Exhibit 10.6.d


 




 





 


FORM OF


 


CREDIT AGREEMENT

dated as of November    , 2007


 


among


 


ATLAS PANGBORN ACQUISITION CORP.,

as Borrower,


 


and


 


ATLAS INDUSTRIES HOLDINGS LLC,

as Lender


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  DEFINITIONS;
  INTERPRETATION

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Definitions

  	
  1

  
	
  1.2

  	
  Interpretation

  	
  13

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  CREDIT
  FACILITIES

  	
  14

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Commitments

  	
  14

  
	
  2.2

  	
  Loan
  Procedures

  	
  14

  
	
  2.3

  	
  Certain
  Conditions

  	
  16

  
	
  2.4

  	
  Loan
  Accounting

  	
  16

  
	
  2.5

  	
  Interest

  	
  16

  
	
  2.6

  	
  Fees

  	
  17

  
	
  2.7

  	
  Commitment
  Reduction

  	
  18

  
	
  2.8

  	
  Prepayment

  	
  18

  
	
  2.9

  	
  Repayment

  	
  19

  
	
  2.10

  	
  Payment

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  YIELD
  PROTECTION

  	
  22

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Taxes

  	
  22

  
	
  3.2

  	
  Increased
  Cost

  	
  23

  
	
  3.3

  	
  Inadequate
  or Unfair Basis

  	
  24

  
	
  3.4

  	
  Change in
  Law

  	
  24

  
	
  3.5

  	
  Funding
  Losses

  	
  24

  
	
  3.6

  	
  Manner of
  Funding; Alternate Funding Offices

  	
  25

  
	
  3.7

  	
  Mitigation
  of Circumstances

  	
  25

  
	
  3.8

  	
  Conclusiveness
  of Statements; Survival

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  CONDITIONS
  PRECEDENT

  	
  25

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Initial
  Credit Extension

  	
  25

  
	
  4.2

  	
  All Credit
  Extensions

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  28

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Organization

  	
  28

  
	
  5.2

  	
  Authorization;
  No Conflict

  	
  28

  
	
  5.3

  	
  Validity;
  Binding Nature

  	
  28

  
	
  5.4

  	
  Financial
  Condition

  	
  29

  
	
  5.5

  	
  No Material
  Adverse Change

  	
  29

  
	
  5.6

  	
  Litigation

  	
  29

  
	
  5.7

  	
  Ownership of
  Properties; Liens

  	
  29

  
	
  5.8

  	
  Capitalization

  	
  30

  
	
  5.9

  	
  Pension
  Plans

  	
  30

  
	
  5.10

  	
  Investment
  Company Act

  	
  30

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  5.11

  	
  Margin Stock

  	
  30

  
	
  5.12

  	
  Taxes

  	
  31

  
	
  5.13

  	
  Solvency

  	
  31

  
	
  5.14

  	
  Environmental
  Matters

  	
  31

  
	
  5.15

  	
  Insurance

  	
  32

  
	
  5.16

  	
  Information

  	
  32

  
	
  5.17

  	
  Intellectual
  Property

  	
  32

  
	
  5.18

  	
  Restrictive
  Provisions

  	
  32

  
	
  5.19

  	
  Labor
  Matters

  	
  32

  
	
  5.20

  	
  No Default

  	
  33

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  AFFIRMATIVE
  COVENANTS

  	
  33

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Information

  	
  33

  
	
  6.2

  	
  Books;
  Records; Inspections

  	
  35

  
	
  6.3

  	
  Maintenance
  of Property; Insurance

  	
  36

  
	
  6.4

  	
  Compliance
  with Laws; Payment of Taxes and Liabilities

  	
  37

  
	
  6.5

  	
  Maintenance
  of Existence

  	
  37

  
	
  6.6

  	
  Employee
  Benefit Plans

  	
  37

  
	
  6.7

  	
  Environmental
  Matters

  	
  37

  
	
  6.8

  	
  Collateral
  Access Agreements

  	
  38

  
	
  6.9

  	
  Further
  Assurances; Post-Closing

  	
  39

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  NEGATIVE
  COVENANTS

  	
  40

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Debt

  	
  40

  
	
  7.2

  	
  Liens

  	
  41

  
	
  7.3

  	
  Restricted
  Payments

  	
  42

  
	
  7.4

  	
  Mergers;
  Consolidations; Asset Sales

  	
  42

  
	
  7.5

  	
  Modification
  of Organizational Documents

  	
  43

  
	
  7.6

  	
  Use of
  Proceeds

  	
  43

  
	
  7.7

  	
  Transactions
  with Affiliates

  	
  43

  
	
  7.8

  	
  Business
  Activities

  	
  43

  
	
  7.9

  	
  Investments

  	
  43

  
	
  7.10

  	
  Restriction
  of Amendments to Certain Documents

  	
  44

  
	
  7.11

  	
  Fiscal Year

  	
  44

  
	
  7.12

  	
  Financial
  Covenants.

  	
  44

  
	
  7.13

  	
  Bank
  Accounts

  	
  45

  
	
  7.14

  	
  Subsidiaries

  	
  45

  
	
  7.15

  	
  Inconsistent
  Agreements

  	
  46

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  EVENTS OF
  DEFAULT; REMEDIES.

  	
  46

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Events of
  Default

  	
  46

  
	
  8.2

  	
  Remedies

  	
  49

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  MISCELLANEOUS

  	
  49

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Waiver;
  Amendments

  	
  49

  
	
  9.2

  	
  Notices

  	
  49

  
	
  9.3

  	
  Computations

  	
  50

  
	
  9.4

  	
  Costs;
  Expenses

  	
  50

  
	
  9.5

  	
  Indemnification
  by Borrower

  	
  50

  
	
  9.6

  	
  Marshaling;
  Payments Set Aside

  	
  51

  
	
  9.7

  	
  Nonliability
  of Lender

  	
  51

  
	
  9.8

  	
  Confidentiality

  	
  51

  
	
  9.9

  	
  Captions

  	
  52

  
	
  9.10

  	
  Nature of
  Remedies

  	
  52

  
	
  9.11

  	
  Counterparts

  	
  52

  
	
  9.12

  	
  Severability

  	
  52

  
	
  9.13

  	
  Entire
  Agreement

  	
  53

  
	
  9.14

  	
  Successors;
  Assigns

  	
  53

  
	
  9.15

  	
  Governing
  Law

  	
  53

  
	
  9.16

  	
  Forum
  Selection; Consent to Jurisdiction

  	
  53

  
	
  9.17

  	
  Waiver of
  Jury Trial

  	
  54

  



 


iii

















 


	
  Annexes

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Annex I

  	
  Addresses

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of
  Compliance Certificate

  	
   

  
	
  Exhibit B

  	
  Form of Note

  	
   

  
	
  Exhibit C

  	
  Form of
  Borrowing Notice

  	
   

  
	
  Exhibit D

  	
  Conversion/Continuation
  Notice

  	
   

  
	
  Exhibit E

  	
  Availability
  Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedules

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 4.1.3

  	
  Debt to be
  Repaid

  	
   

  
	
  Schedule 5.6

  	
  Litigation

  	
   

  
	
  Schedule 5.8

  	
  Capitalization

  	
   

  
	
  Schedule 5.14

  	
  Environmental
  Matters

  	
   

  
	
  Schedule 5.15

  	
  Insurance

  	
   

  
	
  Schedule 5.17

  	
  Intellectual
  Property

  	
   

  
	
  Schedule 5.19

  	
  Labor
  Matters

  	
   

  
	
  Schedule 6.9

  	
  Post-Closing

  	
   

  
	
  Schedule 7.1

  	
  Existing
  Debt

  	
   

  
	
  Schedule 7.2

  	
  Existing
  Liens

  	
   

  
	
  Schedule 7.9

  	
  Existing
  Investments

  	
   

  
	
  Schedule 7.13

  	
  Bank
  Accounts

  	
   

  
					



 


i

















 


CREDIT AGREEMENT


 


This Credit Agreement dated as of November      ,
2007 (as amended, restated or otherwise modified from time to time, this “Agreement”)
by and between ATLAS PANGBORN ACQUISITION CORP., a Delaware corporation (“Borrower”),
and ATLAS INDUSTRIES HOLDINGS LLC, a Delaware limited liability company, as
lender (together with its successors and assigns, “Lender”).


 


In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:


 


Section 1.               Definitions;
Interpretation.


 


1.1           Definitions.


 


When used herein the following terms shall have the following meanings:


 


Acceleration
Event means the occurrence of any of the
following:  (i) an Event of Default
under Section 8.1.3; or (ii) both (a) any other Event of Default
under Section 8.1 and (b) the election by the Lender (i) to declare
the Obligations to be due and payable or (ii) to terminate the Commitments.


 


Account
has the meaning set forth in the Guarantee and Collateral Agreement.


 


Account Debtor
means any Person who is obligated to Borrower or any Subsidiary with respect to
any Account.


 


Acquisition
means any transaction or series of related transactions for the purpose of or
resulting, directly or indirectly, in (a) the acquisition of all or a
substantial portion of the assets of a Person, or of all or a substantial
portion of any business or division of a Person, (b) the acquisition of in
excess of 50% of the capital stock, partnership interests, membership interests
or equity of any Person, or otherwise causing any Person to become a
Subsidiary, or (c) a merger or consolidation or any other combination with
another Person (other than a Person that is already a Subsidiary).


 


Affiliate
of any Person means (a) any other Person which, directly or indirectly,
controls or is controlled by or is under common control with such Person,
(b) any officer or director of such Person and (c) with respect to
Lender, any entity administered or managed by Lender or an Affiliate or
investment advisor thereof which is engaged in making, purchasing, holding or
otherwise investing in commercial loans. A Person shall be deemed to be “controlled
by” any other Person if such Person possesses, directly or indirectly, power to
vote 10% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors or managers or power to direct or
cause the direction of the management and policies of such Person whether by
contract or otherwise. Unless expressly stated otherwise herein, Lender shall
not be deemed an Affiliate of Borrower or of any Subsidiary.


 


1

















 


Agreement
has the meaning set forth in the Preamble.


 


Applicable
Margin means the applicable rate per annum as set
forth in the following table:  


 


	
  Revolving Loans

  	
   

  	
  Term A Loans

  	
   

  	
   

  	
   

  
	
  Base

  Rate

  	
   

  	
  LIBOR

  	
   

  	
  Base

  Rate

  	
   

  	
  LIBOR

  	
   

  	
  Commitment

  Fee

  	
   

  
	
  +0.25

  	
  %

  	
  +2.75

  	
  %

  	
  +1.25

  	
  %

  	
  +3.75

  	
  %

  	
  0.5

  	
  %

  



 


Availability
Certificate means a certificate substantially in the
form of Exhibit E.


 


Balance Sheet
Date has the meaning set forth in Section 5.4.


 


Base Rate
means, for any day, the greater of (a) the rate of interest which is
identified as the “Prime Rate” and normally published in the Money Rates
Section of The Wall Street Journal (or, if such rate ceases to be
so published, as quoted from such other generally available and recognizable
source as Lender may select) and (b) the sum of the Federal Funds Rate
plus 0.5%. Any change in the Base Rate due to a change in such Prime Rate or
the Federal Funds Rate shall be effective on the effective date of such change
in such Prime Rate or the Federal Funds Rate.


 


Base Rate Loan
means any Loan which bears interest at or by reference to the Base Rate.


 


Borrower
has the meaning set forth in the Preamble.


 


Borrowing
Availability means, as of any date of determination,
an amount equal to the lesser of (a) the Revolving Loan Commitments and
(b) Eligible Availability.


 


Borrowing
Notice means a notice in substantially the form of Exhibit C.


 


Business Day
means any day other than any Saturday and Sunday on which commercial banks are
open for commercial banking business in New York, New York, and, in the case of
a Business Day which relates to a LIBOR Loan, any day on which dealings are
carried out in the London interbank Eurodollar market.


 


Canadian
Dollar means lawful money of Canada.


 


Capital
Expenditures means all expenditures which, in
accordance with GAAP, would be required to be capitalized and shown on the
consolidated balance sheet of Borrower, but excluding expenditures made in
connection with the replacement, substitution or restoration of assets to the
extent financed (a) from insurance proceeds (or other similar recoveries)
paid on account of the loss of or damage to the assets being replaced or
restored, (b) with cash awards of compensation arising from the taking by
eminent domain or 


 


2

















 


condemnation of the assets being replaced or (c) with cash
proceeds of Dispositions that are excluded from the definition of Net Cash
Proceeds in accordance with clause (a)(v) of such definition.


 


Capital Lease
means, with respect to any Person, any lease of (or other agreement conveying
the right to use) any real or personal property by such Person that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of such Person.


 


Cash
Equivalent Investment means, at any time, (a) any
evidence of Debt, maturing not more than one year after such time, issued or
guaranteed by the United States Government or any agency thereof,
(b) commercial paper, or corporate demand notes, in each case rated at
least A-l by Standard & Poor’s Ratings Group or P-l by Moody’s Investors
Service, Inc., (c) any certificate of deposit (or time deposit represented
by a certificate of deposit) or banker’s acceptance maturing not more than one
year after such time, or any overnight Federal Funds transaction that is issued
or sold by Lender (or by a commercial banking institution that is a member of
the Federal Reserve System and has a combined capital and surplus and undivided
profits of not less than $500,000,000), (d) any repurchase agreement
entered into with a commercial banking institution of the nature referred to in
clause (c) above which (i) is secured by a fully perfected security
interest in any obligation of the type described in any of clauses (a) through
(c) above and (ii) has a market value at the time such repurchase
agreement is entered into of not less than 100% of the repurchase obligation of
such commercial banking institution thereunder, (e) money market accounts
or mutual funds which invest exclusively in assets satisfying the foregoing
requirements and (f) other short term liquid investments approved in
writing by Lender.


 


Closing Date
means the date on which all conditions precedent set forth in Section 4.1
have been satisfied by the Borrower or waived in writing by Lender.


 


Collateral
has the meaning set forth in the Guarantee and Collateral Agreement.


 


Collateral
Access Agreement means an agreement in form and
substance reasonably satisfactory to Lender pursuant to which a mortgagee or
lessor of real property on which Collateral is stored or otherwise located, or
a warehouseman, processor or other bailee of Inventory or other property owned
by Borrower or any Subsidiary, acknowledges the Liens of Lender and waives (or,
if approved by Lender, subordinates) any Liens held by such Person on such
property, and, in the case of any such agreement with a mortgagee or lessor,
permits Lender reasonable access to and use of such real property during the continuance
of an Event of Default to assemble, complete and sell any Collateral stored or
otherwise located thereon.


 


Collateral
Documents means, collectively, the Guarantee and
Collateral Agreement, each Mortgage, each Collateral Access Agreement, and each
other agreement or instrument pursuant to or in connection with which Borrower,
any Subsidiary or any other Person grants a security interest in any Collateral
to Lender, each as amended, restated or otherwise modified from time to time.


 


3

















 


Commitments
means the Revolving Loan Commitment, the Term A Loan Commitment and the Term B
Loan Commitment.


 


Commitment Fee
means the fee payable by Borrower to Lender pursuant to Section 2.6.1.


 


Compliance
Certificate means a certificate substantially in the
form of Exhibit A.


 


Computation
Period means each period of four consecutive Fiscal
Quarters ending on the last day of a Fiscal Quarter with the first Computation
Period hereunder to end as of December 31, 2007.


 


Consolidated
Net Income means, with respect to Borrower and the
Subsidiaries for any period, the consolidated net income (or loss) of Borrower
and the Subsidiaries for such period, excluding any gains or losses from
Dispositions, any extraordinary gains or extraordinary non-cash losses and any
gains or non-cash losses from discontinued operations.


 


Contingent
Obligation means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to or otherwise to
invest in a debtor, or otherwise to assure a creditor against loss) any
indebtedness, obligation or other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person’s obligation in respect of any Contingent Obligation
shall (subject to any limitation set forth therein) be deemed to be the
principal amount of the debt, obligation or other liability supported thereby. Notwithstanding
anything set forth herein to the contrary, for purposes of this Agreement,
Contingent Obligations shall not include any of the following debts and
liabilities:  (i) customary
indemnification of officers, directors, managers, members, employees and
agents, (ii) indemnity obligations under leases and other contracts entered
into the ordinary course of business, (iii) contingent obligations incurred in
the ordinary course of business with respect to surety and appeal bonds,
performance and return-of-money bonds and similar obligations not exceeding at
any time outstanding $100,000 in aggregate liability, (iv) guarantees incurred
in the ordinary course of business for an aggregate amount not to exceed
$100,000 for Borrower at any one time, and (v) guarantees of obligations in
connection with worker’s compensation obligations and general liability exposure
of the Loan Parties.


 


Controlled
Group means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with
Borrower, are treated as a single employer under Section 414 of the IRC or
Section 4001 of ERISA.


 


Conversion/Continuation
Notice means a notice in substantially the form of Exhibit D.


 


4

















 


Debt
of any Person means, without duplication, (a) all indebtedness of such
Person for borrowed money, (b) all indebtedness evidenced by bonds, debentures,
notes or similar instruments, (c) all obligations of such Person as lessee
under Capital Leases which have been or should be recorded as liabilities on a
balance sheet of such Person in accordance with GAAP, (d) all obligations
of such Person to pay the deferred purchase price of property or services
(excluding trade accounts payable in the ordinary course of business), (e) all
indebtedness secured by a Lien on the property of such Person, whether or not
such indebtedness shall have been assumed by such Person (with the amount
thereof being measured as the lesser of the fair market value of such property
and the amount secured thereby), (f) all obligations, contingent or
otherwise, with respect to the face amount of all letters of credit (whether or
not drawn) and banker’s acceptances issued for the account of such Person, (g) all
Hedging Obligations of such Person, (h) all Contingent Obligations of such
Person (excluding Contingent Obligations consisting of guaranties within a
group of entities comprising a Portfolio Company or an Outside Company (as each
such term is defined in the External Credit Facility) provided by a parent
entity in support of obligations of a subsidiary thereof that do not constitute
Debt), (i) all non-compete payment obligations and earn-out and similar
obligations, (j) all indebtedness of any partnership of which such Person is a
general partner, (k) preferred equity interests of such Person subject to
mandatory repurchase or redemption during the term of this Agreement or within
six months thereafter (but excluding the Initial Portfolio Company Preferred
Stock (as defined in the External Credit Facility)), and (l) all obligations of
such Person under any synthetic lease transaction, where such obligations are
considered borrowed money indebtedness for tax purposes but the transaction
itself is classified as an operating lease in accordance with GAAP.


 


Debt to be
Repaid means the Debt listed on Schedule 4.1.3.


 


Default
means any event that, if it continues uncured, will, with the lapse of time or
the giving of notice or both, constitute an Event of Default.


 


Disposition
means, as to any asset or right of Borrower or any Subsidiary, (a) any
sale, lease, assignment or other transfer (other than to Borrower or any
Subsidiary) thereof, (b) any loss, destruction or damage thereof or
(c) any actual or threatened condemnation, confiscation, requisition,
seizure or taking thereof, in each case excluding (i) assets subject to a transaction
otherwise constituting a “Disposition” which are replaced within 180 days with
assets performing the same or a similar function, (ii) ”Dispositions” in
any Fiscal Year, the Net Cash Proceeds of which do not in the aggregate exceed
$250,000 and (iii) the sale or other transfer of Inventory in the ordinary
course of business.


 


Dollar
and $ mean lawful money of the United States of America.


 


Dollar
Equivalent means, at any time, (a) as to any amount
denominated in U.S. Dollars, the amount thereof at such time, and (b) as to any
amount denominated in any currency other than U.S. Dollars, the equivalent in
U.S. Dollars of such amount determined at the Exchange Rate on the date of
determination of such equivalent.


 


Domestic
Subsidiary means any Subsidiary that is
incorporated or organized under the laws of a State within the United States of
America or the District of Columbia. 


 


5

















 


Unless the context otherwise requires, each reference to Domestic
Subsidiary or Domestic Subsidiaries herein shall be a reference to Subsidiary
or Subsidiaries of Borrower.


 


Early
Termination Payment means in connection with any
permanent reduction of the Revolving Commitment pursuant to Section 2.7, an
amount equal to the applicable percentage of the Revolving Loan Commitment or
portion thereof being permanently reduced as follows:


 


	
  If reduced during the 12-month

  period ending November

  	
   

  	
  Applicable Percentage

  	
   

  
	
  2008

  	
   

  	
  1.0

  	
  %

  
	
  2009

  	
   

  	
  0.5

  	
  %

  
	
  2010 and
  thereafter

  	
   

  	
  0.0

  	
  %

  



 


EBITDA
means, for any period on a consolidated basis, Consolidated Net Income for such
period plus, to the extent deducted in determining such Consolidated Net
Income, (i) Interest Expense, (ii) income tax expense for such period, (iii) depreciation
and amortization for such period, (iv) management fees paid to or accrued for
the benefit of Manager in such period to the extent permitted pursuant to Section 7.4,
(v) non-cash charges incurred to reflect any in-process research and development
acquired by the Borrower at the time of its acquisition of the Target and its
Subsidiaries, (vi) expense in respect of any forgiveness of non-cash loans to
management of the Borrower and its Subsidiaries, (vii) one-time, non-cash
charges arising from the allocation to assets of the purchase price therefor in
accordance with purchase accounting under GAAP, and (viii) other non-cash
expenses (or less gains or income) deducted in the determination of such
Consolidated Net Income and for which no cash outlay (or cash receipt) is
foreseeable prior to the Termination Date; provided, further,
that with respect to any Person acquired by the Borrower or any of its
Subsidiaries after the Closing Date in an Acquisition permitted hereunder and
otherwise permitted under the terms of the External Credit Facility, for
periods prior to such Acquisition, the amount of EBITDA attributable to such
Person shall be equal to the EBITDA of such Person on a pro forma basis prior
to such Acquisition; provided, further, that, notwithstanding
anything to the contrary herein, for each of the calendar months preceding the
Closing Date set forth below, the EBITDA for the Borrower and its Subsidiaries
indicated below shall be deemed to be the amount set forth below opposite such
month:


 


	
  November

  2006

  	
   

  	
  December

  2006

  	
   

  	
  January 2007

  	
   

  	
  February 2007

  	
   

  	
  March 2007

  	
   

  	
  April 2007

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  
																		



 


	
  May 2007

  	
   

  	
  June 2007

  	
   

  	
  July 2007

  	
   

  	
  August 2007

  	
   

  	
  September

  2007

  	
   

  	
  [October

  2007]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  
																		



 


6

















 


; provided, further, that for purposes of calculating
Interest Coverage Ratio and Fixed Charge Coverage Ratio hereunder, cash equity
contributions to the Borrower solely to the extent permitted by Section 7.16
of this Agreement may be added to the Borrower’s Consolidated Net Income.


 


Eligible
Accounts means the Accounts of the Borrower and its
Subsidiaries; provided, that, without limiting Lender’s discretion
separately provided for herein, Eligible Accounts shall not include any Account
of the Borrower or such Subsidiary:


 


(a)           which is not subject to a first priority perfected security interest in
favor of the Lender;


 


(b)           which is subject to any Lien other than Liens permitted hereunder;


 


(c)           with respect to which more than 90  days
have elapsed since the date of the original invoice therefor or which is more
than 60  days past the due date for
payment;


 


(d)           which is owing by an Account Debtor for which more than 25% of the
Accounts owing to the Borrower or such Subsidiary from such Account Debtor and
its Affiliates are ineligible hereunder;


 


(e)           which is owing by an Account Debtor to the extent the aggregate amount
of Accounts owing from such Account Debtor and its Affiliates to the Borrower
or such Subsidiary exceeds 20% of the aggregate Eligible Accounts of the
Borrower and its Subsidiaries;


 


(f)            with respect to which any covenant,
representation, or warranty relating to such Account contained in this
Agreement or in the Collateral Documents has been breached or is not true;


 


(g)           which (i) does not arise from the sale of goods or performance of
services in the ordinary course of business, (ii) is not evidenced by an
invoice, or other documentation satisfactory to Lender, which has been sent to
the Account Debtor, (iii) represents a progress billing, (iv) is
contingent upon the Borrower’s or such Subsidiary’s completion of any further
performance, or (v) represents a sale on a bill-and-hold, guaranteed sale,
sale-and-return, sale on approval, consignment which is billed prior to actual
sale to the end user, cash-on-delivery or any other repurchase or return basis;


 


(h)           for which the goods giving rise to such Account have not been shipped
to the Account Debtor or for which the services giving rise to such Account
have not been performed by the Borrower or such Subsidiary;


 


(i)            with respect to which any check or other
instrument of payment has been returned uncollected for any reason;


 


7

















 


(j)            which is owed by an Account Debtor which
(i) has applied for, suffered, or consented to the appointment of any
receiver, interim receiver, receiver and manager, custodian, trustee, or
liquidator of its assets, (ii) has had possession of all or a material
part of its property taken by any receiver, interim receiver, receiver and
manager, custodian, trustee or liquidator, (iii) has filed, or has had
filed against it, any request or petition for liquidation, reorganization,
arrangement, adjustment of debts, adjudication as bankrupt, winding-up, or
voluntary or involuntary case under any state, provincial or federal bankruptcy
laws, (iv) to the knowledge of the Borrower or any Subsidiary, has
admitted in writing its inability, or is generally unable to, pay its debts as
they become due, (v) to the knowledge of the Borrower or any Subsidiary,
has become insolvent, or (vi) has ceased operation of its business;


 


(k)           which is owed by any Account Debtor which has sold all or substantially
all of its assets;


 


(l)            which is owed by an Account Debtor which
(i) does not maintain its chief executive office in the U.S. or Canada or
(ii) is not organized under applicable law of the U.S., any state of the
U.S. or a province of Canada unless, in any case, such Account is backed by a letter
of credit or other credit support acceptable to Lender;


 


(m)          which is owed in any currency other than US Dollars or Canadian
Dollars;


 


(n)           which is owed by (i) the government (or any department, agency,
public corporation, or instrumentality thereof) of any country other than the
United States of America, unless such Account is backed by a letter of credit
acceptable to Lender and which is in the possession of Lender, or (ii) the
government of the U.S., or any department, agency, public corporation, or instrumentality
thereof, unless the Federal Assignment of Claims Act of 1940, as amended (31
U.S.C. § 3727 et  seq. and 41 U.S.C. § 15 et  seq.),
and any other steps necessary to perfect the Lien of Borrower in such Account
have been complied with to Lender’s satisfaction; provided, that the
eligibility criteria set forth in this clause (n) shall not apply to Accounts
of the Borrower and its Subsidiaries to which this clause (n) would otherwise
apply having an aggregate amount of not more than $250,000;


 


(o)           which is owed by any Affiliate, employee, director, or officer of the
Borrower;


 


(p)           which, for any Account Debtor, exceeds a credit limit determined by
Lender of which Borrower has been previously notified, to the extent of such
excess;


 


8

















 


(q)           which is owed by an Account Debtor or any Affiliate of such Account
Debtor which is the holder of any payment obligations issued or incurred by the
Borrower or any such Subsidiary, but only to the extent of such payment
obligations;


 


(r)            which is subject to any counterclaim,
deduction, defense, setoff or dispute, but only to the extent of the amount of
such counterclaim, deduction, defense, setoff or dispute, unless Lender, in its
Reasonable Credit Judgment, has established an appropriate Reserve and
determines to include such Account as an Eligible Account;


 


(s)           which is evidenced by any promissory note, chattel paper, or
instrument;


 


(t)            which is owed by an Account Debtor located in
any jurisdiction that requires, as a condition to access to the courts of such
jurisdiction, that a creditor qualify to transact business, file a business
activities report or other report or form, or take one or more other actions,
unless the Borrower or such Subsidiary have so qualified, filed such reports or
forms, or taken such actions (and, in each case, paid any required fees or
other charges), except to the extent the Borrower or such Subsidiary may
qualify subsequently as a foreign entity authorized to transact business in
such state or jurisdiction and gain access to such courts, without incurring
any cost or penalty reasonably viewed by Lender to be material in amount, and
such later qualification cures any access to such courts to enforce payment of
such Account;


 


(u)           with respect to which the Borrower or such Subsidiary has made any
agreement with the Account Debtor for any reduction thereof, but only to the
extent of such reduction, other than discounts and adjustments given in the
ordinary course of business; or


 


(v)           which Lender determines in its Reasonable Credit Judgment may not be
paid by reason of the applicable Account Debtor’s inability to pay.


 


In the event that an Account
which was previously an Eligible Account ceases to be an Eligible Account
hereunder, Borrower shall notify Lender thereof (i) within one Business Day, in
the case of Accounts having a face amount of more than $1,000,000 in the
aggregate and (ii) on and at the time of submission to Lender of the next
Availability Certificate, in all other cases.


 


Eligible
Availability means the positive difference, if any, of (i) the sum of (a) 85% of the
amount of the Eligible Accounts of the Borrower and its Subsidiaries at such
time (with any Eligible Account denominated in Canadian Dollars being included
in its Dollar Equivalent amount for this purpose), plus
(b) 65% of the Eligible Inventory of the Borrower and its Subsidiaries,
valued at the lower of cost or market on a first-in first-out basis, minus
(ii) Reserves, if any, then in effect.


 


9

















 


Eligible
Inventory means, at any time, the Inventory owned by
the Borrower and its Subsidiaries; provided, that, without limiting
Lender’s discretion separately provided for herein, Eligible Inventory of the
Borrower and its Subsidiaries shall not include any Inventory of the Borrower
and its Subsidiaries:


 


(a)      which is not subject to a
first priority perfected Lien in favor of Lender;


 


(b)      which is subject to any Lien other than Liens permitted hereunder;


 


(c)      which is, in Lender’s Reasonable Credit Judgment, slow moving,
obsolete, unmerchantable, defective, unfit for sale, not salable at prices
approximating at least the cost of such Inventory in the ordinary course of
business or unacceptable due to age, type, category and/or quantity;


 


(d)      with respect to which any covenant, representation, or warranty
contained in this Agreement or any Collateral Document has been breached or is
not true;


 


(e)      which does not conform to all standards imposed by any governmental
authority;


 


(f)       which is not finished goods or which constitutes work-in-process,
subassemblies (unless Lender determines, in its Reasonable Credit Judgment, to
include such work-in-process or subassemblies as Eligible Inventory), packaging
and shipping material, manufacturing supplies, display items, bill-and-hold
goods, returned or repossessed goods (other than goods that are undamaged and
able to be resold in the ordinary course of business), defective goods, goods
held on consignment, goods to be returned to the Borrower or a Subsidiary or
goods which are not of a type held for sale in the ordinary course of business;


 


(g)      which is not located in the U.S. or Canada or which is in transit with
a common carrier from vendors and suppliers;


 


(h)      which is located in any location leased by the Borrower or one of its
Subsidiaries unless (i) the lessor has delivered to Lender a collateral
access agreement reasonably acceptable to Lender or (ii) a Reserve for
rent, charges, and other amounts due or to become due with respect to such facility
has been established by Lender in its Reasonable Credit Judgment;


 


(i)       which is located in any third party warehouse or is in the possession
of a bailee, unless (i) such warehouseman or bailee has delivered to
Lender a collateral access agreement reasonably acceptable to Lender and such
other documentation as Lender may require or (ii) an appropriate Reserve
has been established by Lender in its Reasonable Credit Judgment;


 


10

















 


(j)       which is the subject of a consignment by the Borrower or a Subsidiary
as consignor;


 


(k)      which is perishable;


 


(l)       which is subject to any negotiable document; or


 


(m)     which contains or bears any intellectual property rights licensed to
the Borrower or a Subsidiary unless Lender is satisfied that the holder of a
Lien in such Inventory may sell or otherwise dispose of such Inventory without
(i) infringing the rights of such licensor, (ii) violating any
contract with such licensor or (iii) incurring any liability with respect
to payment of royalties other than royalties incurred pursuant to sale of such
Inventory under the current licensing agreement.


 


In the event that Inventory
which was previously Eligible Inventory ceases to be Eligible Inventory
hereunder, Borrower shall notify Lender thereof (i) within one Business Day, in
the case of Inventory having a value of more than $1,000,000 in the aggregate
and (ii) on and at the time of submission to Lender of the next Availability
Certificate, in all other cases.


 


Environmental Claims means all claims, however
asserted, by any governmental, regulatory or judicial authority or other Person
alleging potential liability or responsibility for violation of any
Environmental Law, or for release or injury to the environment or any Person or
property.


 


Environmental Laws means any federal, state,
local, municipal, foreign, international, multinational, constitution, law,
ordinance, principal of common law, regulation, statute, permit or treaty
together with all administrative orders, directed duties, requests, licenses
and authorizations of, and agreements with, any governmental authority, in each
case relating to any matter arising out of or relating to health and safety, or
pollution or protection of the environment or workplace, including any of the
foregoing relating to the presence, use, production, generation, handling,
transport, treatment, storage, disposal, distribution, discharge, release,
control or cleanup of any Hazardous Substance.


 


ERISA means the Employee Retirement Income
Security Act of 1974, as amended.


 


External Credit Facility means that certain
Credit Agreement dated as of even date herewith by and among the Owner, as “Borrower”
thereunder, Madison Capital Funding LLC, as Syndication Agent and Co-Lead
Arranger, The CIT Group/Business Credit, Inc., as Administrative Agent,
Collateral Agent and Co-Lead Arranger, and the financial institutions from time
to time party thereto as lenders, as the same may be amended, restated or
modified from time to time.


 


Event of Default means any of the events
described in Section 8.1.


 


Exchange Rate means with respect to any
non-U.S. Dollar currency on any date, the rate at which such currency may be
exchanged into U.S. Dollars as set forth on such date on the 


 


11

















 


relevant Reuters currency page at or about
11:00 A.M., London time, on such date. In the event that such rate does not
appear on any Reuters currency page or is otherwise unavailable to Lender, the “Exchange
Rate” with respect to such non-U.S. Dollar currency shall be determined by
reference to the Wall Street Journal or such other publicly available service
for displaying exchange rates as may be reasonably agreed upon by Lender and
Borrower.


 


Federal Funds Rate means, for any day, a rate
per annum (rounded upward to the nearest 1/100th of 1%) equal to the rate
published by the Federal Reserve Bank of New York on the preceding Business Day
or, if no such rate is so published, the average rate per annum, as determined
by Lender, quoted for overnight Federal Funds transactions last arranged prior
to such day.


 


Fiscal Quarter means a fiscal quarter of a
Fiscal Year.


 


Fiscal Year means the fiscal year of Borrower
and the Subsidiaries, which period shall be the 12-month period ending on
December 31 of each year.


 


Fixed Charge Coverage Ratio means, for any
Computation Period, the ratio of (a) the total for such period of EBITDA
minus the sum for such period of (i) all income taxes, and tax distributions
described in Section 7.3, paid or payable (without duplication) in
cash by Borrower and the Subsidiaries, (ii) all Capital Expenditures, and (iii)
management fees paid in cash to Manager during such period or payable to
Manager within 30 days of the end of such period (other than management fees
paid concurrent with the Closing Date or within 15 days after the Closing Date)
to (b) the sum for such period of (i) Interest Expense accrued
for such Computation Period and paid or payable in cash at any time by Borrower
and the Subsidiaries, plus (ii) required payments of principal of Funded Debt
(including the Term Loans but excluding the Revolving Loans and excluding
required payments in respect of earn-out payments permitted hereunder and
otherwise permitted under the terms of the External Credit Facility).


 


FRB means the Board of Governors of the
Federal Reserve System or any successor thereto.


 


Funded Debt means, as to any Person, all Debt
of such Person that matures more than one year from the date of its creation
(or is renewable or extendible, at the option of such Person, to a date more
than one year from such date).


 


GAAP means generally accepted accounting
principles in effect in the United States of America set forth from time to
time in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S.
accounting profession), which are applicable to the circumstances as of the
date of determination.


 


Guarantee and Collateral Agreement means the
Guarantee and Collateral Agreement, dated as of the Closing Date, by each Loan
Party in favor of Lender, as amended, restated or otherwise modified from time
to time.


 


12

















 


Hazardous Substances means hazardous waste,
hazardous substance, pollutant, contaminant, toxic substance, oil, hazardous
material, chemical or other substance regulated by any Environmental Law.


 


Hedging Obligation means, with respect to any
Person, any liability of such Person under any interest rate, currency or
commodity swap agreement, cap agreement or collar agreement, and any other
agreement or arrangement designed to protect a Person against fluctuations in
interest rates, currency exchange rates or commodity prices. The amount of any
Person’s obligation in respect of any Hedging Obligation shall be deemed to be
the incremental liability, if any, with respect to such Hedging Obligation that
would be reflected in the financial statements of such Person in accordance
with GAAP.


 


Interest Coverage Ratio means, for any
Computation Period, the ratio of (a) the remainder of (i) EBITDA for such
Computation Period minus (ii) the aggregate amount of management fees
paid in cash by Borrower pursuant to the Management Agreement to (b) Interest
Expense accrued for such Computation Period and paid or payable in cash at
anytime by Borrower and the Subsidiaries (excluding in all instances any
interest paid in kind).


 


Interest Expense means for any period the
consolidated interest expense of Borrower and the Subsidiaries for such period
(including all imputed interest on Capital Leases).


 


Interest Period means, as to any LIBOR Loan:  (a) with respect to an initial request by
Borrower for a LIBOR Loan or the conversion of a Base Rate Loan to a LIBOR
Loan, at the option of Borrower, a one-month, two-month, three-month or
six-month period commencing on the borrowing or conversion date with respect to
such LIBOR Loan and ending one month, two months, three months or six months
thereafter, as applicable, (b) with respect to any continuation of a LIBOR
Loan, at the option of Borrower a one-month, two-month, three-month or
six-month period commencing on the last day of the immediately preceding
Interest Period applicable to such LIBOR Loan and ending one month, two months,
three months or six months thereafter, as applicable; provided  that
(i) if any Interest Period would otherwise end on a day which is not a Business
Day, such Interest Period shall be extended to the next succeeding Business
Day, and (ii) if any Interest Period begins on the last Business Day of any
month, or on a day for which there is no numerically corresponding day in the
month in which such Interest Period ends, such Interest Period shall end on the
last Business Day of the month in which such Interest Period ends; (c) Borrower
may not select any Interest Period for a Revolving Loan which would extend
beyond the scheduled Termination Date; and (d) Borrower may not select any
Interest Period for the Term Loans if, after giving effect to such selection,
the aggregate principal amount of the portion of the applicable Term Loan
having Interest Periods ending after any date on which an installment of such
Term Loan is scheduled to be repaid would exceed the aggregate principal amount
of the Term Loan scheduled to be outstanding after giving effect to such
repayment.


 


Inventory has the meaning set forth in the
Guarantee and Collateral Agreement.


 


Investment means, with respect to any Person,
(a) the purchase of any debt or equity security of any other Person,
(b) the making of any loan or advance to any other Person,
(c) becoming obligated with respect to a Contingent Obligation in respect of
obligations of any 


 


13

















 


other Person (other than travel and similar
advances to employees in the ordinary course of business) or (d) the
making of an Acquisition.


 


Investment Affiliate means, with respect to
Owner, any fund or investment vehicle that (a) is organized by Owner for
the purpose of making equity or debt investments in one or more companies and
(b) is controlled by Owner. For purposes of this definition “control”
means the power to direct or cause the direction of management and policies of
a Person, whether by contract or otherwise.


 


IRC means the Internal Revenue Code of 1986,
as amended.


 


Legal Costs means, with respect to any Person,
(a) all reasonable fees and charges of any counsel, accountants, auditors,
appraisers, consultants and other professionals to such Person, (b) the
reasonable allocable cost of internal legal services of such Person and all
reasonable disbursements of such internal counsel and (c) all court costs
and similar legal expenses.


 


Lender has the meaning set forth in the Preamble.


 


LIBOR Loan means any Loan which bears interest
at a rate determined by reference to the LIBOR Rate.


 


LIBOR Rate means, with respect to any LIBOR Loan
for any Interest Period, a rate of interest equal to the quotient obtained by
dividing:  (a) at Lender’s election,
(i) LIBOR for such Interest Period as quoted to Lender by JPMorgan Chase
Bank (or any successor thereof) two (2) Business Days prior to the first day of
such Interest Period, or (ii) the rate of interest determined by Lender at
which deposits in US Dollars are offered for such Interest Period as presented
on the Reuters Screen LIBOR 01 Page at 11:00 a.m. (London time) two (2)
Business Days prior to the first day of such Interest Period (provided  that
if two or more offered rates are presented on the Reuters Screen LIBOR 01 Page
for such Interest Period, the arithmetic mean of all such rates, as determined
by Lender, will be the rate elected); by (b) a number equal to 1.00
minus the Eurocurrency Reserve Requirements, if any, in effect on the day which
is two (2) Business Days prior to the beginning of such Interest Period. If no
such rate appears on the Reuters Screen LIBOR 01 Page, Lender shall use the
applicable rate published in the “Money Rates” section of The Wall Street
Journal or another national publication selected by Lender).


 


Lien means, with respect to any Person, any
interest granted by such Person in any real or personal property, asset or
other right owned or being purchased or acquired by such Person which secures
payment or performance of any obligation and shall include any mortgage, lien,
encumbrance, charge or other security interest of any kind, whether arising by
contract, as a matter of law, by judicial process or otherwise.


 


Loan Documents means this Agreement, the
Notes, if any, the Collateral Documents and all documents, instruments and
agreements delivered in connection with the foregoing, all as amended, restated
or otherwise modified from time to time.


 


Loan Party means Borrower and each Subsidiary.


 


14

















 


Loans means Revolving Loans and Term Loans.


 


Management Agreement
means that certain Management Services Agreement dated as of November       ,
2007 between Borrower and the Manager, as amended, restated, supplemented or
otherwise modified from time to time.


 


Manager means Atlas Industries Management LLC,
a Delaware limited liability company.


 


Margin Stock means any “margin stock” as
defined in Regulation T, U or X of the FRB.


 


Material Adverse Effect means (a) a
material adverse change in, or a material adverse effect upon, the financial
condition, operations, assets, business, properties or prospects of the Loan
Parties taken as a whole, (b) a material impairment of the ability of the
Borrower and the other Loan Parties to perform their Obligations under the Loan
Documents taken as a whole or (c) a material adverse effect upon any
substantial portion of the Collateral under the Collateral Documents or upon
the legality, validity, binding effect or enforceability against the Borrower
and the Loan Parties of the Loan Documents taken as a whole.


 


Mortgage means a mortgage, deed of trust,
leasehold mortgage or similar instrument granting Lender a Lien on a real
property interest of any Loan Party, each as amended, restated or otherwise
modified from time to time.


 


Multiemployer Pension Plan means a
multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which
Borrower or any member of the Controlled Group may have any liability.


 


Net Cash Proceeds means:


 


(a)           with
respect to any Disposition, the aggregate cash proceeds (including cash
proceeds received pursuant to policies of insurance and by way of deferred
payment of principal pursuant to a note, installment receivable or otherwise,
but only as and when received) received by any Loan Party pursuant to such
Disposition net of (i) the reasonable direct costs relating to such
Disposition (including sales commissions and legal, accounting and investment
banking fees, commissions and expenses and, in the case of a Disposition of any
asset, costs of preparing such asset for sale), (ii) any portion of such
proceeds deposited in an escrow account pursuant to the documentation relating
to such Disposition (provided that such amounts shall be treated as Net Cash
Proceeds upon their release from such escrow account to the applicable Loan
Party), (iii) taxes paid or reasonably estimated by Borrower to be payable
as a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), (iv) amounts required to be
applied to the repayment of any Debt secured by a Lien prior to the Lien of
Lender on the asset subject to such Disposition and (v) with respect to
any Disposition described in clause (b) or (c) of the definition thereof
(without regard for the exclusions in such definition), all money actually
applied within 180 days to repair, replace or reconstruct damaged property or
property affected by loss, destruction, damage, condemnation, confiscation,
requisition, seizure or taking, all of the 


 


15

















 


costs and expenses reasonably incurred in connection with the
collection of such proceeds, award or other payments, and any amounts retained
by or paid to parties having superior rights to such proceeds, awards or other
payments; and


 


(b)           with
respect to any issuance of equity securities, the aggregate cash proceeds
received by Borrower or any Subsidiary pursuant to such issuance, net of the
reasonable direct costs relating to such issuance (including reasonable broker,
sales and underwriter’s commission and all legal fees and expenses).


 


Non-Senior Debt means the Term B Loans
plus any unsecured Debt of Borrower or a Subsidiary which has subordination
terms, covenants, pricing and other terms which have been approved in writing
by Lender.


 


Note means a promissory note substantially in
the form of Exhibit D, if any, which may be used from time to time to evidence
any of the Loans, as the same may be amended, restated or otherwise modified
from time to time.


 


Obligations means all liabilities,
indebtedness and obligations (monetary (including post-petition interest,
allowed or not) or otherwise) of any Loan Party under this Agreement, any other
Loan Document, any Collateral Document or any other document or instrument
executed in connection herewith or therewith and all Hedging Obligations
permitted hereunder which are owed to Lender or its Affiliates, in each case
howsoever created, arising or evidenced, whether direct or indirect, absolute
or contingent, now or hereafter existing, or due or to become due, and whether
or not a claim for any of the foregoing is allowed in whole or in part in any
proceeding under the Bankruptcy Code with respect to any Loan Party.


 


Owner means Atlas Industries Holdings LLC, a
Delaware limited liability company.


 


Paid in Full means, with respect to any
Obligations, (a) the payment in full in cash and performance of all such
Obligations, and (b) the termination of all Commitments relating to such
Obligations.


 


PBGC means the Pension Benefit Guaranty
Corporation and any entity succeeding to any or all of its functions under
ERISA.


 


Pension Plan means a “pension plan”, as such
term is defined in Section 3(2) of ERISA, which is subject to Title IV of
ERISA (other than a Multiemployer Pension Plan), or, as applicable, a “registered
pension plan” as such term is defined in the Income Tax Act (Canada), and, in
any case, to which Borrower or any member of the Controlled Group has any
liability.


 


Permitted Management Fees
means management or consulting fees payable pursuant to the terms of the
Management Agreement in an aggregate amount not to exceed $450,000 in any
fiscal year.


 


Person means any natural person, corporation,
partnership, trust, limited liability company, association, governmental
authority or unit, or any other entity, whether acting in an individual,
fiduciary or other capacity.


 


16

















 


Prepayment Premium
means, (a) in connection with any prepayment of the Term B Loans pursuant to
Section 2.8.1, an amount equal to the applicable percentage of the principal
amount of the Term B Loans or portion thereof to be prepaid as follows:


 


	
  If prepaid during the 12-month

  period ending November

  	
   

  	
  Applicable Percentage

  	
   

  
	
  2008

  	
   

  	
  5.0

  	
  %

  
	
  2009

  	
   

  	
  4.0

  	
  %

  
	
  2010

  	
   

  	
  3.0

  	
  %

  
	
  2011

  	
   

  	
  2.0

  	
  %

  
	
  2012 and
  thereafter

  	
   

  	
  0.0

  	
  %;

  



 


and (b) in connection with any prepayment of the Term A Loans pursuant
to Section 2.8.1, an amount equal to the applicable percentage of the principal
amount of the Term A Loans or portion thereof to be prepaid as follows:


 


	
  If prepaid during the 12-month

  period ending November

  	
   

  	
  Applicable Percentage

  	
   

  
	
  2008

  	
   

  	
  1.0

  	
  %

  
	
  2009

  	
   

  	
  0.5

  	
  %

  
	
  2010 and
  thereafter

  	
   

  	
  0.0

  	
  %

  



 


Reasonable Credit Judgment means in respect of
eligibility criteria and similar matters, reasonable credit judgment from the
perspective of a senior secured lender in an asset based loan transaction, and,
as it relates to the establishment of Reserves or the adjustment or imposition
of exclusionary criteria, shall require that (i) such establishment, adjustment
or imposition after the Closing Date shall be made following consultation with
the Borrower with not less than two Business Days’ prior notice to Borrower,
unless either exigent circumstances exist that make such prior consultation and
the giving of prior notice impracticable or one or more Events of Default have
occurred and are continuing, (ii) no
Reserves shall be established in respect of matters that have been taken into
account in determining Eligible Accounts and Eligible Inventory, as applicable
and (iii) any such Reserve (or adjustment or imposition of exclusionary
criteria), shall have a reasonable basis and shall be in an amount that bears a
reasonable relation to the matter giving rise to such Reserve (or adjustment of
imposition of exclusionary criteria).


 


Related Transactions means the transactions
contemplated by the Stock Purchase Agreement.


 


Reserve means any
and all reserves which Lender deems necessary, in its Reasonable Credit
Judgment, to from time to time establish against the gross amounts of Eligible
Accounts and Eligible Inventory (including, without limitation, reserves for
rent at locations leased by the Borrower or a Subsidiary and for which no
collateral access agreement reasonably acceptable to Lender is in effect, to
the extent property at such locations is included in the Availability
Certificate; reserves for consignee’s, warehousemen’s and bailee’s charges at
locations for which 


 


17

















 


no collateral access agreement reasonably
acceptable to Lender is in effect, to the extent property at such locations is
included in the Availability Certificate; reserves for dilution of Accounts;
reserves for Inventory shrinkage; reserves for customs charges and shipping
charges related to any Inventory in transit; reserves for potential
environmental exposure and contingent liabilities of the Borrower and its
Subsidiaries; reserves for uninsured losses of the Borrower and its Subsidiaries
and reserves for taxes, fees, assessments, and other governmental charges).


 


Revolving Loan Commitment means $5,000,000 (as
reduced from time to time pursuant to the terms hereof), plus such additional
amounts, if any, that Lender may, in its sole discretion, from time to time
commit to advance as Revolving Loans in connection with one or more
Acquisitions.


 


Revolving Loans has the meaning set forth in Section 2.1.1.


 


Senior Debt means, as of any day, the
Revolving Loans, to the extent outstanding at the end of such day, plus the
aggregate principal amount of the Term A Loans outstanding at the end of
such day.


 


Solvent means, with respect to any Person on
any date, that as of such date, (a) the fair market value of its assets is
greater than the amount of its liabilities (including disputed, contingent and
unliquidated liabilities) as such value is established and liabilities
evaluated, (b) the present fair saleable value of its assets is not less than
the amount that will be required to pay the probable liability on its debts as
they become absolute and matured, (c) it is able to realize upon its assets and
pay its debts and other liabilities (including disputed, contingent and
unliquidated liabilities) as they mature in the normal course of business, (d)
it does not intend to, and does not believe that it will, incur debts or
liabilities beyond its ability to pay as such debts and liabilities mature and
(e) it is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which its property would constitute
unreasonably small capital.


 


Stock Purchase Agreement
means that certain Purchase Agreement dated as of November __, 2007 by and
among the Borrower, as the “Buyer” thereunder, the Owner, as the “Parent”
thereunder, Target, as the “Company” thereunder, and each of Atlas Carry
Holdings LLC, Atlas Pangborn Holdings LLC and the other entities and persons
named the “Sellers” thereunder, under and pursuant to which the Borrower will
purchase all of the outstanding limited liability company interests of the
Target from the Sellers.


 


Subsidiary means, with respect to any Person,
a corporation, partnership, limited liability company or other entity of which
such Person owns, directly or indirectly, such number of outstanding shares or
other equity interests as to have more than 50% of the ordinary voting power
for the election of directors or other managers of such corporation,
partnership, limited liability company or other entity. Unless the context
otherwise requires, each reference to Subsidiary or Subsidiaries herein shall
be a reference to Subsidiary or Subsidiaries of Borrower. In all cases, “Subsidiary”
shall mean and include Capital Equipment Resources LLC, a Delaware limited
liability company.


 


18

















 


Target means Capital Equipment Resources LLC,
a Delaware limited liability company.


 


Term A Loan Commitment means $2,500,000 plus,
after the Closing Date, such additional amounts, if any, that Lender may, in
its sole discretion, from time to time advance as Term A Loans in connection
with one or more Acquisitions.


 


Term A Loan Maturity Date means November      ,
2013 or such earlier date on which the Commitments terminate pursuant to Section
8.


 


Term A Loans means a loan from Lender to
Borrower in the principal amount of the Term A Loan Commitment on the Closing
Date, together with such other loans, if any, pursuant to the Term A Loan
Commitment.


 


Term B Loan Commitment means $10,500,000 plus,
after the Closing Date, such additional amounts, if any, that Lender may, in
its sole discretion, from time to time advance as Term B Loans in connection
with one or more Acquisitions.


 


Term B Loan Maturity Date means November     ,
2013 or such earlier date on which the Commitments terminate pursuant to Section
8.


 


Term B Loans means a loan from Lender to
Borrower in the principal amount of the Term B Loan Commitment on the Closing
Date, together with such other loans, if any, pursuant to the Term B Loan
Commitment.


 


Term Loans means the Term A Loans and the Term
B Loans, collectively.


 


Termination Date means November     ,
2012 or such earlier date on which the Revolving Loan Commitment terminates
pursuant to Section 2.8 or Section 8.


 


Total Debt means, as of any day, all Debt (other
than Debt described in clause (h) of the definition thereof and Debt of any
Loan Party to another Loan Party) of Borrower and the Subsidiaries at the end
of such day, determined on a consolidated basis.


 


Total Debt to EBITDA Ratio means, as of the last
day of any Fiscal Quarter, the ratio of (a) Total Debt as of such day to (b)
EBITDA for the Computation Period ending on such day.


 


Transaction Services Fee means a transaction
fee payable by the Borrower or any Subsidiary to Manager (or an Affiliate of
Manager) in connection with an acquisition or sale of any Subsidiary that is
otherwise permitted under this Agreement and under the terms of the External
Credit Facility.


 


Wholly-Owned Subsidiary means, as to any
Person, another Person all of the equity interests of which (except directors’
qualifying shares) are at the time directly or indirectly owned by such Person
and/or another Wholly-Owned Subsidiary of such Person. Unless the context
otherwise requires, each reference to Wholly-Owned Subsidiary or Wholly-Owned
Subsidiaries herein shall be a reference to Wholly-Owned Subsidiary or
Wholly-Owned Subsidiaries of Borrower.


 


19

















 


1.2           Interpretation.


 


In the case of this Agreement and each other Loan Document, (a) the
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms; (b) Annex, Exhibit, Schedule and
Section references are to such Loan Document unless otherwise specified;
(c) the term “including” is not limiting and means “including but not
limited to”; (d) in the computation of periods of time from a specified
date to a later specified date, the word “from” means “from and including”; the
words “to” and “until” each mean “to but excluding”, and the word “through”
means “to and including”; (e) unless otherwise expressly provided in such
Loan Document, (i) references to agreements and other contractual
instruments shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document, and
(ii) references to any statute or regulation shall be construed as
including all statutory and regulatory provisions amending, replacing, supplementing
or interpreting such statute or regulation; (f) this Agreement and the
other Loan Documents may use several different limitations, tests or
measurements to regulate the same or similar matters, all of which are
cumulative and each shall be performed in accordance with its terms; and
(g) this Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to Lender, Borrower and
the other parties thereto and are the products of all parties; accordingly,
they shall not be construed against Lender merely because of Lender’s
involvement in their preparation.


 


Section 2.               Credit
Facilities.


 


2.1           Commitments.


 


On and subject to the terms and conditions of this Agreement, Lender
agrees as follows:


 


2.1.1        Revolving
Loan Commitments.


 


Lender will make loans to Borrower on a revolving basis (“Revolving
Loans”) from time to time and Borrower may repay such loans from time to
time until the Termination Date in such amounts as Borrower may request from
Lender; provided, that after giving effect to such Revolving Loans, the
Revolving Loans outstanding will not at any time exceed the Borrowing
Availability.


 


2.1.2        Term
Loan Commitments.


 


Lender agrees to make (a) a Term A Loan to Borrower on the Closing Date
in an amount equal to the Term A Loan Commitment as of the Closing Date, and
(b) a Term B Loan to Borrower on the Closing Date in an amount equal to the
Term B Loan Commitment as of the Closing Date. Lender shall have no obligation
to make Term Loans after the Closing Date. Term Loans which are repaid or
prepaid by Borrower, in whole or in part, may not be re-borrowed.


 


20














 


2.2           Loan Procedures.


 


2.2.1        Loan
Types.


 


Each Loan (other than the Term B Loans and otherwise subject to Section
2.5.1(b)) shall be either a Base Rate Loan or a LIBOR Loan, as Borrower shall
specify in the related notice of borrowing or conversion pursuant to Section 2.2.2
or 2.2.3. Base Rate Loans and LIBOR Loans may be outstanding at the
same time, provided that not more than five different Interest Periods shall
exist among outstanding LIBOR Loans at any one time. Notwithstanding the
foregoing or any other provision of this Agreement, Borrower may not select any
Interest Period for a LIBOR Loan which is longer than one month prior to the
earlier of (a) 90 days after the Closing Date and (b) the date that Lender at
its reasonable discretion notifies Borrower that it may select a different
Interest Period for any LIBOR Loans. Notwithstanding anything to the contrary
set forth in this Agreement, any Loans requested to be made or converted in
respect of the Revolving Loan Commitment is subject to the then applicable
interest rate on any outstanding Revolving Loans and in any case all such
Revolving Loans shall bear the same interest rate.


 


2.2.2        Borrowing.


 


Borrower shall give written notice or telephonic notice (followed
immediately by written confirmation thereof) to Lender of each proposed
borrowing of a Revolving Loan not later than (a) in the case of a Base Rate
borrowing, 11:00 a.m. New York City time at least one (1) Business Day
prior to the proposed date of such borrowing, and (b) in the case of a LIBOR
borrowing, 11:00 a.m. New York City time at least four (4) Business Days
prior to the proposed date of such borrowing; provided, however, that Lender
shall have no obligation to advance such borrowings more than one time each
week, except as otherwise provided in Section 2.2.1. Each such notice shall be
effective upon receipt by Lender, shall be irrevocable, and shall specify, in
the form of a Borrowing Notice, the date, amount and type of borrowing and, in
the case of LIBOR borrowing, the initial Interest Period therefor. So long as
Borrower’s request is timely made and the conditions precedent set forth in Section
4 with respect to such borrowing have been satisfied, Lender shall pay over
the proceeds of such borrowing request to Borrower on the requested borrowing
date. Each borrowing shall be on a Business Day. Each Base Rate borrowing shall
be in an aggregate amount of $250,000 or of any integral multiple of $50,000 in
excess thereof, and each LIBOR borrowing shall be in an aggregate amount of
$250,000 or of any integral multiple of $50,000 in excess thereof.


 


2.2.3        Conversion;
Continuation.


 


(a)           Subject
to Section 2.2.1, Borrower may, upon irrevocable written notice to
Lender in accordance with clause (b) below, elect (i) as of any Business
Day, to convert any Loans (or any part thereof in an aggregate amount of not
less than $250,000 or a higher integral multiple of $50,000) into Loans of the
other type or (ii) as of the last day of the applicable Interest Period,
to continue any LIBOR Loans having Interest Periods expiring on such day (or
any part thereof in an aggregate amount not less than $250,000 or a higher
integral multiple of $50,000) for a new Interest Period; provided, that any
conversion of a LIBOR Loan on a day other than the last day of an Interest
Period therefor shall be subject to Section 3.5.


 


21

















 


(b)           Borrower
shall give written or telephonic notice (followed immediately by written
confirmation thereof) to Lender of each proposed conversion or continuation not
later than (i) in the case of conversion into Base Rate Loans,
11:00 a.m. New York City time at least one Business Day prior to the
proposed date of such conversion and (ii) in the case of conversion into
or continuation of LIBOR Loans, 11:00 a.m. New York City time at least
four Business Days prior to the proposed date of such conversion or
continuation, specifying in each case in the form of a Conversion/Continuation
Notice:  (i) the proposed date of
conversion or continuation; (ii) the aggregate amount of Loans to be
converted or continued; (iii) the type of Loans resulting from the
proposed conversion or continuation; and (iv) in the case of conversion
into, or continuation of, LIBOR Loans, the duration of the requested Interest Period
therefor.


 


(c)           If upon
the expiration of any Interest Period applicable to LIBOR Loans, Borrower has
failed to select timely a new Interest Period to be applicable to such LIBOR
Loans, Borrower shall be deemed to have elected to convert such LIBOR Loans
into Base Rate Loans effective on the last day of such Interest Period.


 


(d)           Notwithstanding
anything in this Agreement to the contrary, Borrower shall have the ability to
convert from a Base Rate Loan to a LIBOR Loan, or from a LIBOR Loan to a Base Rate,
with respect to each of the Term A Loan, the Term B Loan and the Revolving
Loans not more than once during any Fiscal Quarter.


 


2.3           Certain Conditions.


 


Notwithstanding any other provision of this Agreement, Lender shall not
have an obligation to make any Loan, or to permit the continuation of any
expiring LIBOR Loan as a LIBOR Loan, or to permit any conversion into any LIBOR
Loans, if an Event of Default or Default exists.


 


2.4           Loan Accounting.


 


2.4.1        Recordkeeping.


 


Lender shall record in its records the date and amount of each Loan
made and each repayment or conversion thereof and, in the case of each LIBOR
Loan, the dates on which each Interest Period for such Loan shall begin and end.
The aggregate unpaid principal amount so recorded shall be rebuttably
presumptive evidence of the principal amount of the Loans owing and unpaid. The
failure to so record any such amount or any error in so recording any such
amount shall not, however, limit or otherwise affect the Obligations of
Borrower hereunder or under any Note to repay the principal amount of the Loans
hereunder, together with all interest accruing thereon.


 


2.5           Interest.


 


2.5.1        Interest
Rates.


 


(a)           Other
than, in each case, with respect to the Term B Loans, the applicable per annum
interest rate for which shall be as set forth in clause (b) of this Section 2.5.1,
Borrower promises to pay interest on the unpaid principal amount of each Loan for
the period commencing 


 


22

















 


on the date of such Loan until such Loan is paid in
full as follows:  (a) at all times which
such Loan is a Base Rate Loan, at a rate per annum equal to the sum of the Base
Rate from time to time in effect plus the Applicable Margin; and (b) at all
times while such Loan is a LIBOR Loan, at a rate per annum equal to the LIBOR
Rate applicable to each Interest Period for such Loan plus the Applicable
Margin; provided, that (i) at any time an Event of Default exists, if
requested by Lender, the Applicable Margin corresponding to each Loan shall be
increased by two percentage points per annum (and, in the case of Obligations
not subject to an Applicable Margin, such Obligations shall bear interest at
the Base Rate applicable to Revolving Loans plus the Applicable Margin plus two
percentage points per annum), (ii) any such increase may thereafter be
rescinded by Lender, and (iii) upon the occurrence of an Event of Default
under Section 8.1.1 or 8.1.3, any such increase described in
the foregoing clause (i) shall occur automatically. In no event shall interest
payable by Borrower to Lender hereunder exceed the maximum rate permitted under
applicable law, and if any such provision of this Agreement is in contravention
of any such law, such provision shall be deemed modified to limit such interest
to the maximum rate permitted under such law.


 


(b)           Borrower
promises to pay interest on the unpaid principal amount of the Term B Loan for
the period commencing on the date of such Loan until such Loan is paid in full
at the rate of 14.25% per annum; provided, that (i) at any time an Event
of Default exists, if requested by Lender, the applicable interest rate for the
Term B Loans shall be increased by two percentage points per annum,
(ii) any such increase may thereafter be rescinded by Lender, and
(iii) upon the occurrence of an Event of Default under Section 8.1.1
or 8.1.3, any such increase described in the foregoing clause (i) shall
occur automatically. In no event shall interest payable by Borrower to Lender
hereunder exceed the maximum rate permitted under applicable law, and if any
such provision of this Agreement is in contravention of any such law, such
provision shall be deemed modified to limit such interest to the maximum rate
permitted under such law.


 


2.5.2        Interest
Payment Dates.


 


Accrued interest on each Base Rate Loan shall be payable in arrears on
the last day of each month and at maturity in cash. Accrued interest on the
Term B Loan shall be payable in arrears on the last day of each month and at
maturity in cash. Accrued interest on each LIBOR Loan shall be payable
(a) on the last day of each month during such Interest Period, or on the
last day of such Interest Period, as applicable, relating to such Loan, (b) upon
a prepayment of such Loan in accordance with Section 2.8 and (c) at
maturity in cash; provided, however, that to the extent interest
is paid by Borrower on any day other than the last day of the applicable
Interest Period, Borrower shall be responsible for, and shall promptly pay to
Lender, any breakage costs actually incurred by Lender as a result thereof. After
maturity and at any time an Event of Default exists, all accrued interest on
all Loans shall be payable in cash on demand at the rates specified in Section 2.6.1.


 


2.5.3        Setting
and Notice of LIBOR Rates.


 


The applicable LIBOR Rate for each Interest Period shall be determined
by Lender, and notice thereof shall be given by Lender promptly to Borrower. Each
determination of the applicable LIBOR Rate by Lender shall be conclusive and
binding upon the parties hereto, in the absence of demonstrable error. Lender
shall, upon written request of Borrower, deliver to 


 


23

















 


Borrower a statement showing the computations
used by Lender in determining any applicable LIBOR Rate hereunder.


 


2.5.4        Computation
of Interest. 


 


Interest shall be computed for the actual number of days elapsed on the
basis of a year of (a) 365/366 days for interest calculated at the Base Rate or
with respect to the Term B Loans and (b) 360 days for interest calculated at
the LIBOR Rate. The applicable interest rate for each Base Rate Loan shall
change simultaneously with each change in the Base Rate.


 


2.6           Fees.


 


2.6.1        Commitment
Fee.


 


For the period from the Closing Date to the Termination Date, Borrower
agrees to pay to Lender a Commitment Fee equal to the Applicable Margin
multiplied by the amount by which the Revolving Loan Commitment exceeds the
average daily Revolving Loans outstanding. The Commitment Fee shall be payable
in arrears on the last day of each calendar month and on the Termination Date
for any period then ending for which the Commitment Fee shall not have
previously been paid. The Commitment Fee shall be computed for the actual
number of days elapsed on the basis of a year of 360 days.


 


2.6.2        Collateral Management Fee.


 


For the period from the Closing Date to the Termination Date, Borrower
agrees to pay to Lender a collateral management and administration fee in the
amount of $1,000 per month, payable in arrears on the last day of each calendar
month.


 


2.7           Commitment Reduction.


 


2.7.1        Voluntary
Reduction or Termination of Revolving Loan Commitment.


 


Borrower may from time to time on at least five Business Days’ prior
written notice received by Lender permanently reduce the Revolving Loan
Commitment to an amount not less than the Revolving Loans. Any such reduction
shall be in an amount not less than $250,000 or a higher integral multiple of
$100,000. Concurrently with any reduction of the Revolving Loan Commitment to
zero, Borrower shall pay all interest on the Revolving Loans and all commitment
fees. All reductions in the Revolving Loan Commitment shall be subject to an
Early Termination Payment.


 


2.8           Prepayment.


 


2.8.1        Voluntary
Prepayment.


 


Borrower may from time to time, on at least one Business Day’s written
notice or telephonic notice (if a telephonic notice, followed immediately by
written confirmation thereof) to Lender not later than 11:00 a.m. New York
City time on such day, prepay the Term Loans in whole or in part; provided that
Borrower may not prepay all or any portion of the Term B Loans 


 


24

















 


if, either immediately prior to or after
giving effect to any such prepayment, any portion of the Revolving Loans or
Term A Loans are outstanding. Such notice to Lender shall specify the Loans to
be prepaid and the date and amount of prepayment. Any such partial prepayment
shall be in an amount equal to $250,000 or a higher integral multiple of
$100,000. All prepayments of Term Loans pursuant to this Section 2.8.1
shall be applied pursuant to Section 2.8.3 and shall be subject to
the applicable Prepayment Premium for such Term Loan.


 


2.8.2        Mandatory
Prepayment.


 


Borrower shall prepay, first, the Term A Loans until Paid in Full and,
then, the Term B Loans until Paid in Full (in each case in the inverse order of
maturity to the remaining installments thereof), at the following times and in
the following amounts:


 


(i)                    concurrently
with the receipt by Borrower or any Subsidiary of any Net Cash Proceeds from
any Disposition, in an amount equal to such Net Cash Proceeds;


 


(ii)                   concurrently
with the receipt by Borrower or any Subsidiary of any Net Cash Proceeds from
any issuance of its equity securities (other than equity securities that are
issued pursuant to Section 7.9(a)), in an amount equal to such Net
Cash Proceeds; and


 


(iii)                  on
any day the outstanding amount of the Revolving Loans exceed Borrowing
Availability, whether pursuant to a reduction of the Revolving Loan Commitments
pursuant to Section 2.7.1 or otherwise, Borrower shall immediately
prepay Revolving Loans in an amount sufficient to eliminate such excess.


 


2.8.3        All
Prepayments.


 


(a)           Any
prepayment of a LIBOR Loan on a day other than the last day of an Interest
Period therefor shall include interest on the principal amount being repaid and
shall be subject to Section 3. All prepayments of a Loan shall be
applied first to that portion of such Loan comprised of Base Rate Loans and
then to that portion of such Loan comprised of LIBOR Loans, in direct order of
Interest Period maturities. All prepayments of Term Loans shall be applied
first to Term A Loans until Paid in Full and then to Term B Loans and, in each
case, in the inverse order of maturity to the remaining installments thereof,
if applicable, and shall in each case be subject to the applicable Prepayment
Premium for such Term Loans. All payments or prepayments of Revolving Loans
resulting in, or made in order to effect, a permanent reduction in the
Revolving Loan Commitment shall be subject to a Early Termination Payment.


 


(b)           Borrower
shall give written notice or telephonic notice (followed immediately by written
confirmation thereof) to Lender not later than 11:00 a.m. New York City
time at least one Business Day prior to each mandatory prepayment pursuant to
clause (a) of Section 2.8.2.


 


25

















 


2.9           Repayment.


 


2.9.1        Revolving
Loans.


 


The outstanding balance of the Revolving Loans shall be paid, for the account of Lender, in full on
the Termination Date.


 


2.9.2        Term
A Loans.


 


The Term A Loans shall amortize as provided in the following table,
with each annualized amount being due and payable in equal monthly installments
on the last day of each month, commencing December       ,
2007 and continuing to the Term Loan A Maturity Date, on which date the then
outstanding Term A Loans shall be paid in full:


 


	
  Year

  	
   

  	
  Monthly Amortization

  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1

  	
   

  	
  $

  	
  15,000

  	
   

  
	
  2

  	
   

  	
  $

  	
  15,000

  	
   

  
	
  3

  	
   

  	
  $

  	
  15,000

  	
   

  
	
  4

  	
   

  	
  $

  	
  15,000

  	
   

  
	
  5

  	
   

  	
  $

  	
  15,000

  	
   

  
	
  6

  	
   

  	
  $

  	
  15,000

  	
   

  



 


2.9.3        Term
B Loans.


 


The Term B Loans shall be Paid in Full on the Term B Loan Maturity
Date.


 


2.10         Payment.


 


2.10.1      Making
Payments.


 


All payments of principal of or interest in respect of the Loans, and
of all fees, shall be made by Borrower to Lender without setoff, recoupment or
counterclaim and in immediately available funds at the office specified by
Lender not later than 12:00 noon New York City time on the date due, and funds
received after that hour shall be deemed to have been received by Lender on the
following Business Day.


 


2.10.2      Application
of Payments and Proceeds.


 


(a)           Except as
set forth in Section 2.8.2 and Section 2.8.3, and
subject to the provisions of Sections 2.10.2(b) and 2.10.2(c)
below, each payment of principal shall be applied to such Loans as Borrower shall
direct by notice to be received by Lender on or before the date of such payment
or, in the absence of such notice, as Lender shall determine in its discretion.


 


(b)           If an
Acceleration Event shall have occurred and be continuing, notwithstanding
anything herein or in any other Loan Document to the contrary, Lender shall 


 


26

















 


apply all or any part of payments in respect of the
Obligations and proceeds of Collateral, in each case as received by Lender, to
the payment of the Obligations in the following order:


 


(i)                    FIRST,
to the payment of all fees, costs, expenses and indemnities due and owing to
Lender under this Agreement or any other Loan Document, and any other
Obligations owing to Lender in respect of sums advanced by Lender to preserve
or protect the Collateral or to preserve or protect its security interest in
the Collateral (whether or not such Obligations are then due and owing to
Lender), based on such Lender’s pro rata share thereof, until Paid in Full;


 


(ii)                   SECOND,
to the payment of all fees, costs, expenses and indemnities due and owing to
Lender, other than in respect of Term B Loans, based on such Lender’s pro rata
share thereof, until Paid in Full;


 


(iii)                  THIRD,
to the payment of all accrued and unpaid interest due and owing to Lender,
other than in respect of Term B Loans, based on such Lender’s pro rata share
thereof, until Paid in Full;


 


(iv)                  FOURTH,
to the payment of all principal of the Loans, other than Term B Loans, due and
owing, based on such Lender’s pro rata share thereof, until Paid in Full;


 


(v)                   FIFTH,
to the payment of all Hedging Obligations due and owing to Lender or its
Affiliates, based on its or their pro rata share thereof;


 


(vi)                  SIXTH,
to the payment of all other Obligations owing to Lender, other than Obligations
owing in respect of Term B Loans, based on such Lender’s pro rata share
thereof, until Paid in Full;


 


(vii)                 SEVENTH,
to the payment of all fees, costs, expenses and indemnities due and owing to
Lender in respect of Term B Loans until Paid in Full;


 


(viii)                EIGHTH,
to the payment of all accrued and unpaid interest due and owing to Lender in
respect of Term B Loans until Paid in Full;


 


(ix)                   NINTH,
to the payment of all principal of Term B Loans due and owing until Paid in
Full; and


 


(x)                    TENTH,
to the payment of all other Obligations owing to Lender in respect of Term B
Loans until Paid in Full.


 


(c)           If an
Event of Default shall have occurred and be continuing but an Acceleration
Event shall not exist, notwithstanding anything herein or in any other Loan
Document to the contrary, Lender shall apply all or any part of payments in
respect of the obligations and proceeds of Collateral, in each case as received
by Lender, to the payment of the Obligations in such order as Lender may elect.
In the absence of a specific determination by Lender, payments in respect of
the Obligations and proceeds of Collateral received by Lender shall be applied
in the following order:


 


27

















 


(i)                    FIRST,
to the payment of all fees, costs, expenses and indemnities due and owing to
Lender under this Agreement or any other Loan Document, and any other
Obligations owing to Lender in respect of sums advanced by Lender to preserve
or protect the Collateral or to preserve or protect its security interest in
the Collateral (whether or not such Obligations are then due and owing to
Lender), based on such Lender’s pro rata share thereof, until Paid in Full;


 


(ii)                   SECOND,
to the payment of all fees, costs, expenses and indemnities due and owing to
Lender, other than in respect of Term B Loans, based on such Lender’s pro rata
share thereof, until Paid in Full;


 


(iii)                  THIRD,
to the payment of all accrued and unpaid interest due and owing to Lender,
other than in respect of Term B Loans, based upon such Lender’s pro rata share
thereof, until Paid in Full;


 


(iv)                  FOURTH,
to the payment of all principal of the Loans, other than Term B Loans, then due
and owing, based upon such Lender’s pro rata share thereof, until Paid in Full;


 


(v)                   FIFTH,
to the payment of Revolving Loans and the Term A Loans not then due and owing,
based upon such Lender’s pro rata share thereof, until Paid in Full;


 


(vi)                  SIXTH,
to the payment of all Hedging Obligations owing to Lender or its Affiliates, pro
rata in accordance with Lender’s or one of its Affiliate’s share thereof, until
Paid in Full;


 


(vii)                 SEVENTH,
to the payment of all other Obligations owing to Lender, other than Obligations
owing in respect of Term B Loans, until Paid in Full;


 


(viii)                EIGHTH,
to the payment of all fees, costs, expenses and indemnities due and owing to
Lender in respect of Term B Loans until Paid in Full;


 


(ix)                   NINTH,
to the payment of all accrued and unpaid interest due and owing to Lender in
respect of Term B Loans until Paid in Full;


 


(x)                    TENTH,
to cash collateralize Obligations consisting of Term B Loans not yet due and
owing until Paid in Full; and


 


(xi)                   ELEVENTH,
to the payment of all other Obligations owing to Lender in respect of Term B
Loans until Paid in Full.


 


2.10.3      Payment
Dates.


 


If any payment of principal or interest with respect to any of the
Loans, or of any fees, falls due on a day which is not a Business Day, then
such due date shall be extended to the immediately following Business Day
(unless, in the case of a LIBOR Loan, such immediately following Business Day
is the first Business Day of a calendar month, in which case such due 


 


28

















 


date shall be the immediately preceding
Business Day) and, in the case of principal, additional interest shall accrue
and be payable for the period of any such extension.


 


2.10.4      Set-off.


 


Borrower agrees that Lender and its Affiliates have all rights of
set-off and bankers’ lien provided by applicable law, and in addition thereto,
Borrower agrees that at any time an Event of Default has occurred and is
continuing, Lender may apply to the payment of any Obligations of Borrower
hereunder, whether or not then due, any and all balances, credits, deposits,
accounts or moneys of Borrower then or thereafter with Lender.


 


Section 3.               Yield
Protection.


 


3.1           Taxes.


 


(a)           All
payments of principal and interest on the Loans and all other amounts payable
hereunder shall be made free and clear of and without deduction for any present
or future income, excise, stamp, documentary, property or franchise taxes and
other taxes, fees, duties, levies, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, excluding taxes imposed on or
measured by Lender’s net income by the jurisdiction under which Lender is
organized or conducts business (all non-excluded items being called “Taxes”).
If any withholding or deduction from any payment to be made by Borrower
hereunder is required in respect of any Taxes pursuant to any applicable law,
rule or regulation, then Borrower will: 
(i) pay directly to the relevant authority the full amount required
to be so withheld or deducted; (ii) promptly forward to Lender an official
receipt or other documentation satisfactory to Lender evidencing such payment
to such authority; and (iii) pay to Lender such additional amount or
amounts as is necessary to ensure that the net amount actually received by
Lender will equal the full amount Lender would have received had no such
withholding or deduction been required. If any Taxes are directly asserted
against Lender with respect to any payment received by Lender hereunder, Lender
may pay such Taxes and Borrower will promptly pay such additional amounts
(including any penalty, interest or expense) as is necessary in order that the
net amount received by such Person after the payment of such Taxes (including
any Taxes on such additional amount) shall equal the amount such Person would
have received had such Taxes not been asserted so long as such amounts have
accrued on or after the day which is 180 days prior to the date on which Lender
first made demand therefor; provided, that if the event giving rise to such
costs or reductions has retroactive effect, such 180 day period shall be
extended to include the period of retroactive effect.


 


(b)           If
Borrower fails to pay any Taxes when due to the appropriate taxing authority or
fails to remit to Lender the required receipts or other required documentary
evidence, Borrower shall indemnify Lender for any incremental Taxes, interest
or penalties that may become payable by Lender as a result of any such failure.


 


3.2           Increased Cost.


 


(a)           If, after
the Closing Date, the adoption of, or any change in, any applicable law, rule
or regulation, or any change in the interpretation or administration of any
applicable law, rule or regulation by any governmental authority, central bank
or comparable agency 


 


29

















 


charged with the interpretation or administration
thereof, or compliance by Lender with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall impose on Lender any other condition affecting its LIBOR Loans,
its Note or its obligation to make LIBOR Loans; and the result of anything
described above is to increase the cost to (or to impose a cost on) Lender of
making or maintaining any LIBOR Loan, or to reduce the amount of any sum
received or receivable by Lender under this Agreement or under its Note with
respect thereto, then upon demand by Lender (which demand shall be accompanied
by a statement setting forth the basis for such demand and a calculation of the
amount thereof in reasonable detail), Borrower shall pay directly to Lender
such additional amount as will compensate Lender for such increased cost or
such reduction, so long as such amounts have accrued on or after the day which
is 180 days prior to the date on which Lender first made demand therefor;
provided, that if the event giving rise to such costs or reductions has
retroactive effect, such 180 day period shall be extended to include the period
of retroactive effect.


 


(b)           If Lender
shall reasonably determine that any change in, or the adoption or phase-in of,
any applicable law, rule or regulation regarding capital adequacy, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or the compliance by Lender or any Person controlling
Lender with any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on Lender’s
or such controlling Person’s capital as a consequence of Lender’s obligations
hereunder to a level below that which Lender or such controlling Person could
have achieved but for such change, adoption, phase-in or compliance (taking
into consideration Lender’s or such controlling Person’s policies with respect
to capital adequacy) by an amount deemed by Lender or such controlling Person
to be material, then from time to time, upon demand by Lender (which demand
shall be accompanied by a statement setting forth the basis for such demand and
a calculation of the amount thereof in reasonable detail), Borrower shall pay
to Lender such additional amount as will compensate Lender or such controlling
Person for such reduction, so long as such amounts have accrued on or after the
day which is 180 days prior to the date on which Lender first made demand
therefor; provided, that if the event giving rise to such costs or reductions
has retroactive effect, such 180 day period shall be extended to include the
period of retroactive effect.


 


3.3           Inadequate or Unfair Basis.


 


If Lender reasonably determines (which determination shall be binding
and conclusive on Borrower) that, by reason of circumstances affecting the
interbank Eurodollar market, adequate and reasonable means do not exist for
ascertaining the applicable LIBOR Rate, then Lender shall promptly notify the
Borrower thereof and, so long as such circumstances shall continue,
(a) Lender shall be under no obligation to make or convert any Base Rate
Loans into LIBOR Loans and (b) on the last day of the current Interest
Period for each LIBOR Loan, such Loan shall, unless then repaid in full,
automatically convert to a Base Rate Loan.


 


30

















 


3.4           Change in Law.


 


If any change in, or the adoption of any new, law or regulation, or any
change in the interpretation of any applicable law or regulation by any
governmental or other regulatory body charged with the administration thereof,
would make it (or in the good faith judgment of Lender cause a substantial
question as to whether it is) unlawful for Lender to make, maintain or fund
LIBOR Loans, then Lender shall promptly notify each of the other parties hereto
and, so long as such circumstances shall continue, (a) Lender shall have no
obligation to make or convert any Base Rate Loan into a LIBOR Loan (but shall
make Base Rate Loans in each case in an amount equal to the amount of LIBOR
Loans which would be made or converted into by Lender at such time in the
absence of such circumstances) and (b) on the last day of the current
Interest Period for each LIBOR Loan of Lender (or, in any event, on such
earlier date as may be required by the relevant law, regulation or
interpretation), such LIBOR Loan shall, unless then repaid in full, automatically
convert to a Base Rate Loan. Each Base Rate Loan made by Lender which, but for
the circumstances described in the foregoing sentence, would be a LIBOR Loan
shall remain outstanding for the period corresponding to the Interest Period
originally applicable to such LIBOR Loan absent such circumstances.


 


3.5           Funding Losses.


 


Borrower hereby agrees that upon demand by Lender (which demand shall
be accompanied by a statement setting forth the basis for the amount being
claimed), Borrower will indemnify Lender against any net loss or expense which
Lender may sustain or incur (including any net loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by Lender to fund or maintain any LIBOR Loan), as reasonably determined by
Lender, as a result of (a) any payment, prepayment or conversion of any
LIBOR Loan of Lender on a date other than the last day of an Interest Period
for such Loan (including any conversion pursuant to Section 3.3 or 3.4)
or (b) any failure of Borrower to borrow, convert or continue any Loan on
a date specified therefor in a notice of borrowing, conversion or continuation
pursuant to this Agreement. For the purposes of this Section 3.5,
all determinations shall be made only to the extent Lender has actually funded
and maintained each LIBOR Loan during each Interest Period for such Loan
through the purchase of deposits having a maturity corresponding to such
Interest Period and bearing an interest rate equal to the LIBOR Rate for such
Interest Period.


 


3.6           Manner of Funding; Alternate Funding
Offices.


 


Notwithstanding any provision of this Agreement to the contrary, Lender
shall be entitled to fund and maintain its funding of all or any part of its
Loans in any manner it may determine at its sole discretion. Lender may, if it
so elects, fulfill its commitment to make any LIBOR Loan by causing any branch
or Affiliate of Lender to make such Loan; provided that in such event for the
purpose of this Agreement, such Loan shall be deemed to have been made by
Lender, the obligation of Borrower to repay such Loan shall nevertheless be to
Lender and shall be deemed held by Lender, to the extent of such Loan, for the
account of such branch or Affiliate.


 


31

















 


3.7           Mitigation of Circumstances.


 


Lender shall promptly notify Borrower of any event of which it has
knowledge which will result in, and will use reasonable commercial efforts
available to it (and not, in Lender’s sole judgment, otherwise disadvantageous
to Lender) to mitigate or avoid any obligation by Borrower to pay any amount
pursuant to Sections 3.1 or 3.2 or the occurrence of any
circumstances described in Sections 3.3 or 3.4 (and, if
Lender has given notice of any such event and thereafter such event ceases to
exist, Lender shall promptly so notify Borrower).


 


3.8           Conclusiveness of Statements; Survival.


 


Determinations and statements of Lender pursuant to Sections 3.1,
3.2, 3.3, 3.4 or 3.5 shall be conclusive absent
demonstrable error. Lender may use reasonable averaging and attribution methods
in determining compensation under Sections 3.1, 3.2 and 3.5
and the provisions of such Sections shall survive repayment of the Loans,
cancellation of the Notes, if any, and termination of this Agreement.


 


Section 4.               Conditions
Precedent.


 


The obligation of Lender to make the Loans is subject to the following
conditions precedent:


 


4.1           Initial Credit Extension.


 


The obligation of Lender to make the initial Loans hereunder is, in
addition to the conditions precedent specified in Section 4.2,
subject to the following conditions precedent, each of which shall be
satisfactory in all respects to Lender:


 


4.1.1        EBITDA.


 


EBITDA, as adjusted by adjustments satisfactory to Lender, for the 12
month period ending September 30, 2007 shall not be less than $3,200,000.


 


4.1.2        Initial
Loans.


 


After giving effect to the consummation of
the Related Transactions and the funding of the initial Loans on the Closing
Date, not more than $1,000,000 in Revolving Loans shall be
advanced or issued (as applicable) on the Closing Date.


 


4.1.3        Debt
to be Repaid.


 


The Debt to be Repaid has been (or concurrently with the initial
borrowing will be) paid in full.


 


4.1.4        Fees.


 


Borrower shall have paid all fees, costs and expenses due and payable
under this Agreement and the other Loan Documents on the Closing Date.


 


32

















 


4.1.5        Delivery
of Loan Documents.


 


Borrower shall have delivered the following documents in form and
substance satisfactory to Lender (and, as applicable, duly executed by each
Loan Party a party thereto and dated the Closing Date or an earlier date
satisfactory to Lender):


 


(a)           Agreement.
This Agreement.


 


(b)           Collateral
Documents. The Guarantee and Collateral Agreement, all other Collateral
Documents, and all instruments, documents, certificates and agreements executed
or delivered pursuant thereto (including intellectual property assignments and
pledged Collateral, with undated irrevocable transfer powers executed in
blank).


 


(c)           Financing
Statements. Properly completed Uniform Commercial Code financing statements
and other filings and documents required by law or the Loan Documents to
provide Lender perfected Liens (subject only to Liens permitted pursuant to Section 7.2)
in the Collateral.


 


(d)           Lien
Searches. Copies of Uniform Commercial Code search reports listing all
effective financing statements filed against any Loan Party, with copies of
such financing statements.


 


(e)           Mortgages.
Mortgages providing Lender perfected Liens (subject only to Liens permitted
pursuant to Section 7.2) in the real property Collateral owned by
Borrower or any Subsidiary of Borrower, with ALTA loan title insurance policies
issued by insurers reasonably acceptable to Lender, ALTA surveys and such flood
and/or earthquake insurance as Lender may reasonably request. Additionally, in
the case of any leased real property of Borrower or any Subsidiary of Borrower,
a consent, in form and substance satisfactory to Lender, from the owner and/or
mortgagee (a) consenting to the Mortgage of the leasehold interest in favor of
Lender with respect to such property and (b) waiving any landlord’s Lien in
respect of personal property kept at the premises subject to such lease; provided
that Lender shall reasonably consider any request by Borrower to forgo the
delivery of any such consent in its reasonable credit judgment or to defer the
delivery of any such consent.


 


(f)            Collateral
Access Agreements. Collateral Access Agreements reasonably requested by
Lender with respect to the Collateral.


 


(g)           Payoff;
Release. Payoff letters evidencing repayment in full of all Debt to be
Repaid, termination of all agreements relating thereto and the release of all
Liens granted in connection therewith, with Uniform Commercial Code or other
appropriate termination statements and documents effective to evidence the
foregoing.


 


(h)           Letter
of Direction. A letter of direction containing funds flow information, with
respect to the proceeds of the Loans on the Closing Date.


 


(i)            Authorization
Documents. For each Loan Party, such Person’s (i) charter (or similar
formation document), certified by the appropriate governmental authority,
(ii) good standing certificates in its state of incorporation (or
formation) and in each other state requested 


 


33

















 


by Lender, (iii) bylaws (or similar governing
document), (iv) resolutions of its board of directors (or similar
governing body) approving and authorizing such Person’s execution, delivery and
performance of the Loan Documents to which it is party and the transactions
contemplated thereby, and (v) signature and incumbency certificates of its
officers executing any of the Loan Documents, all certified by its secretary or
an assistant secretary (or similar officer) as being in full force and effect
without modification.


 


(j)            Insurance.
Certificates or other evidence of insurance in effect as required by Section 6.3(b),
with endorsements naming Lender as loss payee and/or additional insured, as
applicable.


 


(k)           Financials.
The financial statements, projections and pro forma balance sheet described in Section 5.4.


 


(l)            Appraisals.
Appraisals of Collateral as reasonably requested by Lender, prepared by
appraisers reasonably satisfactory to Lender.


 


(m)          Environmental
Reports. Environmental site assessment reports reasonably requested by
Lender, prepared by environmental engineers reasonably satisfactory to Lender.


 


(n)           Consents.
Evidence that all necessary consents, permits and approvals (governmental or
otherwise, including pursuant to the Hart-Scott-Rodino Act and all related
state anti-trust laws and regulations) required for the execution, delivery and
performance by each Loan Party of the Loan Documents and the Related
Transactions have been duly obtained and are in full force and effect.


 


(o)           Legal
Opinion. Opinions of counsel (which opinions may be provided by in-house
counsel) with respect to such matters as Lender shall require, which are in
form and substance satisfactory to Lender.


 


(p)           Other
Documents. Such other certificates, documents and agreements as Lender may
reasonably request.


 


4.2           All Credit Extensions.


 


The obligation of Lender to make each Loan is subject to the additional
conditions precedent that (unless such conditions are waived by Lender), both
before and after giving effect to any borrowing, (a) the representations
and warranties of Borrower and each other Loan Party set forth in this
Agreement and the other Loan Documents shall be true and correct in all
material respects with the same effect as if then made (except to the extent
stated to relate to a specific earlier date, in which case such representations
and warranties shall be true and correct as of such earlier date), and (b) no
Event of Default or Default shall have then occurred and be continuing. Each
request by Borrower for the making of a Loan shall be deemed to constitute a
representation and warranty by Borrower that the conditions precedent set forth
in Section 4.2 will be satisfied at the time of the making of such
Loan.


 


34

















 


Section 5.               Representations
and Warranties.


 


To induce Lender to enter into this Agreement and to induce Lender to
make Loans hereunder, Borrower represents and warrants to Lender that, both
before and after giving effect to the Related Transactions:


 


5.1           Organization.


 


Borrower is a corporation validly existing and in good standing under
the laws of the State of Delaware; each other Loan Party is validly existing
and in good standing under the laws of the jurisdiction of its organization;
and each Loan Party is duly qualified to do business in each jurisdiction
where, because of the nature of its activities or properties, such
qualification is required, except for such jurisdictions where the failure to
so qualify could not reasonably be expected to have a Material Adverse Effect.


 


5.2           Authorization; No Conflict.


 


Each of Borrower and each other Loan Party is duly authorized to
execute and deliver each Loan Document and each to which it is a party
memorializing the Related Transactions, Borrower is duly authorized to borrow
monies hereunder, and each of Borrower and each other Loan Party is duly
authorized to perform its Obligations under each Loan Document to which it is a
party. The execution, delivery and performance by Borrower of this Agreement
and by each of Borrower and each other Loan Party of each Loan Document to
which it is a party, and the borrowings by Borrower hereunder, do not and will
not (a) require any consent or approval of any governmental agency or authority
(other than any consent or approval which has been obtained and is in full
force and effect and other than as may be required for the lawful conduct of
the business and properties of Borrower and each other Loan Party),
(b) conflict with (i) any provision of applicable law in any material
respect, (ii) the charter, by-laws or other organizational documents of
Borrower or any other Loan Party or (iii) any material agreement,
indenture, instrument or other document, or any material judgment, order or decree,
which is binding upon Borrower or any other Loan Party or any of their
respective properties or (c) require, or result in, the creation or
imposition of any Lien on any asset of Borrower, any Subsidiary or any other
Loan Party (other than Liens in favor of Lender created pursuant to the
Collateral Documents or which are otherwise permitted by the terms hereof).


 


5.3           Validity; Binding Nature.


 


Each of this Agreement and each other Loan Document to which Borrower
or any other Loan Party is a party is the legal, valid and binding obligation
of such Person, enforceable against such Person in accordance with its terms,
subject to bankruptcy, insolvency and similar laws affecting the enforceability
of creditors’ rights generally and to general principles of equity.


 


5.4           Financial Condition.


 


(a)           The
audited consolidated financial statements of the Target and the Subsidiaries as
at its Fiscal Years ending December 31, 2006 
(the “Balance Sheet Date”) and December 31, 2005, and the
unaudited consolidated financial statements of the Target and the Subsidiaries
as at June 30, 2007, copies of each of which have been delivered pursuant
hereto, 


 


35

















 


were prepared in accordance with GAAP (subject, in the
case of such unaudited statements, to the absence of footnotes and to normal
year-end adjustments) and fairly present in all material respects the
consolidated financial condition of such Persons as at such dates and the
results of their operations for the periods then ended.


 


(b)           The
consolidated financial projections (including an operating budget and a cash
flow budget) of Borrower and the Subsidiaries for the 4 year period commencing November
1, 2007 delivered to Lender on or prior to the Closing Date (i) were
prepared by Borrower in good faith and (ii) were prepared in accordance
with assumptions for which Borrower has a reasonable basis, and the
accompanying consolidated pro forma balance sheet of Borrower and the
Subsidiaries as at the Closing Date, adjusted to give effect to the
consummation of the Related Transactions and the financings contemplated hereby
as if such transactions had occurred on such date, is consistent in all
material respects with such projections.


 


5.5           No Material Adverse Change.


 


Since the Balance Sheet Date, there has been no material adverse change
in the financial condition, operations, assets, business or properties of the
Loan Parties taken as a whole.


 


5.6           Litigation.


 


No litigation (including derivative actions), arbitration proceeding or
governmental investigation or proceeding is pending or, to Borrower’s
knowledge, threatened against any Loan Party which could reasonably be expected
to have, either individually or in the aggregate, a Material Adverse Effect,
except as set forth in Schedule 5.6. As of the Closing Date, other than
any liability incident to such litigation or proceedings, neither Borrower nor
any other Loan Party has any material Contingent Obligations not listed on Schedule
7.1.


 


5.7           Ownership of Properties; Liens.


 


Except as would not reasonably be expected to have a Material Adverse
Effect, each of Borrower and each other Loan Party owns good and, in the case
of real property, marketable title to all of its properties and assets, real
and personal, tangible and intangible, of any nature whatsoever (including
patents, trademarks, trade names, service marks and copyrights), free and clear
of all Liens, charges and claims (including infringement claims with respect to
patents, trademarks, service marks, copyrights and the like), except as
permitted by Section 7.2.


 


5.8           Capitalization.


 


All issued and outstanding equity securities of Borrower and the other
Loan Parties are duly authorized and validly issued, fully paid,
non-assessable, and free and clear of all Liens other than those in favor of
Lender or which are otherwise permitted by the terms hereof. Schedule 5.8
sets forth the authorized equity securities of each Loan Party as of the
Closing Date. As of the Closing Date, except as set forth on Schedule 5.8,
there are no pre-emptive or other outstanding rights, options, warrants,
conversion rights or other similar agreements or understandings for the
purchase or acquisition of any equity interests of Borrower or any other Loan
Party.


 


36

















 


5.9           Pension Plans.


 


During the twelve-consecutive-month period prior to the Closing Date or
the making of any Loan, (i) no steps have been taken to terminate any
Pension Plan and (ii) no contribution failure has occurred with respect to
any Pension Plan sufficient to give rise to a Lien under Section 302(f) of
ERISA. No condition exists or event or transaction has occurred with respect to
any Pension Plan which could result in the incurrence by Borrower or any other
Loan Party of any material liability, fine or penalty which could reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect. Except in each case as could not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect, all contributions
(if any) have been made to any Multiemployer Pension Plan that are required to
be made by any Loan Party or any other member of the Controlled Group under the
terms of the plan or of any collective bargaining agreement or by applicable
law; neither any Loan Party nor any member of the Controlled Group has
withdrawn or partially withdrawn from any Multiemployer Pension Plan, incurred
any withdrawal liability with respect to any such plan or received notice of
any claim or demand for withdrawal liability or partial withdrawal liability
from any such plan, and neither Borrower nor any member of the Controlled Group
has received any written notice that any Multiemployer Pension Plan is in
reorganization, that increased contributions may be required to avoid a
reduction in plan benefits or the imposition of any excise tax, that any such
plan is or has been funded at a rate less than that required under
Section 412 of the IRC, that any such plan is being (or is reasonably
likely to be) terminated, or that any such plan is (or is reasonably likely to
become) insolvent.


 


5.10         Investment Company Act.


 


Neither Borrower nor any other Loan Party is an “investment company”
within the meaning of the Investment Company Act of 1940.


 


5.11         Margin Stock.


 


Neither Borrower nor any other Loan Party is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying Margin Stock. No portion of the Obligations
is secured directly or indirectly by Margin Stock.


 


5.12         Taxes.


 


Except as would not reasonably be expected to have a Material Adverse
Effect, each of Borrower and each other Loan Party has filed all tax returns
and reports required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes or
charges which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books.


 


5.13         Solvency.


 


On the Closing Date, and immediately prior to and after giving effect
to each borrowing hereunder and the use of the proceeds thereof, with respect
to each of Borrower and each other Loan Party, individually, (a) the fair
value of its assets is greater than the amount of 


 


37

















 


its liabilities (including disputed,
contingent and unliquidated liabilities) as such value is established and
liabilities evaluated, (b) the present fair saleable value of its assets
is not less than the amount that will be required to pay the probable liability
on its debts as they become absolute and matured, (c) it is able to
realize upon its assets and pay its debts and other liabilities (including disputed,
contingent and unliquidated liabilities) as they mature in the normal course of
business, (d) it does not intend to, and does not believe that it will,
incur debts or liabilities beyond its ability to pay as such debts and
liabilities mature and (e) it is not engaged in business or a transaction,
and is not about to engage in business or a transaction, for which its property
would constitute unreasonably small capital.


 


5.14         Environmental Matters.


 


Except as set forth in Schedule 5.14, the on-going operations of
Borrower and each other Loan Party comply in all material respects with all
Environmental Laws, except such non-compliance which could not (if enforced in
accordance with applicable law) reasonably be expected to result in a Material
Adverse Effect. Borrower and each other Loan Party have obtained, and
maintained in good standing, all licenses, permits, authorizations and
registrations required under any Environmental Law and necessary for their
respective ordinary course operations, and Borrower and each other Loan Party
are in compliance with all material terms and conditions thereof, in each case except
where the failure to do so could not reasonably be expected to result in a
Material Adverse Effect. Except as set forth in Schedule 5.14, none of
Borrower, any other Loan Party or any of their respective properties or
operations is subject to any material encumbrance or order imposed by any
Governmental Body in connection with the violation of any Environmental Law, any
Environmental Claim or the presence or release of any Hazardous Substances. Except
as set forth in Schedule 5.14, there are no Hazardous Substances present,
and there have been no Releases of Hazardous Substances, in, on, beneath or
adjacent to any property currently or formerly owned, operated or leased by
Borrower in quantities sufficient to form the basis for an Environmental Claim
or to create the reasonable likelihood of a Material Adverse Effect nor, to the
knowledge of Borrower, have any Hazardous Substances migrated or threatened to
migrate from other properties upon, about or beneath any properties. To the
knowledge of Borrower, there are no underground storage tanks that are not
properly registered or permitted under applicable Environmental Laws or that
are leaking or disposing of Hazardous Substances on any of the subject
properties.


 


5.15         Insurance.


 


Borrower and each other Loan Party and their respective properties are
insured with financially sound and reputable insurance companies which are not
Affiliates of Borrower, in such amounts, with such deductibles and covering
such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where Borrower or such
other Loan Party operates. A true and complete listing of such insurance as of
the Closing Date, including issuers, coverages and deductibles, is set forth on
Schedule 5.15.


 


5.16         Information.


 


All information heretofore or contemporaneously herewith furnished in
writing by Borrower to Lender for purposes of or in connection with this
Agreement and the transactions 


 


38

















 


contemplated hereby is, and all written
information hereafter furnished by or on behalf of Borrower to Lender pursuant
hereto or in connection herewith will be, true and accurate in every material
respect on the date as of which such information is dated or certified, and
none of such information is or will be incomplete by omitting to state any
material fact necessary to make such information not misleading in light of the
circumstances under which made (it being recognized by Lender that any
projections and forecasts provided by Borrower are based on good faith
estimates and assumptions believed by Borrower to be reasonable as of the date
of the applicable projections or assumptions and that actual results during the
period or periods covered by any such projections and forecasts may differ from
projected or forecasted results).


 


5.17         Intellectual Property.


 


Except as set forth in Schedule 5.17, Borrower and each other
Loan Party owns and possesses or has a license or other right to use all
patents, patent rights, trademarks, trademark rights, trade names, trade name
rights, service marks, service mark rights and copyrights as are necessary for the
conduct of the business of Borrower and the other Loan Parties, without any
infringement upon rights of others which could reasonably be expected to have a
Material Adverse Effect.


 


5.18         Restrictive Provisions.


 


Neither Borrower nor any other Loan Party is a party to any agreement
or contract or subject to any restriction contained in its operative documents
which could reasonably be expected to have a Material Adverse Effect.


 


5.19         Labor Matters.


 


Except as set forth on Schedule 5.19, neither Borrower nor any
other Loan Party is subject to any labor or collective bargaining agreement. There
are no existing or threatened strikes, lockouts or other labor disputes
involving Borrower or any other Loan Party that singly or in the aggregate
could reasonably be expected to have a Material Adverse Effect. Hours worked by
and payment made to employees of Borrower and the other Loan Parties are not in
any material respect in violation of the Fair Labor Standards Act or any other
applicable law, rule or regulation dealing with such matters.


 


5.20         No Default.


 


No Event of Default or Default exists or would result from the
incurrence by any Loan Party of any Debt hereunder or under any other Loan
Document.


 


Section 6.               Affirmative
Covenants.


 


Until the expiration or termination of the Commitments and thereafter
until all Obligations (other than contingent indemnification obligations to the
extent no claim giving rise thereto has been asserted) of Borrower and the
other Loan Parties hereunder and under the other Loan Documents are Paid in
Full, Borrower agrees that, unless at any time Lender shall otherwise expressly
consent in writing, it will:


 


39

















 


6.1           Information.


 


Furnish to Lender:


 


6.1.1        Annual
Report.


 


Promptly when available and in any event within 90 days after the close
of each Fiscal Year:  (a) a copy of
the annual audit report of Borrower and its Subsidiaries for such Fiscal Year,
including therein a consolidated balance sheet and statement of earnings and
cash flows of Borrower and its Subsidiaries as at the end of such Fiscal Year,
certified without qualification (except for qualifications relating to changes
in accounting principles or practices reflecting changes in generally accepted
principles of accounting and required or approved by Borrower’s independent
certified public accountants) by independent auditors of recognized standing
selected by Borrower and reasonably acceptable to Lender; and (b) a
consolidating balance sheet of Borrower and the Subsidiaries as of the end of
such Fiscal Year and consolidating statements of earnings and cash flows for Borrower
and the Subsidiaries for such Fiscal Year, together with a comparison of actual
results for such Fiscal Year with the budget for such Fiscal Year, each certified
by the chief financial officer of Borrower.


 


6.1.2        Interim
Reports.


 


Promptly when available and in any event within 30 days (or, in the
case of month-end dates corresponding to the end of a Fiscal Quarter, 40 days) after
the end of each month, (i) consolidated and consolidating balance sheets
of Borrower and the Subsidiaries as of the end of such month, together with
consolidated and consolidating statements of earnings and a consolidated and
consolidating statement of cash flows for such month and for the period
beginning with the first day of such Fiscal Year and ending on the last day of
such month, together with a comparison with the corresponding period of the
previous Fiscal Year and a comparison with the budget for such period of the
current Fiscal Year, certified by the chief financial officer of Borrower, and
(ii) for monthly financial statements that correspond to the end of a
Fiscal Quarter, a written statement of Borrower’s management setting forth a
discussion of Borrower’s financial condition, changes in financial condition
and results of operations.


 


6.1.3        Compliance
Certificate.


 


Contemporaneously with the furnishing of a copy of each annual audit
report pursuant to Section 6.1.1 and each set of interim reports
issued at the end of each Fiscal Quarter pursuant to Section 6.1.2 (a)
a duly completed Compliance Certificate, with appropriate insertions, dated the
date of such annual report or such quarterly statements, and signed by the
chief financial officer of Borrower, containing a computation of the financial
ratios and restrictions set forth in Section 7.12 and to the effect
that such officer has not become aware of any Event of Default or Default that
has occurred and is continuing or, if there is any such event, describing it
and the steps, if any, being taken to cure it and (b) an Availability
Certificate showing a determination of Eligible Availability.


 


40

















 


6.1.4        Notice
of Default; Litigation; ERISA Matters.


 


Promptly upon becoming aware of any of the following, written notice
describing the same and the steps being taken by Borrower or the applicable
Loan Party affected thereby with respect thereto:


 


(a)           the
occurrence of an Event of Default or a Default;


 


(b)           any
litigation, arbitration or governmental investigation or proceeding not
previously disclosed by Borrower to Lender which has been instituted or, to the
knowledge of Borrower, is threatened against Borrower or any other Loan Party
or to which any of the properties of any thereof is subject which could
reasonably be expected to have a Material Adverse Effect;


 


(c)           the
institution of any steps by any member of the Controlled Group or any other
Person to terminate any Pension Plan, or the failure of any member of the
Controlled Group to make a required contribution to any Pension Plan (if such
failure is sufficient to give rise to a Lien under Section 302(f) of
ERISA) or to any Multiemployer Pension Plan, or the taking of any action with
respect to a Pension Plan which could reasonably be expected to result in the
requirement that Borrower or any other Loan Party furnish a bond or other
security to the PBGC or such Pension Plan, or the occurrence of any event with
respect to any Pension Plan or Multiemployer Pension Plan which could reasonably
be expected to result in the incurrence by any member of the Controlled Group
of any material liability, fine or penalty (including any claim or demand for
withdrawal liability or partial withdrawal from any Multiemployer Pension
Plan), or any material increase in the contingent liability of Borrower or any
other Loan Party with respect to any post-retirement welfare plan benefit, or
any notice that any Multiemployer Pension Plan is in reorganization, that material
increased contributions may be required to avoid a reduction in plan benefits
or the imposition of an excise tax, that any such plan is or has been funded at
a rate less than that required under Section 412 of the IRC, that any such
plan is being (or is reasonably likely to be) terminated, or that any such plan
is (or is reasonably likely to become) insolvent;


 


(d)           any
cancellation or material change in any insurance maintained by Borrower or any
other Loan Party; or


 


(e)           any other
event (including (i) any violation of any Environmental Law or the
assertion of any Environmental Claim or (ii) the enactment or
effectiveness of any law, rule or regulation) which could reasonably be
expected to have a Material Adverse Effect.


 


6.1.5        Management
Report.


 


Promptly upon receipt thereof, copies of all detailed financial and
management reports submitted to Borrower or any other Loan Party by independent
auditors in connection with each annual or interim audit made by such auditors
of the books of Borrower or any other Loan Party.


 


41

















 


6.1.6        Non-Senior
Debt Notices.


 


Promptly following receipt, copies of any notices (including notices of
default or acceleration) received from any holder or trustee of, under or with
respect to any Non-Senior Debt.


 


6.1.7        Other
Information.


 


Promptly from time to time, such other information concerning Borrower
and any other Loan Party as Lender may reasonably request, including, without
limitation, within three (3) Business Days of the Lender’s request therefor, an
updated Availability Certificate.


 


6.2           Books; Records; Inspections.


 


Keep, and cause each other Loan Party to keep, its books and records in
accordance with sound business practices sufficient to allow the preparation of
financial statements in accordance with GAAP; permit, and cause each other Loan
Party to permit, Lender or any representative thereof to inspect the properties
and operations of Borrower or such other Loan Party; and permit, and cause each
other Loan Party to permit, at any reasonable time and with reasonable notice
(or at any time without notice if an Event of Default exists), Lender or any
representative thereof to visit any or all of its offices, to discuss its
financial matters with its officers and its independent auditors (and Borrower
hereby authorizes such independent auditors to discuss such financial matters
with Lender or any representative thereof), and to examine (and, at the expense
of Borrower or the applicable Loan Party, photocopy extracts from) any of its
books or other records; and permit, and cause each other Loan Party to permit,
Lender and its representatives to inspect the Collateral and other tangible
assets of Borrower or such Loan Party, to perform appraisals of the equipment
of Borrower or such Party, and to inspect, audit, check and make copies of and
extracts from the books, records, computer data, computer programs, journals,
orders, receipts, correspondence and other data relating to any Collateral. All
such inspections or audits by Lender shall be at Borrower’s expense, provided
that so long as no Event of Default or Default exists, Borrower shall not be
required to reimburse Lender for appraisals more frequently than once each
Fiscal Year.


 


6.3           Maintenance of Property; Insurance.


 


(a)           Keep, and
cause each other Loan Party to keep, all property useful and necessary in the
business of Borrower or such other Loan Party in good working order and
condition, ordinary wear and tear excepted.


 


(b)           Maintain,
and cause each other Loan Party to maintain, with responsible insurance companies,
such insurance coverage as shall be required by all laws, governmental
regulations and court decrees and orders applicable to it and such other
insurance, to such extent and against such hazards and liabilities, as is
customarily maintained by companies similarly situated; provided that in any
event, such insurance shall insure against all risks and liabilities of the
type insured against as of the Closing Date and shall have insured amounts no
less than, and deductibles no higher than, those amounts provided for as of the
Closing Date. Upon request of Lender, Borrower shall furnish to Lender a
certificate setting forth in reasonable detail the nature and extent of all
insurance maintained by Borrower and each other Loan Party. Borrower shall 


 


42

















 


cause each issuer of an insurance policy to provide
Lender with an endorsement (i) showing Lender as a loss payee with respect
to each policy of property or casualty insurance and naming Lender as an additional
insured with respect to each policy of liability insurance, (ii) providing
that 30 days’ notice will be given to Lender prior to any cancellation of, or
reduction or change in coverage provided by or other material modification to
such policy and (iii) reasonably acceptable in all other respects to
Lender. Borrower shall execute and deliver to Lender a collateral assignment,
in form and substance satisfactory to Lender, of each business interruption
insurance policy maintained by the Loan Parties.


 


(c)           Unless
Borrower provides Lender with evidence of the continuing insurance coverage
required by this Agreement, Lender may purchase insurance at Borrower’s expense
to protect Lender’s interests in the Collateral. This insurance may, but need
not, protect Borrower’s and each other Loan Party’s interests. The coverage
that Lender purchases may, but need not, pay any claim that is made against
Borrower or any other Loan Party in connection with the Collateral. Borrower
may later cancel any insurance purchased by Lender, but only after providing
Lender with evidence that Borrower has obtained the insurance coverage required
by this Agreement. If Lender purchases insurance for the Collateral, as set
forth above, Borrower will be responsible for the costs of that insurance,
including interest and any other charges that may be imposed with the placement
of the insurance, until the effective date of the cancellation or expiration of
the insurance and the costs of the insurance may be added to the principal
amount of the Loans owing hereunder.


 


6.4           Compliance with Laws; Payment of Taxes
and Liabilities.


 


(a) Comply, and cause each other Loan Party to comply, in all material
respects with all applicable laws, rules, regulations, decrees, orders,
judgments, licenses and permits, except where failure to comply could not
reasonably be expected to have a Material Adverse Effect; (b) without
limiting clause (a) above, ensure, and cause each other Loan Party to ensure,
that no person who owns a controlling interest in or otherwise controls a Loan
Party is or shall be (i) listed on the Specially Designated Nationals and
Blocked Person List maintained by the Office of Foreign Assets Control (“OFAC”),
Department of the Treasury, and/or any other similar lists maintained by OFAC
pursuant to any authorizing statute, Executive Order or regulation or
(ii) a person designated under Section 1(b), (c) or (d) or Executive
Order No. 13224 (September 23, 2001), any related enabling legislation or any
other similar Executive Orders; (c) without limiting clause (a) above,
comply and cause each other Loan Party to comply, with all applicable Bank
Secrecy Act and anti-money laundering laws and regulations and (d) pay,
and cause each other Loan Party to pay, prior to delinquency, all taxes and other
governmental charges against it or any of its property, as well as claims of
any kind which, if unpaid, could become a Lien on any of its property; provided
that the foregoing shall not require Borrower or any other Loan Party to pay
any such tax or charge so long as it shall contest the validity thereof in good
faith by appropriate proceedings and shall set aside on its books adequate
reserves with respect thereto in accordance with GAAP.


 


6.5           Maintenance of Existence.


 


Maintain and preserve, and (subject to Section 7.4) cause
each other Loan Party to maintain and preserve, (a) its existence and good
standing in the jurisdiction of its organization 


 


43

















 


and (b) its qualification to do business
and good standing in each jurisdiction where the nature of its business makes
such qualification necessary, other than any such jurisdiction where the
failure to be qualified or in good standing could not reasonably be expected to
have a Material Adverse Effect.


 


6.6           Employee Benefit Plans.


 


Maintain, and cause each other Loan Party to maintain, each Pension
Plan in substantial compliance with all applicable requirements of law and
regulations.


 


6.7           Environmental Matters.


 


If any release or disposal of Hazardous Substances shall occur or shall
have occurred on any real property or any other assets of Borrower or any other
Loan Party, cause, or direct the applicable Loan Party to cause, the prompt
containment and removal of such Hazardous Substances and the remediation of
such real property or other assets as is necessary to comply in all material
respects with all Environmental Laws and to preserve the value of such real
property or other assets.


 


6.8           Collateral Access
Agreements.


 


Promptly notify Lender of any location of
Borrower or any other Loan Party at which Collateral with a book value in
excess of $200,000 is placed or otherwise maintained located (whether such
location is now existing or created or acquired after the Effective Date) and,
with respect to each such location the real property for which is not owned by
a Loan Party, if requested by Lender, promptly obtain written subordinations or
waivers, in form and substance satisfactory to Lender, of all present and
future Liens to which the owner or lessor of such premises may be entitled to
assert against the Collateral.


 


6.9           Further Assurances; Post-Closing.


 


(a)           Take, and
cause each other Loan Party to take, such actions as are necessary or as Lender
may reasonably request from time to time to ensure that the Obligations of
Borrower and each other Loan Party under the Loan Documents are secured by
substantially all of the assets of Borrower and each Loan Party (as well as all
equity interests of Borrower and each Subsidiary) and guaranteed by each Loan
Party (including, promptly upon the acquisition or creation thereof, any
Subsidiary acquired or created after the Closing Date), in each case including
(a) the execution and delivery of guaranties, security agreements, pledge
agreements, mortgages, deeds of trust, financing statements and other
documents, and the filing or recording of any of the foregoing and (b) the
delivery of certificated securities and other Collateral with respect to which
perfection is obtained by possession.


 


(b)           Execute and deliver, or
cause to be executed and delivered, as applicable, to the Lender each of the
items listed on Schedule 6.9 attached hereto (collectively, the “Post-Closing
Items”) on or before the applicable due date listed after each such
Post-Closing Item, each of which Post-Closing Items must be in form, substance
and content reasonably satisfactory to Lender.


 


44














 


Section 7.               Negative
Covenants.


 


Until the expiration or termination of the Commitments and thereafter
until all Obligations (other than contingent indemnification obligations to the
extent no claim giving rise thereto has been asserted) of Borrower and the
other Loan Parties hereunder and under the other Loan Documents are Paid in
Full, Borrower agrees that, unless at any time Lender shall otherwise expressly
consent in writing, it will:


 


7.1           Debt.


 


Not, and not permit any other Loan Party to, create, incur, assume or
suffer to exist any Debt, except:


 


(a)           Obligations
under this Agreement and the other Loan Documents;


 


(b)           Debt
secured by Liens permitted by Section 7.2(d), and extensions,
renewals and refinancings thereof; provided that the aggregate amount of all
such Debt at any time outstanding shall not exceed $500,000;


 


(c)           Debt of
Borrower to any domestic Wholly-Owned Subsidiary or Debt of any domestic
Wholly-Owned Subsidiary to Borrower or another domestic Wholly-Owned
Subsidiary; provided that such Debt shall be evidenced by a demand note in form
and substance reasonably satisfactory to Lender and pledged and delivered to
Lender pursuant to the Guarantee and Collateral Agreement as additional
collateral security for the Obligations, and the obligations under such demand
note shall be subordinated to the Obligations hereunder in a manner reasonably
satisfactory to Lender;


 


(d)           Debt
described on Schedule 7.1 as of the Closing Date, and any extension,
renewal or refinancing thereof so long as the principal amount thereof is not
increased;


 


(e)           Hedging
Obligations for bona fide hedging purposes and not for speculation;


 


(f)            guarantees
of obligations under real property leases and obligations in respect of
severance payments provided by the Borrower in favor of any Subsidiary or by
any Subsidiary in favor of either the Borrower or any other Subsidiary, so long
as any such guarantee is provided at the time such obligations are incurred;


 


(g)           Contingent
Obligations arising with respect to customary indemnification obligations in
favor of purchasers in connection with Dispositions permitted under Section 7.4;
and


 


(h)           Contingent
Obligations of Atlas consisting of guarantees of obligations of Subsidiaries of
Borrower that do not constitute Debt, in an aggregate amount not to exceed
$250,000 for all such guarantees;


 


(i)            earn-out
payments otherwise permitted under the terms of this Agreement and the External
Credit Facility; and


 


45

















 


(j)            other
Debt, in addition to the Debt listed above, in an aggregate outstanding amount
not at any time exceeding $250,000.


 


7.2           Liens.


 


Not, and not permit any other Loan Party to, create or permit to exist
any Lien on any of its real or personal properties, assets or rights of whatsoever
nature (whether now owned or hereafter acquired), except:


 


(a)           Liens for
taxes or other governmental charges not at the time delinquent or thereafter
payable without penalty or being diligently contested in good faith by
appropriate proceedings and, in each case, for which it maintains adequate
reserves in accordance with GAAP and the execution or other enforcement of
which is effectively stayed;


 


(b)           Liens
arising in the ordinary course of business (such as (i) Liens of carriers,
warehousemen, mechanics, landlords and materialmen and other similar Liens
imposed by law and (ii) Liens incurred in connection with worker’s
compensation, unemployment compensation and other types of social security
(excluding Liens arising under ERISA) or in connection with surety bonds, bids,
performance bonds and similar obligations) for sums not overdue or being
diligently contested in good faith by appropriate proceedings and not involving
any deposits or advances or borrowed money or the deferred purchase price of
property or services and, in each case, for which it maintains adequate
reserves in accordance with GAAP and the execution or other enforcement of
which is effectively stayed;


 


(c)           Liens
described on Schedule 7.2 as of the Closing Date;


 


(d)           subject
to the limitation set forth in Section 7.1(b), (i) Liens
arising in connection with Capital Leases (and attaching only to the property
being leased), (ii) Liens existing on property at the time of the
acquisition thereof by Borrower or any Subsidiary (and not created in
contemplation of such acquisition) and (iii) Liens that constitute
purchase money security interests on any property securing debt incurred for
the purpose of financing all or any part of the cost of acquiring such
property, provided that any such Lien attaches to such property within 60 days
of the acquisition thereof and attaches solely to the property so acquired;


 


(e)           attachments,
appeal bonds, judgments and other similar Liens, for sums not exceeding $250,000
arising in connection with court proceedings; provided that the execution or
other enforcement of such Liens is effectively stayed and the claims secured
thereby are being actively contested in good faith and by appropriate
proceedings and such Person has established adequate reserves therefor in
accordance with GAAP;


 


(f)            easements,
rights of way, restrictions, minor defects or irregularities in title and other
similar Liens not interfering in any material respect with the ordinary conduct
of the business of Borrower or any Subsidiary;


 


(g)           Liens
arising under the Loan Documents; and


 


46

















 


(h)           the
replacement, extension or renewal of any Lien permitted by clause (c) above
upon or in the same property subject thereto arising out of the extension, renewal
or replacement of the Debt secured thereby (without increase in the amount
thereof).


 


7.3           Restricted Payments.


 


Not, and not permit any other Loan Party to, (a) make any dividend
or other distribution to any of its equity holders, (b) purchase or redeem
any of its equity interests or any warrants, options or other rights in respect
thereof, (c) except for Permitted Management Fees, pay any management fees
or similar fees to any of its equity holders or any Affiliate thereof; provided,
that no Permitted Management Fees or any other management or similar fees shall
be paid during the occurrence and continuance of any Default or an Event of
Default or if any Default or Event of Default would result from such payment; provided,
further that at any time such Permitted Management Fees or any portion
thereof are otherwise due and owing from the Borrower to the Manager but not
payable under this Agreement by operation of such block on the payment of
Permitted Management Fees during the occurrence and continuance of a Default or
an Event of Default or if any such payment would cause a Default or an Event of
Default (“Accrued Permitted Management Fees”), the Manager shall be
entitled to a default rate equal to 10% per annum in respect of such Accrued
Permitted Management Fees and the entire amount of such Accrued Permitted
Management Fees, together with any additional amounts which become payable to
the Manager as a result of such default rate, shall be paid to the Manager
immediately upon the waiver or cure of the subject Default or Event of Default,
(d) make any redemption, prepayment (whether mandatory or optional),
defeasance, repurchase or any other payment in respect of any Non-Senior Debt
or (e) set aside funds for any of the foregoing. Notwithstanding the foregoing
(and, in each case, so long as no Event of Default exists or would result
therefrom),


 


(i)                    any
Subsidiary may pay dividends or make other distributions to Borrower or to a
domestic Wholly-Owned Subsidiary and to the other holders of equity interests of
the Borrower or such Subsidiary; provided, that (1) any such dividends
or other distributions must be made in compliance with applicable law and (2)
any such dividends or other distributions may only be declared and paid if
Borrower or such Subsidiary remains Solvent after giving effect thereto and has
an Interest Coverage Ratio of not less than 2.0 to 1.0, calculated as of the
most recent month end date with respect to which financial statements for such
Person have been delivered pursuant to Section 6 hereof but on a pro forma
basis after giving effect to the making of such dividend or distribution;


 


(ii)                   Borrower
may make distributions to Owner, as its direct parent, to permit Owner to pay
federal and state income taxes then due and owing by Owner (or its equity
holders), so long as the amount of such distributions shall not be greater, nor
the receipt by Borrower of tax benefits less, than they would have been had
Borrower not filed consolidated income tax returns with such Person;


 


(iii)                  in
each case to the extent due and payable on a non-accelerated basis and
permitted under any applicable subordination provisions thereof, Borrower may
make regularly scheduled payments of interest in respect of Non-Senior Debt;


 


47

















 


(iv)                  any
Loan Party may make repurchases of capital stock deemed to occur upon the
exercise of options or warrants (i.e., a cashless exercise);


 


(v)                   any
Loan Party may repurchase or redeem capital stock from any former officers,
directors and employees (or their estates, spouses or former spouses) of any
Loan Party in connection with the termination of such Person’s employment (or
such directors’ directorship) with the Loan Party; provided that, in connection
with such transactions, the total cash payments under this Section shall
not exceed $500,000 in the aggregate during any Fiscal Year;


 


(vi)                  Borrower
may reimburse Manager for its reasonable expenses incurred in connection with
its management of Borrower, pursuant to and in accordance with the Management
Agreement; and


 


(vii)                 Borrower
or any of its Subsidiaries may pay Transaction Services Fees, in each case to
the extent that (1) such transaction fee is reasonable and customary based on
the applicable acquisition or sale, (2) such transaction fee has been approved
by the board of directors, or other governing body, of Borrower or such
Subsidiary and by the compensation committee (or its equivalent, if any) and
(3) has otherwise been approved by Lender.


 


7.4           Mergers; Consolidations; Asset Sales.


 


(a)           Not, and
not permit any other Loan Party to, be a party to any merger or consolidation,
except for any such merger or consolidation of any Subsidiary into Borrower or
any domestic Wholly-Owned Subsidiary.


 


(b)           Not, and
not permit any other Loan Party to, sell, transfer, dispose of, convey or lease
any of its assets or equity interests, or sell or assign with or without
recourse any receivables, except for (i) sales of Inventory in the
ordinary course of business and (ii) sales and dispositions of assets
(excluding any equity interests of Borrower or any Subsidiary) for at least
fair market value (as determined by the Board of Directors of Borrower) so long
as the net book value of all assets sold or otherwise disposed of in any Fiscal
Year does not exceed 10% of the net book value of the consolidated assets of
Borrower and the Subsidiaries as of the last day of the preceding Fiscal Year.


 


7.5           Modification of Organizational Documents.


 


Not permit the charter, by-laws or other organizational documents of
Borrower or any other Loan Party to be amended or modified in any way which
could reasonably be expected to materially adversely affect the interests of
Lender.


 


7.6           Use of Proceeds.


 


Use the proceeds of the Loans solely to prepay or repay the Debt to be
Repaid, for working capital, for Capital Expenditures and for other general
business purposes of Borrower and the Subsidiaries; and not use or permit any
proceeds of any Loan to be used, either directly 


 


48

















 


or indirectly, for the purpose, whether
immediate, incidental or ultimate, of “purchasing or carrying” any Margin
Stock.


 


7.7           Transactions with Affiliates.


 


Not, and not permit any other Loan Party to, enter into, or cause,
suffer or permit to exist any transaction, arrangement or contract with any of
its other Affiliates, which is on terms which are less favorable than are
obtainable from any Person which is not one of its Affiliates.


 


7.8           Business Activities.


 


Not, and not permit any other Loan Party to, engage in any line of
business other than the businesses engaged in on the Closing Date and
businesses reasonably related thereto. Not, and not permit any other Loan Party
to, issue any equity interest other than (a) any issuance of shares of
Borrower’s common equity securities pursuant to any employee or director option
or stock purchase program, benefit plan or compensation program, or
(b) any issuance by a Subsidiary to Borrower or another Subsidiary in
accordance with Section 7.3.


 


7.9           Investments.


 


Not, and not permit any other Loan Party to, make or permit to exist
any Investment in any other Person or create or establish any Subsidiary (other
than any Subsidiary formed in compliance with Section 7.14), except
the following:


 


(a)           contributions
by Borrower to the capital of any Wholly-Owned Subsidiary in existence on the
Closing Date, or by any Subsidiary to the capital of any other Wholly-Owned
Subsidiary in existence on the Closing Date, so long as the recipient of any
such capital contribution has guaranteed the Obligations and such guaranty is
secured by a pledge of all of its equity interests and substantially all of its
real and personal property, in each case in accordance with Section 6.9;


 


(b)           Investments
constituting Debt permitted by Section 7.1(c);


 


(c)           Contingent
Obligations constituting Debt permitted by Section 7.1 or Liens
permitted by Section 7.2;


 


(d)           Cash
Equivalent Investments;


 


(e)           bank
deposits in the ordinary course of business;


 


(f)            Investments
in securities of Account Debtors received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
Account Debtors;


 


(g)           Investments
listed on Schedule 7.9 as of the Closing Date; and


 


49

















 


(h)           any purchase
or other acquisition by Borrower or any Wholly-Owned Subsidiary that is also a
Domestic Subsidiary of the assets or equity interests of any Domestic
Subsidiary.


 


7.10         Restriction of Amendments to Certain
Documents.


 


Not amend or otherwise modify, or waive any rights under (a) any
provisions of any Non-Senior Debt (other than Term B Loans, which amendment,
modification or waiver of rights shall be governed by this Agreement), or (b)
the Management Agreement.


 


7.11         Fiscal Year.


 


Not change its Fiscal Year.


 


7.12         Financial Covenants.


 


7.12.1      Fixed
Charge Coverage Ratio.


 


Not permit the Fixed Charge Coverage Ratio for any Computation Period
to be less than 1.1 to 1.0.


 


7.12.2      Interest
Coverage Ratio.


 


Not permit the Interest Coverage Ratio for any Computation Period to be
less than 1.75 to 1.0.


 


7.12.3      Capital
Expenditures.


 


Not permit the aggregate amount of all Capital Expenditures made by
Borrower and the Subsidiaries in any Fiscal Year to exceed $2,500,000.


 


7.12.4      Total
Debt to EBITDA Ratio.


 


Not permit the Total Debt to EBITDA Ratio as
of the last day of any Computation Period to exceed 4.25 to 1.0.


 


7.13         Bank Accounts.


 


Not, and not permit any other Loan Party, to maintain or establish any
new bank accounts other than the bank accounts set forth on Schedule 7.13
without prior written notice to Lender and unless Lender, Borrower or such
other Loan Party and the bank at which the account is to be opened enter into a
tri-party agreement regarding such bank account pursuant to which such bank
acknowledges the security interest and control of Lender in such bank account
and agrees to limit its set-off rights on terms satisfactory to Lender and
otherwise acceptable to Lender.


 


7.14         Subsidiaries.


 


Not, and not permit any other Loan Party, to establish or acquire any
Subsidiary unless the Loan Parties shall have caused such new Subsidiary to
take all actions pursuant to


 


50

















 


Section 6.9
hereof with respect to such Subsidiary and such other actions as reasonably requested
by Lender, including (a) execution by such Subsidiary of a joinder to the
Guarantee and Collateral Agreement, (b) a pledge to Lender of the capital
securities of such Subsidiary, (c) such amendments to this Agreement and the
other Loan Documents related to the addition of such Subsidiary as may be
requested by Lender, and (d) such certificates, resolutions, instruments,
copies of filings and notices, and other materials relating to such Subsidiary
as Lender may reasonably request.


 


7.15         Inconsistent Agreements.


 


Not, and not permit any other Loan Party to, enter into any agreement
containing any provision which would (a) be violated or breached by any
borrowing by Borrower hereunder or by the performance by Borrower or any other
Loan Party of any of its Obligations hereunder or under any other Loan
Document, (b) prohibit Borrower or any other Loan Party from granting to
Lender a Lien on any of its assets or (c) create or permit to exist or
become effective any encumbrance or restriction on the ability of any other
Loan Party to (i) pay dividends or make other distributions to Borrower or
any other Subsidiary, or pay any Debt owed to Borrower or any other Subsidiary,
(ii) make loans or advances to Borrower or any other Loan Party or (iii) transfer
any of its assets or properties to Borrower or any other Loan Party other than
(A) customary restrictions and conditions contained in agreements relating
to the sale of all or a substantial part of the capital stock or assets of any
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary to be sold and such sale is permitted hereunder
(B) restrictions or conditions imposed by any agreement relating to
purchase money Debt, Capital Leases and other secured Debt permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Debt and (C) customary provisions in leases and other
contracts restricting the assignment thereof.


 


7.16         Equity Cure Right. In the event of an
actual or prospective breach of the financial covenants set forth in Sections
7.12.1, 7.12.2 and 7.12.4 of this Agreement, Borrower shall have the right to
issue additional common equity or preferred equity (in the case of preferred
equity, on terms reasonably satisfactory to the Lender) to the Investor Group
for cash (each such issuance by the Borrower, an “Equity Cure Contribution”).
In order to cure such actual or prospective breach, an Equity Cure Contribution
shall be deemed an addition to Consolidated Net Income in the most recently
ended fiscal quarter for the sole purpose of measuring EBITDA, the Fixed Charge
Coverage Ratio and Interest Coverage Ratio set forth in Sections 7.12.1,
7.12.2 and 7.12.4, provided that (i) the aggregate amount of any Equity Cure
Contribution shall not exceed $500,000, (ii) no more than four (4) Equity
Cure Contributions may occur during the term of this Agreement, (iii) no
more than one Equity Cure Contribution may occur in any 12-month period,
(iv) the aggregate amount of all Equity Cure Contributions made during the
term of this Agreement shall not exceed $1,500,000, (v) if a Compliance
Certificate showing a breach of any covenant set forth in Section 7.12.1
and/or 7.12.2 is delivered (or was due to be delivered), any corresponding
Equity Cure Contribution must be made within 15 Business Days of the date
such Compliance Certificate was due, (vi) no Default or Event of Default
(other than the breach of the financial covenants to be cured by the Equity
Cure Contribution) shall have occurred or be continuing, and (vii) Borrower
shall have otherwise obtained Lender’s prior written consent. On the date that
an Equity Cure Contribution is made, the Financial Officer shall deliver to the
Administrative Agent (A) written notice of such Equity Cure Contribution 


 


51

















 


and (B) a compliance certificate demonstrating compliance with the
financial covenants after application of the Equity Cure Contribution.


 


Section 8.               Events
of Default; Remedies.


 


8.1           Events of Default.


 


Each of the following shall constitute an Event of Default under this
Agreement:


 


8.1.1        Non-Payment
of Credit.


 


Default in the payment when due of the principal of any Loan; or
default, and continuance thereof for 2 days, in the payment when due of any
interest, fee or other amount payable by any Loan Party hereunder or under any
other Loan Document.


 


8.1.2        Default
Under Other Debt.


 


Any default shall occur and continue until the termination of any
applicable cure period under the terms applicable to any other Debt of any Loan
Party in an aggregate amount (for all such Debt so affected and including
un-drawn committed or available amounts and amounts owing to all creditors
under any combined or syndicated credit arrangement) exceeding $250,000 and
such default shall (a) consist of the failure to pay such Debt when due,
whether by acceleration or otherwise, or (b) accelerate the maturity of
such Debt or permit the holder or holders thereof, or any trustee or agent for
such holder or holders, to cause such Debt to become due and payable (or
require Borrower or any other Loan Party to purchase or redeem such Debt or
post cash collateral in respect thereof) prior to its expressed maturity.


 


8.1.3        Bankruptcy;
Insolvency.


 


Any Loan Party becomes insolvent or generally fails to pay, or admits
in writing its inability or refusal to pay, debts as they become due; or any
Loan Party applies for, consents to, or acquiesces in the appointment of a
trustee, receiver or other custodian for such Loan Party or any property
thereof, or makes a general assignment for the benefit of creditors; or, in the
absence of such application, consent or acquiescence, a trustee, receiver or
other custodian is appointed for any Loan Party or for a substantial part of
the property of any thereof and is not discharged within 60 days; or any
bankruptcy, reorganization, debt arrangement, or other case or proceeding under
any bankruptcy or insolvency law, or any dissolution or liquidation proceeding,
is commenced in respect of any Loan Party, and if such case or proceeding is
not commenced by such Loan Party, it is consented to or acquiesced in by such
Loan Party, or remains for 60 days un-dismissed; or any Loan Party takes any
action to authorize, or in furtherance of, any of the foregoing.


 


8.1.4        Non-Compliance
with Loan Documents.


 


(a) Failure by Borrower to comply with or to perform any covenant
set forth in Sections  6.1.1, 6.1.2, 6.1.3, 6.1.4,
6.1.6, 6.1.7, 6.1.9, 6.3(b) and 6.3(c), 6.5,
6.7, 6.8, 6.9 and Section 7; or (b) failure by
any Loan Party to comply with or to perform any other provision of this
Agreement or any other Loan Document applicable to it (and not constituting an
Event of 


 


52

















 


Default under any other provision of this Section
8) and continuance of such failure described in this clause (b) for 30
days.


 


8.1.5        Representations;
Warranties.


 


Any representation or warranty made by any Loan Party herein or any
other Loan Document is breached or is false or misleading in any material
respect, or any schedule, certificate, financial statement, report, notice or
other writing furnished by any Loan Party to Lender in connection herewith is
false or misleading in any material respect on the date as of which the facts
therein set forth are stated or certified.


 


8.1.6        Pension
Plans.


 


Institution of any steps by any Person to terminate a Pension Plan if
as a result of such termination any Loan Party or any member of the Controlled
Group could be required to make a contribution to such Pension Plan, or could
incur a liability or obligation to such Pension Plan, in excess of $250,000;
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA; or
(c) there shall occur any withdrawal or partial withdrawal from a
Multiemployer Pension Plan and the withdrawal liability (without unaccrued
interest) to Multiemployer Pension Plans as a result of such withdrawal
(including any outstanding withdrawal liability that Borrower or any other Loan
Party or any member of the Controlled Group have incurred on the date of such
withdrawal) exceeds $250,000.


 


8.1.7        Judgments.


 


Final judgments, awards or orders (or any settlement of any claim that, if breached,
could result in a judgment, order or award) which exceed an aggregate of
$250,000 shall be rendered against any Loan Party and shall not have been paid,
discharged or vacated or had execution thereof stayed pending appeal within 30
days after entry or filing of such judgments; provided, however, that any such judgment, order, award or settlement
shall not give rise to an Event of Default under this subsection if and for so
long as (A) the amount of such judgment, order, award or settlement is covered
by a valid and binding policy of insurance between the defendant and the
insurer covering full payment thereof and (B) such insurer has been notified,
and has not disputed the claim made for payment, of the amount of such
judgment, order, award or settlement..


 


8.1.8        Invalidity
of Collateral Documents.


 


Any Collateral Document shall cease to be in full force and effect; or
any Loan Party (or any Person by, through or on behalf of any Loan Party) shall
contest in any manner the validity, binding nature or enforceability of any
Collateral Document.


 


8.1.9        Invalidity
of Subordination Provisions.


 


Any subordination provision in any document or instrument governing
Non-Senior Debt, or any subordination provision in any subordination agreement
that relates to any Non-Senior Debt or any subordination provision in any
guaranty by any Loan Party of any 


 


53

















 


Non-Senior Debt, shall cease to be in full
force and effect, or any Person (including the holder of any applicable
Non-Senior Debt) shall contest in any manner the validity, binding nature or
enforceability of any such provision.


 


8.1.10      Change
of Control.


 


(a)           Owner and
its Investment Affiliates shall collectively cease to, directly or indirectly,
(i) own and control at least 51% of the outstanding equity interests of
Borrower owned by them on the Closing Date (after giving effect to the Related
Transactions) or (ii) possess the right to elect (through contract,
ownership of voting securities or otherwise) at all times a majority of the
board of directors (or similar governing body) of Borrower and to direct the
management policies and decisions of Borrower, (b) the Borrower shall cease to
directly own and control 100% of the outstanding equity interest of the Target,
or (c) a “Change of Control” or other similar event shall occur, as defined in,
or under, any documentation evidencing or otherwise relating to any Non-Senior
Debt.


 


8.2           Remedies.


 


If any Event of Default described in Section 8.1.3 shall
occur, the Commitments shall immediately terminate and the Loans and all other
Obligations shall become immediately due and payable, all without presentment,
demand, protest or notice of any kind; and, if any other Event of Default shall
occur and be continuing, Lender shall declare the Commitments to be terminated
in whole or in part and/or declare all or any part of the Loans and other
Obligations to be due and payable, whereupon the Commitments shall immediately
terminate (or be reduced, as applicable) and/or the Loans and other Obligations
shall become immediately due and payable (in whole or in part, as applicable),
all without presentment, demand, protest or notice of any kind. Lender shall
promptly advise Borrower of any such declaration, but failure to do so shall
not impair the effect of such declaration. Notwithstanding the foregoing, the
effect as an Event of Default of any event described in Section 8.1.1
may only be waived by the written concurrence of Lender, and the effect as an
Event of Default of any other event described in this 0 may be waived by
the written concurrence of Lender. Any cash collateral delivered hereunder
shall be held by Lender (without liability for interest thereon) and applied to
the Obligations and any excess shall be delivered to Borrower or as a court of
competent jurisdiction may elect.


 


8.3           Remedial Action Against Collateral.


 


Notwithstanding anything to the contrary contained herein or in any
other Loan Document to the contrary, if there has been an assignment or
assignments by Lender to one or more Persons of either the Term Loan B or of
the Term Loan A or Revolving Loans (or Revolving Commitments), only those
Persons to whom Senior Debt is owed shall have the exclusive right with respect
to the taking of enforcement action (or not taking enforcement action) against
the Collateral upon the occurrence and during the continuation of an Event of
Default, including, but not limited to, the exclusive right with respect to
taking or retaking possession of the Collateral and holding, preparing for
sale, processing, selling, leasing, disposing of, or liquidating the
Collateral, pursuant to a foreclosure or otherwise; it being understood that
such holders of Senor Debt shall only take such action as shall be approved by
the holders of a majority in outstanding principal amount of such Senior Debt. No
holder of 


 


54

















 


Non-Senior Debt shall contest in any manner
any such action or inaction with respect to the Collateral in accordance with
the provisions of this Section 8.3.


 


Section 9.               Miscellaneous.


 


9.1           Waiver; Amendments.


 


No delay on the part of Lender in the exercise of any right, power or
remedy shall operate as a waiver thereof, nor shall any single or partial
exercise by it of any right, power or remedy preclude other or further exercise
thereof, or the exercise of any other right, power or remedy. No amendment,
modification or waiver of, or consent with respect to, any provision of this
Agreement, the Notes or any of the other Loan Documents (or any subordination and
intercreditor agreement or other subordination provisions relating to any
Non-Senior Debt) shall in any event be effective unless the same shall be in
writing and approved by Lender, and then any such amendment, modification,
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.


 


9.2           Notices.


 


Except as otherwise provided in Sections 2.2.2, all notices
hereunder shall be in writing (including facsimile transmission) and shall be
sent to the applicable party at its address shown on Annex II or at such
other address as such party may, by written notice received by the other
parties, have designated as its address for such purpose. Notices sent by
facsimile transmission shall be deemed to have been given when sent; notices
sent by mail shall be deemed to have been given three Business Days after the
date when sent by registered or certified mail, postage prepaid; and notices
sent by hand delivery or overnight courier service shall be deemed to have been
given when received. For purposes of Sections 2.2.2, Lender shall
be entitled to rely on telephonic instructions from any person that Lender in
good faith believes is an authorized officer or employee of Borrower, and
Borrower shall hold Lender harmless from any loss, cost or expense resulting
from any such reliance. Each of Borrower and Lender hereby agree that Lender
may, in its discretion, deliver information and notices to such financial
institutions as may be a party hereto from time to time using the internet
service “Intralinks.”


 


9.3           Computations.


 


Unless otherwise specifically provided herein, any accounting term used
in this Agreement shall have the meaning customarily given such term in
accordance with GAAP, and all financial computations hereunder shall be
computed in accordance with GAAP consistently applied. The explicit
qualification of terms or computations by the phrase “in accordance with GAAP”
shall in no way be construed to limit the foregoing.


 


9.4           Costs; Expenses.


 


Borrower agrees to pay on demand all reasonable out-of-pocket costs and
expenses of Lender (including Legal Costs) in connection with the preparation,
execution, syndication, delivery and administration (including perfection and
protection of Collateral) of this Agreement, the other Loan Documents and all
other documents provided for herein or delivered or to be delivered hereunder
or in connection herewith (including any proposed or actual amendment, 


 


55

















 


supplement or waiver to any Loan Document),
and all reasonable out-of-pocket costs and expenses (including Legal Costs)
incurred by Lender after an Event of Default in connection with the collection
of the Obligations and enforcement of this Agreement, the other Loan Documents
or any such other documents. In addition, Borrower agrees to pay, and to save
Lender harmless from all liability for, any fees of Borrower’s auditors in
connection with any reasonable exercise by Lender of their rights pursuant to Section 6.4.
All Obligations provided for in this Section 9.4 shall survive
repayment of the Loans, cancellation of the Notes and termination of this
Agreement.


 


9.5           Indemnification by Borrower.


 


In consideration of the execution and delivery of this Agreement by
Lender and the agreement to extend the Commitments provided hereunder, Borrower
hereby agrees to indemnify, exonerate and hold Lender, and each of the
officers, directors, employees, Affiliates and agents of Lender (each a “Lender
Party”) free and harmless from and against any and all actions, causes of
action, suits, losses, liabilities, damages and expenses, including Legal Costs
(collectively, the “Indemnified Liabilities”), incurred by Lender
Parties or any of them as a result of, or arising out of, or relating to
(a) any tender offer, merger, purchase of equity interests, purchase of
assets (including the Related Transactions) or other similar transaction
financed or proposed to be financed in whole or in part, directly or
indirectly, with the proceeds of any of the Loans, (b) the use, handling,
release, emission, discharge, transportation, storage, treatment or disposal of
any Hazardous Substance at any property owned or leased by Borrower or any
other Loan Party, (c) any violation of any Environmental Laws with respect
to conditions at any property owned or leased by any Loan Party or the
operations conducted thereon, (d) the investigation, cleanup or
remediation of offsite locations at which any Loan Party or their respective
predecessors are alleged to have directly or indirectly disposed of Hazardous
Substances or (e) the execution, delivery, performance or enforcement of
this Agreement or any other Loan Document by Lender, except to the extent any
such Indemnified Liabilities result from the applicable Lender Party’s own
gross negligence or willful misconduct as determined by a court of competent
jurisdiction. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. All Obligations provided
for in this Section 9.5 shall survive repayment of the Loans,
cancellation of the Notes, any foreclosure under, or any modification, release
or discharge of, any or all of the Collateral Documents and termination of this
Agreement.


 


9.6           Marshaling; Payments Set Aside.


 


Lender shall be under no obligation to marshal any assets in favor of
Borrower or any other Person or against or in payment of any or all of the
Obligations. To the extent that Borrower makes a payment or payments to Lender,
or Lender enforces its Liens or exercises its rights of set-off, and such
payment or payments or the proceeds of such enforcement or set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by Lender in its discretion) to be repaid to a trustee, receiver
or any other party in connection with any bankruptcy, insolvency or similar
proceeding, or otherwise, then to the extent of such recovery, the obligation
hereunder or 


 


56

















 


part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.


 


9.7           Nonliability of Lender.


 


The relationship between Borrower on the one hand and Lender on the
other hand shall be solely that of borrower and lender. Lender shall have no
fiduciary responsibility to Borrower. Lender undertakes no responsibility to
Borrower to review or inform Borrower of any matter in connection with any
phase of Borrower’s business or operations. Execution of this Agreement by
Borrower constitutes a full, complete and irrevocable release of any and all
claims which Borrower may have at law or in equity in respect of all prior
discussions and understandings, oral or written, relating to the subject matter
of this Agreement and the other Loan Documents. Lender shall not have any
liability with respect to, and Borrower hereby waives, releases and agrees not
to sue for, any special, indirect, punitive or consequential damages or
liabilities.


 


9.8           Confidentiality.


 


Lender agrees to use commercially reasonable efforts (equivalent to the
efforts Lender applies to maintain the confidentiality of its own confidential
information) to maintain as confidential all information provided to them by
any Loan Party and designated as confidential, except that Lender may disclose
such information (a) to Persons employed or engaged by Lender or any of
its Affiliates (including collateral managers of Lender) in evaluating,
approving, structuring or administering the Loans and the Commitments;
(b) to any assignee or participant or potential assignee or participant
that has agreed to comply with the covenant contained in this Section 9.8
(and any such assignee or participant or potential assignee or participant
may disclose such information to Persons employed or engaged by them as
described in clause (a) above); (c) as required or requested by any
federal or state regulatory authority or examiner, or any insurance industry
association, or as reasonably believed by Lender to be compelled by any court
decree, subpoena or legal or administrative order or process; (d) as, on
the advice of Lender’s counsel, is required by law; (e) in connection with
the exercise of any right or remedy under the Loan Documents or in connection
with any litigation to which Lender is a party; (f) to any nationally
recognized rating agency or investor of Lender that requires access to
information about Lender’s investment portfolio in connection with ratings
issued or investment decisions with respect to Lender; (g) that ceases to
be confidential through no fault of Lender; or (h) to a Person that is an
investor or prospective investor in a Securitization that agrees that its
access to information regarding the Borrower and the Loans and Commitments is
solely for purposes of evaluating an investment in such Securitization and who
agrees to treat such information as confidential; or (i) to a Person that
is a trustee, collateral manager, servicer, noteholder or secured party in a
Securitization in connection with the administration, servicing and reporting
on the assets serving as collateral for such Securitization. For purposes of
this Section, “Securitization” means a public or private offering by
Lender or any of its Affiliates or their respective successors and assigns, of
securities which represent an interest in, or which are collateralized, in
whole or in part, by the Loans or the Commitments. Notwithstanding the
foregoing, Borrower consents to the publication by Lender of a tombstone or
similar advertising material relating to the financing transactions
contemplated by this Agreement, and Lender 


 


57

















 


reserves the right to provide to industry
trade organizations information necessary and customary for inclusion in league
table measurements.


 


9.9           Captions.


 


Captions used in this Agreement are for convenience only and shall
not affect the construction of this Agreement.


 


9.10         Nature of Remedies.


 


All Obligations of Borrower and rights of Lender expressed herein or in
any other Loan Document shall be in addition to and not in limitation of those
provided by applicable law. No failure to exercise and no delay in exercising,
on the part of Lender, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege.


 


9.11         Counterparts.


 


This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts and each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Agreement. Receipt by telecopy of any
executed signature page to this Agreement or any other Loan Document shall
constitute effective delivery of such signature page.


 


9.12         Severability.


 


The illegality or unenforceability of any provision of this Agreement
or any instrument or agreement required hereunder shall not in any way affect
or impair the legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.


 


9.13         Entire Agreement.


 


This Agreement, together with the other Loan Documents, embodies the
entire agreement and understanding among the parties hereto and supersedes all
prior or contemporaneous agreements and understandings of such Persons, verbal
or written, relating to the subject matter hereof and thereof and any prior
arrangements made with respect to the payment by Borrower of (or any
indemnification for) any fees, costs or expenses payable to or incurred (or to
be incurred) by or on behalf of Lender.


 


9.14         Successors; Assigns.


 


This Agreement shall be binding upon Borrower and Lender and their
respective successors and assigns, and shall inure to the benefit of Borrower
and Lender and the successors and assigns of Lender. No other Person shall be a
direct or indirect legal beneficiary of, or have any direct or indirect cause
of action or claim in connection with, this Agreement or any of the other Loan
Documents. Borrower may not assign or transfer any of its rights or Obligations



 


58

















 


under this Agreement without the prior
written consent of Lender. Lender may collaterally assign all of its right,
title and interest under this Agreement and each of the other Loan Documents,
or any other agreement, certificate, document or instrument executed and
delivered in connection herewith or therewith, to its lender, or lenders, under
Lender’s principal senior credit facility. Lender may also, without the consent
of Borrower, make assignments of, and grant participations in, Lender’s rights
and obligations hereunder and under the other Loan Documents.


 


9.15         Governing Law.


 


THIS AGREEMENT AND EACH NOTE, IF ANY, SHALL BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES TO THE EXTENT THAT SUCH PRINCIPLES WOULD REQUIRE
THE APPLICATION OF LAWS OF ANOTHER JURISDICTION.


 


9.16         Forum Selection; Consent to Jurisdiction.


 


ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE, SITTING IN
THE BOROUGH OF MANHATTAN); PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST
ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT LENDER’S OPTION, IN THE
COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.
BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE. BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF NEW YORK. BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.


 


9.17         Waiver of Jury Trial.


 


EACH OF BORROWER AND LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR 


 


59

















 


THEREWITH OR ARISING FROM ANY LENDING
RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT
ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY.


 


[SIGNATURE PAGES FOLLOW]


 


60

















 


The parties hereto have caused this Agreement to be duly executed and
delivered by their duly authorized officers as of the date first set forth
above.


 


 


	
   

  	
  ATLAS PANGBORN ACQUISITION CORP.

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ATLAS INDUSTRIES HOLDINGS LLC,

  
	
   

  	
  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


61

















 


Annex I


 


Addresses


 


	
  Atlas
  Pangborn Acquisition Corp., as

  	
   

  
	
  Borrower:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address for
  Notices:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [                                      ]

  	
   

  
	
  [                                      ]

  	
   

  
	
  Attention:

  	
  [                                      ]

  
	
  Telephone:

  	
  (          )
          -                 

  
	
  Telecopy:

  	
  (          )
          -                 

  
	
   

  	
   

  
	
   

  	
   

  
	
  Atlas
  Industries Holdings LLC,

  	
   

  
	
  as Lender:

  	
   

  
	
   

  	
   

  
	
  Address for
  Notices:

  	
   

  
	
   

  	
   

  
	
  One Sound
  Shore Drive, Suite 302

  	
   

  
	
  Greenwich,
  Connecticut 06830

  	
   

  
	
  Attention:

  	
  Timothy J.
  Fazio

  
	
  Telephone:

  	
  (203)
  622-1094

  
	
  Telecopy:

  	
  (203) 724-1638

  
	
   

  	
   

  
	
  Address for
  Payments:

  	
   

  
	
   

  	
   

  
	
  Bank:

  	
  [                                      ]

  
	
  ABA #:

  	
  [                                      ]

  
	
  Account #:

  	
  [                                      ]

  
	
  Reference:

  	
  Atlas
  Industries Holdings LLC (for Atlas Pangborn Acquisition Corp.)

  
	
  Address:

  	
  [                                      ]

  
				



 

















 


Exhibit A


 


Form of Compliance Certificate


 


Please refer to the Credit Agreement dated as of November     ,
2007 (as amended or otherwise modified from time to time, the “Credit
Agreement”) between the undersigned (“Borrower”) and Atlas
Industries Holdings LLC, as lender (together with any successors or assigns,
the “Lender”). This certificate (this “Certificate”), together with
supporting calculations attached hereto, is delivered to Lender pursuant to the
terms of the Credit Agreement. Terms used but not otherwise defined herein are
used herein as defined in the Credit Agreement.


 


Enclosed herewith is a copy of the [annual audited/quarterly] report of
Borrower as at [       ,
200   ] (the “Computation Date”), which report
fairly presents in all material respects the financial condition and results of
operations [(subject to the absence of
footnotes and to normal year-end adjustments)] of Borrower as of the
Computation Date and has been prepared in accordance with GAAP consistently
applied.


 


Borrower hereby certifies and warrants that the computations set forth
on the schedule attached hereto correspond to the ratios and/or financial
restrictions contained in the Credit Agreement and such computations are true
and correct as at the Computation Date.


 


Borrower further certifies that no Event of Default or Default has
occurred and is continuing.


 


Borrower has caused this Certificate to be executed and delivered by
its officer thereunto duly authorized on [     , 200  ].


 


 


	
   

  	
  ATLAS PANGBORN ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
  Title:

  



 


D-1

















 


Schedule to Compliance Certificate

Dated as of [        , 200   ]


 


	
  A

  	
  .Section 7.12.1
  - Minimum Fixed Charge Coverage Ratio

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Consolidated
  Net Income

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Plus:

  	
  Interest
  Expense

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
  income
  tax expense 

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
  depreciation
  

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
  amortization
  

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
  other
  non-cash charges 

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
  management
  fees paid or accrued

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Total
  (EBITDA)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  Income
  taxes paid

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.

  	
  Tax distributions

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.

  	
  Capital
  Expenditures

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.

  	
  Sum
  of (4), (5) and (6)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.

  	
  Remainder
  of (3) minus (7)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.

  	
  Interest
  Expense paid in cash

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.

  	
  Required
  payments of principal of Funded Debt (including Term Loans but excluding
  Revolving Loans)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.

  	
  Management fees paid in cash

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.

  	
  Sum
  of (9), (10) and (11)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.

  	
  Ratio
  of (8) to (12)

  	
   

  	
         to
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.

  	
  Minimum
  Required

  	
   

  	
  1.1
  to 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.

  	
  Interest
  Coverage Ratio

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  EBITDA
  for relevant Computation Period

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  the
  aggregate amount of management fees paid in cash by Borrower pursuant to the
  Management Agreement

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  (1) minus (2)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  Interest
  Expense accrued for such Computation Period and paid or payable in cash at
  anytime by Borrower and the Subsidiaries (excluding in all instances any
  interest paid in kind)

  	
   

  	
  $

  	
   

  



 


2

















 


	
   

  	
  5.

  	
  Interest Coverage Ratio [(3) divided by (4)]

  	
   

  	
        to
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.

  	
  Required minimum

  	
   

  	
  1.75 to 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
  Section 7.12.3
  - Capital Expenditures

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Capital
  Expenditures for the Fiscal Year

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Maximum
  Permitted Capital Expenditures

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
  Section 7.12.4
  – Total Debt to EBITDA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Total Debt as of the end the relevant Computation Period

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  EBITDA for the relevant Computation Period

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Total Debt to EBITDA Ratio [(1) divided by (2)]

  	
   

  	
          to
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  Permitted Maximum

  	
   

  	
  4.25
  to 1

  



 


3

















 


Exhibit B


 


Form of Note


 


	
  $                      

  	
  [                 ,
  200   ]  

  
	
   

  	
  [City, State]

  



 


The undersigned, Atlas Pangborn Acquisition Corp., a Delaware
corporation (“Borrower”), for value received, promises to pay to the
order of Atlas Industries Holdings LLC, a Delaware limited liability company (“Lender”),
at its principal office of One Sound Shore Drive, Suite 302, Greenwich,
Connecticut 06830, the aggregate unpaid amount of all Loans made to Borrower by
Lender pursuant to the Credit Agreement referred to below, such principal
amount to be payable on the dates set forth in the Credit Agreement.


 


Borrower further promises to pay interest on the unpaid principal
amount of each Loan from the date of such Loan until such Loan is paid in full,
payable at the rate(s) and at the time(s) set forth in the Credit Agreement. Payments
of both principal and interest are to be made in lawful money of the United
States of America.


 


This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of, the Credit Agreement, dated as of November     ,
2007 (as amended or otherwise modified from time to time, the “Credit
Agreement”; terms not otherwise defined herein are used herein as defined
in the Credit Agreement), between Borrower and Atlas Industries Holdings LLC,
as lender, to which Credit Agreement reference is hereby made for a statement
of the terms and provisions under which this Note may or must be paid prior to
its due date or its due date accelerated.


 


This Note is made under and governed by the laws of the State of New
York applicable to contracts made and to be performed entirely within such
State.


 


 


	
   

  	
  ATLAS PANGBORN ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
					



 


4

















 


Exhibit C


 


Form
of Borrowing Notice


 


Please refer to the Credit Agreement dated as of November      ,
2007 (as amended or otherwise modified from time to time, the “Credit
Agreement”) between the undersigned (“Borrower”) and Atlas
Industries Holdings LLC, a Delaware limited liability company, as Lender. Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed
thereto in the Credit Agreement. This notice is given pursuant to Section 2.2.2
of the Credit Agreement. Borrower hereby requests a borrowing under the Credit
Agreement as follows:


 


The aggregate amount of the proposed borrowing is [$                    ].
The requested borrowing date for the proposed borrowing (which is a Business
Day) is [           ,
200   ]. The
Revolving Loans comprising the proposed borrowing are [Base
Rate][LIBOR] Loans. The duration of the Interest Period for each
LIBOR Loan made as part of the proposed borrowing, if applicable, is [       ] months [(which
shall be 1, 2, 3 or 6 months)].


 


Borrower has caused this Notice to be executed and delivered by its
officer thereunto duly authorized on [      , 200   ].


 


 


	
   

  	
  ATLAS PANGBORN ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
					



 


E-1

















 


Exhibit D


 


Form of Notice of Conversion/Continuation


 


Please refer to the Credit Agreement dated as of November       ,
2007 (as amended or otherwise modified from time to time, the “Credit
Agreement”) between the undersigned (“Borrower”) and Atlas
Industries Holdings LLC, a Delaware limited liability company, as Lender. Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed
thereto in the Credit Agreement. This notice is given pursuant to Section 2.2.3
of the Credit Agreement. Borrower hereby requests a [conversion][continuation]
of [Term  A
Loans][Term  B Loans][Revolving Loans] as follows:


 


The date of the proposed [conversion]
[continuation] is [         ,
200    ] (which shall be a Business Day).
The aggregate amount of the [Term
[A][B] Loans] [Revolving Loans] proposed to be [converted] [continued] is $                .
[Specify which part is to be converted and
which part is to be continued, if appropriate.]  The Loans to be [continued] [converted]
are [Base Rate Loans] [LIBOR Loans] and the Loans resulting from
the proposed [conversion] [continuation] will be [Base Rate Loans] [LIBOR Loans]. The duration of the requested
Interest Period for each LIBOR Loan made as part of the proposed [conversion] [continuation] is [        ]
months (which shall be 1, 2, 3 or 6 months).


 


Borrower has caused this Notice to be executed and delivered by its
officer thereunto duly authorized on [       , 200   ].


 


 


	
   

  	
  ATLAS PANGBORN ACQUISITION CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
					



 


F-1

















 


Exhibit E


 


Form of Availability Certificate


 


Please refer to the Credit Agreement dated as of November      ,
2007 (as amended or otherwise modified from time to time, the “Credit
Agreement”) between the undersigned (“Borrower”) and Atlas
Industries Holdings LLC, as lender (together with any successors or assigns,
the “Lender”). This certificate (this “Certificate”), together with
supporting calculations attached hereto, is delivered to Lender pursuant to the
terms of the Credit Agreement. Capitalized terms used but not otherwise defined
herein shall have the same meanings herein as in the Credit Agreement.


 


Borrower hereby certifies and warrants that at the close of business on
[         ,
200    ] (the “Calculation Date”),
Borrowing Availability was [$              ],
computed as set forth on the schedule attached hereto.


 


Borrower has caused this Certificate to be executed and delivered by
its officer thereunto duly authorized on [       ,
200   ].


 


 


	
   

  	
  [

  	
   

  	
  ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   By:

  
	
   

  	
   Title:

  



 


F-1

















 


	
  1.

  	
  Gross Accounts

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Less Ineligibles

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Does not arise from sale of goods or services

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Lender’s Lien not perfected/Subject to other Lien

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Subject to offset, etc.

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Account Debtor in bankruptcy

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Account Debtor not in U.S. or Canada

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Sale on approval, sale or return, bill and hold or consignment

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Arises outside the ordinary course

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Governmental Accounts

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Exceeds credit limits

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Chattel Paper

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Over 60 days past due or over 90 days past invoice date

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Affiliate receivables

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Cross-age

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Concentration

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Not denominated in Dollars

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Other

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Total

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Eligible Accounts [Item 1 minus Item 2]

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Item 3 times 85%

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Gross Inventory

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Less Ineligibles

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Lender’s Lien not perfected/Subject to other Lien

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Not Salable

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Located off-site and no Collateral Access Agreement

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Arises outside the ordinary course

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  “Hot Goods”

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Restrictive Agreement

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Not located in U.S.

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  In-transit or held or delivered on consignment

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Other

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
  -

  	
  Total

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
  7.

  	
  Eligible Inventory [Item 5 minus Item 6]

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  Item 7 times 65%

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  Item 4 plus Item 8

  	
   

  	
   

  	
   

  	
  $

  	
   

  
										



 


F-2

















 


	
  10.

  	
  Lesser of Item 9 and Revolving Loan Commitment

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  Reserves and allowances

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  Borrowing Availability [Item
  10 minus Item 11]

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  Revolving Loans

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
  Net Availability [Excess
  of Item 12 over Item 13]

  	
   

  	
   

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
  Required Prepayment [Excess
  of Item 13 over Item 12]

  	
   

  	
   

  	
   

  	
  $

  	
   

  



 


F-3