL ASSOCIATION, in its capacity as agent for the Banks under this Agreement.

 

WITNESSETH:

 

WHEREAS, the Borrower has requested the Lenders to provide a multicurrency revolving credit facility to the Borrower in an aggregate principal amount not to exceed $150,000,000.00; and

 

WHEREAS, the revolving credit shall be used to finance existing Indebtedness and for general corporate purposes of the Borrower; and

 

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

 

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

 

1.                                        CERTAIN DEFINITIONS

 

1.1                                  Certain Definitions.

 

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

 

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

 

Affiliate as to any Person means any other Person which directly or indirectly controls, is controlled by, or is under common control with such Person.  Control , as used in this definition, means the possession, directly or indirectly, of the power to:  (i) direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, including the power to elect a majority of the directors or trustees of a corporation or trust, as the case may be, or (ii) vote 15% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person.  Notwithstanding the foregoing:  (i) the Borrower and its Subsidiaries shall not be Affiliates of each other, (ii) neither the Borrower nor any of its Subsidiaries shall be

 

 

an Affiliate of the Agent or any Lender, and (iii) so long as the Borrower and its Subsidiaries own in the aggregate less than 23% of the voting capital stock of BioImaging Technologies, Inc. (“ BTI ”), BTI shall not be an Affiliate of the Borrower or any Subsidiary of the Borrower.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Applicable Margin means, as applicable:

 

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

 

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

 

2

 

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

 

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

 

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

 

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

 

Base Rate means the greatest, from time to time, of (i) the interest rate per annum announced from time to time by the Agent at its Principal Office as its then prime rate, which rate may not be the lowest rate then being charged commercial borrowers by the Agent, (ii) the Federal Funds Open Rate plus ½% per annum, or (iii) the Daily Euro-Rate plus 1%. Any change in the Base Rate (or any component thereof) shall take effect at the opening of business on the day such change occurs.

 

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

 

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

 

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

 

3

 

of any of the Loan Parties is an investment, distribution, benefit or award option or plan feature for any individual, including, but not limited to, any benefit plan similar to a plan described in (i) through (vii) above, or any trust created under any benefit plan described in this clause (ix).

 

Blocked Person has the meaning assigned to such term in Section 6.1.24.5 [Execution Order No. 13224].

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

4

 

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

 

Closing Date means the Business Day on which the first Loan shall be made, which shall be June 16, 2009.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

5

 

consolidated basis, an amount equal to (i) Consolidated EBIT minus an amount which, in the determination of Consolidated Net Income for such period, has been included for all non-cash credits for such period, plus (ii) an amount which, in the determination of Consolidated Net Income for such period, has been deducted for all depreciation, amortization and other non-cash charges for such period, all as determined in accordance with GAAP.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Environmental Laws means all federal, territorial, tribal, state, local and foreign Laws (including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq., the Federal Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j, the Federal Air Pollution Control Act, 42 U.S.C. § 7401 et seq., the Oil Pollution Act, 33 U.S.C. § 2701 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 to 136y, Atomic Energy Act, 42 U.S.C. § 2011 et seq., the Energy Reorganization Act of 1974 (88 Stat. 1244), the Nuclear Waste Policy Act 42 U.S.C. § 10101 et seq., the Low-Level Radioactive Waste Policy Amendments Act of 1985 (99 Stat. 1842)) each as

 

7

 

amended, and any regulations promulgated or any equivalent state or local Law, and any amendments thereto) and any consent decrees, settlement agreements, judgments, orders, directives, policies or programs issued by or entered into with an Official Body pertaining or relating to: (i) pollution or pollution control; (ii) protection of human health from exposure to Regulated Substances; (iii) protection of the environment and/or natural resources; (iv) the presence, use, management, generation, manufacture, processing, extraction, treatment, recycling, refining, reclamation, labeling, sale, transport, storage, collection, distribution, disposal or release or threat of release of Regulated Substances; (v) the presence of Contamination; and (vi) the protection of endangered or threatened species.

 

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

 

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

 

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

 

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

 

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

 

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reasonable method it deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error, plus

 

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

 

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

 

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

 

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

 

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

 

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

 

(ii)                                   with respect to Optional Currency Loans comprising any Borrowing Tranche to which the Euro-Rate Option applies for any Interest Period, the interest

 

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rate per annum determined by Agent by dividing (the resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (a) the rate of interest per annum determined by Agent in accordance with its usual procedures (which determination shall be conclusive absent manifest error) to be the rate of interest per annum for deposits in the relevant Optional Currency which appears on the relevant Bloomberg Page (or, if no such quotation is available on such Bloomberg Page, on the appropriate such other substitute Bloomberg Page that displays rates at which the relevant Optional Currency deposits are offered by leading banks in the London interbank deposit market) or the rate that is quoted by another source selected by the Agent which has been approved by the British Bankers’ Association as an authorized information vendor for the purposes of displaying such rates at which such Optional Currency deposits are offered by leading banks in the London interbank deposit market) at approximately 9:00 a.m., Pittsburgh time, two (2) Business Days prior to the first day of such Interest Period for delivery on the first day of such Interest Period for a period, and in an amount, comparable to such Interest Period and principal amount of such Borrowing Tranche (“ OC Rate ”) by (b) a number equal to 1.00 minus the Euro-Rate Reserve Percentage.  Such Euro-Rate may also be expressed by the following formula:

 

Euro-Rate	=	OC Rate
		1 - Euro-Rate Reserve Percentage

 

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

 

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

 

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

 

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

 

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

 

Excluded Taxes means, with respect to the Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (i) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (ii) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrower is located and (iii) in the case of a Foreign Lender, any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new lending office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 5.6.5 [Status of Lenders], except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 5.6.1 [Payment Free of Taxes].

 

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

 

Existing Letter of Credit means the letters of credit previously issued at the request of the Borrower by PNC Bank, which existing letters of credit are identified on Schedule 1.1(C)   attached hereto and made a part hereof.

 

Expiration Date means June 16, 2012.

 

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

 

Federal Funds Open Rate for any day means the rate per annum (based on a year of 360 days and actual days elapsed) which is the daily federal funds open rate as quoted by ICAP North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for that day opposite the caption “OPEN” (or on such other substitute Bloomberg Screen

 

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

 

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

 

Foreign Lender means any Lender that is organized under the Laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.  For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

 

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

 

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

 

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

 

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

 

Guarantor Joinder means a joinder by a Person as a Guarantor under this Agreement, the Guaranty Agreement and the other Loan Documents in the form of Exhibit 1.1(G)(1) .

 

Guaranty of any Person means any obligation of such Person guaranteeing or in effect guaranteeing any liability or obligation of any other Person in any manner, whether directly or indirectly, including any agreement to indemnify or hold harmless any other Person, any performance bond or other suretyship arrangement and any other form of

 

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assurance against loss, except endorsement of negotiable or other instruments for deposit or collection in the ordinary course of business.

 

Guaranty Agreement means the Guaranty and Suretyship Agreement in substantially the form of Exhibit 1.1(G)(2)   executed and delivered by each of the Guarantors to the Agent for the benefit of the Lenders.

 

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

 

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

 

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

 

Indemnified Taxes means Taxes other than Excluded Taxes.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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accordance with the past practice of the Loan Parties and such fair values shall be satisfactory to the Agent, in its reasonable discretion.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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the Borrower and Consolidated EBITDA shall be determined as of the end of each fiscal quarter of the Borrower for the four fiscal quarters then ended.

 

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

 

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

 

Loan Parties means the Borrower and the Guarantors.

 

Loan Request means a request for a Revolving Credit Loan or a request to select, convert to or renew a Base Rate Option or Euro-Rate Option with respect to an outstanding Revolving Credit Loan in accordance with Section 2.5 [Revolving Credit Loan Requests, Swing Loan Requests] and Section 4.1 [Interest Rate Options].

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Notices has the meaning assigned to that term in Section 11.6 [Notices; Lending Offices].

 

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

 

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

 

Optional Currency means any of the following currencies: British Pounds Sterling, Japanese Yen, Swiss Francs, the Euro and any other currency approved by Agent and all of the Lenders pursuant to Section 2.11.4 [Requests for Additional Optional Currencies].

 

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

 

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

 

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

 

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

 

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

 

Other Taxes means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

 

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

 

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

 

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

 

Permitted Investments means:

 

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

 

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

 

(iii)                                commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within six months of the date of acquisition,

 

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

 

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

 

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

 

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

 

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

 

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

 

Permitted Liens means:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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entity which was at such time a member of the ERISA Group for employees of any entity which was at such time a member of the ERISA Group.

 

Pledge Agreement means the Pledge Agreement in substantially the form of Exhibit 1.1(P)   executed and delivered by the Borrower to the Agent.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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Required Lenders means

 

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

 

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

 

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

 

Revolving Credit Commitment means, as to any Lender at any time, the amount initially set forth opposite its name on Schedule 1.1(B)   in the column labeled “Amount of Commitment for Revolving Credit Loans,” and thereafter on Schedule I to the most recent Assignment and Assumption Agreement, and Revolving Credit Commitments shall mean the aggregate Revolving Credit Commitments of all of the Lenders.

 

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

 

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

 

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

 

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

 

25

 

under any Safety Laws; or (iv) subpoena, request for information or other written notice or demand of any type issued by an Official Body pursuant to any Safety Laws.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Subsidiary Pledge Agreement means the Pledge Agreement in substantially the form of Exhibit 1.1(S)(1) executed and delivered by each Guarantor which owns Pledged Collateral, to the Agent.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

U.S. means the United States of America.

 

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

 

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

 

1.2                                 Construction.

 

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

 

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

 

1.2.3        Agent’s Discretion and Consent.

 

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

 

1.2.4        Documents Taken as a Whole.

 

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

 

1.2.5        Headings.

 

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

 

1.2.6        Implied References to this Agreement.

 

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

 

1.2.7        Persons.

 

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

 

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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.

 

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

 

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2.             REVOLVING CREDIT AND SWING LOAN FACILITIES

 

2.1                                 Revolving Credit Commitments.

 

2.1.1        Revolving Credit Loans.

 

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

 

2.2                                 Swing Loan Commitment.

 

2.2.1        Swing Loans.

 

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

 

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

 

Each Lender shall be obligated to participate in each request for Revolving Credit Loans pursuant to Section 2.5 [Revolving Credit Loan Requests; Swing Loan Requests] in accordance with its Ratable Share.  The aggregate Dollar Equivalent amount of each Lender’s Revolving Credit Loans outstanding hereunder to the Borrower at any time shall never exceed its Revolving Credit Commitment minus its Ratable Share of the Dollar Equivalent amount of Letters of Credit Outstanding, subject to Section 5.4.6 [Mandatory Prepayment Currency Fluctuations].  The obligations of each Lender hereunder are several and not joint.  The failure of any Lender to perform its obligations hereunder shall not affect the Obligations of the Borrower to any other party nor shall any other party be liable for the failure of such Lender to perform its

 

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obligations hereunder.  The Lenders shall have no obligation to make Revolving Credit Loans hereunder on or after the Expiration Date except in accordance with Section 2.10.3.3 in the case of any Letter of Credit drawn on or after the Expiration Date.

 

2.4                                 Commitment Fees.

 

Accruing from the date hereof until the Expiration Date, the Borrower agrees to pay to the Agent in Dollars for the account of each Lender, as consideration for such Lender’s Revolving Credit Commitment hereunder, a nonrefundable commitment fee (the “ Commitment Fee ”) equal to the Applicable Commitment Fee Rate (computed on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed) on the average daily difference between the amount of (i) such Lender’s Revolving Credit Commitment as the same may be constituted from time to time (for purposes of this computation, PNC Bank’s Swing Loans shall be deemed to be borrowed amounts under its Revolving Credit Commitment) and (ii) the sum of such Lender’s Revolving Credit Loans outstanding plus its Ratable Share of Letters of Credit Outstanding, provided , however , that any Commitment Fee accrued with respect to the Revolving Credit Commitment of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such Commitment Fee shall otherwise have been due and payable by the Borrower prior to such time; and provided further that no Commitment Fee shall accrue with respect to the Revolving Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.   For the purpose of calculating the Commitment Fee as set forth in this Section 2.4 , amounts of any Revolving Credit Loans outstanding and/or Letters of Credit Outstanding which are denominated in any Optional Currency shall be converted to the Dollar Equivalent.   Subject to the provisos in the directly preceding sentence all Commitment Fees shall be payable in arrears on the first day of each July, October, January and April after the date hereof and on the Expiration Date or upon acceleration of the Loans.

 

2.5                                 Revolving Credit Loan Requests; Swing Loan Requests.

 

2.5.1        Revolving Credit Loan Requests.

 

Except as otherwise provided herein, the Borrower may from time to time prior to the Expiration Date request the Lenders to make Revolving Credit Loans, or renew or convert the Interest Rate Option applicable to existing Revolving Credit Loans pursuant to Section 4.2 [Interest Periods], by delivering to the Agent, not later than 11:00 a.m., Pittsburgh time, (i) three (3) Business Days prior to the proposed Borrowing Date with respect to the making of Revolving Credit Loans in Dollars to which the Euro-Rate Option applies or the date of conversion to or the renewal of the Euro-Rate Option for any such Loans and four (4) Business Days prior to the proposed Borrowing Date with respect to the making of Revolving Credit Loans in an Optional Currency or the date of conversion to or renewal of the Euro Rate Option for Revolving Credit Loans in an Optional Currency; and (ii) one (1) Business Day prior to either the proposed Borrowing Date with respect to the making of a Revolving Credit Loan to which the Base Rate Option applies or the last day of the preceding Interest Period with respect to the conversion to the Base Rate Option for any Loan, of a duly completed Loan Request therefore

 

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substantially in the form of Exhibit 2.5.1 .  Each Loan Request shall be irrevocable and shall specify (a) the proposed Borrowing Date; (b) the aggregate amount of the proposed Loans (expressed in the currency in which such Loans shall be funded if such Loans shall be funded in an Optional Currency) comprising each Borrowing Tranche, the Dollar Equivalent amount of which shall be in integral multiples of $1,000,000.00 and not less than $5,000,000.00 for each Borrowing Tranche to which the Euro-Rate Option applies and in integral multiples of $100,000.00 and not less than the lesser of $500,000.00 or the maximum amount available for Borrowing Tranches to which the Base Rate Option applies; (c) whether the Euro-Rate Option or Base Rate Option shall apply to the proposed Loans comprising the applicable Borrowing Tranche; (d) the currency in which such Loans shall be funded if the Borrower is electing the Euro Rate Option; and (e) in the case of a Borrowing Tranche to which the Euro-Rate Option applies, an appropriate Interest Period for the Loans comprising such Borrowing Tranche.

 

2.5.2        Swing Loan Requests.

 

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

 

2.6                                 Making Revolving Credit Loans and Swing Loans.

 

2.6.1        Making Revolving Credit Loans.

 

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

 

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2.6.2                         Making Swing Loans.

 

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

 

2.7                                 Swing Loan Note.

 

The obligation of the Borrower to repay the unpaid principal amount of the Swing Loans made to it by PNC Bank together with interest thereon shall be evidenced by a demand promissory note of the Borrower dated the Closing Date in substantially the form attached hereto as Exhibit 1.1(S)(2)   payable to the order of PNC Bank in a face amount equal to the Swing Loan Commitment.

 

2.8                                 Use of Proceeds.

 

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

 

2.9                                 Borrowings to Repay Swing Loans.

 

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

 

2.10                           Letter of Credit Subfacility.

 

2.10.1                   Issuance of Letters of Credit.

 

The Borrower may request the issuance of a letter of credit (each a “ Letter of Credit ”) on behalf of itself or another Loan Party by delivering or having such other Loan Party deliver to the Agent a completed application and agreement for letters of credit in

 

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such form as the Agent may specify from time to time by no later than 11:00 a.m., Pittsburgh time, at least three (3) Business Days, or such shorter period as may be agreed to by the Agent, in advance of the proposed date of issuance.  Each Letter of Credit shall be a Standby Letter of Credit (and may not be a Commercial Letter of Credit) and may be denominated in either Dollars or an Optional Currency. Subject to the terms and conditions hereof and in reliance on the agreements of the other Lenders set forth in this Section 2.10 , the Agent or any of the Agent’s Affiliates will issue a Letter of Credit provided that each Letter of Credit shall (i) have a maximum maturity of twelve (12) months from the date of issuance, (ii) in no event expire later than one hundred eighty (180) days after the Expiration Date, and (iii) in no event be amended to increase the amount thereof following the issuance thereof unless the conditions set forth in Section 7.2 [Each Additional Loan or Letter of Credit] have been satisfied as of the date of such amendment (treating such date the same as the date of issuance of a Letter of Credit) and provided further that in no event shall (a) the Dollar Equivalent amount of Letters of Credit Outstanding exceed, at any one time, $20,000,000.00 or (b) the Dollar Equivalent Revolving Facility Usage exceed, at any one time, the Revolving Credit Commitments. It is expressly agreed that the Existing Letters of Credit shall be deemed to be a Letter of Credit for all purposes of this Agreement and each other Loan Document. Notwithstanding any other provision hereof, the Agent shall not be required to issue any Letter of Credit, if any Lender is at such time a Defaulting Lender hereunder, unless the Agent has entered into arrangements satisfactory to the Agent with the Borrower or such Defaulting Lender to eliminate the Agent’s risk with respect to such Defaulting Lender.

 

2.10.2                   Letter of Credit Fees.

 

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

 

2.10.3                   Disbursements, Reimbursement.

 

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

 

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2.10.3.2                                              In the event of any request for a drawing under a Letter of Credit by the beneficiary or transferee thereof, the Agent will promptly notify the Borrower.  Provided that it shall have received such notice, the Borrower shall reimburse (such obligation to reimburse the Agent shall sometimes be referred to as a “ Reimbursement Obligation ”) the Agent in Dollars prior to 12:00 noon, Pittsburgh time on each date that an amount is paid by the Agent under any Letter of Credit (each such date, an “ Drawing Date ”) in an amount equal to the Dollar Equivalent amount so paid by the Agent.  In the event the Borrower fails to reimburse the Agent for the full Dollar Equivalent amount of any drawing under any Letter of Credit by 12:00 noon, Pittsburgh time, on the Drawing Date, the Agent will promptly notify each Lender thereof, and the Borrower shall be deemed to have requested that Revolving Credit Loans be made by the Lenders in Dollars under the Base Rate Option to be disbursed on the Drawing Date under such Letter of Credit, subject to the amount of the unutilized portion of the Revolving Credit Commitment and subject to the conditions set forth in Section 7.2 [Each Additional Loan] other than any notice requirements.  Any notice given by the Agent pursuant to this Section 2.10.3.2 may be oral if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

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

 

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

 

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interest) and shall bear interest at the rate per annum applicable to the Revolving Credit Loans under the Base Rate Option.  Each Lender’s payment to the Agent pursuant to Section 2.10.3.3 shall be deemed to be a payment in respect of its participation in such Letter of Credit Borrowing and shall constitute a “ Participation Advance ” from such Lender in satisfaction of its participation obligation under this Section 2.10.3 .

 

2.10.4                   Repayment of Participation Advances.

 

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

 

2.10.4.6                                              If the Agent is required at any time to return to any Loan Party, or to a trustee, receiver, liquidator, custodian, or any official in any Insolvency Proceeding or otherwise, any portion of the payments made by any Loan Party to the Agent pursuant to Section 2.10.4.5 in reimbursement of a payment made under the Letter of Credit or interest or fee thereon, each Lender shall, on demand of the Agent, forthwith return to the Agent the amount of its Ratable Share of any amounts so returned by the Agent plus interest thereon from the date such demand is made to the date such amounts are returned by such Lender to the Agent, at a rate per annum equal to the Federal Funds Effective Rate in effect from time to time.

 

2.10.5                   Documentation.

 

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

 

2.10.6                   Determinations to Honor Drawing Requests.

 

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

 

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2.10.7                   Nature of Participation and Reimbursement Obligations.

 

Each Lender’s obligation in accordance with this Agreement to make the Revolving Credit Loans or Participation Advances, as contemplated by Section 2.10.3 [Disbursements, Reimbursements], as a result of a drawing under a Letter of Credit, and the Obligations of the Borrower to reimburse the Agent upon a draw under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Section 2.10 under all circumstances, including the following circumstances:

 

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