EX-10.1 2 glt-ex101_46.htm EX-10.1 THIRD AMENDED AND RESTATED CREDIT AGREEMENT, DATED FEB. 8, 2019 glt-ex101_46.htm

Exhibit 10.1

CUSTOMER CUSIP NO. 69338BAA1
REVOLVER FACILITY CUSIP NO. 69338BAB9
TERM LOAN CUSIP NO. 6933BAC7 – ISIN – US69338BAC72

$400,000,000.00 REVOLVING CREDIT FACILITY
€220,000,000.00 TERM LOAN

THIRD AMENDED AND RESTATED CREDIT AGREEMENT

by and among

P. H. GLATFELTER COMPANY

and

Certain of its Subsidiaries, as Borrowers

and

THE GUARANTORS PARTY HERETO,

and

THE LENDERS PARTY HERETO, as Lenders

and

PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent

with

PNC CAPITAL MARKETS LLC, JPMORGAN CHASE BANK, N.A. and
HSBC SECURITIES (USA) INC., as Joint Lead Arrangers and Joint Bookrunners,

and

JPMORGAN CHASE BANK, N.A. and HSBC BANK USA, N.A.,
as Co-Syndication Agents,

and

COBANK, ACB, BANK OF AMERICA, N.A., MANUFACTURERS AND TRADERS TRUST COMPANY and CITIZENS BANK, N.A., as Co-Documentation Agents


Dated as of February 8, 2019

 


TABLE OF CONTENTS

PAGE

1.CERTAIN DEFINITIONS1

 

1.1

Certain Definitions.1

 

1.2

Construction.37

 

1.2.1

Number; Inclusion.37

 

1.2.2

Determination.37

 

1.2.3

Administrative Agent's Discretion and Consent.37

 

1.2.4

Documents Taken as a Whole.37

 

1.2.5

Headings.37

 

1.2.6

Implied References to this Agreement.37

 

1.2.7

Persons.37

 

1.2.8

Modifications to Documents.38

 

1.2.9

From, To and Through.38

 

1.2.10

Shall; Will.38

 

1.2.11

Québec Matters.38

 

1.3

Accounting Principles.39

 

1.4

Currency Calculations39

 

1.5

Divisions.40

2.REVOLVING CREDIT, SWING LOAN AND TERM LOAN FACILITIES40

 

2.1

Revolving Credit Commitments.40

 

2.1.1

Revolving Credit Loans.40

 

2.1.2

Swing Loan Commitment.42

 

2.2

Nature of Lenders' Obligations with Respect to Revolving Credit Loans.43

 

2.3

Commitment Fees.43

 

2.4

Loan Requests.43

 

2.4.1

Revolving Credit Loan Requests; Term Loan Requests.43

 

2.4.2

Swing Loan Requests.44

 

2.5

Making Revolving Credit Loans, Term Loans and Swing Loans; Presumptions by the Administrative Agent; Repayment of Revolving Credit Loans; Borrowings to Repay Swing Loans.45

 

2.5.1

Making Revolving Credit Loans and Term Loans.45

 

2.5.2

Making Swing Loans.45

 

2.5.3

Presumptions by the Administrative Agent.45

 

2.5.4

Repayment of Revolving Credit Loans.46

 

2.5.5

Borrowings to Repay Swing Loans.46

 

2.5.6

Swing Loans Under Cash Management Agreements.46

 

2.6

Revolving Credit Notes and Swing Loan Note.47

 

2.7

Utilization of Commitments in Optional Currencies.47

 

2.7.1

Periodic Computations of Dollar Equivalent Amounts of Revolving Credit Loans and Letter of Credit Obligations.47

 

2.7.2

Notices From Lenders That Optional Currencies Are Unavailable to Fund New Revolving Credit Loans.48

(i)


 

2.7.3

Notices From Lenders That Optional Currencies Are Unavailable to Fund Renewals of the Euro-Rate Option.48

 

2.7.4

European Monetary Union.48

 

2.7.5

Requests for Additional Optional Currencies.49

 

2.8

Use of Proceeds.49

 

2.9

Letter of Credit Subfacility.50

 

2.9.1

Issuance of Letters of Credit.50

 

2.9.2

Letter of Credit Fees.51

 

2.9.3

Disbursements, Reimbursement.51

 

2.9.4

Repayment of Participation Advances.52

 

2.9.5

Documentation.53

 

2.9.6

Determinations to Honor Drawing Requests.53

 

2.9.7

Nature of Participation and Reimbursement Obligations.53

 

2.9.8

Indemnity.55

 

2.9.9

Liability for Acts and Omissions.55

 

2.9.10

Issuing Lender Reporting Requirements.57

 

2.10

Currency Repayments.57

 

2.11

Optional Currency Amounts.57

 

2.12

Reduction of Commitment.58

 

2.13

Defaulting Lenders.58

 

2.14

Term Loan Commitment.60

 

2.15

Nature of Lender's Obligations with Respect to Term Loans; Term Loan Repayment Terms.60

 

2.16

Term Loan Commitment Fees.61

 

2.17

Term Loan Note.61

3.INTEREST RATES61

 

3.1

Interest Rate Options.61

 

3.1.1

Revolving Credit Interest Rate Options.62

 

3.1.2

Term Loan Interest Rate.62

 

3.1.3

Rate Quotations.62

 

3.2

Interest Periods.63

 

3.2.1

Amount of Borrowing Tranche.63

 

3.2.2

Renewals.63

 

3.2.3

No Conversion of Optional Currency Loans.63

 

3.3

Interest After Default.63

 

3.3.1

Letter of Credit Fees, Interest Rate.63

 

3.3.2

Other Obligations.64

 

3.3.3

Acknowledgment.64

 

3.4

Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available.64

 

3.4.1

Unascertainable.64

 

3.4.2

Illegality; Increased Costs; Deposits Not Available.64

 

3.4.3

Optional Currency Not Available.65

 

3.4.4

Administrative Agent's and Lender's Rights.65

 

3.5

Successor Euro-Rate Index.66

 

3.6

Selection of Interest Rate Options.68

 

3.7

Canadian Interest Act Disclosure.68

(ii)


 

3.8

Canadian Usury Provision.68

4.PAYMENTS68

 

4.1

Payments.68

 

4.2

Pro Rata Treatment of Lenders.69

 

4.3

Interest Payment Dates.69

 

4.4

Voluntary Prepayments; Replacement of Lender; Change of Lending Office.70

 

4.4.1

Right to Prepay.70

 

4.4.2

Mitigation Obligations; Replacement of a Lender.71

 

4.4.3

Change of Lending Office.72

 

4.5

Mandatory Prepayments.73

 

4.5.1

Currency Fluctuations.73

 

4.5.2

Sale of Assets.73

 

4.5.3

Issuance of Indebtedness.73

 

4.5.4

Recovery Event.73

 

4.5.5

Application of Prepayments.74

 

4.5.6

Repatriation.74

 

4.6

Increased Costs.74

 

4.6.1

Increased Costs Generally.74

 

4.6.2

Capital Requirements.75

 

4.6.3

Certificates for Reimbursement; Repayment of Outstanding Loans; Borrowing of New Loans.76

 

4.6.4

Delay in Requests.76

 

4.6.5

Additional Reserve Requirements.76

 

4.7

Taxes.77

 

4.7.1

No Deductions.77

 

4.7.2

Stamp Taxes.78

 

4.7.3

Indemnification for Taxes.78

 

4.7.4

Certificate.79

 

4.7.5

Exclusions, etc.79

 

4.7.6

Change of Lending Office, etc.80

 

4.7.7

Status of Lenders.80

 

4.7.8

Treatment of Certain Refunds.83

 

4.7.9

Survival.84

 

4.7.10

Issuing Lender.84

 

4.8

Indemnity.84

 

4.9

Interbank Market Presumption.85

 

4.10

Judgment Currency.85

 

4.10.1

Currency Conversion Procedures for Judgments.85

 

4.10.2

Indemnity in Certain Events.85

 

4.11

Requests for Notes.86

 

4.12

Settlement Date Procedures.86

 

4.13

Borrowers' Agent.86

5.REPRESENTATIONS AND WARRANTIES87

 

5.1

Representations and Warranties.87

 

5.1.1

Organization and Qualification.87

 

5.1.2

Subsidiaries; Certificates of Beneficial Ownership.87

(iii)


 

5.1.3

Power and Authority.88

 

5.1.4

Validity and Binding Effect.88

 

5.1.5

No Conflict.88

 

5.1.6

Litigation.88

 

5.1.7

Title to Properties.89

 

5.1.8

Financial Statements.89

 

5.1.9

Use of Proceeds; Margin Stock.89

 

5.1.10

Full Disclosure.90

 

5.1.11

Taxes.90

 

5.1.12

Consents and Approvals.90

 

5.1.13

No Event of Default; Compliance with Instruments.90

 

5.1.14

Patents, Trademarks, Copyrights, Licenses, Etc.91

 

5.1.15

Insurance.91

 

5.1.16

Compliance with Laws.91

 

5.1.17

Material Contracts; Burdensome Restrictions.91

 

5.1.18

Investment Companies; Regulated Entities.91

 

5.1.19

Plans and Benefit Arrangements.91

 

5.1.20

Employment Matters.92

 

5.1.21

Environmental Matters.93

 

5.1.22

Senior Debt Status.94

 

5.1.23

Anti-Terrorism Laws; EEA Financial Institutions.94

 

5.2

Continuation of Representations.94

 

5.3

Updates to Schedules.94

6.CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT95

 

6.1

First Loans and Letters of Credit.95

 

6.1.1

Officer's Certificate.95

 

6.1.2

Secretary's Certificate.95

 

6.1.3

Delivery of Loan Documents.96

 

6.1.4

Opinions of Counsel.96

 

6.1.5

Legal Details.96

 

6.1.6

Payment of Fees.96

 

6.1.7

Consents.96

 

6.1.8

Certificates of Beneficial Ownership; KYC; AML; Etc.97

 

6.1.9

No Violation of Laws.97

 

6.1.10

No Actions or Proceedings; No Material Litigation.97

 

6.1.11

Reserved.97

 

6.1.12

Compliance Certificate.97

 

6.1.13

Reserved.97

 

6.1.14

Financial Projections.97

 

6.1.15

Regulatory Approvals and Licenses.97

 

6.1.16

Lien Searches.97

 

6.1.17

Other Requirements.98

 

6.2

Each Additional Loan or Letter of Credit.98

 

6.3

Loans to Fund Permitted Acquisitions.98

7.COVENANTS98

 

7.1

Affirmative Covenants.98

(iv)


 

7.1.1

Preservation of Existence, Etc.99

 

7.1.2

Payment of Liabilities, Including Taxes, Etc.99

 

7.1.3

Maintenance of Insurance.99

 

7.1.4

Maintenance of Properties and Leases.99

 

7.1.5

Maintenance of Patents, Trademarks, Etc.99

 

7.1.6

Visitation Rights.100

 

7.1.7

Keeping of Records and Books of Account.100

 

7.1.8

Certificates of Beneficial Ownership and Other Additional Information.100

 

7.1.9

Compliance with Laws.100

 

7.1.10

Joinder of Guarantors and Borrowers.101

 

7.1.11

Anti-Terrorism Laws; International Trade Law Compliance.102

 

7.1.12

German, Luxembourg, English Borrowers and Irish Borrowers.102

 

7.1.13

Keepwell.104

 

7.1.14

Redemption/Cancellation of the 2012 Senior Notes.105

 

7.2

Negative Covenants.105

 

7.2.1

Indebtedness.105

 

7.2.2

Liens.107

 

7.2.3

Reserved.107

 

7.2.4

Loans and Investments.107

 

7.2.5

Dividends and Related Distributions.108

 

7.2.6

Liquidations, Mergers, Consolidations, Acquisitions.109

 

7.2.7

Dispositions of Assets or Subsidiaries.111

 

7.2.8

Affiliate Transactions.112

 

7.2.9

Subsidiaries.113

 

7.2.10

Continuation of or Change in Business.113

 

7.2.11

Plans and Benefit Arrangements.113

 

7.2.12

Fiscal Year.113

 

7.2.13

Issuance of Stock.113

 

7.2.14

Changes in Organizational Documents.113

 

7.2.15

Maximum Leverage Ratio.114

 

7.2.16

Minimum Interest Coverage Ratio.114

 

7.2.17

Reserved.114

 

7.2.18

Receivables Entities.114

 

7.3

Reporting Requirements.115

 

7.3.1

Quarterly Financial Statements.115

 

7.3.2

Annual Financial Statements.115

 

7.3.3

Certificate of the Company.116

 

7.3.4

Notice of Default.116

 

7.3.5

Notice of Litigation.116

 

7.3.6

Notice of Change in Debt Rating.116

 

7.3.7

Certain Events.117

 

7.3.8

Budgets, Forecasts, Other Reports and Information.117

 

7.3.9

Notices Regarding Plans and Benefit Arrangements.118

 

7.3.10

Schedule of Loans and Investments.119

8.DEFAULT119

 

8.1

Events of Default.119

(v)


 

8.1.1

Payments Under Loan Documents.119

 

8.1.2

Breach of Warranty.119

 

8.1.3

Reserved.119

 

8.1.4

Breach of Negative Covenants and Certain Affirmative Covenants.119

 

8.1.5

Breach of Other Covenants.119

 

8.1.6

Defaults in Other Agreements or Indebtedness.120

 

8.1.7

Final Judgments or Orders.120

 

8.1.8

Loan Document Unenforceable.120

 

8.1.9

Proceedings Against Assets.120

 

8.1.10

Notice of Lien or Assessment.120

 

8.1.11

Inability to Pay.120

 

8.1.12

Events Relating to Plans and Benefit Arrangements.121

 

8.1.13

Cessation of Business.121

 

8.1.14

Change of Control.121

 

8.1.15

Involuntary Proceedings.121

 

8.1.16

Voluntary Proceedings.121

 

8.2

Consequences of Event of Default.122

 

8.2.1

Events of Default Other Than Bankruptcy, Insolvency or Reorganization Proceedings.122

 

8.2.2

Bankruptcy, Insolvency or Reorganization Proceedings.122

 

8.2.3

Set-off.123

 

8.2.4

Suits, Actions, Proceedings.123

 

8.2.5

Application of Proceeds.123

 

8.2.6

Enforcement of Remedies.124

9.THE ADMINISTRATIVE AGENT125

 

9.1

Appointment and Authority.125

 

9.2

Rights as a Lender.125

 

9.3

Delegation of Duties.125

 

9.4

Non-Reliance on Administrative Agent and Other Lenders.126

 

9.5

No Other Duties, etc.126

 

9.6

Exculpatory Provisions.126

 

9.7

Reliance by Administrative Agent.127

 

9.8

Calculations.127

 

9.9

Sharing of Payments.128

 

9.10

Successor Administrative Agent.128

 

9.11

Administrative Agent's Fee.129

 

9.12

No Reliance on Administrative Agent's Customer Identification Program.129

10.MISCELLANEOUS130

 

10.1

Modifications, Amendments or Waivers.130

 

10.1.1

Increase of Commitment.130

 

10.1.2

Extension of Payment; Reduction of Principal Interest or Fees.130

 

10.1.3

Release a Guarantor or Pledged Loans.130

 

10.1.4

Miscellaneous.131

 

10.2

No Implied Waivers; Cumulative Remedies; Writing Required.131

 

10.3

Expenses; Indemnity; Damage Waiver.132

 

10.3.1

Costs and Expenses of the Administrative Agent.132

(vi)


 

10.3.2

Indemnification of the Administrative Agent by the Borrowers.132

 

10.3.3

Reimbursement and Indemnification of Lenders by the Borrowers.133

 

10.3.4

Reimbursement by Lenders.134

 

10.3.5

Waiver of Consequential Damages, Etc.134

 

10.3.6

Payments.134

 

10.4

Holidays.135

 

10.5

Funding by Branch, Subsidiary or Affiliate.135

 

10.5.1

Notional Funding.135

 

10.5.2

Actual Funding.135

 

10.6

Notices; Lending Offices.136

 

10.7

Severability.136

 

10.8

Governing Law.137

 

10.9

Prior Understanding.137

 

10.10

Duration; Survival.137

 

10.11

Successors and Assigns.137

 

10.11.1

Successors and Assigns Generally.137

 

10.11.2

Assignments by Lenders.138

 

10.11.3

Register.139

 

10.11.4

Participations.140

 

10.11.5

Certain Pledges; Successors and Assigns Generally.141

 

10.12

Confidentiality.141

 

10.12.1

General.141

 

10.12.2

Sharing Information With Affiliates of the Lenders.142

 

10.13

Counterparts; Integration; Effectiveness.143

 

10.14

Administrative Agent's or Lender's Consent.143

 

10.15

Exceptions.143

 

10.16

CONSENT TO FORUM; WAIVER OF JURY TRIAL.143

 

10.17

USA Patriot Act.144

 

10.18

Nature of Foreign Borrower Obligations.145

 

10.19

Pledge of Foreign Loan Party Loans.145

 

10.20

Acknowledgment and Consent to Bail-In of EEA Financial Institutions.146

 

10.21

Certain ERISA Matters.147

 

10.22

No Advisory or Fiduciary Responsibility.148

 

 

 

(vii)


LIST OF SCHEDULES AND EXHIBITS

SCHEDULES

SCHEDULE 1.1(A)

-PRICING GRID

SCHEDULE 1.1(B)

-COMMITMENTS OF LENDERS AND
ADDRESSES FOR NOTICES

SCHEDULE 1.1(E)

-EXISTING LETTERS OF CREDIT

SCHEDULE 1.1(M)

-MATERIAL SUBSIDIARIES

SCHEDULE 1.1(P)

-PERMITTED LIENS

SCHEDULE 5.1.1

-DOMESTIC QUALIFICATIONS TO DO BUSINESS

SCHEDULE 5.1.2

-SUBSIDIARIES

SCHEDULE 5.1.6

-LITIGATION

SCHEDULE 5.1.12

-CONSENTS AND APPROVALS

SCHEDULE 5.1.14

-PATENTS, TRADEMARKS, COPYRIGHTS, LICENSES, ETC.

SCHEDULE 7.2.1

-PERMITTED INDEBTEDNESS

SCHEDULE 7.2.4

-EXISTING INVESTMENTS (NON-SUBSIDIARY INVESTMENTS)

SCHEDULE 10.11.4

-VOTING PARTICIPANTS

EXHIBITS

EXHIBIT 1.1(A)

-ASSIGNMENT AND ASSUMPTION AGREEMENT

EXHIBIT 1.1(B)

-BORROWER JOINDER

EXHIBIT 1.1(C)

-QUALIFYING LENDER CONFIRMATIONS

EXHIBIT 1.1(G)(1)

-GUARANTOR JOINDER

EXHIBIT 1.1(G)(2)

-GUARANTY AGREEMENT

EXHIBIT 1.1(R)

-REVOLVING CREDIT NOTE

EXHIBIT 1.1(S)

-SWING LOAN NOTE

EXHIBIT 1.1(T)

-TERM LOAN NOTE

EXHIBIT 2.4

-LOAN REQUEST

EXHIBIT 4.7.7

-U.S. TAX COMPLIANCE CERTIFICATES (A-D)

EXHIBIT 7.2.6

-ACQUISITION COMPLIANCE CERTIFICATE

EXHIBIT 7.3.3

-QUARTERLY COMPLIANCE CERTIFICATE

 

 

(viii)


THIRD AMENDED AND RESTATED CREDIT AGREEMENT

THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT is dated as of February 8, 2019, and is made by and among P. H. GLATFELTER COMPANY, a Pennsylvania corporation (the "Company") AND CERTAIN OF ITS SUBSIDIARIES IDENTIFIED ON THE SIGNATURE PAGES HERETO (each a "Borrower" and collectively, the "Borrowers"), each of the GUARANTORS (as hereinafter defined), the LENDERS (as hereinafter defined), PNC BANK, NATIONAL ASSOCIATION, in its capacity as administrative agent for the Lenders under this Agreement (hereinafter referred to in such capacity as the "Administrative Agent"), and, for the limited purpose of public identification in trade tables, PNC CAPITAL MARKETS LLC, JPMORGAN CHASE BANK, N.A. and HSBC SECURITIES (USA) INC., as joint lead arrangers, JPMORGAN CHASE BANK, N.A. and HSBC BANK USA, N.A., as co-syndication agents, and COBANK, ACB, BANK OF AMERICA, N.A., MANUFACTURERS AND TRADERS TRUST COMPANY and CITIZENS BANK, N.A., as co-documentation agents.

WITNESSETH:

WHEREAS, the Borrowers have requested the Lenders to provide (i) a revolving credit facility to the Borrowers available in Dollars or Optional Currencies in an aggregate principal Dollar Equivalent amount not to exceed $400,000,000.00 and (ii) a €220,000,000.00 term loan facility; and

WHEREAS, proceeds of the credit facilities shall be used to (1) refinance existing Indebtedness incurred under the Prior Senior Credit Facility (as hereinafter defined) and the 2012 Senior Notes (as hereinafter defined), and (2) fund ongoing working capital, capital expenditures and general corporate purposes, including Permitted Acquisitions (as hereinafter defined); 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:

2012 Senior Notes shall mean the Company's 5.375% senior notes, issued in 2012 and due October 15, 2020, in the aggregate principal amount of $250,000,000.00, guaranteed by certain of the Loan Parties.

Accounts Receivable Facility Documents shall mean all documentation entered into by the Company and its Subsidiaries, including, without limitation, the Receivables Entity, in

 


connection with the sale or other transfer of accounts receivable and other related assets pursuant to a Permitted Accounts Receivable Program, as such documentation may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof and thereof.

Additional Indebtedness shall mean unsecured Indebtedness, the incurrence of which would not render the representation made in Section 5.1.22 untrue, which has a maturity not less than six (6) months after the Expiration Date.

Administrative Agent shall mean PNC Bank, National Association, and its successors and assigns, in its capacity as administrative agent hereunder.

Administrative Agent's Fee shall have the meaning assigned to that term in Section 9.11.

Administrative Agent's Letter shall have the meaning assigned to that term in Section 9.11.

Affiliate as to any Person shall mean any other Person which, directly or indirectly controls, is controlled by, or is under common control with such Person.  For purposes of this definition, "control" (including, with correlative meanings, the term "controlled by" and "under common control with") shall mean the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of directors of such Person or (b) direct or cause the direction of the management and policies of such Person whether through the ownership of voting securities or by contract or otherwise, including the power to elect a majority of the directors of a corporation.

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

Anti-Terrorism Laws shall mean any applicable Laws relating to terrorism financing, trade sanctions programs and embargoes, import/export licensing, money laundering or bribery (including, without limitation, the United Kingdom Bribery Act 2010, the US Foreign Corrupt Practices Act of 1977 and Canadian Anti-Money Laundering & Anti-Terrorism Laws), and any regulation, order, or directive promulgated, issued or enforced by any Official Body having jurisdiction over the Borrower or any other Covered Entity or to which the Borrower or any other Covered Entity is subject, including, without limitation, any published economic or financial sanctions or trade embargoes administered, implemented or enforced by the US Department of the Treasury's Office of Foreign Assets Control, the US Department of State, the United Nations Security Council, the European Union, any European Union member state, Her Majesty's Treasury, the Hong Kong Monetary Authority or other relevant applicable sanctions authority, all as amended, supplemented or replaced from time to time.

Applicable Commitment Fee Rate shall mean the percentage rate per annum at the indicated level of Debt Rating or Leverage Ratio, as applicable, in the pricing grid on Schedule 1.1(A) next to the line titled "Commitment Fee."  The Applicable Commitment Fee Rate shall be computed in accordance with the parameters set forth on Schedule 1.1(A).

2


Applicable Margin shall mean the percentage spread to be added to (i) the Euro-Rate under the Euro-Rate Option or to the Base Rate under the Base Rate Option with respect to Revolving Credit Loans and (ii) to the Euro-Rate (or the Foreign Base Rate, if applicable) with respect to the Term Loans at the indicated level of Debt Rating or Leverage Ratio, as applicable, in the pricing grid on Schedule 1.1(A) next to the line titled "Euro-Rate Spread", "Base Rate Spread" or "Term Loan Spread."  The Applicable Margin shall be computed in accordance with the parameters set forth on Schedule 1.1(A).

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

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

Availability shall have the meaning assigned to that term in Section 7.2.7(v).

Bail-In Action shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation shall mean, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

Base Rate shall mean, for any day, a fluctuating per annum rate of interest equal to the highest of (i) the Overnight Bank Funding Rate, plus 0.5%, (ii) the Prime Rate, and (iii) the Daily Euro-Rate, plus 100 basis points (1.0%).  Any change in the Base Rate (or any component thereof) shall take effect at the opening of business on the day such change occurs.

Base Rate Option shall mean the option of the Borrowers to have Revolving Credit Loans which are denominated in Dollars bear interest at the rate and under the terms and conditions set forth in Section 3.1.1(i).

Beneficial Owner shall mean each of the following:  (a) each individual, if any, who, directly or indirectly, owns 25% or more of a Foreign Loan Party's equity ownership interests; and (b) a single individual with significant responsibility to control, manage, or direct a Foreign Loan Party.

Beneficial Ownership Regulation shall mean 31 C.F.R. § 1010.230.

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

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Benefit Plan shall mean any of (a) an "employee benefit plan" (as defined in ERISA) that is subject to Title I of ERISA, (b) a "plan" as defined in and subject to Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such "employee benefit plan" or "plan".

Borrower or Borrowers shall have the meaning given to such terms in the introductory paragraph hereto and shall include any Person required to join this Agreement pursuant to Section 7.2.9 or which elects to join this agreement as a Borrower and, in each case, executes a Borrower Joinder.

Borrower Agent shall have the meaning assigned to this term in Section 4.13.

Borrower Joinder shall mean a joinder by a Person as a Borrower under this Agreement and the other Loan Documents in substantially the form of Exhibit 1.1(B).

Borrowing Date shall mean, (i) with respect to any Revolving Credit 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, and (ii) with respect to the Term Loans, the date for the making thereof or the renewal of an Interest Period with respect thereto, which shall be a Business Day.

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

British Pound Sterling shall mean the lawful currency of the United Kingdom.

Business Day shall mean any day other than a Saturday or Sunday or a legal holiday on which commercial banks are authorized or required to be closed for business in Pittsburgh, Pennsylvania and (i) if the applicable Business Day relates to any Revolving Credit Loan to which the Euro-Rate Option applies or to any Term Loan, such day must also be a day on which dealings are carried on in the Relevant Interbank Market, (ii) with respect to advances or payments of Revolving Credit Loans or any other matters relating to Revolving Credit 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 Relevant Interbank Market, and (iii) in relation to any payment or other obligations of any Foreign Loan Parties, such day must also be a day on which banks in the jurisdiction of such Foreign Loan Party are open for business.

Canadian Anti-Money Laundering & Anti-Terrorism Laws shall mean the Criminal Code, R.S.C. 1985, c. C 46, The Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, the United Nations Act, R.S.C. 1985, c. U-2, the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34 or any similar Canadian legislation, together with all rules, regulations and interpretations thereunder or related thereto.

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Canadian Borrower shall mean each Borrower incorporated or otherwise organized under the Laws of Canada or any province or territory thereof.

Canadian Dollar shall mean the lawful currency of Canada.

Cash Management Agreements shall have the meaning assigned to that term in Section 2.5.6.

CDOR Rate shall have the meaning assigned to such term in the definition of Euro-Rate.

CEA shall mean the Commodity Exchange Act (7 U.S.C.§1 et seq.), as amended from time to time, and any successor statute.

Certificate of Beneficial Ownership shall mean a certificate regarding beneficial ownership required by the Beneficial Ownership Regulation with respect to the Beneficial Owners of the Foreign Loan Parties which shall be in form and substance acceptable to the Administrative Agent (as amended or modified by Administrative Agent from time to time in its sole discretion).

CFTC shall mean the Commodity Futures Trading Commission.

Change in Law shall mean 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, implementation or application thereof by any Official Body or (iii) the making or issuance of any request, rule, guideline or directive (whether or not having the force of Law) by any Official Body; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines, interpretations or directives thereunder or issued in connection therewith (whether or not having the force of Law) and (y) all requests, rules, regulations, guidelines, interpretations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities (whether or not having the force of Law), in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law regardless of the date enacted, adopted, issued, promulgated or implemented.

CIP Regulations shall have the meaning assigned to that term in Section 9.12.

Class, when used in reference to (a) any Loan or borrowing of Loans, refers to whether such Loan, or the Loans comprising such borrowing, are Revolving Credit Loans or Term Loans, (b) any Commitment, refers to whether such Commitment is a Revolving Credit Commitment or a Term Loan Commitment, and (c) any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class.

Closing Date shall mean the Business Day on which the first Loan shall be made, which shall be February 8, 2019.  

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

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

Company shall have the meaning given to such term in the introductory paragraph hereto.

Compliance Certificate shall have the meaning assigned to such term in Section 7.3.3.

Computation Date shall have the meaning assigned to such term in Section 2.7.1.

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

Consolidated Adjusted EBITDA shall mean, for any period, Consolidated EBITDA adjusted to include (without duplication) the pro forma effects of acquisitions and divestitures (not including timberland property sales) made during such period, excluding the EBITDA of divested Persons, but including historical EBITDA of acquired Persons to the extent the acquired EBITDA (i) has been audited by a nationally recognized independent certified public accountant, or another independent certified public accountant reasonably satisfactory to the Administrative Agent, (ii) is supported by a third party due diligence report delivered by a nationally recognized firm or otherwise in form and substance satisfactory to the Administrative Agent, (iii) is less than 25% of Consolidated EBITDA as determined as of the last day of the fiscal quarter immediately preceding the consummation of the acquisition (the "Most Recent Quarter") (or the quarter immediately preceding the Most Recent Quarter if the applicable financial statements are not available for the Most Recent Quarter), or (iv) is approved by the Required Lenders.  Any such adjustment to Consolidated EBITDA shall be made for four (4) fiscal quarters, starting with the fiscal quarter in which the transaction giving rise to such adjustment was consummated.

Consolidated EBITDA shall mean as of the end of any fiscal quarter: (i) EBITDA of the Company and its Subsidiaries on a consolidated basis for the immediately preceding four fiscal quarters, plus (without duplication) (ii) the aggregate gain on sale of timberland properties, as determined in accordance with GAAP, made within the four immediately preceding fiscal quarters, net of any losses on such sales, provided that the amount of the net gain on sale of timberland properties included in the calculation of Consolidated EBITDA under this clause (ii) may not exceed 10% of the Consolidated EBITDA of the Company and its Subsidiaries for the immediately preceding four fiscal quarters (prior to including any gains from the sale of timberland properties), provided, further, that Consolidated EBITDA shall exclude (a) non-

6


recurring third party transaction costs relating to a Permitted Acquisition or an acquisition that would otherwise be a Permitted Acquisition but for the fact that such acquisition was not consummated such as (x) legal expenses, third party due diligence costs, transaction advisory services, hedging costs and financing fees, if applicable, for the fiscal quarters during which such non-recurring costs are incurred and (y) project management and integration costs in an aggregate amount up to $10,000,000.00 incurred within one year of consummation of the transactions giving rise to such non-recurring costs, for the fiscal quarters during which such costs are incurred; (b) non-recurring third party transaction costs relating to the closing of this Agreement and repayment or early redemption of Indebtedness in connection therewith such as (x) legal expenses, and (y) fees or other charges pursuant to the prepayment or redemption of Indebtedness; (c) to the extent deducted in calculating net income, non-cash charges; (d) to the extent deducted in calculating net income, extraordinary, unusual or non-recurring charges, costs or expenses in connection with any restructuring (whether or not classified as such under GAAP) or project start up (including, in each case, as a result of or in connection with any Permitted Acquisition) not to exceed in the aggregate 15% of Consolidated EBITDA (prior to giving effect to this clause (d)) for the trailing four quarter period ending immediately prior to such date of determination; (e) non-recurring third party transaction costs relating to dispositions permitted hereunder, whether such disposition is consummated or not, for the fiscal quarter during which such non-recurring costs are incurred; and (f) to the extent included in calculating net income, extraordinary, unusual or non-recurring non-cash gains.  The Company shall provide supporting invoices for the exclusions from Consolidated EBITDA described in the preceding clauses (a)(x) and (y), (b)(x) and (y) and (e) upon request by the Administrative Agent.

Consolidated Total Assets shall mean, at any time, the total consolidated assets of the Company and its Subsidiaries measured as of the last day of the fiscal year ending on or prior to the date of determination, as determined in accordance with GAAP.

Consolidated Total Debt shall mean all long and short term Indebtedness of the Company and its Subsidiaries.

Consolidated Total Net Debt shall mean Consolidated Total Debt less unrestricted cash and cash equivalents of the Company and its Subsidiaries.

Contamination shall mean the presence or release or threat of release of Regulated Substances in, on, under or emanating 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 investigation, cleanup, removal, remediation, containment, abatement of or other response action or which otherwise constitutes a violation of Environmental Laws.

Covered Entity shall mean (a) the Borrowers, each of Borrowers' Subsidiaries, all Guarantors and all pledgors of collateral (if any), and (b) each Person that, directly or indirectly, is in control of a Person described in clause (a) above.  For purposes of this definition, control of a Person shall mean the direct or indirect power to direct or cause the direction of the management and policies of such Person whether by ownership of equity interests, contract or otherwise.

CTA shall mean the United Kingdom Corporation Tax Act 2009.

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Daily Euro-Rate shall mean, for any day, the rate per annum determined by the Administrative Agent as the Published Rate, as adjusted for any additional costs pursuant to Section 4.6.5.  Notwithstanding the foregoing, if the Daily Euro-Rate as determined above would be less than zero (0.00), such rate shall be deemed to be zero (0.00) for purposes of this Agreement.

Debt Rating shall mean the corporate credit rating of Standard & Poor's and the corporate family rating of Moody's, in each case, of the Company.

Defaulting Lender shall mean any Lender that (i) has failed, within two (2) Business Days of the date required to be funded or paid, to (a) fund any portion of its Loans, (b) fund any portion of its participations in Letters of Credit or Swing Loans or (c) pay over to the Administrative Agent, the Issuing Lender, PNC (as the Swing Loan Lender) or any Lender any other amount required to be paid by it hereunder, unless, in the case of clause (a) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender's good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (ii) has notified the Borrowers or the Administrative Agent in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender's good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (iii) has failed, within three (3) Business Days after request by the Administrative Agent, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swing Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (iii) upon the Administrative Agent's receipt of such certification in form and substance satisfactory to the Administrative Agent, (iv) has become or its parent entity has become the subject of a Bankruptcy Event or a Bail-In Action or (v) has failed at any time to comply with the provisions of Section 9.9 with respect to purchasing participations from the other Lenders, whereby such Lender's share of any payment received, whether by setoff or otherwise, is in excess of its Ratable Share of such payments due and payable to all of the Lenders.

As used in this definition and in Section 2.13, the term "Bankruptcy Event" means, with respect to any Person, such Person or such Person's direct or indirect parent company becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person or such Person's direct or indirect parent company by an Official Body or instrumentality thereof if, and only if, such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States (or any other applicable jurisdiction) or from the enforcement of judgments or writs of attachment

8


on its assets or permit such Person (or such Official Body or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

Designated Credit Parties shall mean the Company and those Subsidiaries that are from time to time party to the Accounts Receivable Facility Documents.

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

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

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

Drawing Date shall have the meaning assigned to that term in Section 2.9.3.2.

EBITDA shall mean, for any period and any Person, net income (excluding gains and losses on sales of assets (with the exception of sales of timberland property noted in the definition of Consolidated EBITDA) and non-cash pension income and non-cash pension expenses) plus income tax expense, interest expense, depreciation, amortization expense and any Permitted EBITDA Add Backs (if Consolidated EBITDA is being computed for the Company) of such Person.

EEA Financial Institution shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority shall mean any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Effective Date shall mean the date indicated in a document or agreement to be the date on which such document or agreement becomes effective, or, if there is no such indication, the date of execution of such document or agreement.

Eligibility Date shall mean, with respect to each Loan Party and each Swap, the date on which this Agreement or any other Loan Document becomes effective with respect to such Swap (for the avoidance of doubt, the Eligibility Date shall be the Effective Date of such Swap if this Agreement or any other Loan Document is then in effect with respect to such Loan Party, and

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otherwise it shall be the Effective Date of this Agreement and/or such other Loan Document(s) to which such Loan Party is a party).

Eligible Contract Participant shall mean an "eligible contract participant" as defined in the CEA and regulations thereunder.

English Borrower shall mean any Borrower organized under the Laws of England and Wales.

English Borrower DTTP Filing shall mean an HM Revenue & Customs' Form DTTP2 duly completed and filed by an English Borrower, where an English Treaty Lender has provided its scheme reference number and jurisdiction of tax residence stated in the relevant notification provided under Section 4.7.7(iv)(b) and (a) where the English Borrower is a Borrower as at the date such English Treaty Lender becomes a Lender, is filed with HM Revenue & Customs within 30 days of that date or (b) where the English Borrower is not a Borrower as at the date such English Treaty Lender becomes a Lender, is filed with HM Revenue & Customs within 30 days of the date on which that English Borrower becomes a Borrower.

English Qualifying Lender shall mean a Lender which makes a Loan to an English Borrower and that is (i) a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document and is (A) a Lender (1) which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Loan Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payment apart from section 18A of the CTA; or (2) in respect of an advance made under a Loan Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or (B) an English Treaty Lender; or (ii) a Lender which is a building society (as defined for the purposes of section 880 of the ITA) making an advance under a Loan Document.

English Tax Deduction shall mean a deduction or withholding for or on account of tax from a payment under a Loan Document imposed by the United Kingdom.

English Treaty Lender shall mean a Lender which (i) is treated as a resident of an English Treaty State for the purposes of the English Treaty; (ii) does not carry on a business in the United Kingdom through a permanent establishment with which that Lender's participation in the Loan is effectively connected; and (iii) fulfils any other conditions applicable to that Lender which must be fulfilled under the English Treaty in order to obtain exemption from Tax on interest of the type paid under the Loan Documents imposed in the United Kingdom, subject to the completion of any necessary procedural formalities.

English Treaty State shall mean a jurisdiction having a double taxation agreement (an English Treaty) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.

Environmental Complaint shall mean any written complaint by any Person or Official Body setting forth a cause of action for personal injury or property damage, natural resource

10


damage, contribution or indemnity for response costs, civil or administrative penalties, criminal fines or penalties, or declaratory or equitable relief arising under any Environmental Laws or any order, notice of violation, citation, subpoena, request for information or other written notice or demand of any type issued by an Official Body pursuant to any Environmental Laws.

Environmental Laws shall mean all applicable federal, state, local, tribal, territorial and foreign Laws (including common law), constitutions, statutes, treaties, regulations, rules, ordinances, and codes and any legally binding consent decrees, settlement agreements, judgments, orders, directives, policies or programs issued by or entered into with an Official Body pertaining or relating to: (i) pollution or pollution control; (ii) protection of human health from exposure to Regulated Substances; (iii) protection of the environment and/or natural resources; (iv) employee safety in the workplace as related to exposure to Regulated Substances; (v) the presence, use, management, generation, manufacture, processing, extraction, treatment, recycling, refining, reclamation, labeling, packaging, sale, transport, storage, collection, distribution, disposal or release or threat of release of Regulated Substances; (vi) the presence of Contamination; (vii) the protection of endangered or threatened species; and (viii) the protection of Environmentally Sensitive Areas.

Environmentally Sensitive Area shall mean (i) any wetland as defined by applicable Laws; (ii) any area designated as a coastal zone pursuant to applicable Laws; (iii) any area of historic or archeological significance or scenic area as defined or designated by applicable Laws; (iv) habitats of endangered species or threatened species as designated by applicable Laws; or (v) a floodplain or other flood hazard area as defined pursuant to any applicable Laws.

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

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

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

ERISA Event shall mean (a) with respect to a Plan, a Reportable Event under Section 4043 of ERISA as to which event (after taking into account notice waivers provided for in the regulations) there is a duty to give notice to the PBGC; (b) a withdrawal by a Loan Party or any member of the ERISA Group from a Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Loan Party or any member of the ERISA Group from a

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Multiemployer Plan, or occurrence of an event described in Section 4041A(a) of ERISA that results in the termination of a Multiemployer Plan; (d) the filing of a notice of intent to terminate a Plan, the treatment of a Plan amendment as a termination under Section 4041(e) of ERISA, or the commencement of proceedings by the PBGC to terminate a Plan; (e) the institution of termination proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon a Loan Party or any member of the ERISA Group; (g) any application for an approval of a Loan Party or any member of the ERISA Group for a waiver of the minimum funding standards of Sections 412, 430, 432 or 436 of the Internal Revenue Code or Sections 302, 303, 304 or 305 of ERISA, (h) any receipt of certification by the responsible actuary that any Plan is considered an at-risk plan or in endangered or critical status within the meaning of Section 430 of the Internal Revenue Code or Section 303 of ERISA or that any Multiemployer Plan is considered in endangered or critical status within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA, or (i) that any Plan's adjusted funding target attainment percentage (as defined in Section 436 of the Internal Revenue Code) is less than 60 percent.

ERISA Group shall mean, at any time, the Loan Parties 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 Loan Parties, are treated as a single employer under Sections 414(b) and (c) of the Internal Revenue Code.

EU Bail-In Legislation Schedule shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

Euro shall refer to the lawful currency of the Participating Member States.

Euro-Rate shall mean the following:

(a)

with respect to the U.S. Dollar Loans comprising any Borrowing Tranche to which the Euro-Rate Option applies for any Interest Period, the interest rate per annum determined by the Administrative Agent as the rate which appears on the Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays rates at which U.S. Dollar deposits are offered by leading banks in the London interbank deposit market), rounded upwards, if necessary, to the nearest 1/100th of 1% per annum (with .005% being rounded up), or the rate which is quoted by another source selected by the Administrative Agent in its reasonable discretion as an authorized information vendor for the purpose of displaying rates at which U.S. Dollar deposits are offered by leading banks in the London interbank deposit market at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period as the Relevant Interbank Market offered rate for U.S. Dollars for an amount comparable to such Borrowing Tranche and having a borrowing date and a maturity comparable to such Interest Period;  

(b)

with respect to Optional Currency Loans in Euros or British Pounds Sterling comprising any Borrowing Tranche for any Interest Period, the interest rate per annum determined by the Administrative Agent as the rate which appears on the Bloomberg Page

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BBAM1 (or on such other substitute Bloomberg page that displays rates at which the relevant Optional Currency is offered by leading banks in the London interbank deposit market), rounded upwards, if necessary, to the nearest 1/100th of 1% (with .005% being rounded up) per annum, or the rate which is quoted by another source selected by the Administrative Agent in its reasonable discretion as an authorized information vendor for the purpose of displaying rates at which such applicable Optional Currencies are offered by leading banks in the London interbank deposit market at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period as the Relevant Interbank Market offered rate for deposits in the Euros or British Pounds Sterling for an amount comparable to the principal amount of such Borrowing Tranche and having a borrowing date and a maturity comparable to such Interest Period;  

(c)

with respect to Optional Currency Loans denominated in Canadian Dollars comprising any Borrowing Tranche, the interest rate per annum (the "CDOR Rate") as determined by the Administrative Agent, equal to the arithmetic average rate applicable to Canadian Dollar bankers' acceptances (C$BAs) for the applicable Interest Period appearing on the Bloomberg page BTMM CA, rounded to the nearest 1/100th of 1% (with .005% being rounded up) per annum, at approximately 11:00 a.m. Eastern Time, two Business Days prior to the commencement of such Interest Period, or if such day is not a Business Day, then on the immediately preceding Business Day, provided that if such rate does not appear on the Bloomberg page BTMM CA on such day the CDOR Rate on such day shall be the rate for such period applicable to Canadian Dollar bankers' acceptances quoted by a bank listed in Schedule I of the Bank Act (Canada), as selected by the Administrative Agent, as of 11:00 a.m. Eastern Time on such day or, if such day is not a Business Day, then on the immediately preceding Business Day;

(d)

with respect to Term Loans comprising any Borrowing Tranche for any Interest Period, the interest rate per annum determined by the Administrative Agent as the rate which appears on the Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays rates at which Euros are offered by leading banks in the London interbank deposit market), rounded upwards, if necessary, to the nearest 1/100th of 1% (with .005% being rounded up) per annum, or the rate which is quoted by another source selected by the Administrative Agent in its reasonable discretion as an authorized information vendor for the purpose of displaying rates at which Euros are offered by leading banks in the London interbank deposit market at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period as the Relevant Interbank Market offered rate for deposits in the Euros for an amount comparable to the principal amount of such Borrowing Tranche and having a borrowing date and a maturity comparable to such Interest Period; and  

The Administrative Agent shall give prompt notice to the Borrowers of the Euro-Rate as determined or adjusted in accordance herewith, which determination shall be conclusive absent manifest error.  With respect to any Loans available at a Euro-Rate, if at any time, for any reason, the source(s) for the Euro-Rate described above for the applicable currency or currencies is no longer available, then the Administrative Agent in its reasonable discretion may determine a comparable replacement rate at such time (which determination shall be conclusive absent manifest error).

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Notwithstanding the foregoing, if the Euro-Rate as determined under any method above would be less than zero (0.00), such rate shall be deemed to be zero (0.00) for purposes of this Agreement.

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

Euro-Rate Termination Date shall have the meaning set forth in Section 3.5.

Event of Default shall mean any of the events described in Section 8.1 and referred to therein as an "Event of Default."

Excluded Hedge Liability or Liabilities shall mean, with respect to each Loan Party, each of its Swap Obligations if, and only to the extent that, all or any portion of this Agreement or any other Loan Document that relates to such Swap Obligation is or becomes illegal under the CEA, or any rule, regulation or order of the CFTC, solely by virtue of such Loan Party's failure to qualify as an Eligible Contract Participant on the Eligibility Date for such Swap. Notwithstanding anything to the contrary contained in the foregoing or in any other provision of this Agreement or any other Loan Document, the foregoing is subject to the following provisos: (a) if a Swap Obligation arises under a master agreement governing more than one Swap, this definition shall apply only to the portion of such Swap Obligation that is attributable to Swaps for which such guaranty or security interest is or becomes illegal under the CEA, or any rule, regulations or order of the CFTC, solely as a result of the failure by such Loan Party for any reason to qualify as an Eligible Contract Participant on the Eligibility Date for such Swap, (b) if a guarantee of a Swap Obligation would cause such obligation to be an Excluded Hedge Liability but the grant of a security interest would not cause such obligation to be an Excluded Hedge Liability, such Swap Obligation shall constitute an Excluded Hedge Liability for purposes of the guaranty but not for purposes of the grant of the security interest, and (c) if there is more than one Loan Party executing this Agreement or the other Loan Documents and a Swap Obligation would be an Excluded Hedge Liability with respect to one or more of such Persons, but not all of them, the definition of Excluded Hedge Liability or Liabilities with respect to each such Person shall only be deemed applicable to (i) the particular Swap Obligations that constitute Excluded Hedge Liabilities with respect to such Person, and (ii) the particular Person with respect to which such Swap Obligations constitute Excluded Hedge Liabilities.

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

Existing Letters of Credit shall mean those letters of credit issued by the Issuing Lender or another Lender prior to the Closing Date as described on Schedule 1.1(E) attached hereto.  

Expiration Date shall mean, with respect to the Revolving Credit Commitments and the Term Loans, February 8, 2024.

Farm Credit Lender shall mean a federally-chartered Farm Credit System lending institution organized under the Farm Credit Act of 1971, as the same may be amended or supplemented from time to time.

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FATCA shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Official Bodies and implementing such Sections of the Code.

Federal Funds Effective Rate for any day shall mean the rate per annum (based on a year of 360 days and actual days elapsed and rounded upward to the nearest 1/100 of 1%, with .005% being rounded up) announced by the NYFRB (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.  Notwithstanding the foregoing, if the Federal Funds Effective Rate as determined above would be less than zero (0.00), such rate shall be deemed to be zero (0.00) for purposes of this Agreement.

Foreign Base Rate shall mean the rate of interest per annum reasonably determined by the Administrative Agent to be a broadly accepted replacement or alternative rate comparable to the Euro-Rate to be applicable for short-term loans in Euros (which rate shall adequately reflect the then customary market convention as reasonably determined by the Administrative Agent) and notified to the Borrowers.

Foreign Base Rate Loans shall mean Term Loans denominated in Euros the rate of interest applicable to which is based upon the Foreign Base Rate plus the Applicable Margin.

Foreign Borrower shall mean those Borrowers which are organized under the Laws of a jurisdiction other than the United States (or a political subdivision thereof).

Foreign Lender shall mean (i) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (ii) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the Laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.

Foreign Loan Party shall mean a Loan Party which is organized under the Laws of a jurisdiction other than the United States (or a political subdivision thereof).

Foreign Non-Loan Party Subsidiary shall mean a Foreign Subsidiary that is a Non-Loan Party Subsidiary.

Foreign Subsidiary shall mean any Subsidiary which is organized under the Laws of a jurisdiction other than the United States (or a political subdivision thereof).

Fox River OU2-5 Environmental Charges Event shall mean the date on which both the following events shall have occurred:

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(i)the Loan Parties incur any charge described in the definition of "Permitted EBITDA Add Backs" related to the Fox River site, Wisconsin, OU2-5 (if the Loan Parties incur more than one such charge, this clause (i) refers only to the first such charge), and

(ii)the Loan Parties incur Indebtedness to finance the payment of the charge referred to in clause (i) of this definition (if the Loan Parties incur Indebtedness on more than one occasion to finance such payment, this clause (ii) refers only to the first such incurrence).

Fox River OU2-5 Related Debt shall mean the amount of Indebtedness referred to in clause (ii) of the definition of Fox River OU2-5 Environmental Charges Event.

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

GAAP Objection Notice shall have the meaning assigned to that term in Section 1.3.

German Borrower shall mean any Borrower organized under the Laws of Germany.

Guarantor or Guarantors shall mean each of the parties to this Agreement which is designated as a "Guarantor" on the signature page hereof and each other Person which joins this Agreement as a Guarantor after the date hereof pursuant to Section 7.1.10 and executes a Guarantor Joinder.

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

Guaranty of any Person shall mean any obligation of such Person guaranteeing or in effect guaranteeing any liability or obligation of any other Person in any manner, whether directly or indirectly, including any agreement to indemnify or hold harmless any other Person, any performance bond or other suretyship arrangement and any other form of assurance against loss, except endorsement of negotiable or other instruments for deposit or collection in the ordinary course of business.

Guaranty Agreement shall mean the Second Amended and Restated Guaranty and Suretyship Agreement in substantially the form of Exhibit 1.1(G)(2) executed and delivered by each of the Guarantors to the Administrative Agent for the benefit of the Lenders.

Hedge Liabilities shall have the meaning assigned to such term in the definition of Lender Provided Hedge.

Historical Statements shall have the meaning assigned to that term in Section 5.1.8.1.

ICC shall have the meaning assigned to that term in Section 10.8.

Increasing Lender shall have the meaning assigned to that term in Section 2.1.1.2.

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Incremental Term Loan shall have the meaning assigned to such term in Section 2.1.1.2.

Indebtedness shall mean, without duplication, as to any Person at any time in respect of: (i) borrowed money, 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, (ii) amounts raised under or liabilities in respect of any note purchase or acceptance credit facility, (iii) net reimbursement obligations (contingent or otherwise) under any letter of credit agreement, (iv) net obligations under any currency swap agreement, interest rate swap, cap, collar or floor agreement or other interest rate management device: (A) in the case of any such agreement that has been closed out, in an amount equal to the termination value thereof, and (B) in the case of any such agreement that has not been closed out, in an amount equal to the mark to market value thereof determined on the basis of readily available quotations provided by any recognized dealer in such agreements, (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 which are not represented by a promissory note or other evidence of indebtedness and which are not more than sixty (60) days past due), (vi) the outstanding amount of any Permitted Accounts Receivable Program, or (vii) any Guaranty of Indebtedness referred to in clauses (i) through (v) above.

Indemnified Taxes shall mean (i) Taxes imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document, and (ii) to the extent not otherwise described in the preceding clause (i), Other Taxes.

Information shall mean all information received from the Loan Parties or any of their Subsidiaries relating to the Loan Parties or any of such Subsidiaries or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the Issuing Lender on a non‑confidential basis prior to disclosure by the Loan Parties or any of their Subsidiaries.

Insolvency Proceeding shall mean, 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, examinership, reorganization or other similar Law now or hereafter in effect, or (B) for the appointment of a receiver, liquidator, examiner, assignee, custodian, trustee, sequestrator, conservator or similar official of any Loan Party or otherwise relating to the liquidation, dissolution, winding-up , examinership 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.

Interest Coverage Ratio shall have the meaning specified in Section 7.2.16.

Interest Period shall mean the period of time selected by the Company, on behalf of all the Borrowers, in connection with (and to apply to) (i) any election permitted hereunder by the Borrowers to have Revolving Credit Loans bear interest under the Euro-Rate Option and (ii) each Borrowing Tranche of Term Loans.  Subject to the last sentence of this definition, such

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period shall be (A) one, two, three or six Months if the Borrowers select the Euro-Rate Option to apply to any Revolving Credit Loans (not consisting of an Optional Currency) and/or with respect to each Borrowing Tranche of Term Loans, and (B) one or two Months with respect to any Revolving Credit Loans made in any Optional Currency.  Such Interest Period shall commence on the effective date of such Interest Rate Option, which shall be (i) the Borrowing Date if the Borrowers are requesting new Loans, (ii) the date of renewal of or conversion to the Euro-Rate Option if the Borrowers are renewing or converting to the Euro-Rate Option applicable to outstanding Revolving Credit Loans or (iii) the date of renewal of each Borrowing Tranche of Term 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 Borrowers 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, Currency and Commodity Hedge shall mean (i) an interest rate exchange, collar, cap, swap, adjustable strike cap, adjustable strike corridor or similar agreement, (ii) a foreign exchange transaction, including spot and forward foreign currency purchases and sales, listed or over-the-counter options on foreign currencies, non-deliverable forwards and options, foreign currency swap agreements, currency exchange rate price hedging arrangements, and any other similar transaction providing for the purchase of one currency in exchange for the sale of another currency, or (iii) a futures contract, option contract, commodity hedge, synthetic cap or similar arrangement, in each case entered into by the Loan Parties or their Subsidiaries in order to provide protection to, or minimize the impact upon, the Borrowers, the Guarantors and/or their Subsidiaries of increasing floating rates of interest applicable to Indebtedness and fluctuations in currency values and commodity prices, as the case may be.

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

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

Irish Borrower shall mean any Borrower incorporated or existing under the laws of Ireland.

Irish Qualifying Lender shall mean a Lender which is beneficially entitled to the interest payable to that Lender in respect of an advance under a Loan and is:

(i)

a bank within the meaning of section 246(1) TCA which is carrying on a bona fide banking business in Ireland for the purposes of section 246(3)(a) TCA and whose Lending Office is located in Ireland; or

(ii)

a body corporate which is resident for the purposes of tax in a Relevant Territory (residence for these purposes is to be determined in accordance with the laws of the Relevant Territory of which the Lender claims to be resident) where that Relevant Territory imposes a tax which corresponds to Irish income tax or Irish corporation tax and which generally applies to

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interest receivable in that Relevant Territory by bodies corporate from sources outside that Relevant Territory, except where interest is paid under a Loan to the body corporate in connection with a trade or business which is carried on by it in Ireland through a branch or agency; or

(iii)

a company that is incorporated in the US and taxed in the US on its worldwide income except where interest is paid under a Loan to the US company in connection with a trade or business which is carried on by it in Ireland through a branch or agency; or

(iv)

a US limited liability company ("LLC"), where the ultimate recipients of the interest payable under a Loan are Irish Qualifying Lenders within paragraphs (ii) or (iii) of this definition and the business conducted through the LLC is so structured for market reasons and not for tax avoidance purposes except where interest is paid under a Loan to the LLC or the ultimate recipients of the interest in connection with a trade or business which is carried on by it or them in Ireland through a branch or agency; or

(v)

a qualifying company within the meaning of section 110 TCA and whose Lending Office is located in Ireland; or

(vi)

an exempt approved scheme within the meaning of section 774 TCA and whose Lending Office is located in Ireland; or

(vii)

an investment undertaking within the meaning of section 739B TCA and whose Lending Office is located in Ireland; or

(viii)

a body corporate:

(A)which advances money in the ordinary course of a trade which includes the lending of money and whose Lending Office is located in Ireland; and

(B)where interest payable on an advance under the Loans is taken into account in computing the trading income of such body corporate; and

(C)which has made the appropriate notifications under section 246(5)(a) TCA to the Revenue Commissioners and the Borrowers.

IRS shall mean the United States Internal Revenue Service.

ISP98 shall have the meaning specified in Section 10.8.

Issuing Lender shall mean PNC, in its individual capacity as issuer of Letters of Credit hereunder.

ITA shall mean the United Kingdom Income Tax Act 2007.

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

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

LCA Election shall have the meaning specified in Section 7.2.6(ii)(e).

Lender Provided Hedge shall mean an Interest Rate, Currency and Commodity Hedge which is provided by any Lender or its Affiliate and which: (a) is documented in a standard International Swaps and Derivatives Association Master Agreement, or another reasonable and customary manner, (b) provides for the method of calculating the reimbursable amount of the provider's credit exposure in a reasonable and customary manner, and (c) is entered into for hedging (rather than speculative) purposes.  Subject in all respects to Section 10.18 and similar provisions of any Guaranty of the Obligations, the liabilities owing to the provider of any Lender Provided Hedge (the "Hedge Liabilities") by any Loan Party and any Subsidiary of a Loan Party that is party to such Lender Provided Hedge shall, for purposes of this Agreement and all other Loan Documents be "Obligations" of such Person and of each other Loan Party, be guaranteed obligations under any Guaranty Agreement, and otherwise treated as Obligations for purposes of the other Loan Documents, except to the extent constituting Excluded Hedge Liabilities of such Person. The Liens (if any) securing the Hedge Liabilities shall be pari passu with the Liens (if any) securing all other Obligations under this Agreement and the other Loan Documents, subject to the express provisions of Section 8.2.5.

Lenders shall mean the financial institutions named on Schedule 1.1(B), their respective successors and assigns as permitted hereunder and each New Lender joining this Agreement in accordance with the terms of Section 2.1.1.2 hereof (if applicable), each of which is referred to herein as a Lender.

Lending Office shall mean the office designated as such by a Lender on Schedule 1.1(B).

Letter of Credit shall have the meaning assigned to that term in Section 2.9.1.1.

Letter of Credit Borrowing shall have the meaning assigned to such term in Section 2.9.3.4.

Letter of Credit Fee shall have the meaning assigned to that term in Section 2.9.2.

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

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

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Lien shall mean any mortgage, deed of trust, pledge, lien, security interest, charge, hypothec 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).

Limited Condition Acquisition shall mean any Permitted Acquisition (or similar investment) by any of the Borrowers or other Loan Parties permitted pursuant to the Loan Documents for which the consummation thereof is not conditioned on the availability of, or on obtaining, third party financing.

Limited Condition Acquisition Agreement shall mean, with respect to a Limited Condition Acquisition, the definitive acquisition or investment agreement for such Limited Condition Acquisition.

LLC Interests shall have the meaning given to such term in Section 5.1.2.

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

Loan Parties shall mean the Borrowers and the Guarantors.

Loan Request shall have the meaning given to such term in Section 2.4.1.

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

Luxembourg Borrower shall mean any Borrower organized under the Laws of Luxembourg.

Material Acquisition shall mean a Permitted Acquisition where the Consideration paid for such Permitted Acquisition exceeds $50,000,000.00.

Material Acquisition Period shall have the meaning assigned to such term in Section 7.2.15.

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

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Material Event of Default shall mean any Event of Default described in any of the following Sections: 8.1.1 (provided that a Material Event of Default shall be deemed to occur upon any failure to pay principal, interest, Term Loan Commitment Fees or Commitment Fees without regard to the grace period provided for in such Section 8.1.1), 8.1.4 (if such Event of Default arises because of a breach of Section 7.2.15 or 7.2.16), 8.1.5 (if such Event of Default arises because of a breach of Sections 7.3.1, 7.3.2 or 7.3.3), 8.1.11, 8.1.15, or 8.1.16.

Material Subsidiary shall mean each Subsidiary of the Company which is identified on Schedule 1.1(M) as a "Material Subsidiary," and each other Subsidiary of the Company that has assets at the most recently ended fiscal year, or revenues during the most recently ended fiscal year, comprising 5% or more of the consolidated assets of the Company and its Subsidiaries at such time, or of the consolidated revenues of the Company and its Subsidiaries during such Fiscal Year, as the case may be.

Month, with respect to an Interest Period, shall mean the interval between the days in consecutive calendar months numerically corresponding to the first day of such Interest Period.  If any 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 shall mean Moody's Investors Service, Inc. and its successors.

Most Recent Quarter shall have the meaning assigned to such term in the definition of Consolidated Adjusted EBITDA.

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

Multiple Employer Plan shall mean a Plan which has two or more contributing sponsors (including the Loan Parties 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.

New Lender shall have the meaning assigned to such term in Section 2.1.1.2.

Non-Consenting Lender shall have the meaning assigned to that term in Section 10.1.4.

Non-Loan Party Subsidiary shall mean a Subsidiary of the Company which is not required to be a Guarantor and has not opted to become a Borrower or a Guarantor pursuant to Section 7.2.9.

Non-Qualifying Party shall mean any Loan Party that fails for any reason to qualify as an Eligible Contract Participant on the Effective Date of the applicable Swap.

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

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Notice of Change in GAAP shall have the meaning assigned to that term in Section 1.3.

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

NYFRB shall mean the Federal Reserve Bank of New York.

Obligation shall mean any obligation or liability of any of the Loan Parties, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, under or in connection with (i) this Agreement, the Notes, the Letters of Credit, the Administrative Agent's Letter or any other Loan Document, whether to the Administrative Agent, any of the Lenders or their Affiliates or other Persons provided for under such Loan Documents, (ii) any Lender Provided Hedge and (iii) any Other Lender-Provided Financial Service Product, but shall not include liabilities to other Persons under any other Interest Rate, Currency or Commodity Hedge or any other Excluded Hedge Liabilities.  

Official Body shall mean the government of the United States of America or any other nation, or of any political subdivision thereof, whether state, local or otherwise, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank) and any group or body charged with setting regulatory capital rules or standards (including the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).

Optional Currency shall mean (i) the following lawful currencies:  Canadian Dollars, British Pounds Sterling and the Euro, and (ii) any other currency approved by Administrative Agent and all of the Lenders pursuant to Section 2.7.5.  Subject to Section 2.7.4, each Optional Currency must be the lawful currency of the specified country.

Order shall have the meaning assigned to such term in Section 2.9.9.

Original Currency shall have the meaning assigned to such term in Section 4.10.1.

Other Currency shall have the meaning assigned to such term in Section 4.10.1.

Other Lender-Provided Financial Service Product shall mean agreements or other arrangements under which any Lender or Affiliate of a Lender provides any of the following products or services to any of the Loan Parties or their Subsidiaries: (i) credit cards, (ii) credit card processing services, (iii) debit cards, (iv) purchase cards, (v) ACH transactions, (vi) cash management, including controlled disbursement, accounts or services, or (vii) foreign currency exchange.  Subject in all respects to Section 10.18 and similar provisions of any Guaranty of the Obligations, the liabilities owing to the provider of any Other Lender-Provided Financial Service Product by any Loan Party and any Subsidiary of any Loan Party that is a party to such Other Lender-Provided Financial Service Product shall, for purposes of this Agreement and all other Loan Documents, be "Obligations" of such Person and of each other Loan Party, be guaranteed obligations under any Guaranty Agreement, and otherwise treated as Obligations for purposes of the other Loan Documents.

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Other Taxes shall have the meaning assigned to such term in Section 4.7.2.

Overnight Bank Funding Rate shall mean, for any day, the rate comprised of both overnight federal funds and overnight Eurocurrency borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB, as set forth on its public website from time to time, and as published on the next succeeding Business Day as the overnight bank funding rate by the NYFRB (or by such other recognized electronic source (such as Bloomberg) selected by the Administrative Agent for the purpose of displaying such rate); provided, that if such day is not a Business Day, the Overnight Bank Funding Rate for such day shall be such rate on the immediately preceding Business Day; provided, further, that if such rate shall at any time, for any reason, no longer exist, a comparable replacement rate determined by the Administrative Agent at such time (which determination shall be conclusive absent manifest error).  If the Overnight Bank Funding Rate determined as above would be less than zero, then such rate shall be deemed to be zero.  The rate of interest charged shall be adjusted as of each Business Day based on changes in the Overnight Bank Funding Rate without notice to the Borrowers.

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

Participant has the meaning specified in Section 10.11.4.

Participant Register shall have the meaning specified in Section 10.11.4.

Participating Member State shall mean any member State of the European Communities that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.

Participation Advance shall have the meaning specified in Section 2.9.3.4.

Partnership Interests shall have the meaning given to such term in Section 5.1.2.

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

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

Permitted Accounts Receivable Program shall mean an accounts receivables securitization program concluded pursuant to the Accounts Receivable Facility Documents and provided that (i) the aggregate principal amount thereof does not exceed $150,000,000.00, (ii) on the effective date of such program and after giving effect to such program and related transactions to occur on such effective date, there shall exist no Event of Default or Potential Default, and (iii) the Company shall have delivered to the Administrative Agent a certificate from a Responsible Officer certifying that the foregoing conditions have been met.

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Permitted Acquisitions shall have the meaning assigned to such term in Section 7.2.6(ii).

Permitted EBITDA Add Back shall mean, to the extent such charges are deducted in the computation of net income of the Loan Parties in their computation of EBITDA during the period specified, with appropriate adjustments for the tax effects of such add-backs, charges incurred by the Loan Parties in connection with environmental response and remediation, the presence of contamination, natural resource damages or reimbursement of the EPA for incurred costs at the Fox River site, Wisconsin, OU2-5, provided that the total amount of such charges incurred during the term of this Agreement may not exceed $80,000,000.00.

Permitted Investments shall mean:

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

(ii)shares of any money market mutual fund rated at least AAA by Standard & Poor's or at least Aaa by Moody's;

(iii)commercial paper maturing in 180 days or less rated not lower than A-1, by Standard & Poor's or P-1 by Moody's on the date of acquisition;

(iv)demand deposits or time deposits maturing within one year from the date of creation, certificates of deposit and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers' acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any Lender or with any domestic commercial bank whose obligations are rated A-1, A or the equivalent or better by Standard & Poor's, or P-1 or the equivalent or better by Moody's, on the date of acquisition;  

(v)repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clauses (iii) and (iv) above entered into with any financial institution meeting the qualifications specified in clause (iv) above;

(vi)in the case of any Foreign Borrower, (a) direct obligations of the sovereign nation (or any agency thereof) in which such Borrower is organized or incorporated and is conducting business or in obligations fully and unconditionally guaranteed by such sovereign nation (or any agency thereof), (b) investments of the type and maturity described in clauses (i) through (v) above of foreign obligors, which investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (c) investments of the type and maturity described in clauses (i) through (v) above of foreign obligors (or the parents of such obligors), which investments of obligors (or the parents of such obligors) are not rated as provided in such clauses or in clause (b) above but which are, in the reasonable judgment of the Company and the Borrowers, comparable in investment quality to such investments and obligors (or the parents of such obligors);

(vii)Interest Rate, Currency and Commodity Hedges and Other Lender-Provided Financial Service Products otherwise permitted hereunder;

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

(ix)cash and investments made under Cash Management Agreements or under cash management agreements with any other Lenders.

Permitted Liens shall mean:

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

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

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

(iv)Good-faith pledges or deposits made in the ordinary course of business to secure performance of bids, tenders, contracts (other than for the repayment of borrowed money or as security for Hedge Liabilities or margining related to Interest Rate, Currency and Commodity Hedges) or leases, not in excess of the aggregate amount due thereunder, or to secure statutory obligations, or surety, appeal, indemnity, performance or other similar bonds required in the ordinary course of business;

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

(vi)Liens, security interests and mortgages in favor of the Administrative Agent, for the benefit of the Lenders and their Affiliates, securing the Obligations including liabilities under any Lender Provided Hedges and Other Lender-Provided Financial Service Product;

(vii)Liens on property leased by any Loan Party or Subsidiary of a Loan Party under capital and operating leases permitted in Section 7.2.1 securing obligations of such Loan Party or Subsidiary to the lessor under such leases;

(viii)Any Lien existing on the date of this Agreement and described on Schedule 1.1(P), provided that no additional assets become subject to such Lien and the Indebtedness, if any, secured thereby is permitted under Section 7.2.1;

(ix)Liens on tangible property (or any improvement thereon) acquired or constructed by the Company or any Subsidiary after the Closing Date to secure Indebtedness of the Company

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or such Subsidiary incurred in connection with such improvement, acquisition or construction; provided that:

(1)no such Lien shall extend to or cover any Property other than the property (or improvement thereon) being acquired or constructed; and

(2)the principal amount of the Indebtedness secured by any such Lien, together with the aggregate principal amount of all other Indebtedness secured by Liens on such Property, shall not exceed the lesser of (A) an amount equal to the fair market value of such property so improved, acquired or constructed and (B) the cost to the Company or such Subsidiary of such property (or improvement thereon) so acquired or constructed.

(x)Purchase Money Security Interests;

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

(1)Claims or Liens for taxes, assessments or charges due and payable and subject to interest or penalty, provided that the applicable Loan Party or Subsidiary maintains such reserves or other appropriate provisions as shall be required by GAAP;

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

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

(4)Liens resulting from final judgments or orders described in Section 8.1.7;

(xii)Any Liens that arise or are deemed to arise under a Permitted Accounts Receivable Program, so long as they comply with Section 7.2.18;

(xiii)Bankers' Liens, rights of setoff and other similar Liens existing solely with respect to cash and cash equivalents on deposits in one or more accounts maintained by any Loan Party or any Subsidiary arising in the ordinary course of business from netting services, overdraft protection, cash management obligations and otherwise in connection with the maintenance of deposit, securities and commodities accounts;

(xiv)Liens securing Indebtedness (including Indebtedness in connection with or to finance a Permitted Acquisition, to the extent such Indebtedness is permitted under Section 7.2.1) and securing other obligations in an aggregate amount outstanding not to exceed $30,000,000.00 at any time;

27


(xv)Any interest or title of a lessor or sublessor under any leases or subleases entered into by any Loan Party or any Subsidiary in the ordinary course of business;

(xvi)Liens securing obligations in respect of trade-related letters of credit, trade-related bank guarantees or similar trade-related obligations and covering the goods (or the documents of title in respect of such goods) financed by such letters of credit, bank guarantees or similar obligations and the proceeds and products thereof;

(xvii)Leases or subleases, licenses or sublicenses (including with respect to intellectual property rights and software), granted to or from others in the ordinary course of business and not interfering in any material and adverse respect with the business of the Loan Parties and the Subsidiaries, taken as a whole;

(xviii)Liens in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods;

(xix)Liens arising from precautionary Uniform Commercial Code financing statements or similar or analogous financing statements in any jurisdiction or consignments entered into in connection with any transaction otherwise permitted under this Agreement;

(xx)Liens on equity interests of any joint venture (x) securing obligations of such joint venture or (y) pursuant to the relevant joint venture agreement or arrangement; and

(xxi)Any Liens that arise or are deemed to arise under a Permitted Supply Chain Finance Program; provided, that such Liens are limited to the accounts receivable, invoices, documents and supporting obligations that are subject to such Permitted Supply Chain Finance Program and the proceeds of the same.

Permitted Supply Chain Finance Program shall mean any and all agreements or facilities entered into by the Company or any Subsidiary of the Company for the purpose of effectuating the purchase of its accounts receivable for cash consideration by a financial institution in the ordinary course of business.

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

Plan shall mean at any time an "employee pension benefit plan" (as such term is defined in Section 3(2) of ERISA ) (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 or Section 430 of the Internal Revenue Code and either (i) is sponsored, maintained or contributed to 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 sponsored, maintained or contributed to by any entity which was at such time a member of the ERISA Group for employees of any entity which was at such time a member of the ERISA Group, or in the case of a Multiple Employer Plan or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.

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Pledged Collateral shall have the meaning given to such term in Section 10.19.

Pledged Loan shall have the meaning given to such term in Section 10.19.

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

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

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

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

Prior Credit Agreement shall have the meaning assigned to that term in the definition of Prior Senior Credit Facility.

Prior Senior Credit Facility shall mean the credit facilities provided to certain of the Borrowers pursuant to the terms of a Second Amended and Restated Credit Agreement among certain of the Borrowers, PNC, as Administrative Agent, the Affiliates of Borrowers party thereto as guarantors, and various lending institutions party thereto, dated as of March 12, 2015, as amended (the "Prior Credit Agreement"), the Borrowers' obligations with respect to which are intended to be satisfied in full on the Closing Date with advances of Loans hereunder.

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

Project Satellite Acquisition shall mean the acquisition by Glatfelter Gernsbach GmbH of Georgia Pacific's European nonwovens business pursuant to the Project Satellite Purchase Agreement.

Project Satellite Purchase Agreement shall mean that certain Share Purchase Agreement dated as of June 19, 2018 by and among Glatfelter Gernsbach GmbH, Buckeye Holdings GmbH and Georgia-Pacific Nonwovens LLC, as such agreement may be amended, supplemented, restated or otherwise modified from time to time in a manner that is not materially adverse to the interests of the Lenders.

Project Spartan Disposition shall mean the sale by the Company of its Specialty Papers Business Unit pursuant to the Project Spartan Purchase Agreement.

Project Spartan Purchase Agreement shall mean that certain Asset Purchase Agreement dated as of August 21, 2018 by and between the Company and Spartan Paper LLC, as may be

29


amended, supplemented, restated or otherwise modified from time to time in a manner that is not materially adverse to the interests of the Lenders.

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

PTE shall mean a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

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

Purchase Money Security Interest shall mean Liens upon tangible personal property securing Indebtedness 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, provided that such security interest does not encumber any asset not thereby purchased, and provided further that such security interest does not secure obligations in excess of such purchase price or deferred payments.

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

Qualified ECP Loan Party shall mean each Loan Party that on the Eligibility Date is (a) a corporation, partnership, proprietorship, organization, trust, or other entity other than a "commodity pool" as defined in Section 1a(10) of the CEA and CFTC regulations thereunder that has total assets exceeding $10,000,000.00, or (b) an Eligible Contract Participant that can cause another person to qualify as an Eligible Contract Participant on the Eligibility Date under Section 1a(18)(A)(v)(II) of the CEA by entering into or otherwise providing a "letter of credit or keepwell, support, or other agreement" for purposes of Section 1a(18)(A)(v)(II) of the CEA.

Qualifying Lender Confirmation shall mean a confirmation substantially in the form of Exhibit 1.1(C).

Ratable Share shall mean:

(i)with respect to a Lender's obligation to make Revolving Credit Loans, participate in Letters of Credit and other Letter of Credit Obligations, and receive payments, interest, and fees related thereto, the proportion that such Lender's Revolving Credit Commitment bears to the Revolving Credit Commitments of all of the Lenders, provided however that if the Revolving Credit Commitments have terminated or expired, the Ratable Shares for purposes of this clause shall be determined based upon the Revolving Credit Commitments most recently in effect, giving effect to any assignments.

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(ii)with respect to a Lender's obligation to make Term Loans and receive payments, interest, and fees related thereto, the proportion that such Lender's Term Loans (or, prior to the date on which the Term Loans have been made, such Lender's Term Loan Commitment) bears to the Term Loans of all of the Lenders (or, prior to the date on which the Term Loans have been made, the aggregate amount of the Term Loan Commitments).

(iii)with respect to all other matters as to a particular Lender, the percentage obtained by dividing (i) such Lender's Revolving Credit Commitment plus Term Loan (or, prior to the date on which the Term Loans have been made, such Lender's Term Loan Commitment), by (ii) the sum of the aggregate amount of the Revolving Credit Commitments plus Term Loans (or, prior to the date on which the Term Loans have been made, the aggregate amount of the Term Loan Commitments) of all Lenders; provided however that if the Revolving Credit Commitments have terminated or expired, the computation in this clause shall be determined based upon the Revolving Credit Commitments most recently in effect, giving effect to any assignments, and not on the current amount of the Revolving Credit Commitments and provided further in the case of Section 2.13 when a Defaulting Lender shall exist, "Ratable Share" shall mean the percentage of the aggregate Commitments (disregarding any Defaulting Lender's Commitment) represented by such Lender's Commitment.

Receivables Entity shall have the meaning assigned to such term in Section 7.2.18.

Recipient shall mean (i) the Administrative Agent, (ii) any Lender and (iii) the Issuing Lender, as applicable.  

Recovery Event shall mean with respect to any asset, any of the following:  (i) any loss, destruction or damage of such asset; or (ii)  any actual condemnation, seizure or taking, by exercise or the power of eminent domain or expropriation or otherwise, of such asset, or confiscation of such asset or the requisition of the use of such asset.

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

Regulated Substances shall mean, 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," "infectious waste," "chemotherapeutic waste," "medical waste," or "regulated substance" or any other material, substance or waste, regardless of its form or nature, which otherwise is regulated by Environmental Laws.

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

Reimbursement Obligation shall have the meaning assigned to such term in Section 2.9.3.2.

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

Relevant Interbank Market shall mean in relation to Euro or British Pounds Sterling, the London Interbank Market, and in relation to any other currencies, the applicable interbank market.  Notwithstanding the foregoing, the references to the currencies listed in this definition shall only apply if such currencies are or become available as Optional Currencies in accordance with the terms hereof.

Relevant Territory shall mean:

(i)

a member state of the European Union (other than Ireland); or

(ii)

not being such a member state, a country with which Ireland has a double tax treaty in force by virtue of section 826(1) TCA; or

(iii)

not being a territory referred to in (i) or (ii) above, a country with which Ireland has signed such a double tax treaty which will come into force once the procedures set out in section 826(1) TCA have been completed.

Relief Proceeding shall mean any proceeding seeking a decree or order for relief in respect of any Loan Party or Subsidiary of a Loan Party in a voluntary or involuntary case under any applicable bankruptcy, insolvency, examinership, reorganization or other similar Law now or hereafter in effect, or for the appointment of a receiver, liquidator, examiner, assignee, custodian, trustee, sequestrator, conservator (or similar official) of any Loan Party or Subsidiary of a Loan Party for any substantial part of its property, or for the winding-up, examinership or liquidation of its affairs, or an assignment for the benefit of its creditors.

Reportable Compliance Event shall mean that any Covered Entity becomes a Sanctioned Person, or is charged by indictment, criminal complaint or similar charging instrument, arraigned, or custodially detained in connection with any Anti-Terrorism Law, or has actual knowledge of facts or circumstances to the effect that it is reasonably and objectively likely that any aspect of its operations is in actual violation of any Anti-Terrorism Law.

Reportable Event shall mean a reportable event described in Section 4043 of ERISA and regulations thereunder with respect to a Plan (unless the notice requirement has been waived by the PBGC).

Required Environmental Notices shall mean all notices, reports, plans, forms or other filings which pursuant to Environmental Laws, Required Environmental Permits or at the request or direction of an Official Body either must be submitted to an Official Body or which otherwise must be maintained.

Required Environmental Permits shall mean all permits, licenses, bonds, consents, programs, 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 Borrowers or Guarantors.

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Required Lenders shall mean

(i)prior to termination of the Revolving Credit Commitments, Lenders (other than any Defaulting Lender) having greater than 50% of the sum of (a) the aggregate amount of the Revolving Credit Commitments of the Lenders (excluding any Defaulting Lender) and (b) (1) prior to the making of any Term Loans at any time prior to the Term Loan Draw Termination Date, the aggregate amount of the Term Loan Commitment of the Lenders (excluding any Defaulting Lender) or (2) after the making of the Term Loans, the aggregate outstanding amount of the Term Loans; or

(ii)after the termination of the Revolving Credit Commitments, Lenders (other than any Defaulting Lender) having greater than 50% of the sum of (a) aggregate amount of the outstanding Revolving Credit Loans and Ratable Share of the Letters of Credit Obligations of the Lenders (excluding any Defaulting Lender) and (b)  (1) prior to the making of any Term Loans at any time prior to the Term Loan Draw Termination Date, the aggregate amount of the Term Loan Commitment of the Lenders (excluding any Defaulting Lender) or (2) after the making of the Term Loans, the aggregate outstanding amount of the Term Loans.  

Required Share shall have the meaning assigned to such term in Section 4.12.

Responsible Officer with respect to any Person, the chief executive officer, director, president, treasurer, or the chief or principal financial officer of such Person.  Unless otherwise qualified, all references to "Responsible Officer" in this Agreement shall refer to a "Responsible Officer" of a Loan Party.  For the avoidance of doubt, any managing director (Geschäftsführer) of the German Loan Parties should also qualify as a Responsible Officer.

Restricted Payment shall mean (i) any dividend or distribution by a Loan Party on or in respect of its capital stock or to the direct or indirect holders of its capital stock (except dividends or distributions payable solely in such capital stock or in options, warrants or other rights to purchase such capital stock and except dividends or distributions payable to the Company or another Loan Party) or (ii) purchase, redemption or other acquisition or retirement for value of any capital stock of the Company or (iii) any payment on, purchase, defeasance, redemption, prepayment, decrease or other acquisition or retirement for value, prior to any scheduled final maturity (other than regularly scheduled or required payments of principal), of any other Indebtedness that is subordinate or junior in right of payment to the Obligations.

Revolving Credit Commitment shall mean, as to each Lender at any time, the amounts initially set forth opposite its name on Schedule 1.1(B) in the column labeled "Amount of Commitment for Revolving Credit Loans," and, thereafter, as such amounts may be amended, whether pursuant to Assignment and Assumption Agreements, increases or reductions in Revolving Credit Commitments provided for under the terms of the Agreement or otherwise, and Revolving Credit Commitments shall mean the aggregate Revolving Credit Commitments of all of the Lenders.

Revolving Credit Loans shall mean, collectively, and Revolving Credit Loan shall mean, separately, all Revolving Credit Loans or any Revolving Credit Loan made by the Lenders or one of the Lenders to the Borrowers pursuant to Section 2.1 or 2.9.3.

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

Sanctioned Country shall mean (a) a country or territory that is the target or subject of a sanctions program maintained under any Anti-Terrorism Law (i.e., including but not limited to, such countries and territories on the date of this Agreement being Cuba, the Crimea region of Ukraine, Iran, North Korea and Syria) and (b) any Person operating, organized or resident in a Sanctioned Country.

Sanctioned Person shall mean (a) any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person, group, regime, entity or thing, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any Anti-Terrorism Law, and (b) any Person owned 50% or more by a Sanctioned Person.

SEC shall mean the Securities and Exchange Commission or any governmental agencies substituted therefor.

Settlement Date shall mean any Business Day on which the Administrative Agent elects to effect settlement pursuant to Section 4.12.

SFAS shall have the meaning assigned to that term in Section 1.3

Specified Representations shall mean the representations and warranties set forth in the first sentence of Section 5.1.1, Section 5.1.3, Section 5.1.4, clause (i) of Section 5.1.5, Section 5.1.9.2, Section 5.1.18 and Section 5.1.23.

Standard & Poor's shall mean Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.

Standard Securitization Undertakings shall mean representations, warranties, covenants and indemnities entered into by the Company or any Subsidiary thereof in connection with the Permitted Accounts Receivable Program which are reasonably customary in an accounts receivable securitization transaction at the time of consummation of such transaction.

Standby Letter of Credit shall mean 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.

Subsidiary of any Person at any time shall mean (i) any corporation or trust of which 50% or more (by number of shares or number of votes) of the outstanding capital stock or shares of beneficial interest normally entitled to vote for the election of one or more directors or trustees (regardless of any contingency which does or may suspend or dilute the voting rights) is at such time owned directly or indirectly by such Person or one or more of such Person's Subsidiaries,

34


(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 manager 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.

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

Swap shall mean any "swap" as defined in Section 1a(47) of the CEA and regulations thereunder, other than (a) a swap entered into, or subject to the rules of, a board of trade designated as a contract market under Section 5 of the CEA, or (b) a commodity option entered into pursuant to CFTC Regulation 32.3(a).

Swap Obligation shall mean any obligation to pay or perform under any agreement, contract or transaction that constitutes a Swap which is also a Lender Provided Hedge.

Swing Loan Commitment shall mean PNC's commitment to make Swing Loans to the Borrowers pursuant to Section 2.1.2 hereof in an aggregate principal amount up to $30,000,000.00.

Swing Loan Lender shall mean PNC, in its capacity as a lender of the Swing Loans.

Swing Loan Note shall mean the Third Amended and Restated Swing Loan Note of the Borrowers in substantially the form of Exhibit 1.1(S) evidencing the Swing Loans, together with all amendments, extensions, renewals, replacements, refinancings or refundings thereof in whole or in part.

Swing Loan Request shall mean a request for Swing Loans made in accordance with Section 2.4.2 hereof.

Swing Loans shall mean collectively and Swing Loan shall mean separately all Swing Loans or any Swing Loan made by PNC as Swing Loan Lender to the Borrowers pursuant to Section 2.1.2 hereof.

Taxes shall have the meaning assigned to such term in Section 4.7.1.

TCA shall mean the Taxes Consolidation Act 1997 of Ireland (as amended).

Term Loan shall have the meaning specified in Section 2.14; Term Loans shall mean collectively all of the Term Loans.

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

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Term Loan Commitment Fee shall have the meaning assigned to such term in Section 2.16.

Term Loan Draw Date shall have the meaning specified in Section 2.14.

Term Loan Draw Termination Date shall mean May 9, 2019.  

Term Loan Note shall mean the Term Loan Note of the Borrowers in substantially the form of Exhibit 1.1(T) evidencing the Term Loans, together with all amendments, extensions, renewals, replacements, refinancings or refundings thereof in whole or in part.

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

UCP shall have the meaning assigned to such term in Section 10.8.

Unused Portion shall have the meaning assigned to that term in Section 7.2.7(v).

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

U.S. Person shall mean any Person that is a "United States Person" as defined in Section 7701(a)(30) of the Internal Revenue Code.

U.S. Tax Compliance Certificate shall mean a certificate substantially in the form of Exhibit 4.7.7(A), 4.7.7(B), 4.7.7(C) or 4.7.7(D).

Voided Payment shall have the meaning assigned to that term in Section 10.10.

Voting Participant shall have the meaning assigned to that term in Section 10.11.4.

Voting Participant Notice shall have the meaning assigned to that term in Section 10.11.4.

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

Weighted Average Life to Maturity means, when applied to any Indebtedness on any date, the number of years obtained by dividing:  (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

Write-Down and Conversion Powers shall mean, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time

36


to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

 

1.2

Construction.

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

 

1.2.1

Number; Inclusion.

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

 

1.2.2

Determination.

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

 

1.2.3

Administrative Agent's Discretion and Consent.

Whenever the Administrative Agent or the 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;

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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;

 

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";

 

1.2.10

Shall; Will.

References to "shall" and "will" are intended to have the same meaning; and

 

1.2.11

Québec Matters.  

For purposes of any assets, liabilities or entities located in the Province of Québec and for all other purposes pursuant to which the interpretation or construction of this Agreement may be subject to the Laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (a) "personal property" shall include "movable property", (b) "real property" or "real estate" shall include "immovable property", (c) "tangible property" shall include "corporeal property", (d) "intangible property" shall include "incorporeal property", (e) "security interest", "mortgage" and "lien" shall include a "hypothec", "right of retention", "prior claim" and a resolutory clause, (f) all references to filing, perfection, priority, remedies, registering or recording under the Uniform Commercial Code or a Personal Property Security Act shall include publication under the Civil Code of Québec, (g) all references to "perfection" of or "perfected" liens or security interest shall include a reference to an "opposable" or "set up" lien or security interest as against third parties, (h) any "right of offset", "right of setoff" or similar expression shall include a "right of compensation", (i) "goods" shall include "corporeal movable property" other than chattel paper, documents of title, instruments, money and securities, (j) an "agent" shall include a "mandatory", (k) "construction liens" shall include "legal hypothecs"; (l) "joint and several" shall include "solidary"; (m) "gross negligence or willful misconduct" shall be deemed to be "intentional or gross fault"; (n) "beneficial ownership" shall include "ownership on behalf of another as mandatory"; (o) "easement" shall include "servitude"; (p) "priority" shall include "prior claim"; (q) "survey" shall include "certificate of location and plan"; (r) "state" shall include "province"; (s) "fee simple title" shall include "absolute ownership"; and (t) "accounts" shall include "claims".  The parties hereto confirm that it is their wish that this Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English language only and that all other documents

38


contemplated thereunder or relating thereto, including notices, may also be drawn up in the English language only.  Les parties aux présentes confirment que c'est leur volonté que cette convention et les autres documents de crédit soient rédigés en langue anglaise seulement et que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents peuvent être rédigés en langue anglaise seulement.

 

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 Sections 7.2.15 and 7.2.16 (and all defined terms used in the definition of any accounting term used in Sections 7.2.15 and 7.2.16) 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 7.3.2.  If the Company notifies the Administrative Agent and the Lenders in writing ("Notice of Change in GAAP") that the Company requests an amendment to any financial or accounting provision or any related defined term and/or the defined term Leverage Ratio for purposes of interest, Letter of Credit Fee, Term Loan Commitment Fee and Commitment Fee determinations to eliminate the effect of, or give effect to, any change occurring after the Closing Date to GAAP or in the application thereof on the operation of such financial or accounting provision and/or interest, Letter of Credit Fee, Term Loan Commitment Fee or Commitment Fee determinations, unless the Administrative Agent (on its behalf or as directed in writing by the Required Lenders) shall have objected ("GAAP Objection Notice") to such request within 15 Business Days after receipt of such Notice of Change in GAAP, the relevant financial and accounting provisions or ratios shall be calculated in accordance with GAAP as reflected in such Notice of Change in GAAP on the date of such Notice of Change in GAAP to the Administrative Agent and the Lenders and each Lender and the Administrative Agent hereby specifically consents to the implementation of such change hereunder upon the foregoing terms.  In the event the Administrative Agent shall have delivered a GAAP Objection Notice to the Company, the parties hereto agree to endeavor, in good faith, to agree upon an amendment to this Agreement that would adjust such financial or accounting provision or the defined term Leverage Ratio for purposes of interest, Letter of Credit Fee, Term Loan Commitment Fee or Commitment Fee determinations in a manner that would give effect to such change hereunder determined in accordance with the Company's financial statements at that time; provided, further, that for purposes of the calculation of the financial covenants in Sections 7.2.15 and 7.2.16, the adjustments to income and expense of the Loan Parties (and any other adjustments) resulting from the promulgation of Statement of Financial Accounting Standards ("SFAS") No. 158 shall be disregarded.  Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the Historical Statements referred to in Section 5.1.8.1 for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.

 

Currency Calculations

.  All financial statements and Compliance Certificates shall be set forth in Dollars.  For purposes of preparing the financial statements,

39


calculating financial covenants and determining compliance with covenants expressed in Dollars, Optional Currencies shall be converted to Dollars in accordance with GAAP.

 

Divisions.

  For all purposes under this Agreement and the other Loan Documents, in connection with any division or plan of division under Delaware Law (or any comparable event under a different jurisdiction's Laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its equity interests at such time.

2.REVOLVING CREDIT, SWING LOAN AND TERM LOAN FACILITIES

 

2.1

Revolving Credit Commitments.

 

2.1.1

Revolving Credit Loans.

2.1.1.1Commitment.

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

2.1.1.2Discretionary Commitment Increase.

(i)Increasing Lenders and New Lenders.  The Borrowers at any time prior to the Expiration Date may request that (1) the current Lenders increase their Revolving Credit Commitments or provide one or more additional tranches of Term Loans (each an "Incremental Term Loan" and, collectively, the "Incremental Term Loans"), or (2) one or more new lenders (each a "New Lender") join this Agreement and provide a Commitment hereunder, in each case subject to the following terms and conditions (any current Lender which elects to increase its Revolving Credit Commitment or Term Loan Commitment, as applicable, shall be referred to as an "Increasing Lender"):

(a)No Obligation to Increase.  No Lender (other than any New Lender or any current Lender that has elected to become an Increasing Lender) shall be obligated to (x) increase its Revolving Credit Commitment and/or Term Loan Commitment and any increase in the Revolving Credit Commitment and/or Term Loan Commitment by any current Lender shall

40


be in the sole discretion of such Lender or (y) provide an Incremental Term Loan and any Incremental Term Loan provided by any Lender shall be in the sole discretion of such Lender.

(b)Defaults.  There shall exist no Events of Default or Potential Default on the effective date of such increase after giving effect to such increase; provided, that in the case of any increased Commitments or related Loans that are to be used to fund a Limited Condition Acquisition, such condition shall be limited to the absence of any Event of Default under Section 8.1.1, Section 8.1.15 or Section 8.1.16.

(c)Aggregate Commitments.  The increase in the Commitments shall not be more than $150,000,000 in the aggregate.

(d)Terms of Incremental Term Loans.  (i) The Incremental Term Loans (A) shall rank pari passu in right of payment with the initial Term Loans incurred on or prior to the Term Loan Draw Termination Date (the "Initial Term Loans"), (B) shall not mature earlier than the Initial Term Loans, and (C) shall not have a shorter Weighted Average Life to Maturity than the Initial Term Loans.

(e)Minimum Commitments.  The minimum amount of the increase in the Revolving Credit Commitments and/or the Term Loan Commitments shall be $5,000,000.

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

(g)Notes.  At the request of the applicable Increasing Lender or New Lender, as the case may be, the Borrowers shall execute and deliver (1) to each Increasing Lender a replacement Revolving Credit Note and/or Term Loan Note, as applicable, reflecting the new amount of such Increasing Lender's Revolving Credit Commitment and/or Term Loan Commitment, as applicable, after giving effect to the increase (and the prior Revolving Credit Note, Term Loan Note or Notes, as applicable, issued to such Increasing Lender shall be deemed to be terminated) and (2) to each New Lender a Revolving Credit Note or Term Loan Note, as applicable, reflecting the amount of such New Lender's Revolving Credit Commitment and/or Term Loan Commitment.

(h)Representations.  The representations and warranties of the Loan Parties contained in Section 5 and in the other Loan Documents shall be true in all material respects on and as of the date of such increase with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which expressly relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific dates or times referred to therein); provided, that, in the case of any increased Commitments or related Loans that are to be used to

41


fund a Limited Condition Acquisition permitted hereunder, such representations and warranties shall be limited to the Specified Representations.

(i)Approval of New Lenders.  Any New Lender shall be subject to the approval of the Administrative Agent in its reasonable discretion without unreasonable delay.

(j)Amendment.  Incremental Term Loans shall be effected by an amendment to this Agreement effectuating the joinder of any applicable New Lender and setting forth the terms of the Incremental Term Loans executed by (x) the Administrative Agent, (y) each Lender or New Lender agreeing to provide any portion of such Incremental Term Loan and (z) the Loan Parties, and reaffirmations of the Loan Documents executed by the Loan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent and the Loan Parties.  Such amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.1.1.2.

(k)Conflicting Provisions.  This Section shall supersede any provisions in Section 10.1 to the contrary.

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

(a)Reallocation of Revolving Credit Loans.  To the extent the Commitments being increased are Revolving Credit Commitments, then, on the effective date of any such increase, each relevant Lender that is increasing its Revolving Credit Commitment shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other relevant Lenders with Revolving Credit Commitments, as being required in order to cause, after giving effect to such increase and the application of such amounts to make payments to such other relevant Lenders, the outstanding Revolving Credit Loans (and risk participations in outstanding Swing Line Loans) to be held ratably by all Lenders with Revolving Credit Commitments in accordance with their respective revised Ratable Shares of the Revolving Credit Commitments.

(b)Outstanding Letters of Credit.  On the effective date of such increase, each Increasing Lender and each New Lender (i) will be deemed to have purchased a participation in each then outstanding Letter of Credit equal to its applicable Ratable Share of such Letter of Credit and the participation of each other Lender in such Letter of Credit shall be adjusted accordingly and (ii) will acquire its applicable Ratable Share of all outstanding Participation Advances.

 

2.1.2

Swing Loan Commitment.

Subject to the terms and conditions hereof and relying upon the representations and warranties herein set forth, and in order to facilitate loans and repayments between Settlement Dates, the Swing Loan Lender may, at its option, cancelable at any time for any reason whatsoever, make swing loans in Dollars (the "Swing Loans") to the Borrowers at any time or from time to time after the date hereof to, but not including, the Expiration Date, in an aggregate principal amount up to but not in excess of $30,000,000.00 (the "Swing Loan

42


Commitment"), provided that the aggregate principal amount of the Swing Loan Lender's Swing Loans and the Dollar Equivalent amount of Revolving Credit Loans of all the Lenders at any one time outstanding shall not exceed the Revolving Credit Commitments of all the Lenders.  Within such limits of time and amount and subject to the other provisions of this Agreement, the Borrowers may borrow, repay and reborrow pursuant to this Section 2.1.2.

 

2.2

Nature of Lenders' Obligations with Respect to Revolving Credit Loans.

Each Lender shall be obligated to participate in each request for Revolving Credit Loans pursuant to Section 2.4 in accordance with its Ratable Share.  The aggregate Dollar Equivalent amount of each Lender's Revolving Credit Loans outstanding hereunder to the Borrowers at any time shall never exceed its Revolving Credit Commitment minus its Ratable Share of the Dollar Equivalent amount of Letter of Credit Obligations and any Swing Loans.  The obligations of each Lender hereunder are several.  The failure of any Lender to perform its obligations hereunder shall not affect the Obligations of the Borrowers to any other party nor shall any other party be liable for the failure of such Lender to perform its obligations hereunder.  The Lenders shall have no obligation to make Revolving Credit Loans hereunder on or after the Expiration Date.

 

2.3

Commitment Fees.

Accruing from the date hereof until the Expiration Date, the Borrowers agree to pay to the Administrative Agent for the account of each Lender according to its Ratable Share, a nonrefundable commitment fee (the "Commitment Fee") equal to the Applicable Commitment Fee Rate (computed on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed) multiplied by the average daily difference between the amount of (i) the Revolving Credit Commitments and (ii) the amount of the Dollar Equivalent Revolving Facility Usage (provided however, that solely in connection with determining the share of each Lender in the Commitment Fee, the Dollar Equivalent Revolving Facility Usage with respect to the portion of the Commitment Fee allocated to PNC shall include the full amount of the outstanding Swing Loans, and with respect to the portion of the Commitment Fee allocated by the Administrative Agent to all of the Lenders other than PNC, such portion of the Commitment Fee shall be calculated (according to each such Lender's Ratable Share) as if the Dollar Equivalent Revolving Facility Usage excludes the outstanding Swing Loans); provided, further, 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 Borrowers 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 Borrowers prior to such time; and provided further that no Commitment Fee shall accrue with respect to the Revolving Credit Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.  Subject to the proviso in the directly preceding sentence, all Commitment Fees shall be payable quarterly in arrears on each Payment Date and on the Expiration Date or upon acceleration of the Loans and in U.S. Dollars.

43


 

2.4

Loan Requests.

 

2.4.1

Revolving Credit Loan Requests; Term Loan Requests.

Except as otherwise provided herein, the Borrowers may from time to time (a) prior to the Expiration Date request the Lenders to make Revolving Credit Loans or (b) prior to or on the Term Loan Draw Termination Date request the Lenders to make Term Loans, or renew or convert the Interest Rate Option applicable to existing Revolving Credit Loans or renew an Interest Period with respect to Term Loans pursuant to Section 3.2, by delivering to the Administrative 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 conversion to or the renewal of the Euro-Rate Option for any such Revolving Credit Loans, 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 Loans in an Optional Currency and four (4) Business Days prior to the proposed Borrowing Date with respect to the making of Term Loans or of the renewal of an Interest Period for Term Loans and (ii) on either the proposed Borrowing Date (which shall be a Business Day) with respect to the making of a Revolving Credit Loan to which the Base Rate Option applies or the last day of the preceding Interest Period with respect to the conversion to the Base Rate Option for any Revolving Credit Loan, of a duly completed request therefor substantially in the form of Exhibit 2.4 or a request by telephone immediately confirmed in writing by letter, facsimile or telex in such form (each, a "Loan Request"), it being understood that the Administrative Agent may rely on the authority of any individual making such a telephonic request without the necessity of receipt of such written confirmation.  Each Loan Request shall be irrevocable and shall specify (i) the proposed Borrowing Date; (ii) the aggregate amount of the proposed Revolving Credit Loans (expressed in the currency in which such Revolving Credit Loans shall be funded) comprising each Borrowing Tranche, the Dollar Equivalent amount of which shall be in integral multiples of $100,000.00 and not less than $2,000,000.00 for each Borrowing Tranche to which the Euro-Rate Option applies and not less than the lesser of $2,000,000.00 and the maximum amount available for Borrowing Tranches to which the Base Rate Option applies; (iii) whether the Euro-Rate Option or Base Rate Option shall apply to the proposed Revolving Credit Loans comprising the applicable Borrowing Tranche; (iv) the currency in which such Revolving Credit Loans shall be funded if the Borrowers are electing the Euro-Rate Option; (v) in the case of a Borrowing Tranche to which the Euro-Rate Option applies, an appropriate Interest Period for the Revolving Credit Loans comprising such Borrowing Tranche; (vi) the aggregate amount of the proposed Term Loans comprising each Borrowing Tranche, the amount of which shall be in integral multiples of €100,000.00 and not less than €2,000,000.00 for each Borrowing Tranche of Term Loans; and (vii) an appropriate Interest Period for the Term Loans comprising such Borrowing Tranche.

 

2.4.2

Swing Loan Requests.

Except as otherwise provided herein, the Borrowers may from time to time prior to the Expiration Date request the Swing Loan Lender to make Swing Loans by delivery to the Swing Loan Lender 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 2.4 hereto or a request by

44


telephone immediately confirmed in writing by letter, facsimile or telex (each, a "Swing Loan Request"), it being understood that the Administrative Agent may rely on the authority of any individual making such a telephonic request without the necessity of receipt of such written confirmation.  Each Swing Loan Request shall be irrevocable and shall specify the proposed Borrowing Date and the principal amount of such Swing Loan, which shall be not less than $100,000.00.

 

2.5

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

 

2.5.1

Making Revolving Credit Loans and Term Loans.

Promptly after receipt by the Administrative Agent of a Loan Request pursuant to Section 2.4, the Administrative Agent shall 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 and/or Term Loans requested thereby; (ii) the amount and type of each such Revolving Credit Loan and/or Term Loan and the applicable Interest Period (if any); (iii) the apportionment among the Lenders of such Revolving Credit Loans and/or Term Loans as determined by the Administrative Agent in accordance with Section 2.2 or 2.15, as applicable; and (iv) the currency in which such Revolving Credit Loan is requested.  Each Lender shall remit the principal amount of each Revolving Credit Loan in the requested Optional Currency (in the case of Optional Currency Loans, in Dollars if so requested by the Administrative Agent) and/or Term Loan in Euros, in each case to the Administrative Agent such that the Administrative Agent is able to, and the Administrative Agent shall, to the extent the Lenders have made funds available to it for such purpose and subject to Section 6.2, fund such Revolving Credit Loans to the Borrowers in U.S. Dollars or the requested Optional Currency (as applicable) and/or Term Loans in Euros and in 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 Administrative Agent in a timely manner, the Administrative Agent may elect, in its sole discretion, to fund with its own funds, including funds in the requested Optional Currency, the Revolving Credit Loans and/or Term Loan of such Lender on such Borrowing Date, and such Lender shall be subject to the repayment obligation in Section 2.5.3.  

 

2.5.2

Making Swing Loans.

So long as the Swing Loan Lender elects to make Swing Loans, the Swing Loan Lender shall, after receipt by it of a Swing Loan Request pursuant to Section 2.4.2, fund such Swing Loan to the applicable Borrower(s) in Dollars and immediately available funds at the Principal Office prior to 3:00 p.m., Pittsburgh time, on the applicable Borrowing Date.

 

2.5.3

Presumptions by the Administrative Agent.

Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Base Rate Loan, or, for Loans other than Base Rate Loans, prior to the close of business the day before the Borrowing Date, that such Lender will not make available to the Administrative Agent such Lender's share of such Loan, the Administrative Agent may

45


assume that such Lender has made such share available in the applicable currency on such date in accordance with Section 2.5.1 and may, in reliance upon such assumption, make available to the Borrowers a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Loan available in the applicable currency to the Administrative Agent, then the Administrative Agent shall be entitled to recover such amount on demand from such Lender (or if such Lender fails to pay such amount forthwith upon such demand, from the Borrowers) together with interest thereon, in respect of each day during the period commencing on the date such amount was made available to the Borrowers and ending on the date the Administrative Agent recovers such amount, at (i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate (or, for payments in Euros or another Optional Currency, the Overnight Rate) and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of a payment to be made by the Borrowers, the interest rate applicable to Revolving Credit Loans under the Base Rate Option with respect to Revolving Credit Loans or the interest rate applicable to Term Loans.  If such Lender pays its share of the applicable Loan to the Administrative Agent, then the amount so paid shall constitute such Lender's Loan.  Any payment by the Borrowers shall be without prejudice to any claim the Borrowers may have against a Lender that shall have failed to make such payment to the Administrative Agent.

 

2.5.4

Repayment of Revolving Credit Loans.

The Borrowers, jointly and severally, subject to Section 10.18 (if applicable), shall repay in full the outstanding principal amount of the Revolving Credit Loans, together with all accrued interest thereon and all fees and other amounts owing under any of the Loan Documents relating thereto and any other Obligations then outstanding on the Expiration Date or earlier termination of the Revolving Credit Commitments in connection with the terms hereof.

 

2.5.5

Borrowings to Repay Swing Loans.

The Swing Loan Lender 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 the Swing Loan Lender so requests, accrued interest thereon, provided that no Lender shall be obligated in any event to make any Revolving Credit Loan if after giving effect thereto, the sum of the Dollar Equivalent amount of its Revolving Credit Loans plus such Lender's Ratable Share of the Dollar Equivalent amount of Letter of Credit Obligations exceeds 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 2.4.1 without regard to any of the requirements of that provision.  The Swing Loan Lender shall provide notice to the Lenders (which may be telephonic or written notice by letter, facsimile or telex) that such Revolving Credit Loans are to be made under this Section 2.5.5 and of the apportionment among the Lenders, and the Lenders shall be unconditionally obligated to fund such Revolving Credit Loans (whether or not the conditions specified in Section 6.2 are then satisfied) by the time the Swing Loan Lender so requests, which shall not be earlier than 3:00 p.m. Pittsburgh time on the next Business Day after the date the Lenders receive such notice from the Swing Loan Lender.

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2.5.6

Swing Loans Under Cash Management Agreements.

In addition to making Swing Loans pursuant to the foregoing provisions of Section 2.5.2, without the requirement for a specific request from the Borrowers pursuant to Section 2.4.2, the Swing Loan Lender may make Swing Loans to the Borrowers in accordance with the provisions of the agreements among the Borrowers and such Swing Loan Lender relating to the Borrowers' deposit, sweep and other accounts at such Swing Loan Lender and related arrangements and agreements regarding the management and investment of the Borrowers' cash assets as in effect from time to time (the "Cash Management Agreements") to the extent of the daily aggregate net negative balance in the Borrowers' accounts which are subject to the provisions of the Cash Management Agreements.  Swing Loans made pursuant to this Section 2.5.6 in accordance with the provisions of the Cash Management Agreements shall (i) be subject to the limitations as to aggregate amount set forth in Section 2.1.2, (ii) not be subject to the limitations as to individual amount set forth in Section 2.4.2, (iii) be payable by the Borrowers, both as to principal and interest, at the rates and times set forth in the Cash Management Agreements (but in no event later than the Expiration Date), (iv) not be made at any time after such Swing Loan Lender has received written notice of the occurrence of an Event of Default and so long as such shall continue to exist, or, unless consented to by the Required Lenders, a Potential Default and so long as such shall continue to exist, (v) if not repaid by the Borrowers in accordance with the provisions of the Cash Management Agreements, be subject to each Lender's obligation pursuant to Section 2.5.5, and (vi) except as provided in the foregoing subsections (i) through (v), be subject to all of the terms and conditions of this Section 2.

 

2.6

Revolving Credit Notes and Swing Loan Note.

The obligation of the Borrowers to repay the aggregate unpaid principal amount of the Revolving Credit Loans made to it by each Lender, together with interest thereon, shall be evidenced by this Agreement and, to the extent requested pursuant to Section 4.11, a Revolving Credit Note dated the Closing Date payable to the order of such Lender in a face amount equal to the Revolving Credit Commitment of such Lender.  The obligation of the Borrowers to repay the unpaid principal amount of the Swing Loans made to it by the Swing Loan Lender together with interest thereon shall be evidenced by this Agreement and the Swing Loan Note payable to the order of the Swing Loan Lender in a face amount equal to the Swing Loan Commitment.

 

2.7

Utilization of Commitments in Optional Currencies.

 

2.7.1

Periodic Computations of Dollar Equivalent Amounts of Revolving Credit Loans and Letter of Credit Obligations.

For purposes of determining utilization of the Revolving Credit Commitments, the Administrative Agent will determine the Dollar Equivalent amount of (i) the outstanding and proposed Revolving Credit Loans that are Optional Currency Loans and Letters of Credit to be denominated in an Optional Currency as of the requested Borrowing Date or date of issuance, as the case may be, (ii) the outstanding Letter of Credit Obligations denominated in an Optional Currency as of the last Business Day of each month, and (iii) the outstanding Revolving Credit Loans denominated in an Optional Currency as of the end of each Interest Period (each such date under clauses (i) through (iii) and any other date on which the Administrative Agent determines

47


it is necessary or advisable to make such computation, in its sole discretion, is referred to as a "Computation Date").  Unless otherwise provided in this Agreement or agreed to by the Administrative Agent and the Company, each Revolving Credit Loan and Reimbursement Obligation shall be repaid or prepaid in the same currency in which the Revolving Credit Loan or Reimbursement Obligation was made. Unless otherwise provided in this Agreement or agreed to by the Administrative Agent and the Company, each Term Loan shall be repaid or prepaid in the same currency in which the Term Loan was made.

 

2.7.2

Notices From Lenders That Optional Currencies Are Unavailable to Fund New Revolving Credit Loans.

The Lenders shall be under no obligation to make the Revolving Credit Loans requested by the Borrowers which are denominated in an Optional Currency if any Lender notifies the Administrative Agent by 5:00 p.m. (Pittsburgh time) four (4) Business Days prior to the Borrowing Date for such Revolving Credit Loans that such Lender cannot provide its Ratable Share of such Revolving Credit Loans in such Optional Currency.  In the event the Administrative Agent timely receives a notice from a Lender pursuant to the preceding sentence, the Administrative Agent will notify the Borrowers no later than 12:00 noon (Pittsburgh time) three (3) Business Days prior to the Borrowing Date for such Revolving Credit Loans that the Optional Currency is not then available for such Revolving Credit Loans, and the Administrative Agent shall promptly thereafter notify the Lenders of the same and the Lenders shall not make such Revolving Credit Loans requested by the Borrowers under their Loan Request.

 

2.7.3

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

If the Borrowers deliver a Loan Request requesting that the Lenders renew the Euro-Rate Option with respect to an outstanding Borrowing Tranche of Revolving Credit Loans denominated in an Optional Currency, the Lenders shall be under no obligation to renew such Euro-Rate Option if any Lender delivers to the Administrative Agent a notice by 5:00 p.m. (Pittsburgh time) four (4) Business Days prior to the effective date of such renewal that such Lender cannot continue to provide Revolving Credit Loans in such Optional Currency.  In the event the Administrative Agent timely receives a notice from a Lender pursuant to the preceding sentence, the Administrative Agent will notify the Borrowers no later than 12:00 noon (Pittsburgh time) three (3) Business Days prior to the renewal date that the renewal of such Revolving Credit Loans in such Optional Currency is not then available, and the Administrative Agent shall promptly thereafter notify the Lenders of the same.  If the Administrative Agent shall have so notified the Borrowers that any such continuation of such Revolving Credit Loans in such Optional Currency is not then available, any notice of renewal with respect thereto shall be deemed withdrawn, and such Revolving Credit Loans shall be redenominated into Revolving Credit Loans in Dollars at the Base Rate Option or Euro-Rate Option, at the Company's option on behalf of the Borrowers (subject, in the case of the Euro-Rate Option, to compliance with Section 2.4), with effect from the last day of the Interest Period with respect to any such Revolving Credit Loans.  The Administrative Agent will promptly notify the Borrowers and the Lenders of any such redenomination, and in such notice, the Administrative Agent will state the aggregate Dollar Equivalent amount of the redenominated Revolving Credit Loans in an

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Optional Currency as of the applicable Computation Date with respect thereto and such Lender's Ratable Share thereof.

 

2.7.4

European Monetary Union.

2.7.4.1Payments In Euros Under Certain Circumstances.

If (i) any Optional Currency ceases to be lawful currency of the nation issuing the same and is replaced by the Euro or (ii) any Optional Currency and the Euro are at the same time recognized by any governmental authority of the nation issuing such currency as lawful currency of such nation and the Administrative Agent or the Required Lenders shall so request in a notice delivered to the Borrowers, then any amount payable hereunder by any party hereto in such Optional Currency shall instead be payable in the Euro and the amount so payable shall be determined by translating the amount payable in such Optional Currency to the Euro at the exchange rate established by that nation for the purpose of implementing the replacement of the relevant Optional Currency by the Euro (and the provisions governing payments in Optional Currencies in this Agreement shall apply to such payment in the Euro as if such payment in the Euro were a payment in an Optional Currency).  Prior to the occurrence of the event or events described in clause (i) or (ii) of the preceding sentence, each amount payable hereunder in any Optional Currency will, except as otherwise provided herein, continue to be payable only in that currency.

2.7.4.2Additional Compensation Under Certain Circumstances.

The Borrowers agree, at the request of any Lender, to compensate such Lender for any loss, cost, expense or reduction in return that such Lender shall reasonably determine shall be incurred or sustained by such Lender as a result of the replacement of any Optional Currency by the Euro and that would not have been incurred or sustained but for the transactions provided for herein.  A certificate of any Lender setting forth such Lender's determination of the amount or amounts necessary to compensate such Lender shall be delivered to the Borrowers and shall be conclusive absent manifest error so long as such determination is made on a reasonable basis.  The Borrowers shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof.

 

2.7.5

Requests for Additional Optional Currencies.

The Borrowers may deliver to the Administrative Agent a written request that Revolving Credit Loans hereunder also be permitted to be made in any other lawful currency (other than Dollars), in addition to the currencies specified in the definition of "Optional Currency" herein provided that such currency must be freely traded in the interbank foreign exchange markets, freely transferable, freely convertible into Dollars and available to the Lenders in the Relevant Interbank Market.  The Administrative Agent will promptly notify the Lenders of any such request after the Administrative Agent receives such request.  The Administrative Agent and each Lender may grant or accept such request in their sole discretion.  The Administrative Agent will promptly notify the Borrowers of the acceptance or rejection by the Administrative Agent and each of the Lenders of the Borrowers' request.  The requested

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currency shall be approved as an Optional Currency hereunder only if the Administrative Agent and all of the Lenders approve of the Borrowers' request.

 

2.8

Use of Proceeds.

The proceeds of the Revolving Credit Loans and the Term Loan shall be used for (i) refinancing amounts outstanding under the Prior Senior Credit Facility and the 2012 Senior Notes, and (ii) general corporate purposes, including financing working capital and Permitted Acquisitions.

 

2.9

Letter of Credit Subfacility.

 

2.9.1

Issuance of Letters of Credit.

2.9.1.1The Borrowers may request the issuance of a letter of credit (each such letter of credit and each Existing Letter of Credit, a "Letter of Credit"), or the amendment or extension of an existing Letter of Credit, on behalf of itself, another Loan Party or any of their respective Subsidiaries (provided that a Loan Party shall be the obligor with respect thereto) by delivering or transmitting electronically, or having such other Loan Party deliver or transmit electronically to the Issuing Lender (with a copy to the Administrative Agent) a completed application and agreement for letters of credit, or request for such extension or amendment, in such form as the Issuing Lender may specify from time to time by no later than 10:00 a.m., Pittsburgh time, at least four (4) Business Days, or such shorter period as may be agreed to by the Issuing Lender, in advance of the proposed date of issuance.  The related Borrower or any Loan Party shall authorize and direct the Issuing Lender to name the related Borrower or any Loan Party or any Subsidiary as the "Applicant" or "Account Party" of each Letter of Credit.  Each Letter of Credit shall be a Standby Letter of Credit or Commercial Letter of Credit and may be denominated in either Dollars or an Optional Currency.  

Unless the Issuing Lender has received notice from any Lender, the Administrative Agent or any Loan Party, at least one day prior to the requested date of issuance, amendment or extension of the applicable Letter of Credit, that one or more applicable conditions in Section 6 is not satisfied, then, subject to the terms and conditions hereof and in reliance on the agreements of the other Lenders set forth in this Section 2.9, the Issuing Lender or any of the Issuing Lender's Affiliates will issue a Letter of Credit or agree to such amendment or extension, provided that each Letter of Credit shall (A) have a maximum maturity of twelve (12) months from the date of issuance (subject to customary evergreen provisions), and (B) in no event expire later than five (5) Business Days prior to the Expiration Date and providing that in no event shall (i) the Dollar Equivalent amount of Letter of Credit Obligations exceed, at any one time, $30,000,000.00, or (ii) the Dollar Equivalent Revolving Facility Usage exceed, at any one time, the Revolving Credit Commitments.  Each request by a Borrower or any other Loan Party for the issuance, amendment or extension of a Letter of Credit shall be deemed to be a representation by the Borrower that it shall be in compliance with the preceding sentence and with Section 6 after giving effect to the requested issuance, amendment or extension of such Letter of Credit.  Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to the beneficiary thereof, the Issuing Lender will also deliver to the Borrowers and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.  

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The Existing Letters of Credit shall be deemed to have been issued hereunder.

2.9.1.2Notwithstanding Section 2.9.1.1, the Issuing Lender shall not be under any obligation to issue any Letter of Credit if (i) any order, judgment or decree of any Official Body or arbitrator shall by its terms purport to enjoin or restrain the Issuing Lender from issuing the Letter of Credit, or any Law applicable to the Issuing Lender or any request or directive (whether or not having the force of law) from any Official Body with jurisdiction over the Issuing Lender shall prohibit, or request that the Issuing Lender refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the Issuing Lender with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Lender is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Closing Date and, in each such case, which the Issuing Lender in good faith deems material to it, or (ii) the issuance of the Letter of Credit would violate one or more policies of the Issuing Lender applicable to letters of credit generally.

 

2.9.2

Letter of Credit Fees.

The Borrowers shall pay in Dollars, or at the Administrative Agent's option, the Optional Currency in which each Letter of Credit is issued (i) to the Administrative Agent for the ratable account of the Lenders a fee (the "Letter of Credit Fee") equal to the Applicable Margin then in effect for Revolving Credit Loans subject to the Euro-Rate Option, per annum, and (ii) to the Issuing Lender for its own account, a fronting fee to be agreed upon by the Issuing Lender and the Company, on behalf of all Borrowers (each 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 Letter of Credit Obligations during the preceding fiscal quarter (or shorter period commencing with the Closing Date or ending with the Expiration Date) and shall be payable quarterly in arrears on each Payment Date following issuance of each Letter of Credit and on the Expiration Date.  The Borrowers shall also pay in Dollars to the Issuing Lender for the Issuing Lender's sole account the Issuing Lender's then in effect customary fees and administrative expenses payable with respect to the Letters of Credit as the Issuing Lender may generally charge or incur from time to time in connection with the issuance, maintenance, amendment (if any), assignment or transfer (if any), negotiation, and administration of Letters of Credit.

 

2.9.3

Disbursements, Reimbursement.

2.9.3.1Immediately upon the issuance of each Letter of Credit (and with respect to the Existing Letters of Credit, on the Closing Date), each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Issuing Lender a participation in such Letter of Credit and each drawing thereunder in an amount equal to such Lender's Ratable Share of the maximum amount available to be drawn under such Letter of Credit and the amount of such drawing, respectively, in each case, in the currency in which each Letter of Credit is issued.

2.9.3.2In the event of any request for a drawing under a Letter of Credit by the beneficiary or transferee thereof, the Issuing Lender will promptly notify the Administrative Agent and the Borrowers.  Provided that they shall have received such notice, the

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Borrowers shall reimburse the Issuing Lender (such obligation to reimburse the Issuing Lender shall sometimes be referred to as a "Reimbursement Obligation") prior to 12:00 noon, Pittsburgh time on each date that an amount is paid by the Issuing Lender under any Letter of Credit (each such date, a "Drawing Date") in an amount equal to the amount so paid by the Issuing Lender in the same currency as paid, unless otherwise required by the Administrative Agent or the Issuing Lender.  In the event the Borrowers fail to reimburse the Issuing Lender (through the Administrative Agent) for the full amount of any drawing under any Letter of Credit by 12:00 noon, Pittsburgh time, on the Drawing Date, the Administrative Agent will promptly notify each Lender thereof, and the Borrowers shall be deemed to have requested that Revolving Credit Loans in Dollars (and if the Letter of Credit was denominated in another currency, in the Dollar Equivalent amount of the amount paid by the Issuing Lender in such other currency on the Drawing Date thereof) be made by the Lenders under the Base Rate Option to be disbursed on the Drawing Date under such Letter of Credit, subject to the amount of the unutilized portion of the Revolving Credit Commitment and subject to the conditions set forth in Section 6.2 other than any notice requirements.  Any notice given by the Administrative Agent or the Issuing Lender pursuant to this Section 2.9.3.2 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.

2.9.3.3Each Lender shall upon any notice pursuant to Section 2.9.3.2 make available to the Administrative Agent, for the account of the Issuing Lender, an amount in Dollars in immediately available funds equal to its Ratable Share of the amount of the drawing (and, if the Letter of Credit was denominated in another currency, in the Dollar Equivalent amount of the amount paid by the Issuing Lender in such other currency on the Drawing Date thereof) (whether or not the conditions set forth in Section 6.2 shall have been satisfied), whereupon the participating Lenders shall (subject to Section 2.9.3.4) each be deemed to have made a Revolving Credit Loan under the Base Rate Option to the Borrowers in that amount.  If any Lender so notified fails to make available in Dollars to the Administrative Agent for the account of the Issuing Lender the amount of such Lender's Ratable Share of such amount by no later than 2:00 p.m., Pittsburgh time on the Drawing Date, then interest shall accrue on such Lender's obligation to make such payment, from the Drawing Date to the date on which such Lender makes such payment (i) at a rate per annum equal to the Federal Funds Effective Rate during the first three (3) days following the Drawing Date and (ii) at a rate per annum equal to the rate applicable to Revolving Credit Loans under the Base Rate Option on and after the fourth day following the Drawing Date.  The Administrative Agent and the Issuing Lender will promptly give notice of the occurrence of the Drawing Date, but failure of the Administrative Agent and the Issuing Lender to give any such notice on the Drawing Date or in sufficient time to enable any Lender to effect such payment on such date shall not relieve such Lender from its obligation under this Section 2.9.3.3.

2.9.3.4With respect to any unreimbursed drawing that is not converted into Revolving Credit Loans in Dollars under the Base Rate Option to the Borrowers in whole or in part as contemplated by Section 2.9.3.2, because of the Borrowers' failure to satisfy the conditions set forth in Section 6.2 other than any notice requirements or for any other reason, the Borrowers shall be deemed to have incurred from the Issuing Lender a borrowing (each a "Letter of Credit Borrowing") in Dollars in the amount of such drawing (and, if the Letter of Credit was denominated in another currency, in the Dollar Equivalent amount of the amount

52


paid by the Issuing Lender in such other currency) on the Drawing Date thereof.  Such Letter of Credit Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the rate per annum applicable to the Revolving Credit Loans under the Base Rate Option.  Each Lender's payment to the Administrative Agent for the account of the Issuing Lender pursuant to Section 2.9.3.3 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 2.9.3.

 

2.9.4

Repayment of Participation Advances.

2.9.4.1Upon (and only upon) receipt by the Administrative Agent for the account of the Issuing Lender of immediately available funds from the Borrowers (i) in reimbursement of any payment made by the Issuing Lender under the Letter of Credit with respect to which any Lender has made a Participation Advance to the Administrative Agent, or (ii) in payment of interest on such a payment made by the Issuing Lender under such a Letter of Credit, the Administrative Agent on behalf of the Issuing Lender will pay to each Lender, in the same funds as those received by the Administrative Agent, the amount of such Lender's Ratable Share of such funds, except the Administrative Agent shall retain for the account of the Issuing Lender the amount of the Ratable Share of such funds of any Lender that did not make a Participation Advance in respect of such payment by the Issuing Lender.

2.9.4.2If the Administrative Agent or any Issuing Lender is required at any time to return to any Loan Party, or to a trustee, receiver, liquidator, examiner, custodian, or any official in any Insolvency Proceeding, any portion of any payment made by any Loan Party to the Administrative Agent or such Issuing Lender pursuant to Section 2.9.4.1 in reimbursement of a payment made under the Letter of Credit or interest or fee thereon, each Lender shall, on demand of the Administrative Agent, forthwith return to the Administrative Agent, for its account or the account of such Issuing Lender (as applicable), the amount of its Ratable Share of any amounts so returned by the Administrative Agent or such Issuing Lender (as applicable) plus interest thereon from the date such demand is made to the date such amounts are returned by such Lender to the Administrative Agent or such Issuing Lender, at a rate per annum equal to the Federal Funds Effective Rate (or, for any payment in an Optional Currency, the Overnight Rate) in effect from time to time.

 

2.9.5

Documentation.

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

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2.9.6

Determinations to Honor Drawing Requests.

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

 

2.9.7

Nature of Participation and Reimbursement Obligations.

Each Lender's obligation in accordance with this Agreement to make the Revolving Credit Loans or Participation Advances, as contemplated by Section 2.9.3, as a result of a drawing under a Letter of Credit, and the Obligations of the Borrowers to reimburse the Administrative Agent or any Issuing Lender (as applicable) upon a draw under a Letter of Credit, subject to Section 10.18 for the avoidance of doubt (if applicable), shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Section 2.9 under all circumstances, including the following circumstances:

(i)any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Administrative Agent or the Issuing Lender or any of their respective Affiliates, the Borrowers or any other Person for any reason whatsoever, or which any Loan Party may have against the Administrative Agent or the Issuing Lender or any of their respective Affiliates, any Lender or any other Person for any reason whatsoever;

(ii)the failure of any Loan Party or any other Person to comply, in connection with a Letter of Credit Borrowing, with the conditions set forth in Sections 2.1, 2.4, 2.5 or 6.2 or as otherwise set forth in this Agreement for the making of a Revolving Credit Loan, it being acknowledged that such conditions are not required for the making of a Letter of Credit Borrowing and the obligation of the Lenders to make Participation Advances under Section 2.9.3;

(iii)any lack of validity or enforceability of any Letter of Credit;

(iv)any claim of breach of warranty that might be made by any Loan Party or any Lender against any beneficiary of a Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense or other right which any Loan Party or any Lender may have at any time against a beneficiary, successor beneficiary any transferee or assignee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the Administrative Agent or its Affiliates, any Issuing Lender or its Affiliates, or any Lender or any other Person or, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between any Loan Party or Subsidiaries of a Loan Party and the beneficiary for which any Letter of Credit was procured);

(v)the lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other document presented under or in connection with any Letter of Credit, or any fraud or alleged fraud in connection with any Letter of Credit, or the transport of any property or provision of

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services relating to a Letter of Credit, in each case even if the Issuing Lender or any of the Issuing Lender's Affiliates has been notified thereof;

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

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

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

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

(x)any breach of this Agreement or any other Loan Document by any party thereto;

(xi)the occurrence or continuance of an Insolvency Proceeding with respect to any Loan Party;

(xii)the fact that an Event of Default or a Potential Default shall have occurred and be continuing;

(xiii)the fact that the Expiration Date shall have passed or this Agreement or the Commitments hereunder shall have been terminated; and

(xiv)any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.

 

2.9.8

Indemnity.

In addition to amounts payable as provided in Section 10.3, the Borrowers hereby agree (subject to Section 10.18 for the avoidance of doubt, if applicable) to protect, indemnify, pay and save harmless the Administrative Agent and any of Administrative Agent's Affiliates and each Issuing Lender and any of the Issuing Lenders' respective Affiliates (collectively, the "Letter of Credit Parties"), that has issued a Letter of Credit from and against any and all claims, demands, liabilities, damages, taxes, penalties, interest, judgments, losses, costs, charges and expenses (including reasonable fees, expenses and disbursements of counsel and allocated costs of internal counsel) which any of the Letter of Credit Parties may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit, other than as a sole result

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of (i) the gross negligence or willful misconduct of any of the Letter of Credit Parties as determined by a final judgment of a court of competent jurisdiction or (ii) the wrongful dishonor by any of the Letter of Credit Parties of a proper demand for payment made under any Letter of Credit, except if such dishonor resulted from any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Official Body.

 

2.9.9

Liability for Acts and Omissions.

As between any Loan Party and the Issuing Lender, or the Issuing Lender's Affiliates, such Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit.  In furtherance and not in limitation of the foregoing, the Issuing Lender shall not be responsible for any of the following including any losses or damages to any Loan Party or other Person or property relating therefrom:  (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for an issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the Issuing Lender or its Affiliates shall have been notified thereof); (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute between or among any Loan Party and any beneficiary of any Letter of Credit or any such transferee; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond the control of the Issuing Lender or its Affiliates, as applicable, including any act or omission of any Official Body, and none of the above shall affect or impair, or prevent the vesting of, any of the Issuing Lender's or its Affiliates, rights or powers hereunder.  Nothing in the preceding sentence shall relieve the Issuing Lender from liability for the Issuing Lender's gross negligence or willful misconduct in connection with actions or omissions described in such clauses (i) through (viii) of such sentence.  In no event shall the Issuing Lender or its Affiliates, be liable to any Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys' fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit.  

Without limiting the generality of the foregoing, the Issuing Lender and each of its Affiliates (i) may rely on any oral or other communication believed in good faith by the Issuing Lender or such Affiliate to have been authorized or given by or on behalf of the applicant for a Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such

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dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the Issuing Lender or its Affiliate; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the Laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Issuing Lender or its Affiliate in any way related to any order issued at the applicant's request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an "Order") and honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.

In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the Issuing Lender or its Affiliates, under or in connection with the Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not put the Issuing Lender or its Affiliates, under any resulting liability to the Borrowers or any Lender.

 

Issuing Lender Reporting Requirements.

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

 

2.10

Currency Repayments.

Notwithstanding anything contained herein to the contrary, the entire amount of principal of and interest on any Revolving Credit Loan made in an Optional Currency shall be repaid in the same Optional Currency in which such Revolving Credit Loan was made, provided, however, that if it is impossible or illegal for the Borrowers to effect payment of a Revolving Credit Loan in the Optional Currency in which such Revolving Credit Loan was made, or if the Borrowers default in their obligations to do so, the Required Lenders may at their option permit such payment to be made (i) at and to a different location, subsidiary, affiliate or correspondent of Administrative Agent, (ii) in the Equivalent Amount of Dollars or (iii) in an Equivalent Amount of such other currency (freely convertible into Dollars) as the Required Lenders may solely at their option designate.  Upon any events described in (i) through (iii) of the preceding sentence, the Borrowers shall make such payment, and the Borrowers agree to indemnify and hold each Lender harmless from and against any loss incurred by any Lender arising from the cost to such Lender of any premium, any costs of exchange, the cost of hedging and covering the

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Optional Currency in which such Revolving Credit Loan was originally made, and from any change in the value of Dollars, or such other currency, in relation to the Optional Currency that was due and owing.  Such loss shall be calculated for the period commencing with the first day of the Interest Period for such Revolving Credit Loan and continuing through the date of payment thereof.  Without prejudice to the survival of any other agreement of the Borrowers hereunder, the Borrowers' obligations under this Section 2.10 shall survive termination of this Agreement.

 

2.11

Optional Currency Amounts.

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

 

2.12

Reduction of Commitment.  

The Company, on behalf of all Borrowers, shall have the right at any time and from time to time upon five (5) Business Days' prior written notice to the Administrative Agent to permanently reduce, in whole multiples of $5,000,000.00 of principal, or terminate the Revolving Credit Commitments without penalty or premium, except as hereinafter set forth, provided that any such reduction or termination shall be accompanied by (a) the payment in full of any Commitment Fee then accrued on the amount of such reduction or termination and (b) prepayment of the Revolving Credit Loans, together with the full amount of interest accrued on the principal sum to be prepaid (and all amounts referred to in Section 4.8 hereof), to the extent that the Dollar Equivalent Revolving Facility Usage then outstanding exceeds the Revolving Credit Commitments as so reduced or terminated; provided, that any such termination or reduction may be conditioned on the occurrence of any subsequent event (including a change of control or refinancing transaction).  From the effective date of any such reduction or termination the obligations of the Borrowers to pay the Commitment Fee pursuant to Section 2.3 shall correspondingly be reduced or cease.

 

2.13

Defaulting Lenders.  

Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

(i)fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.3;

(ii)the Commitment and outstanding Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (ii) shall not apply to the vote of a Defaulting

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Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;

(iii)if any Swing Loans are outstanding or any Letter of Credit Obligations exist at the time such Lender becomes a Defaulting Lender, then:

(a)all or any part of the outstanding Swing Loans and Letter of Credit Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Ratable Shares but only to the extent that (x) the Dollar Equivalent Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders' Revolving Credit Commitments, and (y) no Potential Default or Event of Default has occurred and is continuing at such time;

(b)if the reallocation described in clause (a) above cannot, or can only partially, be effected, the Borrowers shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the Issuing Lender the Borrowers' obligations corresponding to such Defaulting Lender's Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (a) above) in a deposit account held at the Administrative Agent for so long as such Letter of Credit Obligations are outstanding;

(c)if the Borrowers cash collateralize any portion of such Defaulting Lender's Letter of Credit Obligations pursuant to clause (b) above, the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.9.2 with respect to such Defaulting Lender's Letter of Credit Obligations during the period such Defaulting Lender's Letter of Credit Obligations are cash collateralized;

(d)if the Letter of Credit Obligations of the non-Defaulting Lenders are reallocated pursuant to clause (a) above, then the fees payable to the Lenders pursuant to Section 2.9.2 shall be adjusted in accordance with such non-Defaulting Lenders' Ratable Share; and

(e)if all or any portion of such Defaulting Lender's Letter of Credit Obligations are neither reallocated nor cash collateralized pursuant to clause (a) or (b) above, then, without prejudice to any rights or remedies of the Issuing Lender or any other Lender hereunder, all Letter of Credit Fees payable under Section 2.9.2 with respect to such Defaulting Lender's Letter of Credit Obligations shall be payable to the Issuing Lender (and not to such Defaulting Lender) until and to the extent that such Letter of Credit Obligations are reallocated and/or cash collateralized; and

(iv)so long as such Lender is a Defaulting Lender, PNC shall not be required to fund any Swing Loans and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless such Issuing Lender is satisfied that the related exposure and the Defaulting Lender's then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.13(iii)(b), and participating interests in any newly made Swing Loan or any newly issued or increased Letter of Credit shall be allocated

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among non-Defaulting Lenders in a manner consistent with Section 2.13(iii)(a) (and such Defaulting Lender shall not participate therein).

If (i) a Bankruptcy Event or a Bail-In Action with respect to a parent company of any Lender shall occur following the date hereof and for so long as such event shall continue, or (ii) PNC or the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, PNC shall not be required to fund any Swing Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless PNC or the Issuing Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to PNC or the Issuing Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder.

In the event that the Administrative Agent, the Borrowers, PNC and the Issuing Lender agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will so notify the parties hereto, and the Ratable Share of the Swing Loans and Letter of Credit Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender's Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Ratable Share; provided, however, that except to the extent otherwise expressly agreed in writing by the affected parties, no change hereunder from Defaulting Lender to non-defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.

 

2.14

Term Loan Commitment.

Subject to the terms and conditions hereof and relying upon the representations and warranties herein set forth, each Lender holding any Term Loan Commitment severally agrees to make a term loan (the "Term Loans") in Euros to the Borrowers at any time on or after the Closing Date to and including the Term Loan Draw Termination Date (such date, the "Term Loan Draw Date") in such principal amount as the Borrowers shall request up to but not exceeding such Lender's Term Loan Commitment; provided however, (i) only one advance of the Term Loans may be made, (ii) the proceeds of the Term Loan shall be used to redeem and repay in full all outstanding Indebtedness under the 2012 Senior Notes and such 2012 Senior Notes shall be cancelled and (iii) after giving effect to such Term Loan advance, the aggregate amount of Term Loans shall not exceed the Term Loan Commitment. The Lenders shall have no obligation to make Term Loans hereunder after the Term Loan Draw Termination Date.  The Term Loan Commitments are not revolving credit commitments, and the Borrowers shall not have the right to borrow, repay and reborrow new funds under this Section 2.14.

The Borrower Agent, on behalf of all Borrowers, shall have the right at any time and from time to time upon five (5) Business Days' prior written notice to the Administrative Agent to permanently reduce, in whole multiples of €5,000,000.00 of principal, or terminate the Term Loan Commitments without penalty or premium.  The Term Loan Commitments shall automatically terminate upon the earlier to occur of (x) 11:59 pm (Pittsburgh time) on the Term Loan Draw Termination Date and (y) the funding of the Term Loans on the Term Loan Draw

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Date.  From the effective date of any such reduction or termination the obligations of the Borrowers to pay the Commitment Fee pursuant to Section 2.16 shall correspondingly be reduced or cease.

 

2.15

Nature of Lender's Obligations with Respect to Term Loans; Term Loan Repayment Terms.

The obligations of each Lender to make Term Loans to the Borrowers shall be in the proportion that such Lender's Term Loan Commitment bears to the Term Loan Commitments of all the Lenders, but each Lender's aggregate advance with respect to the Term Loans to the Borrowers shall never exceed its Term Loan Commitment.  The failure of any Lender to make such advance with respect to the Term Loan shall not relieve any other Lender of its obligations to make an advance with respect to the Term Loan nor shall it impose any additional liability on any other Lender hereunder.  The principal amount of the Term Loans shall be payable from and after the Term Loan Draw Termination Date in consecutive quarterly installments of principal, with each such quarterly installment to be in an amount equal to 1.25% of the Term Loans funded on the Term Loan Draw Date (as such quarterly installment amounts may be reduced or eliminated pursuant to Section 4.4 or Section 4.5), commencing on July 1, 2019 and continuing on each Payment Date thereafter, through and including the Expiration Date, upon which date all remaining principal on the Term Loans, to the extent not previously paid, is due and payable. Notwithstanding anything contained herein to the contrary, the entire amount of principal of and interest on the Term Loans shall be repaid in Euros.

 

2.16

Term Loan Commitment Fees.

Accruing from the date hereof until the earlier of the Term Loan Draw Date or the Term Loan Draw Termination Date (or, if applicable, the date of the termination in whole of the Term Loan Commitments pursuant to Section 2.14), the Borrowers agree to pay to the Administrative Agent for the account of each Lender according to its Ratable Share, a nonrefundable commitment fee (the "Term Loan 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) multiplied by the aggregate amount of the outstanding Term Loan Commitments; provided, further, that any Term Loan Commitment Fee accrued with respect to the Term Loan 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 Borrowers so long as such Lender shall be a Defaulting Lender except to the extent that such Term Loan Commitment Fee shall otherwise have been due and payable by Borrowers prior to such time; and provided further that no Term Loan Commitment Fee shall accrue with respect to the Term Loan Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.  Subject to the proviso in the directly preceding sentence, the Term Loan Commitment Fee shall be payable on the earlier of the Term Loan Draw Date or the Term Loan Draw Termination Date or upon acceleration of the Loans and in Euros.

 

Term Loan Note.

  Subject to Section 10.18, the obligations of the Borrowers to repay the aggregate unpaid principal amount of the Term Loans made to it by each Lender, together with interest thereon, shall be evidenced by this Agreement and, to the extent requested pursuant to Section 4.11, a Term Loan Note dated the

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Closing Date payable to the order of such Lender in a face amount equal to the Term Loan Commitment of such Lender.

3.INTEREST RATES

 

3.1

Interest Rate Options.

The Borrowers shall pay interest in respect of the outstanding unpaid principal amount of the Revolving Credit Loans as selected by it from the Base Rate Option or Euro-Rate Option set forth below applicable to the Revolving Credit Loans, it being understood that, subject to the provisions of this Agreement, the Borrowers may select different Interest Rate Options and different Interest Periods to apply simultaneously to the Revolving Credit Loans comprising different Borrowing Tranches and may convert to or renew one or more Interest Rate Options with respect to all or any portion of the Revolving Credit Loans comprising any Borrowing Tranche.  Interest on the principal amount of each Revolving Credit Loan made in an Optional Currency shall be paid by the Borrowers in such Optional Currency.  Swing Loans shall bear interest at a rate to be agreed upon by the Administrative Agent and the Company, on behalf of all Borrowers.  The Borrowers shall pay interest in respect of the outstanding unpaid principal amount of the Term Loans at the Euro Rate plus the Applicable Margin applicable to the Term Loans as set forth in Section 3.1.2 below, it being understood that, subject to the provisions of this Agreement, the Borrowers may select different Interest Periods to apply simultaneously to the Term Loans comprising different Borrowing Tranches and may renew one or more Interest Periods with respect to all or any portion of the Term Loans comprising any Borrowing Tranche.  At no time shall there be outstanding more than ten (10) Borrowing Tranches in the aggregate among all of the Loans.  If at any time the designated rate applicable to any Loan made by any Lender exceeds such Lender's highest lawful rate, the rate of interest on such Lender's Loan shall be limited to such Lender's highest lawful rate.

 

3.1.1

Revolving Credit Interest Rate Options.

The Borrowers shall have the right to select from the following Interest Rate Options applicable to the Revolving Credit Loans (subject to the provisions above regarding Swing Loans), except that no Revolving Credit Loan to which a Base Rate shall apply may be made in an Optional Currency:

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

(ii)Revolving Credit Euro-Rate Option.  A rate per annum (computed on the basis of a year of 360 days, as the case may be, and actual days elapsed, provided that, for Revolving Credit Loans made in an Optional Currency as to which market practice differs from the foregoing, in accordance with such market practice), equal to the Euro-Rate plus the Applicable Margin.

 

3.1.2

Term Loan Interest Rate.

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The Term Loans shall bear interest at a rate per annum (computed on the basis of a year of 360 days, as the case may be, and actual days elapsed, provided that, if the market practice differs from the foregoing at any time for loans made in Euros, in accordance with such market practice) equal to the Euro-Rate plus the Applicable Margin.

 

3.1.3

Rate Quotations.

The Borrowers may call the Administrative Agent on or before the date on which a Loan Request is to be delivered to receive an indication of the interest rates and the applicable currency exchange rates then in effect, but it is acknowledged that such projection shall not be binding on the Administrative Agent or the Lenders nor affect the rate of interest or the calculation of Equivalent Amounts which thereafter are actually in effect when the election is made.

 

3.2

Interest Periods.

At any time when the Borrowers shall (i) select, convert to or renew a Euro-Rate Option with respect to Revolving Credit Loans or (ii) renew an Interest Period with respect to the Term Loans, the Borrowers shall notify the Administrative Agent thereof by delivering a Loan Request at least four (4) Business Days prior to the effective date of such Interest Rate Option with respect to Revolving Credit Loans, with respect to an Optional Currency Loan and/or a Term Loan, and three (3) Business Days prior to the effective date of such Interest Rate Option, with respect to a Revolving Credit Loan denominated in Dollars.  The notice shall specify an Interest Period during which such Interest Rate Option shall apply with respect to Revolving Credit Loans and specify an Interest Period with respect to the Term Loans, as applicable.  Notwithstanding the preceding sentence, the following provisions shall apply to (i) any selection of, renewal of, or conversion to a Euro-Rate Option with respect to Revolving Credit Loans or (ii) the renewal of an Interest Period with respect to the Term Loans:

 

3.2.1

Amount of Borrowing Tranche.

The Dollar Equivalent amount of each Borrowing Tranche of Euro-Rate Revolving Credit Loans shall be in integral multiples of $100,000.00 and not less than $2,000,000.00 and the amount of each Borrowing Tranche of Term Loans shall be in integral multiples of €100,000.00 and not less than €2,000,000.00.

 

3.2.2

Renewals.

In the case of the renewal of a Euro-Rate Option and/or any Term Loan Borrowing Tranche at the end of an Interest Period, the first day of the new Interest Period shall be the last day of the preceding Interest Period, without duplication in payment of interest for such day.

 

3.2.3

No Conversion of Optional Currency Loans.

No Optional Currency Loan may be converted into a Revolving Credit Loan with a different Interest Rate Option, or a Revolving Credit Loan denominated in a different Optional Currency.

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3.3

Interest After Default.

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

 

3.3.1

Letter of Credit Fees, Interest Rate.

The Letter of Credit Fees and the rate of interest for each Loan otherwise applicable pursuant to Section 2.9.2 or Section 3.1, respectively, shall at the request of the Administrative Agent be increased, by 2.0% per annum; and

 

3.3.2

Other Obligations.

Each other Obligation hereunder if not paid when due shall bear interest at a rate per annum equal to the sum of the rate of interest applicable under the Base Rate Option plus an additional 2.0% per annum from the time such Obligation becomes due and payable and until it is paid in full.

 

3.3.3

Acknowledgment.

The Borrowers acknowledges that the increase in rates referred to in this Section 3.3 reflects, among other things, the fact that such Loans or other amounts have become a substantially greater risk given their default status and that the Lenders are entitled to additional compensation for such risk; and all such interest shall be payable by the Borrowers upon demand by the Administrative Agent.

 

3.4

Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available.

 

3.4.1

Unascertainable.

If on any date on which a Euro-Rate would otherwise be determined, the Administrative Agent shall have determined that:

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

(ii)a contingency has occurred affecting the Relevant Interbank Market relating to the Euro-Rate and reasonable and adequate means do not exist for ascertaining the Euro-Rate for such Interest Period,

the Administrative Agent and Borrowers shall have the rights specified in Sections 3.4.4 and 4.4.2 (as applicable).

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3.4.2

Illegality; Increased Costs; Deposits Not Available.

If at any time any Lender shall have determined that:

(i)the making, maintenance or funding of any Revolving Credit Loan to which a Euro-Rate Option applies, the making of the Term Loan or performing any of its obligations hereunder or under any Loan Document has been made impracticable or unlawful by compliance by such Lender in good faith with any Law or any interpretation or application thereof by any Official Body or with any request or directive of any such Official Body (whether or not having the force of Law), or

(ii)such Euro-Rate Option will not adequately and fairly reflect the cost to such Lender of the establishment or maintenance of any such Revolving Credit Loan or the Euro-Rate will not adequately and fairly reflect the cost to such Lender of the establishment or maintenance of the Term Loans,

(iii)after making all reasonable efforts, deposits of the relevant amount in Dollars or in the Optional Currency (as applicable) for the relevant Interest Period for a Revolving Credit Loan, or to banks generally, to which a Euro-Rate Option applies, respectively, are not available to such Lender with respect to such Loan, or to banks generally, in the interbank eurodollar market, or

(iv)after making all reasonable efforts, deposits of the relevant amount in Euros for the relevant Interest Period for a Term Loan, or to banks generally, are not available to such Lender with respect to such Term Loan, or to banks generally, in the interbank eurodollar market,

then the Administrative Agent and Borrowers shall have the rights specified in Sections 3.4.4 and 4.4.2 (as applicable).

 

3.4.3

Optional Currency Not Available.

If at any time the Administrative Agent shall have determined that a fundamental change has occurred in the foreign exchange or interbank markets with respect to any Optional Currency (including, without limitation, changes in national or international financial, political or economic conditions or currency exchange rates or exchange controls), then (i) the Administrative Agent shall notify the Borrower of any such determination, and (ii) the Administrative Agent shall have the rights specified in Section 3.4.4.

 

3.4.4

Administrative Agent's and Lender's Rights.

In the case of any event specified in Section 3.4.1 above, the Administrative Agent shall promptly so notify the Lenders and the Borrowers thereof, and in the case of an event specified in Section 3.4.2 or 3.4.3 above, such Lender shall promptly so notify the Administrative Agent and endorse a certificate to such notice as to the specific circumstances of such notice, and the Administrative Agent shall promptly send copies of such notice and certificate to the other Lenders and the Borrowers.  Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the obligation of (A) the

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Lenders, in the case of such notice given by the Administrative Agent, or (B) such Lender, in the case of such notice given by such Lender, to allow the Borrowers to (i) select, convert to or renew a Euro-Rate Option with respect to Revolving Credit Loans, (ii) select an Optional Currency (as applicable) with respect to Revolving Credit Loans or (iii) select or renew an Interest Period with respect to a Borrowing Tranche of the Term Loans shall be suspended until the Administrative Agent shall have later notified the Borrowers, or such Lender shall have later notified the Administrative Agent, of the Administrative Agent's or such Lender's, as the case may be, determination that the circumstances giving rise to such previous determination no longer exist.  If at any time the Administrative Agent makes a determination under Section 3.4.1 and the Borrowers have previously notified the Administrative Agent of its selection of, conversion to or renewal of a Euro-Rate Option with respect to Revolving Credit Loans and such Interest Rate Option has not yet gone into effect, such notification shall be deemed to provide for selection of, conversion to or renewal of the Base Rate Option otherwise available with respect to such Revolving Credit Loans.  If at any time the Administrative Agent makes a determination under Section 3.4.1 and the Borrowers have previously notified the Administrative Agent of its renewal of an Interest Period with respect to a Term Loan and such Interest Period has not yet gone into effect, such notification shall be deemed to provide for conversion to the Foreign Base Rate.  If any Lender notifies the Administrative Agent of a determination under Section 3.4.2, the obligation of such Lender to issue, make, maintain, fund or charge interest with respect to any such Revolving Credit Loan shall be suspended, and to the extent required by applicable Law, cancelled, and the Borrowers shall, subject to the Borrowers' indemnification Obligations under Section 4.8, as to any Revolving Credit Loan of the Lender to which a Euro-Rate Option applies, on the date specified in such notice either, at the Borrowers' option (i) as applicable, convert such Revolving Credit Loan to the Base Rate Option otherwise available with respect to such Revolving Credit Loan or select a different Optional Currency or Dollars, or (ii) prepay such Revolving Credit Loan in accordance with Section 4.4.  Absent due notice from the Borrowers of conversion or prepayment, such Revolving Credit Loan shall automatically be converted to the Base Rate Option otherwise available with respect to such Revolving Credit Loan upon such specified date.  If any Lender notifies the Administrative Agent of a determination under Section 3.4.2, the obligation of such Lender to issue, make, maintain, fund or charge interest with respect to any such Term Loan shall be suspended, and to the extent required by applicable Law, cancelled, and the Borrowers shall, subject to the Borrowers' indemnification Obligations under Section 4.8 on the date specified in such notice either, at the Borrowers' option, (i) as applicable, convert such Term Loan to Foreign Base Rate Loans, or (ii) prepay such Term Loan in accordance with Section 4.4.  Absent due notice from the Borrowers of conversion or prepayment, such Term Loan shall automatically be converted to a Foreign Base Rate Loan upon such specified date.  If the Administrative Agent makes a determination under 3.4.3 then, until the Administrative Agent notifies the Borrowers that the circumstances giving rise to such determination no longer exist, (i) the availability of Revolving Credit Loans in the affected Optional Currency shall be suspended, and (ii) the outstanding Revolving Credit Loans in such affected Optional Currency shall be converted into Dollar Loans (in an amount equal to the Dollar Equivalent of such outstanding Optional Currency Loans) (x) on the last day of the then current Interest Period if the Lenders may lawfully continue to maintain Revolving Credit Loans in such Optional Currency to such day, or (y) immediately if the Lenders may not lawfully continue to maintain Revolving Credit Loans in such Optional Currency, and interest thereon shall thereafter accrue at the Base Rate Option.

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3.5

Successor Euro-Rate Index.

(i)Notwithstanding anything herein to the contrary, if the Administrative Agent determines (which determination shall be final and conclusive, absent manifest error) that either (a) (i) the circumstances set forth in Section 3.4.1 have arisen and are unlikely to be temporary, or (ii) the circumstances set forth in Section 3.4.1 have not arisen but the applicable supervisor or administrator (if any) of a Euro-Rate or an Official Body having jurisdiction over the Administrative Agent has made a public statement identifying the specific date after which the Euro-Rate shall no longer be used for determining interest rates for loans in Dollars, Euros or any Optional Currency (either such date, a "Euro-Rate Termination Date"), or (b) a rate other than the Euro-Rate has become a widely recognized benchmark rate for newly originated loans in Dollars, Euros or an applicable Optional Currency in the U.S. market, then the Administrative Agent and the Borrowers may choose a replacement index for the Euro-Rate in respect of Loans in Dollars, Euros or the applicable Optional Currency, as the case may be, and the Administrative Agent and the Borrowers may enter into one or more amendments as described in clause (ii) below for the purpose of making adjustments to applicable margins and related amendments to this Agreement as referred to below such that, to the extent practicable, the all-in interest rate based on the replacement index will be substantially equivalent to the all-in Euro-Rate-based interest rate in effect prior to its replacement.  

(ii)The Administrative Agent and the Borrowers shall enter into an amendment to this Agreement to reflect the replacement index, the adjusted margins and such other related amendments as may be appropriate, in the discretion of the Administrative Agent, for the implementation and administration of the replacement index-based rate.  Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, including, without limitation, Section 10.1, such amendment shall become effective without any further action or consent of any other party to this Agreement at 5:00 p.m. Eastern Time on the tenth (10th) Business Day after the date a draft of the amendment is provided to the Lenders, unless the Administrative Agent receives, on or before such tenth (10th) Business Day, a written notice from the Required Lenders stating that such Lenders object to such amendment. 

(iii)Selection of the replacement index, adjustments to the applicable margins, and amendments to this Agreement (a) will be determined by the Administrative Agent and the Borrowers with due consideration to the then-current market practices for determining and implementing a rate of interest for newly originated loans in the United States and loans converted from a Euro-Rate-based rate to a replacement index-based rate, and (b) may also reflect adjustments to account for (x) the effects of the transition from the Euro-Rate to the replacement index and (y) yield- or risk-based differences between the Euro-Rate and the replacement index.

(iv)Until an amendment reflecting a new replacement index in accordance with this Section 3.5 is effective, each advance, conversion and renewal of a Revolving Credit Loan under the Euro-Rate Option and/or a Term Loan will continue to bear interest with reference to the Euro-Rate; provided however, that if the Administrative Agent determines (which determination shall be final and conclusive, absent manifest error) that a Euro-Rate Termination Date has occurred, then following the Euro-Rate Termination Date, all Revolving Credit Loans as to which the Euro-Rate Option would otherwise apply and all Term Loans shall

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automatically be converted to (x) if such Revolving Credit Loan is in Dollars, the Base Rate Option, (y) if such Revolving Credit Loan is in an Optional Currency to which such Euro-Rate Termination Date applies, a Revolving Credit Loan in Dollars under the Base Rate Option, and (z) with respect to the Term Loans, Foreign Base Rate Loans, in each case, until such time as an amendment reflecting a replacement index and related matters as described above is implemented.

(v)Notwithstanding anything to the contrary contained herein, if at any time the replacement index is less than zero, at such times, such index shall be deemed to be zero for purposes of this Agreement.

 

3.6

Selection of Interest Rate Options.

If the Borrowers fail to select a new Interest Period or Optional Currency to apply to any Borrowing Tranche of Revolving Credit Loans under the Euro-Rate Option or fail to select a new Interest Period to apply to any Borrowing Trance of Term Loans at the expiration of an existing Interest Period applicable to such Borrowing Tranche in accordance with the provisions of Section 3.2, the Borrowers shall be deemed to have converted or continued, as applicable, such Borrowing Tranche of Revolving Credit Loans under the Euro-Rate Option and/or such Borrowing Tranche of Term Loans for an Interest Period of one (1) month and, if required by the Administrative Agent with respect to Revolving Credit Loans, converted such Borrowing Tranche to a Revolving Credit Loan in Dollars, as applicable, commencing upon the last day of the existing Interest Period.

 

3.7

Canadian Interest Act Disclosure.

For purposes of the Interest Act (Canada): (i) whenever any interest or fee under this Agreement is calculated on the basis of a period of time other than a calendar year, such rate used in such calculation, when expressed as an annual rate, is equivalent to (x) such rate, multiplied by (y) the actual number of days in the calendar year in which the period for which such interest or fee is calculated ends, and divided by (z) the number of days in such period of time, (ii) the principle of deemed reinvestment of interest shall not apply to any interest calculation under this Agreement, and (iii) the rates of interest stipulated in this Agreement are intended to be nominal rates and not effective rates or yields and the parties acknowledge that they are capable of making the calculations necessary to compare such rates.

 

3.8

Canadian Usury Provision.

If any provision of this Agreement would oblige a Canadian Borrower to make any payment of interest or other amount payable to any Lender in an amount or calculated at a rate which would be prohibited by Law or would result in a receipt by that Lender of "interest" at a "criminal rate" (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable Law or so result in a receipt by that Lender of "interest" at a "criminal rate", such adjustment to be effected, to the extent necessary (but only to the extent necessary), as follows:

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(i)first, by reducing the amount or rate of interest; and

(ii)thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid which would constitute interest for purposes of Section 347 of the Criminal Code (Canada).

4.PAYMENTS

 

4.1

Payments.

All payments and prepayments to be made in respect of principal, interest, Commitment Fees, Term Loan Commitment Fees, Letter of Credit Fees, Administrative Agent's Fee or other fees or amounts due from the Borrowers hereunder shall be payable prior to 11:00 a.m., Pittsburgh time, on the date when due without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrowers, and without set-off, counterclaim or other deduction of any nature (other than withholding, if applicable, pursuant to Section 4.7.1), and an action therefor shall immediately accrue.  Such payments shall be made to the Administrative Agent at the Principal Office for the account of PNC with respect to the Swing Loans, for the ratable accounts of the Lenders with respect to the Revolving Credit Loans in Dollars (except that payments of principal or interest shall be made in the currency in which such Loan was made) and for the ratable accounts of the Lenders with respect to the Term Loans in Euros, and in immediately available funds, and the Administrative Agent shall promptly distribute such amounts to the Lenders in immediately available funds, provided that in the event payments are received by 11:00 a.m., Pittsburgh time, by the Administrative Agent with respect to the Loans and such payments are not distributed to the Lenders on the same day received by the Administrative Agent, the Administrative Agent shall pay the Lenders interest at the Federal Funds Effective Rate in the case of Loans or other amounts due in Dollars, or the Overnight Rate in the case of Loans or other amounts due in Euros or another Optional Currency, with respect to the amount of such payments for each day held by the Administrative Agent and not distributed to the Lenders.  The Administrative Agent's and each Lender's statement of account, ledger or other relevant record shall, in the absence of manifest error, be conclusive as the statement of the amount of principal of and interest on the Loans and other amounts owing under this Agreement (including the Equivalent Amounts of the applicable currencies where such computations are required) and shall be deemed an "account stated."  All payments of principal and interest made in respect of the Loans must be repaid in the same currency (whether Dollars, Euros or the applicable Optional Currency) in which such Loan was made and all Unpaid Drawings with respect to each Letter of Credit shall be made in the same currency (whether Dollars, Euros or the applicable Optional Currency) in which such Letter of Credit was issued.  

 

4.2

Pro Rata Treatment of Lenders.

Each borrowing of Revolving Credit Loans and Term Loans shall be allocated to each Lender according to its Ratable Share, and each selection of, conversion to or renewal of any Interest Rate Option with respect to each Revolving Credit Loan, and each renewal of an Interest Period with respect to the Term Loans, and each payment or prepayment by the Borrowers with respect to principal, interest, Commitment Fees, Term Loan Commitment Fees, Letter of Credit Fees, or other fees (except for the Administrative Agent's Fee and the Issuing

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Lender's fronting fee for Letters of Credit referred to in Section 2.9.2) or amounts due from the Borrowers hereunder to the Lenders with respect to the Loans, shall (except as provided in Section 3.4.4 in the case of an event specified in Sections 3.4, 4.4.2 or 4.8) be made in proportion to the applicable Loans outstanding from each Lender and, if no such Loans are then outstanding, in proportion to the Ratable Share, as applicable of each Lender.  Notwithstanding any of the foregoing, each borrowing or payment or prepayment by the Borrowers of principal, interest, fees or other amounts from the Borrowers with respect to Swing Loans shall be made by or to PNC.

 

4.3

Interest Payment Dates.

Interest on Revolving Credit Loans to which the Base Rate Option applies shall be due and payable in arrears on each Payment Date and on the Expiration Date or upon acceleration of the Notes.  Interest on Revolving Credit Loans to which the Euro-Rate Option applies and Term Loans shall be due and payable in the currency in which such Loan was made on the last day of each Interest Period for those Loans and, if such Interest Period is longer than three (3) Months, also on the 90th day of such Interest Period.  Interest on mandatory prepayments of principal under Section 4.5 shall be made in the currency in which such Loan was made and shall be due on the date such mandatory prepayment is due.  Interest on the principal amount of each Loan or other monetary Obligation shall be due and payable in the currency in which such Loan was made on demand after such principal amount or other monetary Obligation becomes due and payable (whether on the Expiration Date, stated maturity date, upon acceleration or otherwise).

 

4.4

Voluntary Prepayments; Replacement of Lender; Change of Lending Office.

 

4.4.1

Right to Prepay.

The Borrowers shall have the right, at their option, from time to time to prepay the Loans in whole or part without premium or penalty (except as provided in Section 4.4.2, Section 4.6.1 or Section 4.8) in the currency in which such Loan was made:

(i)at any time with respect to any Revolving Credit Loan to which the Base Rate Option applies,

(ii)at any time with respect to any Revolving Credit Loan in any Optional Currency, subject to Section 4.8,

(iii)at any time with respect to Revolving Credit Loans to which a Euro-Rate Option applies, subject to Section 4.8,

(iv)at any time with respect to Term Loans, subject to Section 4.8

(v)on the date specified in a notice by any Lender pursuant to Section 3.4 with respect to any Revolving Credit Loan to which a Euro-Rate Option applies and/or any Term Loan.

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Whenever the Borrowers desire to prepay any part of the Loans, the Company, on behalf of all Borrowers, shall provide a prepayment notice to the Administrative Agent by 1:00 p.m. Pittsburgh time: (i) at least one (1) Business Day prior to the date of prepayment of the Revolving Credit Loans made in Dollars and (ii) at least four (4) Business Days prior to the date of prepayment of any Revolving Credit Loans in an Optional Currency or the Term Loans, and (iii) on the date of prepayment of Swing Loans, in each case setting forth the following information:

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

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

(y)the Borrowing Tranche designated for prepayment, if applicable; and

(z)the total principal amount and currency of such prepayment, (1) with respect to Revolving Credit Loans, the Dollar Equivalent amount of which shall not be less than $100.000.00 for any Swing Loan or $1,000,000.00 or such lesser amount as may be outstanding or (2) with respect to the Term Loan shall not be less than €1,000,000.00 or such lesser amount as may be outstanding.

All prepayment notices shall be irrevocable; provided, that such prepayment obligation may be conditioned on the occurrence of any subsequent event (including a change of control, refinancing transaction or Permitted Acquisition or other investment).  The principal amount of the Loans for which a prepayment notice is given, together with interest on such principal amount except with respect to Revolving Credit Loans to which the Base Rate Option applies, shall be due and payable on the date specified in such prepayment notice as the date on which the proposed prepayment is to be made in the currency in which such  Loans was made.  All Term Loan prepayments permitted pursuant to this Section 4.4.1 shall be applied as the Borrowers shall direct (or in the absence of any such direction, to the unpaid installments of principal of the Term Loans in direct order of maturity).  Except as provided in Section 3.4.4, if the Borrowers prepay a Loan but fails to specify the applicable Borrowing Tranche which the Borrowers are prepaying, the prepayment shall be applied (i) first to Revolving Credit Loans and then to Term Loans; and (ii) after giving effect to the allocations in clause (i) above and in the preceding sentence, first to Revolving Credit Loans to which the Base Rate Option applies, then to Revolving Credit Loans to which the Euro-Rate Option applies, then to Term Loans, then to Optional Currency Loans and then to Swing Loans.  Any prepayment hereunder shall be subject to the Borrowers' Obligation to indemnify the Lenders under Section 4.8.  Revolving Credit Loan prepayments shall not result in an reduction of the Revolving Credit Commitments unless the Borrowers have elected to reduce such Revolving Credit Commitments pursuant to Section 2.12.  Prepayments shall be made in the currency in which such Loan was made unless otherwise agreed by the Administrative Agent and the Borrower Agent.

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4.4.2

Mitigation Obligations; Replacement of a Lender.

In the event any Lender (i) gives notice under Section 3.4.1, (ii) requests compensation under Section 4.6.1, or requires the Borrowers to pay any Indemnified Taxes or additional amount to any Lender or any Official Body for the account of any Lender pursuant to Section 4.7, (iii) is a Defaulting Lender, (iv) becomes subject to the control of an Official Body (other than normal and customary supervision), or (v) is a Non-Consenting Lender referred to in Section 10.1 (any occurrence under the foregoing clauses (i) through (v) being referred to in this Section 4.4.1 as a "Defaulting Lender Event"), then the Borrowers may, in their discretion and at their sole expense, within ninety (90) days after the occurrence of the applicable Defaulting Lender Event (and if there are multiple Defaulting Lender Events, within ninety (90) days of the first such Defaulting Lender Event to occur), upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.11), all of its interests, rights (other than existing rights to payments pursuant to Section 4.6 or 4.7) and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:

(i)the Borrowers shall have paid to the Administrative Agent the assignment fee specified in Section 10.11;

(ii)such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and Participation Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.9.8) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts);

(iii)in the case of any such assignment resulting from a claim for compensation under Section 4.6 or payments required to be made pursuant to Section 4.7, such assignment will result in a reduction in such compensation or payments thereafter;

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

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.  Notwithstanding the foregoing, a replacement of the Administrative Agent may only be effectuated pursuant to Section 9.10.

In connection with the Borrowers' exercise of their rights under this Section 4.4.2, the Revolving Credit Commitment or Term Loan Commitment (as applicable) of the applicable Defaulting Lender may be provided by one or more of the remaining Lenders (who are not then Defaulting Lenders) or an acceptable new bank(s) or financial institution(s) which shall be approved by the Administrative Agent in its reasonable discretion without unreasonable delay.  Each new lender committing to a Revolving Credit Commitment or Term Loan Commitment (as applicable) in connection therewith shall join this Agreement as a Lender by entering into a bank

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joinder and assumption agreement in form and substance reasonably satisfactory to the Administrative Agent, setting forth the Revolving Credit Commitment or Term Loan Commitment (as applicable) of such new lender, pursuant to which such new lender will become a Lender as of the effective date thereof.

 

4.4.3

Change of Lending Office.

If any Lender requests compensation under Section 3.4.2, or the Borrowers are or will be required to pay any Indemnified Taxes or additional amounts to any Lender or any Official Body for the account of any Lender pursuant to this Agreement, then such Lender shall (at the request of the Borrowers) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to this Agreement, in the future, and (ii) would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender.

 

4.5

Mandatory Prepayments.

 

4.5.1

Currency Fluctuations.

If on any Computation Date the sum of the Dollar Equivalent Revolving Facility Usage is greater than the Revolving Credit Commitments as a result of a change in exchange rates between one (1) or more Optional Currencies and Dollars by an amount greater than 105%, then the Administrative Agent shall notify the Borrowers of the same.  The Borrowers shall pay or prepay the Revolving Credit Loans (subject to Borrowers' indemnity obligations contained in this Agreement, including, without limitation, under Section 4.6 or 4.8) or Swing Loans within three (3) Business Days after receiving such notice such that the sum of the Dollar Equivalent Revolving Facility Usage no longer exceeds the aggregate Revolving Credit Commitments.  All prepayments required pursuant to this Section 4.5.1 shall first be applied among the Interest Rate Options to the principal amount of the Revolving Credit Loans subject to the Base Rate Option, then to Revolving Credit Loans denominated in Dollars and subject to a Euro-Rate Option and then to Revolving Credit Loans of Optional Currencies subject to the Euro-Rate Option, and the Borrowers will be subject to the indemnity obligation set forth in Section 4.8.

 

Sale of Assets.  

 

Subject to Section 4.5.6 below, within five (5) Business Days of any sale or other disposition of assets authorized by Section 7.2.7(v) and/or 7.2.7(vi), in each case resulting in net cash proceeds exceeding $50,000,000.00, the Borrowers shall make a mandatory prepayment of the principal amount of Term Loans equal to such excess net cash proceeds, together with accrued interest on such principal amount; provided that (x) if the Borrower Agent shall deliver a certificate of a Responsible Officer to the Administrative Agent promptly after receipt thereof setting forth the Borrowers' intent to reinvest such proceeds in assets useful in the business of the Borrower or any Subsidiary within twelve (12) months of the receipt of such proceeds, such proceeds shall not be required to be applied to prepay the Term Loans except to the extent such proceeds are not so reinvested within such twelve (12) month period and (y) no such prepayment

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shall be required to the extent that the aggregate amount of such proceeds that are not reinvested in accordance with clause (x) hereof does not exceed $50,000,000.00; and provided further, however, that any net cash proceeds not so reinvested shall be immediately applied to the prepayment of the Term Loans as set forth in this Section 4.5.2.

 

Issuance of Indebtedness.  

 

Within five (5) Business Days of any issuance of Indebtedness (other than Indebtedness permitted under Section 7.2.1), the Borrowers shall make a mandatory prepayment of the principal amount of Term Loans equal to such net cash proceeds, together with accrued interest on such principal amount.

 

Recovery Event.  

 

Subject to Section 4.5.6 below, to the extent of net cash proceeds received in connection with a Recovery Event which are in excess of $50,000,000 in the aggregate in any fiscal year and which are not applied to repair, replace or relocate damaged property or to purchase or acquire fixed or capital assets in replacement of the assets lost or destroyed within twelve (12) months of the receipt of such net cash proceeds, the Borrowers shall prepay the Term Loans in an aggregate amount equal to one hundred percent (100%) of such net cash proceeds by the fifth (5th) Business Day following receipt of such net cash proceeds (such prepayment to be applied as set forth in Section 4.5.5 below); provided that if such net cash proceeds have not been reinvested within the time periods set forth above, the Borrowers shall be required to prepay the Term Loans with such net cash proceeds.

 

Application of Prepayments.

  

Except as set forth in Section 4.5.1 above, all prepayments pursuant to this Section 4.5 shall be applied to the payment of the principal amount of the Term Loans by application to the unpaid scheduled quarterly installments of principal ratably (and, for the avoidance of doubt, excluding from any such ratable payment application the Term Loan payment to be made on the Expiration Date).  In accordance with Section 4.8, the Borrowers shall indemnify the Lenders for any loss or expense, including loss of margin, incurred with respect to any such prepayments on any day other than the last day of the applicable Interest Period.

 

Repatriation.

  Notwithstanding any other provisions of Sections 4.5.2 and 4.5.4, (i) to the extent that any of or all the net cash proceeds of any applicable sale or other disposition of assets with respect to any property or assets of Foreign Subsidiaries giving rise to a mandatory prepayment pursuant to this Section 4.5 are prohibited, delayed or restricted by applicable local Law, an amount equal to the portion of such net cash proceeds so affected will not be required to be applied to repay Term Loans at the times provided in this Section 4.5 but may be retained by the applicable Foreign Borrower or Subsidiary (the Borrower Agent hereby agreeing to cause any applicable Subsidiary to promptly take commercially reasonable actions available under applicable local Law to permit such repatriation or a part thereof if full repatriation is not

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permitted) and (ii) to the extent that repatriation of any of or all of the net cash proceeds of any applicable disposition with respect to any property or assets of Foreign Subsidiaries to the jurisdiction of organization or incorporation of the applicable Borrower would have a material adverse tax consequence with respect to such net cash proceeds, the net cash proceeds so affected will not be required to be applied to repay the Term Loans at the times provided in this Section 4.5 but may be retained by the applicable Foreign Borrower or Subsidiary.

 

4.6

Increased Costs.

 

4.6.1

Increased Costs Generally.

If any Change in Law shall

(i)impose, modify or deem applicable any reserve, liquidity, special deposit, or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement, which is addressed separately in this Section 4.6) or the Issuing Lender;

(ii)subject any Recipient to any taxes (other than (A) Indemnified Taxes, and (B) taxes excluded from Taxes pursuant to Section 4.7.1 or from indemnification pursuant to Section 4.7.5) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii)impose on any Lender or, the Issuing Lender any other condition, cost or expense (other than taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein;

and the result of any of the foregoing shall be to increase by an amount such Lender deems to be material the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender, the Issuing Lender or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, the Issuing Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, the Issuing Lender or other Recipient, the Borrowers will pay to such Lender, the Issuing Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Lender, as the case may be, for such additional costs incurred or reduction suffered.  Notwithstanding anything to the contrary contained in this Section 4.6.1, no Lender, Issuing Lender or other Recipient shall be permitted to make a claim to any Borrower under this Section 4.6.1 unless such Lender, Issuing Lender or other Recipient is making similar claims against other borrowers of such Lender, Issuing Lender or other Recipient to the extent such borrowers are similarly situated to the Borrowers.

 

4.6.2

Capital Requirements.

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If any Lender or the Issuing Lender determines that any Change in Law affecting such Lender or the Issuing Lender or any lending office of such Lender or such Lender's or the Issuing Lender's holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing by an amount such Lender deems to be material the rate of return on such Lender's or the Issuing Lender's capital or on the capital of such Lender's or the Issuing Lender's holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Loans held by, such Lender, or the Letters of Credit issued by the Issuing Lender, to a level below that which such Lender or the Issuing Lender or such Lender's or the Issuing Lender's holding company could have achieved but for such Change in Law (taking into consideration such Lender's or the Issuing Lender's policies and the policies of such Lender's or the Issuing Lender's holding company with respect to capital adequacy or liquidity requirements), then from time to time the Borrowers will pay to such Lender or the Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Lender or such Lender's or the Issuing Lender's holding company for any such reduction suffered.  Notwithstanding anything to the contrary contained in this Section 4.6.2, no Lender, Issuing Lender or other Recipient shall be permitted to make a claim to any Borrower under this Section 4.6.2 unless such Lender, Issuing Lender or other Recipient is making similar claims against other borrowers of such Lender, Issuing Lender or other Recipient to the extent such borrowers are similarly situated to the Borrowers.

 

4.6.3

Certificates for Reimbursement; Repayment of Outstanding Loans; Borrowing of New Loans.

A certificate of a Lender or the Issuing Lender setting forth in reasonable detail the basis for and the amount or amounts necessary to compensate such Lender or the Issuing Lender or its holding company, as the case may be, as specified in Sections 4.6.1 or 4.6.2 and delivered to the Borrowers shall be conclusive absent manifest error.  The Borrower shall pay such Lender or the Issuing Lender, as the case may be, the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof.

 

4.6.4

Delay in Requests.

Failure or delay on the part of any Lender or the Issuing Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender's or the Issuing Lender's right to demand such compensation, provided that the Borrowers shall not be required, subject to applicable Laws, to compensate a Lender or the Issuing Lender pursuant to this Section for any increased costs incurred or reductions suffered more than six (6) months prior to the date that such Lender or the Issuing Lender, as the case may be, notifies the Borrowers of the Change in Law giving rise to such increased costs or reductions and of such Lender's or the Issuing Lender's intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six (6) month period referred to above shall be extended to include the period of retroactive effect thereof).

 

4.6.5

Additional Reserve Requirements.

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The Borrowers shall pay to each Lender (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including eurocurrency funds or deposits, additional interest on the unpaid principal amount of each Revolving Credit Loan under the Euro-Rate Option and each Term Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement under Regulation D or under any similar, successor or analogous requirement of the Board of Governors of the Federal Reserve System (or any successor) or any other central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Revolving Credit Loans under the Euro-Rate Option and/or Term Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error), which in each case shall be due and payable on each date on which interest is payable on such Loan; provided that in each case the Borrowers shall have received at least ten days' prior notice (with a copy to the Administrative Agent) of such additional interest or costs from such Lender. If a Lender fails to give notice ten days prior to the relevant Payment Date, such additional interest or costs shall be due and payable ten days from receipt of such notice.

 

4.7

Taxes.

 

4.7.1

No Deductions.

(a)All payments made to the Lenders and/or Administrative Agent by the Borrowers hereunder and under each Note shall be made free and clear of and without deduction for any present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholdings), assessments, fees or other charges, in each case, imposed by any Official Body, including any interest, additions to tax or penalties applicable thereto, excluding (i) taxes imposed on, or measured by, the net income (however denominated) of any Lender, (ii) all income, franchise and branch profits taxes that would not have been imposed but for such Lender having a past or present connection with a jurisdiction imposing such taxes other than entering into this Agreement and performing its obligations and enforcing its rights thereunder and (iii) taxes imposed under FATCA (all such non-excluded taxes, levies, imposts, duties, deductions, withholdings (including backup withholdings), assessments, fees or other charges imposed by any Official Body, including any interest, additions to tax or penalties applicable thereto being hereinafter referred to as "Taxes") unless such deduction is required by Law (and then subject to the following sentence).  If the Borrowers shall be required by Law to deduct any Taxes from or in respect of any sum payable hereunder or under any Note, (i) the sum payable hereunder or under such Note shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 4.7.1) each Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrowers shall make such deductions and (iii) the Borrowers shall timely pay the full amount deducted to the relevant tax authority or other authority in accordance with applicable Law.  

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(b)A payment shall not be increased under Section 4.7.1(a) above by reason of a deduction or withholding of any taxes imposed by Ireland from any such payment, where such Tax is an Indemnified Tax and on the date on which the payment falls due the payment could have been made to the relevant Lender or Participant, as the case may be, without any such deduction or withholding if the Lender or Participant, as the case may be, had been an Irish Qualifying Lender, but on that date that Lender or Participant, as the case may be, is not or has ceased to be an Irish Qualifying Lender other than as a result of any change after the date it became a Lender or Participant, as the case may be, under this Agreement in (or in the interpretation, administration, or application of) any law or any published practice or published concession of any relevant taxing authority.  

(c)A payment shall not be increased under Section 4.7.1(a) above by reason of a deduction or withholding of any taxes imposed by the United Kingdom from any such payment, where such Tax is an Indemnified Tax and on the date on which the payment falls due (i) the payment could have been made to the relevant Lender without any such deduction or withholding if the Lender had been an English Qualifying Lender, but on that date that Lender is not or has ceased to be an English Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or any published practice or published concession of any relevant taxing authority, or (ii) the relevant Lender is an English Treaty Lender and the English Borrower making the payment is able to demonstrate that the payment could have been made to the Lender without the UK Tax Deduction had that Lender complied with its obligations under Section 4.7.7(iv) below.

 

4.7.2

Stamp Taxes.

In addition, the Borrowers agree to pay any present or future stamp, court or documentary, intangible, recording or filing taxes or any other excise or property taxes or similar levies which arise from any payment made hereunder or from the execution, delivery, or registration of, or otherwise with respect to, this Agreement or any Note, except any such taxes that are imposed as a result of a present or former connection between such Lender and the jurisdiction imposing such tax (other than connections arising from such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan, or sold or assigned any interest in any Loan or Loan Document) imposed with respect to an assignment (other than an assignment made pursuant to Section 4.7.6) (hereinafter referred to as "Other Taxes").

 

4.7.3

Indemnification for Taxes.

Taxes Paid by a Lender.

  (i) The Borrowers shall indemnify each Lender for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 4.7.3.1) paid by any Lender and any liability (including penalties, interest, and expenses, other than any penalties and interest resulting from the willful misconduct or fraud of such Lender) arising therefrom or with respect thereto; whether or not such Taxes were correctly or legally asserted or imposed.  This indemnification shall be made within 30 days from the date a Lender

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makes written demand therefor, but in no event shall such indemnification be required to be made more than ten (10) Business Days before the date such Taxes or Other Taxes are due to the relevant taxing authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent) shall be conclusive absent manifest error.

(ii)An indemnity payment shall not be payable under Section 4.7.3.1(i) above with respect to any Indemnified Tax imposed by Ireland and assessed on a Lender or Participant, as the case may be, to the extent that Tax:

(A) is compensated for by an increased payment under Section 4.7.1(a); or

(B) would have been compensated for by an increased payment under Section 4.7.1(a) but was not so compensated solely because one of the exclusions in Section 4.7.1(b) applied.  

(iii)An indemnity payment shall not be payable under Section 4.7.3.1(i) above with respect to any Indemnified Tax imposed by the United Kingdom and assessed on a Lender or Participant, as the case may be, to the extent that Tax:

(A) is compensated for by an increased payment under Section 4.7.1(a); or

(B) would have been compensated for by an increased payment under Section 4.7.1(a) but was not so compensated solely because one of the exclusions in Section 4.7.1(c) applied.

Taxes Paid by Borrower or Administrative Agent.

  Each Lender shall severally indemnify the Administrative Agent and Borrower, within 30 days after written demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender's failure to comply with the provisions of Section 4.7.7, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Official Body.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this Section 4.7.3.2.

 

4.7.4

Certificate.

Within 30 days after the date of any payment of any Taxes by the Borrowers pursuant to Section 4.7, the Borrowers shall notify the Lenders thereof, and thereafter, if so requested by any Lender, furnish to each Lender, at its address referred to herein, the original or a certified copy of a receipt evidencing payment thereof, if available, or, if not available, another reasonable form of confirmation of such payment if it is requested by any Lender.

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4.7.5

Exclusions, etc.

Notwithstanding any other provision of this Agreement, if the forms provided pursuant to Section 4.7.7 by a Lender, assignee or participant at the time such Person first becomes a party to this Agreement indicate a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded from Taxes unless and until such Person provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes for periods governed by such forms; provided, however, that the term Taxes shall include United States withholding tax, if any, applicable with respect to an assignee or participant of a Lender only to the extent that, at the effective date of the agreement or other transaction pursuant to which such assignee or participant becomes a party to this Agreement, such Lender was entitled to payments under Section 4.7.1 in respect of United States withholding tax with respect to interest paid at such date.  For any period with respect to which a Lender or assignee or participant of a Lender (or a financial institution through which such Lender, assignee or participant has directed any payment to be made) has failed to comply with Section 4.7.7, such Lender, assignee or participant shall not be entitled to indemnification under this Agreement with respect to any Taxes imposed by reason of such failure.

 

4.7.6

Change of Lending Office, etc.

Any Person claiming any additional amounts payable pursuant to this Section 4.7 agrees to use reasonable efforts (consistent with any legal and regulatory restrictions) to file any document or certificate reasonably requested by a Borrower or change the jurisdiction of its Lending Office with respect to this Agreement, if the filing of such document or certificate, or the making of such a change, would avoid the need for, or reduce the amount of, any such additional amounts pursuant to this Section 4.7 that may thereafter accrue.  Notwithstanding the foregoing, the filing of any document or certificate or change in Lending Office shall not be required if in the Lender's reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.  The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any filing or change in Lending Office.

 

4.7.7

Status of Lenders.

(i)Each Lender shall deliver to the Borrowers and the Administrative Agent, at the time it first becomes a Lender or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent as will permit such payments hereunder to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to minimize any indemnification obligation under this Agreement or to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such

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documentation (other than such documentation set forth in Section 4.7.7(ii)(a), 4.7.7(ii)(b), and 4.7.7(ii)(d) below) shall not be required if in the Lender's reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)Without limiting the generality of the foregoing, in the event that a Borrower is a U.S. Borrower,

(a)any Lender that is a U.S. Person shall deliver to the Borrowers and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(b)any Foreign Lender shall deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:

(1)in the case of a Foreign Lender eligible for the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the "interest" article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the "business profits" or "other income" article of such tax treaty;

(1)executed originals of IRS Form W-8ECI;

(2)in the case of a Foreign Lender eligible for the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit 4.7.7(A) to the effect that such Foreign Lender is not (A) a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of a Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation" described in Section 881(c)(3)(C) of the Code and (y) executed originals of IRS Form W-8BEN or W-8BEN-E; or

(3)to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit 4.7.7(B) or Exhibit 4.7.7(C), IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or

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indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit 4.7.7(D) on behalf of each such direct and indirect partner;

(c)any Foreign Lender shall deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and

(d)if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this subparagraph (e), "FATCA" shall include any amendments made to FATCA after the date of this Agreement.

(iii)Without limiting the generality of the foregoing, in the event that a Borrower is an Irish Borrower,

(a)each Lender or Participant, as the case may be, on or prior to the date it becomes a party hereto, shall inform the Administrative Agent whether it is an Irish Qualifying Lender by completing and providing to the Administrative Agent a Qualifying Lender Confirmation.  Each Lender or Participant, as the case may be, shall upon reasonable written request from the Borrower or the Administrative Agent, provide an updated Qualifying Lender Confirmation.

(b)if a Lender or Participant, as the case may be, fails to provide a Qualifying Lender Confirmation in accordance with Section 4.7.7(iii)(a) above then that Lender or Participant, as the case may be, shall be treated for the purposes of the Agreement (including by the Borrower) as if it is not an Irish Qualifying Lender until such time as it notifies the Borrower which category applies.

(c)each Lender or Participant, as the case may be, upon reasonable written request from the Borrower from time to time shall, if applicable, provide such

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information as may be required to enable the Borrower to comply with the provisions of Sections 891A, 891E, 891F and 891G TCA (and any regulations made thereunder).

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.

(iv)Without limiting the generality of the foregoing, in the event that a Borrower is an English Borrower,

(a)subject to paragraph (b) below, an English Treaty Lender and each English Borrower which makes a payment to which that English Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that English Borrower to obtain authorisation to make that payment without a UK Tax Deduction.

(b)(1) an English Treaty Lender which becomes a Party to this Agreement on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in Schedule 1.1(B); and (2) an English Treaty Lender that becomes a Party to this Agreement after the date of this Agreement that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the document which it executes to become a party to this Agreement, and, having done so, that English Treaty Lender shall be under no obligation pursuant to paragraph (a) above.

(c)if an English Treaty Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (iv)(b) above and (i) an English Borrower making a payment to that English Treaty Lender has not made an English Borrower DTTP Filing in respect of that Lender; or (ii) an English Borrower making a payment to that Lender has made an English Borrower DTTP Filing in respect of that English Treaty Lender but (1) that English Borrower DTTP Filing has been rejected by HM Revenue & Customs; or (2) HM Revenue & Customs has not given the English Borrower authority to make payments to that Lender without a UK Tax Deduction within 60 days of the date of the English Borrower DTTP Filing, and in each case, the English Borrower has notified that English Treaty Lender in writing, that English Treaty Lender and the English Borrower shall co-operate in completing any additional procedural formalities necessary for that English Borrower to obtain authorisation to make that payment without a UK Tax Deduction.

(d)if an English Treaty Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with paragraph ‎(iv)(b) above, no English Borrower shall make an English Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender's participation in any Loan unless the Lender otherwise agrees.

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(e)an English Borrower shall, promptly on making an English Borrower DTTP Filing, deliver a copy of that English Borrower DTTP Filing to the Administrative Agent for delivery to the relevant English Treaty Lender.

(f)each Lender on or prior to the date it becomes a party hereto, shall inform the Administrative Agent whether it is an English Qualifying Lender by completing and providing to the Administrative Agent a Qualifying Lender Confirmation.  Each Lender shall upon reasonable written request from the Borrower or the Administrative Agent, provide an updated Qualifying Lender Confirmation.

(g)if a Lender fails to provide a Qualifying Lender Confirmation in accordance with Section 4.7.7(iv)(f) above then that Lender shall be treated for the purposes of the Agreement (including by the Borrower) as if it is not an English Qualifying Lender until such time as it notifies the Borrower which category applies.

(h)each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.

 

4.7.8

Treatment of Certain Refunds.

If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes (including any tax credit in lieu of a refund) as to which it has been indemnified pursuant to this Section 4.7 (including by the payment of additional amounts pursuant to this Section 4.7), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 4.7 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Official Body with respect to such refund).  Such indemnifying party, upon the request of such indemnified party incurred in connection with obtaining such refund, shall repay to such indemnified party the amount paid over pursuant to this Section 4.7.8 (plus any penalties, interest or other charges imposed by the relevant Official Body) in the event that such indemnified party is required to repay such refund to such Official Body.  Notwithstanding anything to the contrary in this Section 4.7.8, in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 4.7.8 the payment of which would place the indemnified party in a less favorable net after-tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This paragraph shall not be construed to require any indemnified party to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the indemnifying party or any other Person.

 

4.7.9

Survival.

Without prejudice to the survival of any other agreement of the Borrowers hereunder, the agreements and obligations of the Borrowers contained in Section 4.7 shall

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survive the payment in full of principal and interest hereunder and under any instrument delivered hereunder and shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender.

 

4.7.10

Issuing Lender.

For purposes of this Section 4.7, the term "Lender" includes the Issuing Lender and any assignee or participant of a Lender and the term "applicable Law" includes FATCA.

 

4.8

Indemnity.

In addition to the compensation or payments required by Section 4.6 or Section 4.7, the Borrowers shall jointly and severally, subject to Section 10.18 (if applicable), indemnify each Lender against all liabilities, losses or expenses (including loss of anticipated profits, any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract) which such Lender sustains or incurs as a consequence of any:

(i)payment, prepayment, conversion or renewal of any Revolving Credit Loan to which a Euro-Rate Option and/or any Term Loan applies on a day other than the last day of the corresponding Interest Period (whether or not such payment or prepayment is mandatory, voluntary or automatic and whether or not such payment or prepayment is then due), or any voluntary prepayment without the required notice,

(ii)attempt by the Borrowers to revoke (expressly, by later inconsistent notices or otherwise) in whole or part any Loan Requests under Section 2.4, Section 2.14 or Section 3.2 or notice relating to prepayments under Section 4.4, or

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

 

4.9

Interbank Market Presumption.

For all purposes of this Agreement and each Note with respect to any aspects of the Euro-Rate, any Loan under the Euro-Rate Option, each Term Loan or any Optional Currency, each Lender and Administrative Agent shall be presumed to have obtained rates, funding, currencies, deposits, and the like in the Relevant Interbank Market regardless of whether it did so or not; and, each Lender's and Administrative Agent's determination of amounts payable under, and actions required or authorized by, Section 4.8 shall be calculated, at each Lender's and Administrative Agent's option, as though each Lender and Administrative Agent funded each Borrowing Tranche of Loans under the Euro-Rate Option and/or Term Loans through the purchase of deposits of the types and maturities corresponding to the deposits used as a reference

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in accordance with the terms hereof in determining the Euro-Rate applicable to such Loans, whether in fact that is the case.

 

4.10

Judgment Currency.

 

4.10.1

Currency Conversion Procedures for Judgments.

If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder or under a Note in any currency (the "Original Currency") into another currency (the "Other Currency"), the parties hereby agree, to the fullest extent permitted by Law, that the rate of exchange used shall be that at which in accordance with normal lending procedures the Administrative Agent could purchase the Original Currency with the Other Currency after any premium and costs of exchange on the Business Day preceding that on which final judgment is given.

 

4.10.2

Indemnity in Certain Events.

The obligation of the Borrowers in respect of any sum due from the Borrowers to any Lender hereunder shall, notwithstanding any judgment in an Other Currency, whether pursuant to a judgment or otherwise, be discharged only to the extent that, on the Business Day following receipt by any Lender of any sum adjudged to be so due in such Other Currency, such Lender may in accordance with normal lending procedures purchase the Original Currency with such Other Currency.  If the amount of the Original Currency so purchased is less than the sum originally due to such Lender in the Original Currency, the Borrowers agree, as a separate obligation and notwithstanding any such judgment or payment, to indemnify such Lender against such loss.  If the amount of the Original Currency so purchased is greater than the sum originally due to such Lender in the Original Currency, such Lender agrees to return the amount of any excess to the Borrowers (or to any other Person who may be entitled thereto under applicable Law).

 

4.11

Requests for Notes.

Upon the request of any Lender, the Loans made by such Lender may be evidenced by a Note (or Notes) as set forth in Section 2.6 and/or Section 2.17.  

 

4.12

Settlement Date Procedures.

In order to minimize the transfer of funds between the Lenders and the Administrative Agent, the Borrowers may borrow, repay and reborrow Swing Loans and PNC may make Swing Loans as provided in Section 2.1.2 hereof during the period between Settlement Dates.  The Administrative Agent shall notify each Lender of its Ratable Share of the total of the Revolving Credit Loans and the Swing Loans (each a "Required Share").  On such Settlement Date, each Lender shall pay to the Administrative Agent the amount equal to the difference between its Required Share and its Revolving Credit Loans, and the Administrative Agent shall pay to each Lender its Ratable Share of all payments made by the Borrowers to the Administrative Agent with respect to the Revolving Credit Loans.  The Administrative Agent shall also effect settlement in accordance with the foregoing sentence on the proposed Borrowing Dates for Revolving Credit Loans and on any mandatory prepayment date as provided for herein

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and may at its option effect settlement on any other Business Day.  These settlement procedures are established solely as a matter of administrative convenience, and nothing contained in this Section 4.12 shall relieve the Lenders of their obligations to fund Revolving Credit Loans on dates other than a Settlement Date pursuant to Section 2.1.2.  The Administrative Agent may at any time at its option for any reason whatsoever require each Lender to pay immediately to the Administrative Agent such Lender's Ratable Share of the outstanding Revolving Credit Loans and each Lender may at any time require the Administrative Agent to pay immediately to such Lender its Ratable Share of all payments made by the Borrowers to the Administrative Agent with respect to the Revolving Credit Loans.

 

4.13

Borrowers' Agent.

Each Borrower hereby designates the Company as its representative and agent (in such capacity, the "Borrower Agent") under the Loan Documents, including for requests for Loans and Letters of Credit, designation of interest rates, delivery or receipt of communications, preparation and delivery of financial reports, and requests for waivers.  The Borrower Agent hereby accepts such appointment.  The Administrative Agent and the Lenders may give any notice or communication with a Borrower hereunder to the Borrower Agent on behalf of such Borrower.  Each Borrower agrees that any notice, election, communication, representation, agreement or undertaking made on its behalf by the Borrower Agent shall be binding upon and enforceable against it.

5.REPRESENTATIONS AND WARRANTIES

 

5.1

Representations and Warranties.

The Loan Parties, jointly and severally, subject to Section 10.18 (if applicable), represent and warrant to the Administrative Agent and each of the Lenders as follows:

 

5.1.1

Organization and Qualification.

Each Loan Party and each Subsidiary of each Loan Party is a corporation, partnership or limited liability company duly organized or incorporated, validly existing and in good standing under the Laws of its jurisdiction of organization or incorporation.  Each Loan Party and each Subsidiary of each Loan Party has the power to own or lease its properties necessary for its business and to engage in the business it presently conducts or as of the Closing Date proposes to conduct.  Each Loan Party and each Subsidiary of each Loan Party is duly licensed or qualified and in good standing in each domestic jurisdiction listed on Schedule 5.1.1 as of the Closing Date or, if applicable, such later date as to which a version of such Schedule is updated in accordance with Section 5.3, and in all other jurisdictions where the property owned or leased by it or the nature of the business transacted by it or both makes such licensing or qualification necessary except where the failure to do so would result in a Material Adverse Change.

 

5.1.2

Subsidiaries; Certificates of Beneficial Ownership.

Schedule 5.1.2 states as of the Closing Date or, if applicable, such later date as to which a version of such Schedule is updated in accordance with Section 5.3, the name of each of

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the Company's Subsidiaries, its jurisdiction of incorporation, its authorized capital stock, the issued and outstanding shares (referred to herein as the "Subsidiary Shares") and the owners thereof if it is a corporation, its outstanding partnership interests (the "Partnership Interests") and the owners thereof if it is a partnership and its outstanding limited liability company interests, the owners thereof, interests assigned to managers thereof and the voting rights associated therewith (the "LLC Interests") if it is a limited liability company.  The Borrowers and each Subsidiary of the Borrowers have good and marketable title to all of the Subsidiary Shares, Partnership Interests and LLC Interests it purports to own, free and clear, in each case, of any Lien except for Permitted Liens which attach to the assets of such Person generally.  All Subsidiary Shares, Partnership Interests and LLC Interests have been validly issued, and all Subsidiary Shares are fully paid and nonassessable.  All capital contributions and other consideration required to be made or paid in connection with the issuance of the Partnership Interests and LLC Interests have been made or paid, as the case may be.  There are no options, warrants or other rights outstanding to purchase any such Subsidiary Shares, Partnership Interests or LLC Interests except as indicated as of the Closing Date on Schedule 5.1.2 or, if applicable, such later date as to which a version of such Schedule is updated in accordance with Section 5.3.  As of the Closing Date each of the Material Subsidiaries of the Company is either a Borrower or a Guarantor.  The Certificates of Beneficial Ownership executed and delivered to Administrative Agent and Lenders on or prior to the date of this Agreement, as updated from time to time in accordance with this Agreement, are accurate, complete and correct as of the date hereof (or, if applicable, as of the date any such update is delivered).

 

5.1.3

Power and Authority.

Each Loan Party has full power to enter into, execute, deliver and carry out this Agreement and the other Loan Documents to which it is a party, to incur the Indebtedness contemplated by the Loan Documents and to perform its Obligations under the Loan Documents to which it is a party, and all such actions have been duly authorized by all necessary proceedings on its part.

 

5.1.4

Validity and Binding Effect.

This Agreement has been duly and validly executed and delivered by each Loan Party, and each other Loan Document which any Loan Party is required to execute and deliver on or after the date hereof will have been duly executed and delivered by such Loan Party on the required date of delivery of such Loan Document.  This Agreement and each other Loan Document constitutes, or will constitute, legal, valid and binding obligations of each Loan Party which is or will be a party thereto on and after its date of delivery thereof, enforceable against such Loan Party in accordance with its terms, except to the extent that enforceability of any of such Loan Document may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar Laws affecting the enforceability of creditors' rights generally, general principles of equity (regardless of whether considered in a proceeding in equity or at law) or limiting the right of specific performance.

 

5.1.5

No Conflict.

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Neither the execution and delivery of this Agreement or the other Loan Documents by any Loan Party nor the consummation of the transactions herein or therein contemplated or compliance with the terms and provisions hereof or thereof by any of them will conflict with, constitute a default under or result in any breach of (i) the terms and conditions of the certificate of incorporation, constitution, bylaws, certificate of limited partnership, partnership agreement, certificate of formation, limited liability company agreement or other organizational documents of such Loan Party, (ii) any applicable Law, in any material respect, or (iii) any agreement or instrument relating to Indebtedness which would result in a Material Adverse Change or any other material agreement or instrument or material order, writ, judgment, injunction or decree to which such Loan Party or any of its Subsidiaries is a party or by which it or any of its Subsidiaries is bound or to which it is subject, or result in the creation or enforcement of any Lien, charge or encumbrance whatsoever upon any property (now or hereafter acquired) of such Loan Party or any of its Subsidiaries (other than Liens, if any, granted under the Loan Documents and Permitted Liens).

 

5.1.6

Litigation.

Except as disclosed as of the Closing Date on Schedule 5.1.6 or, if applicable, such later date as to which a version of such Schedule is updated in accordance with Section 5.3, there are no actions, suits, proceedings or investigations pending or, to the knowledge of any Loan Party, overtly threatened against any Loan Party or any Subsidiary of such Loan Party at law or equity before any Official Body which individually or in the aggregate would result in any Material Adverse Change.  None of the Loan Parties or any Subsidiaries of any Loan Party is in violation of any order, writ, injunction or any decree of any Official Body which would result in any Material Adverse Change.

 

5.1.7

Title to Properties.

Each Loan Party and each Subsidiary of each Loan Party has good and marketable title to or valid leasehold interest in all material properties, assets and other rights which it purports to own or lease or which are reflected as owned or leased on its books and records, free and clear of all Liens and encumbrances except Permitted Liens, and subject to the terms and conditions of the applicable leases.

 

5.1.8

Financial Statements.

5.1.8.1Historical Statements.

The Company has delivered to the Administrative Agent copies of its audited consolidated year-end financial statements for and as of December 31, 2017 (collectively, "Historical Statements").  The Historical Statements were compiled from the books and records maintained by the Borrowers' management, are correct and complete in all material respects and fairly represent the consolidated financial condition of the Company and its Subsidiaries as of their dates and the results of operations for the fiscal periods then ended and have been prepared in accordance with GAAP consistently applied.

5.1.8.2Accuracy of Financial Statements.

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As of the Closing Date, neither the Borrowers nor any Subsidiary of the Borrowers have any material liabilities that are not disclosed in the Historical Statements or in the notes thereto which would cause a Material Adverse Change.  Since December 31, 2017, no Material Adverse Change has occurred.

 

5.1.9

Use of Proceeds; Margin Stock.

5.1.9.1General.

The Loan Parties intend to use Letters of Credit and the proceeds of the Loans in accordance with Section 2.8.

5.1.9.2Margin Stock.

None of the Loan Parties or their Subsidiaries engages or intends to engage principally, or as one of its important activities, in the business of extending credit for the purpose, immediately, incidentally or ultimately, of purchasing or carrying margin stock (within the meaning of Regulation U, T or X as promulgated by the Board of Governors of the United States Federal Reserve System).  No part of the proceeds of any Loan or any issuance of Letters of Credit has been or will be used, immediately, incidentally or ultimately, to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or which is inconsistent with the provisions of the regulations of the Board of Governors of the United States Federal Reserve System.  Following application of the proceeds of each Loan or drawing under each Letter of Credit (if applicable), none of the Loan Parties or their Subsidiaries holds or intends to hold margin stock in such amounts that more than 25% of the reasonable value of the assets of the Loan Parties and their Subsidiaries on a consolidated basis are or will be represented by margin stock.

 

5.1.10

Full Disclosure.

Neither this Agreement nor any other Loan Document, nor any certificate, written statement, agreement or other documents furnished in writing to the Administrative Agent or any Lender in connection herewith or therewith, contains any material misstatement of fact or omits to state any material fact necessary to make the statements contained herein and therein, when taken as a whole, in light of the circumstances under which they were made, not materially misleading; provided that with respect to projected financial information or any information concerning future proposed and intended activities of the Company and its Subsidiaries, the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed by the Company to be reasonable at the time (it being understood that such projections and information are forward looking statements which by their nature are subject to significant uncertainties and contingencies, many of which are beyond the Loan Parties' control, and that actual results may differ, perhaps materially, from those expressed or implied in such forward looking statements, and no assurance can be given that the projections will be realized).

 

5.1.11

Taxes.

All federal income tax returns and all other material federal, state, local and other material tax returns required to have been filed with respect to each Loan Party and each

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

 

5.1.12

Consents and Approvals.

No consent, approval, exemption, order or authorization of, or a registration or filing with, any Official Body or any other Person is required by any Law or any agreement in connection with the execution, delivery and carrying out of this Agreement and the other Loan Documents by any Loan Party, except as listed as of the Closing Date on Schedule 5.1.12 or, if applicable, such later date as to which a version of such Schedule is updated in accordance with Section 5.3, all of which shall have been obtained or made on or prior to the Closing Date except as otherwise indicated on Schedule 5.1.12.

 

5.1.13

No Event of Default; Compliance with Instruments.

No event has occurred and is continuing and no condition exists or will exist after giving effect to the borrowings or other extensions of credit to be made on the Closing Date under or pursuant to the Loan Documents which constitutes an Event of Default or Potential Default.  None of the Loan Parties or any Subsidiaries of any Loan Party is in violation of any term of its certificate of incorporation, constitution, bylaws, certificate of limited partnership, partnership agreement, certificate of formation, limited liability company agreement or other organizational documents where such violation would constitute a Material Adverse Change.

 

5.1.14

Patents, Trademarks, Copyrights, Licenses, Etc.

Each Loan Party and each Subsidiary of each Loan Party owns or possesses, or has the right to use, all the material patents, trademarks, service marks, trade names, copyrights, licenses, registrations, franchises, permits and rights necessary to own and operate its properties and to carry on its business as presently conducted and planned to be conducted by such Loan Party or Subsidiary as of the Closing Date, without known possible, alleged or actual conflict with the rights of others.  All patents, trademarks, service marks, trade names and copyrights of each Loan Party and each Subsidiary of each Loan Party the absence of which, individually, would result in a Material Adverse Change are listed and