Exhibit 10.60





CONFIDENTIAL
TREATMENT REQUESTED: Certain portions of this document have been
omitted pursuant to a request for confidential treatment and, where
applicable, have been marked with an asterisk
(“[REDACTED*]”) to denote where omissions have
been made. The confidential material has been filed separately with
the Securities and Exchange Commission.



Exhibit
10.60




 




CREDIT AGREEMENT




dated as of December 28, 2007




among




AXIS, LLC,

as the Borrower




THE VARIOUS FINANCIAL INSTITUTIONS PARTY HERETO,

as Lenders,




and




LASALLE BANK NATIONAL ASSOCIATION,

as Administrative Agent




 




LASALLE BANK NATIONAL ASSOCIATION,

as Arranger




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	SECTION 1. DEFINITIONS
	 	 	1	 
	1.1. Definitions
	 	 	1	 
	1.2. Other Interpretive Provisions
	 	 	22	 
	 
	 	 	 	 
	SECTION 2. COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT PROCEDURES
	 	 	23	 
	2.1. Commitments
	 	 	23	 
	2.2. Loan Procedures
	 	 	24	 
	2.3. Letter of Credit Procedures
	 	 	28	 
	2.4. Commitments Several
	 	 	30	 
	2.5. Certain Conditions
	 	 	30	 
	 
	 	 	 	 
	SECTION 3. EVIDENCING OF LOANS
	 	 	31	 
	3.1. Notes
	 	 	31	 
	3.2. Recordkeeping
	 	 	31	 
	 
	 	 	 	 
	SECTION 4. INTEREST
	 	 	31	 
	4.1. Interest Rates
	 	 	31	 
	4.2. Interest Payment Dates; Capitalization
	 	 	32	 
	4.3. Setting and Notice of LIBOR Rates
	 	 	32	 
	4.4. Computation of Interest
	 	 	32	 
	 
	 	 	 	 
	SECTION 5. FEES
	 	 	32	 
	5.1. Non-Use Fee
	 	 	32	 
	5.2. Letter of Credit Fees
	 	 	33	 
	5.3. Administrative Agent’s Fees
	 	 	33	 
	5.4. Fee Capitalization
	 	 	33	 
	 
	 	 	 	 
	SECTION 6. REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS
	 	 	33	 
	6.1. Reduction or Termination of the Revolving Commitment
	 	 	33	 
	6.2. Prepayments
	 	 	34	 
	6.3. Manner of Prepayments
	 	 	35	 
	6.4. Repayments
	 	 	35	 
	 
	 	 	 	 
	SECTION 7. MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES
	 	 	36	 
	7.1. Making of Payments
	 	 	36	 
	7.2. Application of Certain Payments
	 	 	36	 
	7.3. Due Date Extension
	 	 	37	 
	7.4. Setoff
	 	 	37	 
	7.5. Proration of Payments
	 	 	37	 
	7.6. Taxes
	 	 	38	 






 


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	 	 	Page	 
	 
	SECTION 8. INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS
	 	 	40	 
	8.1. Increased Costs
	 	 	40	 
	8.2. Basis for Determining Interest Rate Inadequate or Unfair
	 	 	41	 
	8.3. Changes in Law Rendering LIBOR Loans Unlawful
	 	 	41	 
	8.4. Funding Losses
	 	 	42	 
	8.5. Right of Lenders to Fund through Other Offices
	 	 	42	 
	8.6. Discretion of Lenders as to Manner of Funding
	 	 	42	 
	8.7. Mitigation of Circumstances; Replacement of Lenders
	 	 	42	 
	8.8. Conclusiveness of Statements; Survival of Provisions
	 	 	43	 
	 
	 	 	 	 
	SECTION 9. REPRESENTATIONS AND WARRANTIES
	 	 	43	 
	9.1. Organization
	 	 	43	 
	9.2. Authorization; No Conflict
	 	 	44	 
	9.3. Validity and Binding Nature
	 	 	44	 
	9.4. [Reserved]
	 	 	44	 
	9.5. No Material Adverse Change
	 	 	44	 
	9.6. Litigation and Contingent Liabilities
	 	 	44	 
	9.7. Ownership of Properties; Liens
	 	 	45	 
	9.8. Equity Ownership; Subsidiaries
	 	 	45	 
	9.9. Pension Plans
	 	 	45	 
	9.10. Investment Company Act
	 	 	45	 
	9.11. [Reserved]
	 	 	45	 
	9.12. Regulation U
	 	 	45	 
	9.13. Taxes
	 	 	46	 
	9.14. Solvency, etc
	 	 	46	 
	9.15. Environmental Matters
	 	 	46	 
	9.16. Insurance
	 	 	47	 
	9.17. Real Property
	 	 	47	 
	9.18. Information
	 	 	47	 
	9.19. Intellectual Property
	 	 	47	 
	9.20. Burdensome Obligations
	 	 	48	 
	9.21. Labor Matters
	 	 	48	 
	9.22. No Default
	 	 	48	 
	 
	 	 	 	 
	SECTION 10. AFFIRMATIVE COVENANTS
	 	 	48	 
	10.1. Reports, Certificates and Other Information
	 	 	48	 
	10.2. Books, Records and Inspections
	 	 	50	 
	10.3. Maintenance of Property; Insurance
	 	 	51	 
	10.4. Compliance with Laws; Payment of Taxes and Liabilities
	 	 	52	 
	10.5. Maintenance of Existence, etc
	 	 	52	 
	10.6. Use of Proceeds
	 	 	53	 
	10.7. [Reserved]
	 	 	53	 
	10.8. Environmental Matters
	 	 	53	 
	10.9. Further Assurances
	 	 	53	 
	10.10. Deposit Accounts
	 	 	54	 
	10.11. Interest Rate Protection
	 	 	54	 
	10.12. Supply Agreements
	 	 	54	 






 


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	 	 	Page	 
	 
	SECTION 11. NEGATIVE COVENANTS
	 	 	54	 
	11.1. Debt
	 	 	54	 
	11.2. Liens
	 	 	55	 
	11.3. Operating Leases
	 	 	56	 
	11.4. Restricted Payments
	 	 	56	 
	11.5. Mergers, Consolidations, Sales
	 	 	57	 
	11.6. Modification of Organizational Documents
	 	 	57	 
	11.7. Transactions with Affiliates
	 	 	57	 
	11.8. Unconditional Purchase Obligations
	 	 	57	 
	11.9. Inconsistent Agreements
	 	 	58	 
	11.10. Business Activities; Issuance of Equity
	 	 	58	 
	11.11. Investments
	 	 	58	 
	11.12. Subsidiaries
	 	 	59	 
	11.13. Fiscal Year
	 	 	59	 
	11.14. Financial Covenants
	 	 	59	 
	11.15. Pension Plan
	 	 	60	 
	11.16. Future Corporate Reorganization
	 	 	60	 
	 
	 	 	 	 
	SECTION 12. EFFECTIVENESS; CONDITIONS OF LENDING, ETC
	 	 	60	 
	12.1. Initial Credit Extension
	 	 	60	 
	12.2. Conditions
	 	 	63	 
	 
	 	 	 	 
	SECTION 13. EVENTS OF DEFAULT AND THEIR EFFECT
	 	 	63	 
	13.1. Events of Default
	 	 	63	 
	13.2. Effect of Event of Default
	 	 	66	 
	 
	 	 	 	 
	SECTION 14. THE AGENTS
	 	 	66	 
	14.1. Appointment and Authorization
	 	 	66	 
	14.2. Issuing Lender
	 	 	67	 
	14.3. Delegation of Duties
	 	 	67	 
	14.4. Exculpation of Administrative Agent
	 	 	67	 
	14.5. Reliance by Administrative Agent
	 	 	68	 
	14.6. Certain Notices
	 	 	68	 
	14.7. Credit Decision
	 	 	69	 
	14.8. Indemnification
	 	 	69	 
	14.9. Administrative Agent in Individual Capacity
	 	 	70	 
	14.10. Successor Administrative Agent
	 	 	70	 
	14.11. Collateral Matters
	 	 	71	 
	14.12. Administrative Agent May File Proofs of Claim
	 	 	71	 
	14.13. Other Agents; Arrangers and Managers
	 	 	72	 






 


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	 	 	Page	 
	 
	SECTION 15. GENERAL
	 	 	72	 
	15.1. Waiver; Amendments
	 	 	72	 
	15.2. Confirmations
	 	 	73	 
	15.3. Notices
	 	 	73	 
	15.4. Computations
	 	 	74	 
	15.5. Costs, Expenses and Taxes
	 	 	74	 
	15.6. Assignments; Participations
	 	 	74	 
	15.7. Register
	 	 	76	 
	15.8. GOVERNING LAW
	 	 	76	 
	15.9. Confidentiality
	 	 	77	 
	15.10. Severability
	 	 	77	 
	15.11. Nature of Remedies
	 	 	78	 
	15.12. Entire Agreement
	 	 	78	 
	15.13. Counterparts
	 	 	78	 
	15.14. Successors and Assigns
	 	 	78	 
	15.15. Captions
	 	 	78	 
	15.16. Customer Identification — USA Patriot Act Notice
	 	 	79	 
	15.17. INDEMNIFICATION BY THE BORROWER
	 	 	79	 
	15.18. Nonliability of Lenders
	 	 	80	 
	15.19. FORUM SELECTION AND CONSENT TO JURISDICTION
	 	 	81	 
	15.20. WAIVER OF JURY TRIAL
	 	 	81	 






 


-iv-









 





ANNEXES




	 	 	 
	ANNEX A

	 	Lenders and Pro Rata Shares
	ANNEX B

	 	Addresses for Notices






SCHEDULES




	 	 	 
	SCHEDULE 9.6

	 	Litigation and Contingent Liabilities
	SCHEDULE 9.8

	 	Capitalization of Loan Parties
	SCHEDULE 9.17

	 	Real Property
	SCHEDULE 9.21

	 	Labor Matters
	SCHEDULE 11.1

	 	Existing Debt
	SCHEDULE 11.2

	 	Existing Liens
	SCHEDULE 11.7

	 	Transactions with Affiliates
	SCHEDULE 11.11

	 	Investments






EXHIBITS




	 	 	 
	EXHIBIT A

	 	Form of Note (Section 3.1)
	EXHIBIT B

	 	Form of Compliance Certificate (Section 10.1.3)
	EXHIBIT C

	 	Form of Borrowing Base Certificate (Section 1.1)
	EXHIBIT D

	 	Form of Assignment Agreement (Section 15.6.1)
	EXHIBIT E

	 	Form of Notice of Borrowing (Section 2.2.2)
	EXHIBIT F

	 	Form of Notice of Conversion/Continuation (Section 2.2.3)
	EXHIBIT G

	 	Construction Rider (Section 1.1)
	EXHIBIT H

	 	Form of Pledge Agreement (Section 1.1)







 


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CREDIT AGREEMENT




THIS CREDIT AGREEMENT dated as of December 28, 2007 is entered into among AXIS, LLC, a
Delaware limited liability company (the “Borrower”), the financial institutions that are or
may from time to time become parties hereto (together with their respective successors and assigns,
the “Lenders”), LASALLE BANK NATIONAL ASSOCIATION (in its individual capacity,
“LaSalle”), as Administrative Agent for the Lenders.



The Lenders have agreed to make available to the Borrower a term loan and a revolving credit
facility (which includes letters of credit) upon the terms and conditions set forth herein.



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




SECTION 1. DEFINITIONS.




The definitions set forth in the Construction Rider are incorporated herein by reference.




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 13.1.4; (ii) an Event of Default under Section 13.1.1 and the
termination of the Commitments pursuant to Section 13.2; or (iii) any other Event of
Default under Section 13.1 and the election by the Administrative Agent to declare the
Obligations to be due and payable or to terminate the Commitments pursuant to Section 13.2.




Account Debtor is defined in the UCC.




Account or Accounts is defined in the UCC.



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 substantially all of the
assets of a Person, or of all or substantially all of any business or division of a Person, (b) the
acquisition of in excess of 50% of the Capital Securities 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).



Administrative Agent means LaSalle in its capacity as administrative agent for the
Lenders hereunder and any successor thereto in such capacity.



Affected Loan — see Section 8.3.


 


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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 any Lender, any entity administered or managed by
such Lender or an Affiliate or investment advisor thereof and 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 5%
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, neither
the Administrative Agent nor any Lender shall be deemed an Affiliate of any Loan Party.



Agent Fee Letter means the Fee letter dated as of the date hereof between the Borrower
and the Administrative Agent.



Agreement — means this Credit Agreement, together with all Annexes, Schedules and
Exhibits (including without limitation the Construction Rider) attached hereto, as any and all of
the same may be amended, restated or otherwise modified from time to time in accordance with the
terms hereof.



Applicable Margin means, for any day, the rate per annum set forth below opposite the
level (the “Level”) then in effect, it being understood that the Applicable Margin for (i)
LIBOR Loans shall be the percentage set forth under the column “LIBOR Margin”, (ii) Base Rate Loans
shall be the percentage set forth under the column “Base Rate Margin”, and (iii) the L/C Fee shall
be the percentage set forth under the column “L/C Fee Rate”:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Fixed Charge	 	LIBOR	 	 	Base Rate	 	 	L/C Fee	 
	Level	 	Coverage Ratio	 	Margin	 	 	Margin	 	 	Rate	 
	I
	 	Greater than 1.75:1	 	 	1.75	%	 	 	0.50	%	 	 	1.75	%
	II
	 	Greater than 1.50:1 but less than or equal to 1.75:1	 	 	2.00	%	 	 	0.75	%	 	 	2.00	%
	III
	 	Less than or equal to 1.50:1	 	 	2.25	%	 	 	1.00	%	 	 	2.25	%






The LIBOR Margin, the Base Rate Margin and the L/C Fee Rate shall be adjusted, to the extent
applicable, on the fifth (5th) Business Day after the Borrower provides or is required to provide
the annual and quarterly financial statements and other information pursuant to Sections
10.1.1 or 10.1.2, as applicable, and the related Compliance Certificate, pursuant to
Section 10.1.3. Notwithstanding anything contained in this paragraph to the contrary, (a)
if the Borrower fails to deliver the financial statements and Compliance Certificate in accordance
with the provisions of Sections 10.1.1, 10.1.2 and 10.1.3, the LIBOR
Margin, the Base Rate Margin and the L/C Fee Rate shall be based upon Level III above beginning on
the date such financial statements and Compliance Certificate were required to be delivered until
the fifth (5th) Business Day after such financial statements and Compliance Certificate are
actually delivered, whereupon the Applicable Margin shall be determined by the then current Level;
(b) no reduction to any Applicable Margin shall become effective at any time when an Event of
Default or Unmatured Event of Default has occurred and is continuing; and (c) the initial
Applicable Margin on the Closing Date shall be based on Level III until the earlier of the date on
which the financial statements and Compliance Certificate are required to be delivered, or are
actually delivered, for the Fiscal Quarter ending December 31, 2009.


 


-2-









 





Notwithstanding the foregoing, in the event that any financial statement or related Compliance
Certificate is shown to be inaccurate (regardless of whether this Agreement or the Commitments are
in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to
the application of a higher Applicable Margin for any period (an “Applicable Period”) than
the Applicable Margin applied for such Applicable Period, then (i) the Borrower shall immediately
deliver to the Administrative Agent a correct Compliance Certificate for such Applicable Period,
(ii) the Applicable Margin shall be determined as if such higher Applicable Margin were applicable
for such Applicable Period, and (iii) the Borrower shall immediately pay to the Administrative
Agent the accrued additional interest owing as a result of such increased Applicable Margin for
such Applicable Period, which payment shall be promptly applied by the Administrative Agent in
accordance with Section 7.2. This paragraph shall not limit the rights of the
Administrative Agent or the Lenders with respect to Sections 4.1 and 13.2.



Asset Disposition means the sale, lease, assignment or other transfer for value (each,
a “Disposition”) by any Loan Party to any Person (other than a Loan Party) of any asset or
right of such Loan Party (including, the actual loss, destruction or damage of any thereof or any
actual condemnation, confiscation, requisition, seizure or taking thereof) other than (a) the
Disposition of any asset which is to be replaced, and is in fact replaced, within ninety (90) days
with another asset performing the same or a similar function, (b) the sale or lease of inventory in
the ordinary course of business and (c) other Dispositions in any Fiscal Year the Net Proceeds of
which do not in the aggregate exceed $250,000.




Assignee — see Section 15.6.1(a).




Assignment Agreement — see Section 15.6.1(a).



Attorney Costs means, with respect to any Person, all reasonable fees and charges of
any counsel to such Person, the reasonable allocable cost of internal legal services of such
Person, all reasonable disbursements of such internal counsel and all court costs and similar legal
expenses.



Bank Product Agreements means those certain cash management service agreements entered
into from time to time between any Loan Party and a Lender or its Affiliates in connection with any
of the Bank Products.



Bank Product Obligations means all obligations, liabilities, contingent reimbursement
obligations, fees, and expenses owing by the Loan Parties to any Lender or its Affiliates pursuant
to or evidenced by the Bank Product Agreements and irrespective of whether for the payment of
money, whether direct or indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, and including all such amounts that a Loan Party is obligated to reimburse to
the Administrative Agent or any Lender as a result of the Administrative Agent or such Lender
purchasing participations or executing indemnities or reimbursement obligations with respect to the
Bank Products provided to the Loan Parties pursuant to the Bank Product Agreements.


 


-3-









 





Bank Products means any service or facility extended to any Loan Party by any Lender
or its Affiliates including: (a) credit cards, (b) credit card processing services, (c) debit
cards, (d) purchase cards, (e) ACH transactions, (f) cash management, including controlled
disbursement, accounts or services, or (g) Hedging Agreements.



Base Rate means at any time the greater of (a) the Federal Funds Rate plus 0.5% and
(b) the Prime Rate.



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




Base Rate Margin — see the definition of Applicable Margin.




Borrower — see the Preamble.



Borrowing Base means an amount equal to the total of (a) 85% of the unpaid amount (net
of such reserves and allowances, in each case following the Construction Period, as the
Administrative Agent deems necessary in its reasonable discretion) of all Eligible Accounts plus
(b) 65% of the value of all Eligible Inventory valued at the lower of cost or market (net of such
reserves and allowances, in each case following the Construction Period, as the Administrative
Agent deems necessary in its reasonable discretion); provided, that during the Construction Period,
but only after Borrower has satisfied each of the conditions set forth in Section 4 of the
Construction Rider, the Borrowing Base shall not be less than $3,000,000. Absent (i) circumstances
that the Administrative Agent deems exigent in its sole discretion or (ii) circumstances relating
directly to Accounts and/or Inventory, the Administrative Agent shall give the Borrower not less
than 3 Business Days’ prior notice before instituting any such new reserve.




Borrowing Base Certificate means a certificate substantially in the form of Exhibit C.




BSA — see Section 10.4.



Business Day means any day on which LaSalle is open for commercial banking business in
Chicago, Illinois and, in the case of a Business Day which relates to a LIBOR Loan, on which
dealings are carried on in the London interbank eurodollar market.



Capital Expenditures means all expenditures which, in accordance with GAAP, would be
required to be capitalized and shown on the consolidated balance sheet of the Borrower, including
expenditures in respect of Capital Leases, 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 or (b) with awards of compensation arising from the taking by eminent domain
or condemnation of the assets being replaced.


 


-4-









 





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.



Capital Securities means, with respect to any Person, all shares, interests,
participations or other equivalents (however designated, whether voting or non-voting) of such
Person’s capital, whether now outstanding or issued or acquired after the Closing Date, including
common shares, preferred shares, membership interests in a limited liability company, limited or
general partnership interests in a partnership, interests in a trust, interests in other
unincorporated organizations or any other equivalent of such ownership interest.



Cash Collateralize means to deliver cash collateral to the Administrative Agent, to be
held as cash collateral for outstanding Letters of Credit, pursuant to documentation satisfactory
to the Administrative Agent. Derivatives of such term have corresponding meanings.



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, maturing not more than one year from the date of issue, or
corporate demand notes, in each case (unless issued by a Lender or its holding company) rated at
least A-l by Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. or
P-l by Moody’s Investors Service, Inc., (c) any certificate of deposit, time 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 any Lender or its holding company (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 any Lender (or commercial banking institution of the nature referred to in clause (c)) 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 Lender (or
other commercial banking institution) thereunder and (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 the Administrative Agent.



Change of Control means the occurrence of any of the following events: (a) Guarantors
shall cease to own and control, directly or indirectly, at least 60% of the outstanding Capital
Securities of the Borrower; or (b) the Borrower shall cease to, directly or indirectly, own and
control 100% of each class of the outstanding Capital Securities of each Subsidiary; or (c) from
and following the effective date of the Pledge Agreement, Pledgor shall cease to own and control
100% of all of the outstanding Capital Securities of the Borrower.


 


-5-









 





Closing Date — see Section 12.1.




Code means the Internal Revenue Code of 1986.




Collateral as defined in the Security Agreement.



Collateral Access Agreement means an agreement in form and substance reasonably
satisfactory to the Administrative Agent 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 any Loan Party, acknowledges the Liens of the Administrative
Agent and waives any Liens held by such Person on such property, and, in the case of any such
agreement with a mortgagee or lessor, permits the Administrative Agent reasonable access to and use
of such real property following the occurrence and 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 Security Agreement, each Mortgage, the
Pledge Agreement, each Collateral Access Agreement, each control agreement and any other agreement
or instrument pursuant to which the Borrower, any Subsidiary, any Guarantor, any Pledgor or any
other Person grants or purports to grant collateral to the Administrative Agent for the benefit of
the Lenders or otherwise relates to such collateral.



Commitment means, as to any Lender, such Lender’s commitment to make Loans, and to
issue or participate in Letters of Credit, under this Agreement. The initial amount of each
Lender’s commitments to make Loans is set forth on Annex A.



Compliance Certificate means a Compliance Certificate in substantially the form of
Exhibit B.



Computation Period means each period of four consecutive Fiscal Quarters ending on the
last day of a Fiscal Quarter.



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



Construction Period means the period beginning on the Closing Date and ending on the
Completion Date.




Construction Rider means the rider attached hereto as Exhibit G.


 


-6-









 





Contingent Liability means, with respect to any Person, each obligation and liability
of such Person and all such obligations and liabilities of such Person incurred pursuant to any
agreement, undertaking or arrangement by which such Person: (a) 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) the indebtedness, dividend, obligation or other liability of any
other Person in any manner (other
than by endorsement of instruments in the course of collection), including any indebtedness,
dividend or other obligation which may be issued or incurred at some future time; (b) guarantees
the payment of dividends or other distributions upon the Capital Securities of any other Person;
(c) undertakes or agrees (whether contingently or otherwise): (i) to purchase, repurchase, or
otherwise acquire any indebtedness, obligation or liability of any other Person or any property or
assets constituting security therefor, (ii) to advance or provide funds for the payment or
discharge of any indebtedness, obligation or liability of any other Person (whether in the form of
loans, advances, stock purchases, capital contributions or otherwise), or to maintain solvency,
assets, level of income, working capital or other financial condition of any other Person, or (iii)
to make payment to any other Person other than for value received; (d) agrees to lease property or
to purchase securities, property or services from such other Person with the purpose or intent of
assuring the owner of such indebtedness or obligation of the ability of such other Person to make
payment of the indebtedness or obligation; (e) to induce the issuance of, or in connection with the
issuance of, any letter of credit for the benefit of such other Person; or (f) undertakes or agrees
otherwise to assure a creditor against loss. The amount of any Contingent Liability shall (subject
to any limitation set forth herein) be deemed to be the outstanding principal amount (or maximum
permitted principal amount, if larger) of the indebtedness, obligation or other liability
guaranteed or supported thereby.



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



Debt of any Person means, without duplication, (a) all borrowed money of such Person,
whether or not evidenced by bonds, debentures, notes or similar instruments, (b) 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, (c) 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), (d) all indebtedness secured by a Lien on the property of such
Person, whether or not such indebtedness shall have been assumed by such Person; provided that if
such Person has not assumed or otherwise become liable for such indebtedness, such indebtedness
shall be measured at the fair market value of such property securing such indebtedness at the time
of determination, (e) all obligations, contingent or otherwise, with respect to the face amount of
all letters of credit (whether or not drawn), bankers’ acceptances and similar obligations issued
for the account of such Person (including the Letters of Credit), (f) all Hedging Obligations of
such Person, (g) all Contingent Liabilities of such Person, (h) all Debt of any partnership of
which such Person is a general partner and (i) any Capital Securities or other equity instrument,
whether or not mandatorily redeemable, that under GAAP is characterized as debt, whether pursuant
to financial accounting standards board issuance No. 150 or otherwise.


 


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Designated Proceeds — see Section 6.2.2(a).




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



EBITDA means, for any period, Consolidated Net Income for such period plus, to the
extent deducted in determining such Consolidated Net Income, Interest Expense, income tax expense,
depreciation and amortization for such period.



Eligible Account means an Account owing to the Borrower or any Subsidiary which meets
each of the following requirements:




(a) it arises from the sale or lease of goods or the rendering of services which have
been fully performed by the Borrower or applicable Subsidiary; and if it arises from the
sale or lease of goods, (i) such goods comply with such Account Debtor’s specifications (if
any) and have been delivered or shipped to such Account Debtor and (ii) the Borrower or
applicable Subsidiary has possession of, or if requested by the Administrative Agent has
delivered to the Administrative Agent, invoices, shipping documents or delivery receipts
evidencing such shipment or delivery;




(b) it (i) is subject to a perfected, first priority Lien in favor of the
Administrative Agent and (ii) is not subject to any other assignment, claim or Lien (other
than Permitted Liens);




(c) it is a valid, legally enforceable and unconditional obligation of the Account
Debtor with respect thereto, and is not subject to the fulfillment of any condition
whatsoever or any counterclaim, credit, allowance, discount, rebate or adjustment (excluding
any such credit, allowance, discount, rebate or adjustment in respect of any customary fast
payment terms in accordance with such Loan Party’s historical practice or customary,
industry practice) by the Account Debtor with respect thereto, or to any claim by such
Account Debtor denying liability thereunder in whole or in part and the Account Debtor has
not refused to accept and/or has not returned or offered to return any of the goods or
services which are the subject of such Account;




(d) there is no bankruptcy, insolvency or liquidation proceeding pending by or against
the Account Debtor with respect thereto;




(e) the Account Debtor is not a Foreign Account Debtor, unless (i) the sale of goods
or services giving rise to such Account is on letter of credit, banker’s acceptance or other
credit support terms reasonably satisfactory to the Administrative Agent or (ii) the
aggregate dollar amount of Eligible Accounts owing by Foreign Account Debtors does not
exceed twenty percent (20%) of the dollar amount of all Eligible Accounts;


 


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(f) it is not an Account arising from a “sale on approval,” “sale or return,”
“consignment” or “bill and hold” or subject to any other repurchase or return agreement;




(g) it is not an Account with respect to which possession and/or control of the goods
sold giving rise thereto is held, maintained or retained by the Borrower or applicable
Subsidiary (or by any agent or custodian of the Borrower or applicable Subsidiary) for the
account of or subject to further and/or future direction from the Account Debtor with
respect thereto;




(h) it arises in the ordinary course of business of the Borrower;




(i) if the Account Debtor is the United States or any department, agency or
instrumentality thereof, the Borrower or applicable Subsidiary has assigned its right to
payment of such Account to the Administrative Agent pursuant to the Assignment of Claims Act
of 1940, and evidence (satisfactory to the Administrative Agent) of such assignment has been
delivered to the Administrative Agent;




(j) if the Borrower maintains a credit limit for an Account Debtor, the aggregate
dollar amount of Accounts due from such Account Debtor, including such Account, does not
exceed such credit limit;




(k) if the Account is evidenced by chattel paper or an instrument, the originals of
such chattel paper or instrument shall have been endorsed and/or assigned and delivered to
the Administrative Agent or, in the case of electronic chattel paper, shall be in the
control of the Administrative Agent, in each case in a manner satisfactory to the
Administrative Agent;




(l) such Account is evidenced by an invoice delivered to the related Account Debtor and
is not more than (i) 60 days past the due date thereof or (ii) 90 days past the original
invoice date thereof, in each case according to the original terms of sale;




(m) it is not an Account with respect to an Account Debtor that is located in any
jurisdiction which has adopted a statute or other requirement with respect to which any
Person that obtains business from within such jurisdiction must file a notice of business
activities report or make any other required filings in a timely manner in order to enforce
its claims in such jurisdiction’s courts unless (i) such notice of business activities
report has been duly and timely filed or the Borrower is exempt from filing such report and
has provided the Administrative Agent with satisfactory evidence of such exemption or (ii)
the failure to make such filings may be cured retroactively by the Borrower for a nominal
fee;


 


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(n) the Account Debtor with respect thereto is not an Affiliate of the Borrower, except
to the extent the terms of such Account comply with the provisions of Section 11.7;




(o) it is not owed by an Account Debtor with respect to which 50% or more of the
aggregate amount of outstanding Accounts owed at such time by such Account Debtor is
classified as ineligible under clause (l) of this definition;




(p) if the aggregate amount of all Accounts owed by the Account Debtor thereon exceeds
50% of the aggregate amount of all Accounts at such time, then all Accounts owed by such
Account Debtor in excess of such amount shall be deemed ineligible;




(q) it is otherwise not unacceptable to the Administrative Agent in its reasonable
discretion for any other reason.



An Account which is at any time an Eligible Account, but which subsequently fails to meet any of
the foregoing requirements, shall forthwith cease to be an Eligible Account. Further, with respect
to any Account, if the Administrative Agent or the Required Lenders at any time hereafter determine
in its or their reasonable discretion that the prospect of payment or performance by the Account
Debtor with respect thereto is materially impaired for any reason whatsoever, such Account shall
cease to be an Eligible Account after notice of such determination is given to the Borrower.



Eligible Inventory means Inventory of the Borrower or any Subsidiary which meets each
of the following requirements:




(a) it (i) is subject to a perfected, first priority Lien in favor of the
Administrative Agent and (ii) is not subject to any other assignment, claim or Lien (other
than Permitted Liens);




(b) it is salable and not slow-moving, obsolete or discontinued;




(c) it is in the possession and control of the Borrower or applicable Subsidiary and it
is stored and held in facilities owned by the Borrower or applicable Subsidiary or, if such
facilities are not so owned and if the Administrative Agent requests, the Administrative
Agent is in possession of a Collateral Access Agreement with respect thereto;




(d) it is not Inventory produced in violation of the Fair Labor Standards Act and
subject to the “hot goods” provisions contained in Title 29 U.S.C. §215;




(e) it is not subject to any agreement or license which would restrict the
Administrative Agent’s ability to sell or otherwise dispose of such Inventory;




(f) it is located in the United States or in any territory or possession of the United
States that has adopted Article 9 of the Uniform Commercial Code;


 


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(g) it is not “in transit” to the Borrower or applicable Subsidiary or held by the
Borrower or applicable Subsidiary on consignment;




(h) it is not “work-in-progress” Inventory;




(i) it is not supply items or packaging;




(j) it is not identified to any purchase order or contract to the extent progress or
advance payments are received with respect to such Inventory;




(k) it does not breach any of the representations, warranties or covenants pertaining
to Inventory set forth in the Loan Documents; and




(l) the Administrative Agent shall not have determined in its reasonable discretion
that it is unacceptable due to age, type, category, quality, quantity and/or any other
reason whatsoever.



Inventory which is at any time Eligible Inventory but which subsequently fails to meet any of the
foregoing requirements shall forthwith cease to be Eligible Inventory.



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.



Environmental Laws means all present or future federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all administrative or
judicial orders, consent agreements, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any governmental authority, in each case relating to any matter
arising out of or relating to public 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, emission,
release, threatened release, control or cleanup of any Hazardous Substance.




Equity Distributions — see Section 11.4.




ERISA means the Employee Retirement Income Security Act of 1974.




Event of Default means any of the events described in Section 13.1.



Excess Cash Flow means, for any period, the remainder of (a) the sum of (i) EBITDA for
such period, plus (ii) the Net Cash Proceeds from the issuance of equity securities during
such period other than proceeds from the issuance of equity securities used by Borrower to make
Capital Expenditures during such period, minus (b) the sum, without duplication, of (i)
scheduled repayments of principal of the Term Loan made during such period, plus (ii)
voluntary prepayments of the Term Loan pursuant to Section 6.2.1 during such period,
plus (iii) cash payments made in such period with respect to Capital Expenditures,
plus (iv) all income taxes paid in cash by the Loan Parties during such period,
plus (v) cash Interest Expense of the Loan Parties during such period, plus (vi)
Tax Distributions made by Borrower during such period, plus (vii) Equity Distributions made
by Borrower during such period.


 


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Excluded Taxes means taxes based upon, or measured by, the Lender’s or Administrative
Agent’s (or a branch of the Lender’s or Administrative Agent’s) overall net income, overall net
receipts, or overall net profits (including franchise taxes imposed in lieu of such taxes), but
only to the extent such taxes are imposed by a taxing authority (a) in a jurisdiction in which such
Lender or Administrative Agent is organized, (b) in a jurisdiction which the Lender’s or
Administrative Agent’s principal office is located, or (c) in a jurisdiction in which such Lender’s
or Administrative Agent’s lending office (or branch) in respect of which payments under this
Agreement are made is located.



Federal Funds Rate means, for any day, a fluctuating interest rate equal for each day
during such period to the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent.
The Administrative Agent’s determination of such rate shall be binding and conclusive absent
manifest error.




Fiscal Quarter means a fiscal quarter of a Fiscal Year.



Fiscal Year means the fiscal year of the Borrower and its Subsidiaries, which period
shall be the 12-month period ending on December 31 of each year. References to a Fiscal Year with
a number corresponding to any calendar year (e.g., “Fiscal Year 2003”) refer to the Fiscal
Year ending on December 31 of such calendar year.



Fixed Charge Coverage Ratio means, for any Computation Period, the ratio of (a) the
total for such period of EBITDA minus the sum of income taxes paid in cash by the Loan
Parties, all Tax Distributions paid in cash by Borrower, any and all distributions made to the
holders of Borrower’s Capital Securities paid in cash (other than Tax Distributions) and all
unfinanced Capital Expenditures to (b) the sum for such period of (i) cash Interest Expense
plus (ii) required payments of principal of Funded Debt (including the Term Loan but
excluding the Revolving Loans).



Foreign Account Debtor means any Account Debtor that is not a resident or citizen of,
and located within, the United States.



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


 


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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 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) and the Securities and Exchange Commission, which
are applicable to the circumstances as of the date of determination.




Group — see Section 2.2.1.



Guarantees means those Guarantees dated as of the Closing Date delivered by the
Guarantors to Administrative Agent, as the same may be amended, restated or otherwise modified from
time to time.



Guarantors means each of American Railcar, Inc., a Delaware corporation, and Amsted
Industries, Incorporated, a Delaware corporation, until such time as the Guarantees are terminated
in accordance with their terms.



Hazardous Substances means (a) any petroleum or petroleum products, radioactive
materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation,
dielectric fluid containing levels of polychlorinated biphenyls, radon gas and mold; (b) any
chemicals, materials, pollutant or substances defined as or included in the definition of
“hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous substances”,
“restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, “pollutants”
or words of similar import, under any applicable Environmental Law; and (c) any other chemical,
material or substance, the exposure to, or release of which is prohibited, limited or regulated by
any governmental authority or for which any duty or standard of care is imposed pursuant to, any
Environmental Law.



Hedging Agreement means 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.



Hedging Obligation means, with respect to any Person, any liability of such Person
under any Hedging Agreement.




Indemnified Liabilities — see Section 15.17.



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


 


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Interest Period means, as to any LIBOR Loan, the period commencing on the date such
Loan is borrowed or continued as, or converted into, a LIBOR Loan and ending on the date one, two,
three or six months thereafter as selected by the Borrower pursuant to Section 2.2.2 or
2.2.3, as the case may be; provided that:




(a) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the following Business Day unless the result of
such extension would be to carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the preceding Business Day;




(b) any Interest Period that begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period shall end on the
last Business Day of the calendar month at the end of such Interest Period;




(c) the Borrower may not select any Interest Period for a Revolving Loan which would
extend beyond the scheduled Termination Date; and




(d) the Borrower may not select any Interest Period for any portion of the Term Loan
if, after giving effect to such selection, the aggregate principal amount of all portions of
the Term Loan having Interest Periods ending after any date on which an installment of the
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 is defined in the Security Agreement.



Investment means, with respect to any Person, any investment in another Person,
whether by acquisition of any debt or Capital Security, by making any loan or advance, by becoming
obligated with respect to a Contingent Liability in respect of obligations of such other Person
(other than travel and similar advances to employees in the ordinary course of business) or by
making an Acquisition.



Issuing Lender means LaSalle, in its capacity as the issuer of Letters of Credit
hereunder, or any Affiliate of LaSalle that may from time to time issue Letters of Credit, and
their successors and assigns in such capacity.




LaSalle — see the Preamble.



L/C Application means, with respect to any request for the issuance of a Letter of
Credit, a letter of credit application in the form being used by the Issuing Lender at the time of
such request for the type of letter of credit requested.




L/C Fee Rate — see the definition of Applicable Margin.


 


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Lender — see the Preamble. References to the “Lenders” shall include the
Issuing Lender; for purposes of clarification only, to the extent that LaSalle (or any successor
Issuing Lender) may have any rights or obligations in addition to those of the other Lenders due to
its status as Issuing Lender, its status as such will be specifically referenced. In addition to
the foregoing, for the purpose of identifying the Persons entitled to share in the Collateral and
the proceeds thereof under, and in accordance with the provisions of, this
Agreement and the Collateral Documents, the term “Lender” shall include Affiliates of a Lender
providing a Bank Product.




Lender Party — see Section 15.17.




Letter of Credit — see Section 2.1.3.



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




LIBOR Margin — see the definition of Applicable Margin.



LIBOR Office means with respect to any Lender the office or offices of such Lender
which shall be making or maintaining the LIBOR Loans of such Lender hereunder. A LIBOR Office of
any Lender may be, at the option of such Lender, either a domestic or foreign office.



LIBOR Rate means a rate of interest equal to (a) the per annum rate of interest at
which United States dollar deposits in an amount comparable to the amount of the relevant LIBOR
Loan and for a period equal to the relevant Interest Period are offered in the London Interbank
Eurodollar market at 11:00 A.M. (London time) two (2) Business Days prior to the commencement of
such Interest Period (or three (3) Business Days prior to the commencement of such Interest Period
if banks in London, England were not open and dealing in offshore United States dollars on such
second preceding Business Day), as displayed in the Bloomberg Financial Markets system (or other
authoritative source selected by the Administrative Agent in its sole discretion) or, if the
Bloomberg Financial Markets system or another authoritative source is not available, as the LIBOR
Rate is otherwise determined by the Administrative Agent in its sole and absolute discretion,
divided by (b) a number determined by subtracting from 1.00 the then stated maximum reserve
percentage for determining reserves to be maintained by member banks of the Federal Reserve System
for Eurocurrency funding or liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D), such rate to remain fixed for such Interest Period. The
Administrative Agent’s determination of the LIBOR Rate shall be conclusive, absent manifest error.



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
(including an interest in respect of a Capital Lease) which secures payment or performance of any
obligation and shall include any mortgage, lien, encumbrance, title retention lien, charge or other
security interest of any kind, whether arising by contract, as a matter of law, by judicial process
or otherwise.


 


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Loan Documents means this Agreement, the Notes, the Letters of Credit, the Master
Letter of Credit Agreement, the L/C Applications, the Agent Fee Letter, the Collateral Documents,
the Guarantees, the Subordination Agreements (if any) and all documents, instruments and agreements
delivered in connection with the foregoing.




Loan Party means the Borrower and each Subsidiary.



Loan or Loans means, as the context may require, Revolving Loans, the Term Loan and/or
Swing Line Loans.




Mandatory Prepayment Event — see Section 6.2.2(a).




Margin Stock means any “margin stock” as defined in Regulation U.



Master Letter of Credit Agreement means, at any time, with respect to the issuance of
Letters of Credit, a master letter of credit agreement or reimbursement agreement in the form, if
any, being used by the Issuing Lender at such time.



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 any Loan Party to
perform any of the Obligations under any Loan Document 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 any Loan Party of any Loan Document.



Material Debt Agreements means the principal credit facilities of the Guarantors,
comprised of (i) Second Amended and Restated Credit Agreement, dated as of April 6, 2006 among
Amsted Industries Incorporated, Citicorp North America, as agent, and the lenders from time to time
party thereto, as amended; (ii) Indenture, dated as of February 28, 2007, among American Railcar
Industries Inc., the Guarantors named therein, and Wilmington Trust Company, as Trustee, as
amended; and (iii) Amended and Restated Loan and Security Agreement, dated as of January 24, 2006,
among American Railcar Industries, Inc., North Fork Business Capital Corporation, as agent, and the
lenders from time to time party thereto, as amended.



Mortgage means a mortgage, deed of trust, leasehold mortgage or similar instrument
granting the Administrative Agent a Lien on real property of any Loan Party.



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


 


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Net Cash Proceeds means:




(a) with respect to any Asset Disposition, the aggregate cash proceeds (including cash
proceeds received pursuant to policies of insurance or 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 Asset Disposition net of (i) the
direct costs relating to such sale, transfer or other disposition (including sales
commissions and legal, accounting and investment banking fees), (ii) taxes paid or
reasonably estimated by the Borrower to be payable as a result thereof
(after taking into account any available tax credits or deductions and any tax sharing
arrangements) and (iii) amounts required to be applied to the repayment of any Debt secured
by a Lien on the asset subject to such Asset Disposition (other than the Loans);




(b) with respect to any issuance of Capital Securities, the aggregate cash proceeds
received by any Loan Party pursuant to such issuance, net of the direct costs relating to
such issuance (including sales and underwriters’ commissions, legal and accounting fees);
and




(c) with respect to any issuance of Debt, the aggregate cash proceeds received by any
Loan Party pursuant to such issuance, net of the direct costs of such issuance (including
up-front, underwriters’, placement, legal and accounting fees).



Net Tax Benefit means (i) the total amount of reduction in the income tax liability of
the members of the Borrower realized as a result of any loss generated by the Borrower and its
Subsidiaries’ business during any prior tax year, assuming in such calculation that the full amount
of such loss has been used to reduce such members’ gross income in the same tax year that such loss
was generated by the Borrower and its Subsidiaries’ business, plus (ii) the amount by which (a) the
aggregate amount of Tax Distributions made, based on good faith estimates, to such members in any
such tax year is in excess of (b) the maximum permitted Tax Distributions for such tax year based
on the Borrower’s audited financial statements delivered to Administrative Agent pursuant to
Section 10.1.1; provided, that, to the extent that any loss is included in clause
(i) above in calculating Net Tax Benefit then the amount to be used for such loss in clause (ii)(b)
above in calculating the Net Tax Benefit shall be deemed to be zero dollars ($0).



Net Worth means, as of any date, the sum of the capital stock and additional paid-in
capital plus retained earnings (or minus accumulated deficit) calculated in conformity with GAAP;
provided, that, to the extent the sum would otherwise result in a reduction to Net Worth as
of any date of calculation, any increase to the Term Loan as of the result of the capitalization of
any interest, fees, costs and expenses in accordance with the terms of this Agreement shall be
disregarded in the calculation of Net Worth.




Non-U.S. Participant — see Section 7.6(d).


 


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Non-Use Fee Rate — means during the Construction Period, 0.375% per annum and 0.25%
per annum at all other times.




Note means a promissory note substantially in the form of Exhibit A.




Notice of Borrowing — see Section 2.2.2.




Notice of Conversion/Continuation — see Section 2.2.3.



Obligations means all obligations (monetary (including post-petition interest, allowed
or not) or otherwise) of any Loan Party under this Agreement and any other Loan
Document including Attorney Costs and any reimbursement obligations of each Loan Party in
respect of Letters of Credit and surety bonds, all Hedging Obligations permitted hereunder which
are owed to any Lender or Administrative Agent, and all Bank Product Obligations, all 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.




OFAC — see Section 10.4.



Operating Lease means any lease of (or other agreement conveying the right to use) any
real or personal property by any Loan Party, as lessee, other than any Capital Lease.



Outside Completion Date means the date that is eighteen (18) months following the
Closing Date; provided that if work on the Project is materially delayed due to the
occurrence of a Force Majeure Event, such date shall be extended to the date that is twenty-four
(24) months following the Closing Date.



Paid in Full means, with respect to any Obligations, (a) the payment in full in cash
of all such Obligations (other than (i) contingent indemnification obligations to the extent no
claim giving rise thereto has been asserted and (ii) Hedging Obligations that, at the time of
determination, are allowed by the Person that such Hedging Obligations are owing to remain
outstanding or are not required to be repaid or Cash Collateralized pursuant to the provisions of
any document governing the Hedging Obligations), (b) the termination or expiration of all of the
Commitments and (c) in connection with the termination or expiration of the Commitments, either (i)
the cancellation and return to Administrative Agent of all Letters of Credit or (ii) the Cash
Collateralization of all Letters of Credit in a manner reasonably acceptable to Administrative
Agent.




Participant — see Section 15.6.2.



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 or the minimum funding standards of ERISA (other than a
Multiemployer Pension Plan), and as to which the Borrower or any member of the Controlled Group may
have any liability, including any liability by reason of having been a substantial employer within
the meaning of Section 4063 of ERISA at any time during the preceding five years, or by reason of
being deemed to be a contributing sponsor under Section 4069 of ERISA.


 


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Permitted Lien means a Lien expressly permitted hereunder pursuant to Section
11.2.



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.



Pledge Agreement means a Pledge Agreement, substantially in the form of Exhibit H
hereto, to be executed and delivered by Pledgor and Administrative Agent pursuant to Section
13.1.16.



Pledgor means, commencing no later than thirty (30) days following the Closing Date, a
limited liability company organized under the laws of Delaware, which entity shall own and control
100% of all the outstanding capital securities of the Borrower. For purposes of clarity, the
Administrative Agent and the Lenders acknowledge that, pursuant to Section 11.16 and
subject to the Administrative Agent’s and Lenders’ consent rights therein, on the date the Pledge
Agreement is entered into (i) the Borrower as of the date hereof may become the Pledgor and (ii)
Newco (as defined in Section 11.16) may become the Borrower.



Prime Rate means, for any day, the rate of interest in effect for such day as publicly
announced from time to time by the Administrative Agent as its prime rate (whether or not such rate
is actually charged by the Administrative Agent), which is not intended to be the Administrative
Agent’s lowest or most favorable rate of interest at any one time. Any change in the Prime Rate
announced by the Administrative Agent shall take effect at the opening of business on the day
specified in the public announcement of such change; provided that the Administrative Agent
shall not be obligated to give notice of any change in the Prime Rate.




Pro Rata Share means:




(a) with respect to a Lender’s obligation to make Revolving Loans, participate in
Letters of Credit, reimburse the Issuing Lender, and receive payments of principal,
interest, fees, costs, and expenses with respect thereto, (x) prior to the aggregate
Revolving Commitment being terminated or reduced to zero, the percentage obtained by
dividing (i) such Lender’s Revolving Commitment, by (ii) the aggregate Revolving Commitment
of all Lenders, and (y) from and after the time the Revolving Commitment has been terminated
or reduced to zero, the percentage obtained by dividing (i) the aggregate unpaid principal
amount of such Lender’s Revolving Outstandings (after settlement and repayment of all Swing
Line Loans by the Lenders) by (ii) the aggregate unpaid principal amount of all Revolving
Outstandings;




(b) with respect to a Lender’s obligation to make any portion of the Term Loan and
receive payments of interest, fees, and principal with respect thereto, (x) prior to the
aggregate Term Loan Commitment being terminated or reduced to zero, the percentage obtained
by dividing (i) such Lender’s Term Loan Commitment, by (ii) the aggregate Term Loan
Commitment of all Lenders, and (y) from and after the time the Term Loan Commitment has been
terminated or reduced to zero, the percentage obtained by dividing (i) the aggregate unpaid
principal amount of such Lender’s portion of the Term Loan, by (ii) the aggregate unpaid
principal amount of the Term Loan;


 


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(c) with respect to all other matters as to a particular Lender, the percentage
obtained by dividing (i) such Lender’s Revolving Commitment plus such Lender’s Term
Loan Commitment, by (ii) the aggregate amount of Revolving Commitment of all Lenders
plus the Term Loan Commitment of all Lenders;
provided that in the event the Commitments have been terminated or reduced to
zero, Pro Rata Share shall be the percentage obtained by dividing (A) the principal amount
of such Lender’s Revolving Outstandings (after settlement and repayment of all Swing Line
Loans by the Lenders) plus the unpaid principal amount of such Lender’s portion of
the Term Loan by (B) the principal amount of all outstanding Revolving Outstandings
plus the unpaid principal amount of the Term Loan.




Project has the meaning as defined in the Construction Rider.




Refunded Swing Line Loan — see Section 2.2.4(c).




Regulation D means Regulation D of the FRB.




Regulation U means Regulation U of the FRB.




Replacement Lender — see Section 8.7(b).



Required Lenders means, at any time, Lenders whose Pro Rata Shares exceed 51% as
determined pursuant to clause (c) of the definition of “Pro Rata Share”.



Revolving Commitment means, as to any Lender, the amount specified for such Lender as
the “Revolving Commitment Amount” on Annex A hereto, subject to adjustment pursuant to any and all
Assignment Agreements entered into by such Lender following the Closing Date, in each case as such
amount may be reduced from time to time pursuant to Section 6.1 and/or Section
13.2. On the Closing Date, the aggregate Revolving Commitments of all Lenders is $10,000,000.




Revolving Loan — see Section 2.1.1.



Revolving Loan Availability means the lesser of (i) the aggregate Revolving Commitment
and (ii) the Borrowing Base.



Revolving Outstandings means, at any time, the sum of (a) the aggregate principal
amount of all outstanding Revolving Loans, plus (b) the Stated Amount of all Letters of Credit.


 


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SEC means the Securities and Exchange Commission or any other governmental authority
succeeding to any of the principal functions thereof.



Security Agreement means the Security Agreement dated as of the Closing Date by and
between the Borrower and Administrative Agent.



Senior Officer means, with respect to any Loan Party, any of the chief executive
officer, the chief financial officer, the chief operating officer, the secretary or the treasurer
of such Loan Party.



Specified Definition means of each of the defined terms “Required Lenders”,
“Acceptance Date,” “Completion Date,” and “Outside Completion Date,” set forth herein or in the
Construction Rider.



Stated Amount means, with respect to any Letter of Credit at any date of
determination, (a) the maximum aggregate amount available for drawing thereunder under any and all
circumstances plus (b) the aggregate amount of all unreimbursed payments and disbursements under
such Letter of Credit.



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 Capital Securities as 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 Subsidiaries herein shall be a
reference to Subsidiaries of the Borrower.



Swing Line Availability means the lesser of (a) the Swing Line Commitment Amount and
(b) Revolving Loan Availability (less Revolving Outstandings at such time).



Swing Line Commitment Amount means $2,000,000, as reduced from time to time pursuant
to Section 6.1 and/or Section 13.2, which commitment constitutes a subfacility of
the Revolving Commitment of the Swing Line Lender.




Swing Line Lender means LaSalle.




Swing Line Loan — see Section 2.2.4.



Tax Distributions means, for any taxable year for which the Borrower is treated under
the Code as a partnership for income tax purposes or disregarded under the Code as an entity
separate from its owners for income tax purposes, dividends and/or distributions paid by the
Borrower to its members in an amount not to exceed the product of (i) taxable income related to
such members’ ownership interest in the Borrower multiplied by (ii) the highest combined net
corporate federal and state income tax rate in any state in which any member resides which are
applicable in such taxable year.



Taxes means any and all present and future taxes, duties, levies, imposts, deductions,
assessments, charges or withholdings, and any and all liabilities (including interest and penalties
and other additions to taxes) with respect to the foregoing, but excluding Excluded Taxes.


 


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Term Loan Commitment means, as to any Lender, the amount specified for such Lender as
the “Term Loan Commitment” on Annex A hereto, subject to adjustment pursuant to any and all
Assignment Agreements entered into by such Lender following the Closing Date, in each case as such
amount may be reduced from time to time pursuant to Section 13.2. On the Closing Date, the
aggregate Term Loan Commitment of all Lenders is $60,000,000.




Term Loans — see Section 2.1.3.



Term Loan Maturity Date means the earlier of (a) the seven year anniversary of the
Completion Date or (b) such other date on which the Commitments terminate pursuant to Section
6 or Section 13.



Termination Date means the earlier to occur of (a) December 28, 2012 or (b) such other
date on which the Commitments terminate pursuant to Section 6 or Section 13.



Transaction Party means each Loan Party, each Pledgor and, until such time that the
Guaranties shall have terminated in accordance with their terms, each Guarantor.




type — see Section 2.2.1.




UCC is defined in the Security Agreement.



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




Withholding Certificate — see Section 7.6(d).



Wholly-Owned Subsidiary means, as to any Person, a Subsidiary all of the Capital
Securities of which (except directors’ qualifying Capital Securities) are at the time directly or
indirectly owned by such Person and/or another Wholly-Owned Subsidiary of such Person.




1.2. Other Interpretive Provisions.



(a) The meanings of defined terms are equally applicable to the singular and plural forms of
the defined terms.



(b) Section, Annex, Schedule and Exhibit references are to this Agreement unless otherwise
specified.




(c) The term “including” is not limiting and means “including without limitation.”


 


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(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 herein, (i) references to agreements (including this
Agreement and the other Loan Documents) and other contractual instruments shall be deemed to
include all subsequent amendments, restatements, supplements and other modifications thereto, but
only to the extent such amendments, restatements, supplements 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 such limitations, tests and
measurements are cumulative and each shall be performed in accordance with its terms.



(g) This Agreement and the other Loan Documents are the result of negotiations among and have
been reviewed by counsel to the Administrative Agent, the Borrower, the Lenders and the other
parties thereto and are the products of all parties. Accordingly, they shall not be construed
against the Administrative Agent or the Lenders merely because of the Administrative Agent’s or
Lenders’ involvement in their preparation.



SECTION 2. COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT
PROCEDURES.




2.1. Commitments.



On and subject to the terms and conditions of this Agreement, each of the Lenders, severally
and for itself alone, agrees to make loans to, and to issue or participate in letters of credit for
the account of, the Borrower as follows:



2.1.1. Revolving Loan Commitment. Each Lender with a Revolving Loan Commitment agrees
to make loans on a revolving basis (“Revolving Loans”) from time to time until the
Termination Date in such Lender’s Pro Rata Share of such aggregate amounts as the Borrower may
request from all Lenders; provided that the Revolving Outstandings will not at any time
exceed Revolving Loan Availability (less the amount of any Swing Line Loans outstanding at such
time).



2.1.2. Term Loan Commitment. Each Lender with a Term Loan Commitment agrees to make
loans from time to time (all such loans collectively being the “Term Loan”) in such
Lender’s Pro Rata Share of the Term Loan Commitment. The Commitments of the Lenders to make Term
Loans shall expire on December 28, 2009.


 


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2.1.3. L/C Commitment. Subject to Section 2.3.1, the Issuing Lender agrees to
issue letters of credit, in each case containing such terms and conditions as are permitted by this
Agreement and are reasonably satisfactory to the Issuing Lender (each, a “Letter of
Credit”), at the request of and for the account of the Borrower from time to time before the
scheduled Termination Date and, as more fully set forth in Section 2.3.2, each Lender
agrees to purchase a participation in each such Letter of Credit; provided that (a) the
aggregate Stated Amount of all Letters of Credit shall not at any time exceed $2,000,000 and (b)
the Revolving Outstandings shall not at any time exceed Revolving Loan Availability (less the
amount of any Swing Line Loans outstanding at such time).




2.2. Loan Procedures.



2.2.1. Various Types of Loans. Each Revolving Loan shall be, and each funded portion
of the Term Loan may be divided into tranches which are, either a Base Rate Loan or a LIBOR Loan
(each a “type” of Loan), as the Borrower shall specify in the related notice of borrowing
or conversion pursuant to Section 2.2.2 or 2.2.3. LIBOR Loans having the same
Interest Period which expire on the same day are sometimes called a “Group” or collectively
“Groups”. Base Rate Loans and LIBOR Loans may be outstanding at the same time,
provided that not more than eight (8) different Groups of LIBOR Loans shall be outstanding
at any one time. All borrowings, conversions and repayments of Revolving Loans shall be effected
so that each Lender will have a ratable share (according to its Pro Rata Share) of all types and
Groups of Loans.



2.2.2. Borrowing Procedures. With respect to borrowings consisting of Revolving
Loans, the Borrower shall give written notice (each such written notice, a “Notice of
Borrowing”) substantially in the form of Exhibit E or telephonic notice (followed
immediately by a Notice of Borrowing) to the Administrative Agent of each proposed borrowing not
later than (a) in the case of a Base Rate borrowing, 11:00 A.M., Chicago time, on the proposed date
of such borrowing, and (b) in the case of a LIBOR borrowing, 11:00 A.M., Chicago time, at least
three Business Days prior to the proposed date of such borrowing. Each such notice shall be
effective upon receipt by the Administrative Agent, shall be irrevocable, and shall specify the
date, amount and type of borrowing and, in the case of a LIBOR borrowing, the initial Interest
Period therefor. Promptly upon receipt of such notice, the Administrative Agent shall advise each
Lender thereof. Not later than 1:00 P.M., Chicago time, on the date of a proposed borrowing, each
Lender shall provide the Administrative Agent at the office specified by the Administrative Agent
with immediately available funds covering such Lender’s Pro Rata Share of such borrowing and, so
long as the Administrative Agent has not received written notice that the conditions precedent set
forth in Section 12 with respect to such borrowing have not been satisfied, the
Administrative Agent shall pay over the funds received by the Administrative Agent to the Borrower
on the requested borrowing date. Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any borrowing that such Lender will not make available to the
Administrative Agent its respective share of such borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with this Section and
may, in reliance upon such assumption, make available to the respective Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the applicable borrowing
available to the Administrative Agent, then the applicable Lender and the Borrower severally agree
to pay to the Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender,
the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation or (ii) in the case of the
Borrower, the interest rate applicable to Base Rate Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan included in such
borrowing. Each borrowing shall be on a Business Day. Each Base Rate borrowing shall be in
an aggregate amount of at least $100,000 and an integral multiple of $5,000, and each LIBOR
borrowing shall be in an aggregate amount of at least $100,000 and an integral multiple of at least
$5,000. For purposes of clarification, borrowing procedures in respect of Term Loans shall be
governed by the terms of the Construction Rider.


 


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2.2.3. Conversion and Continuation Procedures.



(a) Subject to Section 2.2.1, the Borrower may, upon irrevocable written notice to the
Administrative Agent in accordance with clause (b) below:




(A) elect, as of any Business Day, to convert any Loans (or any part thereof in
an aggregate amount not less than $100,000 a higher integral multiple of $5,000)
into Loans of the other type; or




(B) elect, 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 $100,000 or a higher integral multiple of $5,000)
for a new Interest Period;



provided that after giving effect to any prepayment, conversion or continuation, the
aggregate principal amount of each Group of LIBOR Loans shall be at least $100,000 and an integral
multiple of $5,000.



(b) The Borrower shall give written notice (each such written notice, a “Notice of
Conversion/Continuation”) substantially in the form of Exhibit F or telephonic notice
(followed immediately by a Notice of Conversion/Continuation) to the Administrative Agent of each
proposed conversion or continuation not later than (i) in the case of conversion into Base Rate
Loans, 11:00 A.M., Chicago time, on the proposed date of such conversion and (ii) in the case of
conversion into or continuation of LIBOR Loans, 11:00 A.M., Chicago time, at least three Business
Days prior to the proposed date of such conversion or continuation, specifying in each case:




(A) the proposed date of conversion or continuation;




(B) the aggregate amount of Loans to be converted or continued;




(C) the type of Loans resulting from the proposed conversion or continuation;
and


 


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(D) 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, the Borrower has
failed to select timely a new Interest Period to be applicable
to such LIBOR Loans, the 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) The Administrative Agent will promptly notify each Lender of its receipt of a notice of
conversion or continuation pursuant to this Section 2.2.3 or, if no timely notice is
provided by the Borrower, of the details of any automatic conversion.



(e) Any conversion of a LIBOR Loan on a day other than the last day of an Interest Period
therefor shall be subject to Section 8.4.




2.2.4. Swing Line Facility.



(a) The Administrative Agent shall notify the Swing Line Lender upon the Administrative
Agent’s receipt of any Notice of Borrowing with respect to any requested Revolving Loan. Subject
to the terms and conditions hereof, the Swing Line Lender may, in its sole discretion, make
available from time to time until the Termination Date advances (each, a “Swing Line Loan”)
in accordance with any such notice, notwithstanding that after making a requested Swing Line Loan,
the sum of the Swing Line Lender’s Pro Rata Share of the Revolving Outstanding and all outstanding
Swing Line Loans, may exceed the Swing Line Lender’s Pro Rata Share of the Revolving Commitment.
The provisions of this Section 2.2.4 shall not relieve Lenders of their obligations to make
Revolving Loans under Section 2.1.1; provided that if the Swing Line Lender makes a
Swing Line Loan pursuant to any such notice, such Swing Line Loan shall be in lieu of any Revolving
Loan that otherwise may be made by the Lenders pursuant to such notice. The aggregate amount of
Swing Line Loans outstanding shall not exceed at any time Swing Line Availability. Until the
Termination Date, the Borrower may from time to time borrow, repay and reborrow under this
Section 2.2.4. Each Swing Line Loan shall be made pursuant to a Notice of Borrowing
delivered by the Borrower to the Administrative Agent in accordance with Section 2.2.2.
Any such notice must be given no later than 2:00 P.M., Chicago time, on the Business Day of the
proposed Swing Line Loan. Unless the Swing Line Lender has received at least one Business Day’s
prior written notice from the Required Lenders instructing it not to make a Swing Line Loan, the
Swing Line Lender shall, notwithstanding the failure of any condition precedent set forth in
Section 12.2, be entitled to fund that Swing Line Loan, and to have such Lender make
Revolving Loans in accordance with Section 2.2.4(c) or purchase participating interests in
accordance with Section 2.2.4(d). Notwithstanding any other provision of this Agreement
or the other Loan Documents, each Swing Line Loan shall constitute a Base Rate Loan. The Borrower
shall repay the aggregate outstanding principal amount of each Swing Line Loan upon demand therefor
by the Administrative Agent.


 


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(b) The entire unpaid balance of each Swing Line Loan and all other noncontingent Obligations
shall be immediately due and payable in full in immediately available funds on the Termination Date
if not sooner paid in full.



(c) The Swing Line Lender, at any time and from time to time no less frequently than once
weekly, shall on behalf of the Borrower (and the Borrower hereby
irrevocably authorizes the Swing Line Lender to so act on its behalf) request each Lender with
a Revolving Commitment (including the Swing Line Lender) to make a Revolving Loan to the Borrower
(which shall be a Base Rate Loan) in an amount equal to that Lender’s Pro Rata Share of the
principal amount of all Swing Line Loans (the “Refunded Swing Line Loan”) outstanding on
the date such notice is given. Unless any of the events described in Section 13.1.4 has
occurred (in which event the procedures of Section 2.2.4(d) shall apply) and regardless of
whether the conditions precedent set forth in this Agreement to the making of a Revolving Loan are
then satisfied, each Lender shall disburse directly to the Administrative Agent, its Pro Rata Share
on behalf of the Swing Line Lender, prior to 2:00 P.M., Chicago time, in immediately available
funds on the date that notice is given (provided that such notice is given by 12:00 p.m.,
Chicago time, on such date). The proceeds of those Revolving Loans shall be immediately paid to
the Swing Line Lender and applied to repay the Refunded Swing Line Loan.



(d) If, prior to refunding a Swing Line Loan with a Revolving Loan pursuant to Section
2.2.4(c), one of the events described in Section 13.1.4 has occurred, then, subject to
the provisions of Section 2.2.4(e) below, each Lender shall, on the date such Revolving
Loan was to have been made for the benefit of the Borrower, purchase from the Swing Line Lender an
undivided participation interest in the Swing Line Loan in an amount equal to its Pro Rata Share of
such Swing Line Loan. Upon request, each Lender shall promptly transfer to the Swing Line Lender,
in immediately available funds, the amount of its participation interest.



(e) Each Lender’s obligation to make Revolving Loans in accordance with Section
2.2.4(c) and to purchase participation interests in accordance with Section 2.2.4(d)
shall be absolute and unconditional and shall not be affected by any circumstance, including (i)
any setoff, counterclaim, recoupment, defense or other right that such Lender may have against the
Swing Line Lender, the Borrower or any other Person for any reason whatsoever; (ii) the occurrence
or continuance of any Unmatured Event of Default or Event of Default; (iii) any inability of the
Borrower to satisfy the conditions precedent to borrowing set forth in this Agreement at any time
or (iv) any other circumstance, happening or event whatsoever, whether or not similar to any of the
foregoing. If and to the extent any Lender shall not have made such amount available to the
Administrative Agent or the Swing Line Lender, as applicable, by 2:00 P.M., Chicago time, the
amount required pursuant to Sections 2.2.4(c) or 2.2.4(d), as the case may be, on the
Business Day on which such Lender receives notice from the Administrative Agent of such payment or
disbursement (it being understood that any such notice received after noon, Chicago time, on any
Business Day shall be deemed to have been received on the next following Business Day), such Lender
agrees to pay interest on such amount to the Administrative Agent for the Swing Line Lender’s
account forthwith on demand, for each day from the date such amount was to have been delivered to
the Administrative Agent to the date such amount is paid, at a rate per annum equal to (a) for the
first three days after demand, the Federal Funds Rate from time to time in effect and (b)
thereafter, the Base Rate from time to time in effect.


 


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2.3. Letter of Credit Procedures.



2.3.1. L/C Applications. The Borrower shall execute and deliver to the Issuing Lender
the Master Letter of Credit Agreement. The Borrower shall give notice to the Administrative Agent
and the Issuing Lender of the proposed issuance of each Letter of Credit on a Business Day which is
at least three Business Days (or such lesser number of days as the Administrative Agent and the
Issuing Lender shall agree in any particular instance in their sole discretion) prior to the
proposed date of issuance of such Letter of Credit. Each such notice shall be accompanied by an
L/C Application, duly executed by the Borrower and in all respects satisfactory to the
Administrative Agent and the Issuing Lender, together with such other documentation as the
Administrative Agent or the Issuing Lender may reasonably request in support thereof, it being
understood that each L/C Application shall specify, among other things, the date on which the
proposed Letter of Credit is to be issued, the expiration date of such Letter of Credit (which
shall not be later than the scheduled Termination Date (unless such Letter of Credit is Cash
Collateralized)) and whether such Letter of Credit is to be transferable in whole or in part. Any
Letter of Credit outstanding after the scheduled Termination Date which is Cash Collateralized for
the benefit of the Issuing Lender shall be the sole responsibility of the Issuing Lender. So long
as the Issuing Lender has not received written notice that the conditions precedent set forth in
Section 12 with respect to the issuance of such Letter of Credit have not been satisfied,
the Issuing Lender shall issue such Letter of Credit on the requested issuance date. The Issuing
Lender shall promptly advise the Administrative Agent of the issuance of each Letter of Credit and
of any amendment thereto, extension thereof or event or circumstance changing the amount available
for drawing thereunder. In the event of any inconsistency between the terms of the Master Letter
of Credit Agreement, any L/C Application and the terms of this Agreement, the terms of this
Agreement shall control.



2.3.2. Participations in Letters of Credit. Concurrently with the issuance of each
Letter of Credit, the Issuing Lender shall be deemed to have sold and transferred to each Lender
with a Revolving Loan Commitment, and each such Lender shall be deemed irrevocably and
unconditionally to have purchased and received from the Issuing Lender, without recourse or
warranty, an undivided interest and participation, to the extent of such Lender’s Pro Rata Share,
in such Letter of Credit and the Borrower’s reimbursement obligations with respect thereto. If the
Borrower does not pay any reimbursement obligation when due, the Borrower shall be deemed to have
immediately requested that the Lenders make a Revolving Loan which is a Base Rate Loan in a
principal amount equal to such reimbursement obligations. The Administrative Agent shall promptly
notify such Lenders of such deemed request and, without the necessity of compliance with the
requirements of Section 2.2.2, Section 12.2 or otherwise such Lender shall make
available to the Administrative Agent its Pro Rata Share of such Loan. The proceeds of such Loan
shall be paid over by the Administrative Agent to the Issuing Lender for the account of the
Borrower in satisfaction of such reimbursement obligations. For the purposes of this Agreement,
the unparticipated portion of each Letter of Credit shall be deemed to be the Issuing Lender’s
“participation” therein. The Issuing Lender hereby agrees, upon request of the Administrative
Agent or any Lender, to deliver to the Administrative Agent or such Lender a
list of all outstanding Letters of Credit issued by the Issuing Lender, together with such
information related thereto as the Administrative Agent or such Lender may reasonably request.


 


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2.3.3. Reimbursement Obligations.



(a) The Borrower hereby unconditionally and irrevocably agrees to reimburse the Issuing Lender
for each payment or disbursement made by the Issuing Lender under any Letter of Credit honoring any
demand for payment made by the beneficiary thereunder, in each case on the date that such payment
or disbursement is made. Any amount not reimbursed on the date of such payment or disbursement
shall bear interest from the date of such payment or disbursement to the date that the Issuing
Lender is reimbursed by the Borrower therefor, payable on demand, at a rate per annum equal to the
Base Rate from time to time in effect plus the Base Rate Margin from time to time in effect
plus, beginning on the third Business Day after receipt of notice from the Issuing Lender
of such payment or disbursement, 2%. The Issuing Lender shall notify the Borrower and the
Administrative Agent whenever any demand for payment is made under any Letter of Credit by the
beneficiary thereunder; provided that the failure of the Issuing Lender to so notify the
Borrower or the Administrative Agent shall not affect the rights of the Issuing Lender or the
Lenders in any manner whatsoever.



(b) The Borrower’s reimbursement obligations hereunder shall be irrevocable and unconditional
under all circumstances, including (a) any lack of validity or enforceability of any Letter of
Credit, this Agreement or any other Loan Document, (b) the existence of any claim, set-off, defense
or other right which any Loan Party may have at any time against a beneficiary named in a Letter of
Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, the Issuing Lender, any Lender or any other Person, whether in
connection with any Letter of Credit, this Agreement, any other Loan Document, the transactions
contemplated herein or any unrelated transactions (including any underlying transaction between any
Loan Party and the beneficiary named in any Letter of Credit), (c) the validity, sufficiency or
genuineness of any document which the Issuing Lender has determined complies on its face with the
terms of the applicable Letter of Credit, even if such document should later prove to have been
forged, fraudulent, invalid or insufficient in any respect or any statement therein shall have been
untrue or inaccurate in any respect, or (d) the surrender or impairment of any security for the
performance or observance of any of the terms hereof. Without limiting the foregoing, no action or
omission whatsoever by the Administrative Agent or any Lender (excluding any Lender in its capacity
as the Issuing Lender) under or in connection with any Letter of Credit or any related matters
shall result in any liability of the Administrative Agent or any Lender to the Borrower, or relieve
the Borrower of any of its obligations hereunder to any such Person.


 


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2.3.4. Funding by Lenders to Issuing Lender. If the Issuing Lender makes any payment
or disbursement under any Letter of Credit and (a) the Borrower has not reimbursed the Issuing
Lender in full for such payment or disbursement by 11:00 A.M., Chicago time, on the date of such
payment or disbursement, (b) a Revolving Loan may not
be made in accordance with Section 2.3.2 or (c) any reimbursement received by the
Issuing Lender from the Borrower is or must be returned or rescinded upon or during any bankruptcy
or reorganization of the Borrower or otherwise, each other Lender with a Revolving Loan Commitment
shall be obligated to pay to the Administrative Agent for the account of the Issuing Lender, in
full or partial payment of the purchase price of its participation in such Letter of Credit, its
Pro Rata Share of such payment or disbursement (but no such payment shall diminish the obligations
of the Borrower under Section 2.3.3), and, upon notice from the Issuing Lender, the
Administrative Agent shall promptly notify each other Lender thereof. Each other Lender
irrevocably and unconditionally agrees to so pay to the Administrative Agent in immediately
available funds for the Issuing Lender’s account the amount of such other Lender’s Pro Rata Share
of such payment or disbursement. If and to the extent any Lender shall not have made such amount
available to the Administrative Agent by 2:00 P.M., Chicago time, on the Business Day on which such
Lender receives notice from the Administrative Agent of such payment or disbursement (it being
understood that any such notice received after noon, Chicago time, on any Business Day shall be
deemed to have been received on the next following Business Day), such Lender agrees to pay
interest on such amount to the Administrative Agent for the Issuing Lender’s account forthwith on
demand, for each day from the date such amount was to have been delivered to the Administrative
Agent to the date such amount is paid, at a rate per annum equal to (a) for the first three days
after demand, the Federal Funds Rate from time to time in effect and (b) thereafter, the Base Rate
from time to time in effect. Any Lender’s failure to make available to the Administrative Agent
its Pro Rata Share of any such payment or disbursement shall not relieve any other Lender of its
obligation hereunder to make available to the Administrative Agent such other Lender’s Pro Rata
Share of such payment, but no Lender shall be responsible for the failure of any other Lender to
make available to the Administrative Agent such other Lender’s Pro Rata Share of any such payment
or disbursement.




2.4. Commitments Several.



The failure of any Lender to make a requested Loan on any date shall not relieve any other
Lender of its obligation (if any) to make a Loan on such date, but no Lender shall be responsible
for the failure of any other Lender to make any Loan to be made by such other Lender.




2.5. Certain Conditions.



Except as otherwise provided in Sections 2.2.4 and 2.3.4 of this Agreement, no Lender shall
have an obligation to make any Loan, or to permit the continuation of or any conversion into any
LIBOR Loan, and the Issuing Lender shall not have any obligation to issue any Letter of Credit, if
an Event of Default or Unmatured Event of Default exists.


 


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SECTION 3. EVIDENCING OF LOANS.



3.1. Notes.



The Loans of each Lender shall be evidenced by a Note, with appropriate insertions, payable to
the order of such Lender in a face principal amount equal to the sum of such Lender’s Revolving
Loan Commitment plus such Lender’s Term Loan Commitment.




3.2. Recordkeeping.



The Administrative Agent, on behalf of each Lender, shall record in its records, the date and
amount of each Loan made by each Lender, 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 the Borrower hereunder or under any Note to repay the principal amount of the Loans hereunder,
together with all interest accruing thereon.



SECTION 4. INTEREST.



4.1.  Interest Rates.



The Borrower promises to pay interest on the unpaid principal amount of each Loan for the
period commencing on the date of such Loan until such Loan is paid in full as follows:



(a) at all times while 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 Base Rate Margin from time to time in effect;
and



(b) at all times while such Loan is a LIBOR Loan, at a rate per annum equal to the sum of the
LIBOR Rate applicable to each Interest Period for such Loan plus the LIBOR Margin from time to time
in effect;



provided that at any time an Event of Default exists, unless the Required Lenders otherwise
consent, the interest rate applicable to each Loan shall be increased by 2% (and, in the case of
Obligations not bearing interest, such Obligations shall bear interest at the Base Rate applicable
to Revolving Loans plus 2%), provided further that such increase may thereafter be
rescinded by the Required Lenders, notwithstanding Section 15.1. Notwithstanding the
foregoing, upon the occurrence of an Event of Default under Sections 13.1.1 or
13.1.4, such increase shall occur automatically.


 


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4.2. Interest Payment Dates; Capitalization.



(a) Accrued interest on each Base Rate Loan shall be payable in arrears on the last day of
each calendar quarter and at maturity. Accrued interest on each LIBOR Loan shall be payable on the
last day of each Interest Period relating to such Loan (and, in the case of a LIBOR Loan with an
Interest Period in excess of three months, on the three-month anniversary of the first day of such
Interest Period), upon a prepayment of such Loan, and at maturity. After maturity, and at any time
an Event of Default exists, accrued interest on all Loans shall be payable on demand.



(b) Notwithstanding any provision of this Agreement or the other Loan Documents, so long as no
Event of Default is then in existence, during the period from the Closing Date to the Completion
Date Borrower may elect, in its sole discretion, to satisfy any interest due and payable pursuant
to this Section 4.2 by increasing the outstanding principal amount of the Term Loan by the
amount of interest otherwise due and payable in cash during such period.




4.3. Setting and Notice of LIBOR Rates.



The applicable LIBOR Rate for each Interest Period shall be determined by the Administrative
Agent, and notice thereof shall be given by the Administrative Agent promptly to the Borrower and
each Lender. Each determination of the applicable LIBOR Rate by the Administrative Agent shall be
conclusive and binding upon the parties hereto, in the absence of demonstrable error. The
Administrative Agent shall, upon written request of the Borrower or any Lender, deliver to the
Borrower or such Lender a statement showing the computations used by the Administrative Agent in
determining any applicable LIBOR Rate hereunder.




4.4. Computation of Interest.



Interest shall be computed for the actual number of days elapsed on the basis of a year of 360
days; provided, that with respect to Base Rate Loans interest shall be computed for the
actual number of days elapsed on the basis of a year of 365 or 366 days, as applicable. The
applicable interest rate for each Base Rate Loan shall change simultaneously with each change in
the Base Rate.



SECTION 5. FEES.



5.1. Non-Use Fee.



The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
non-use fee, for the period from the Closing Date to the Termination Date, at the Non-Use Fee Rate
in effect from time to time of such Lender’s Pro Rata Share (as adjusted from time to time) of the
unused amount of the Commitments. For purposes of calculating usage under this Section, the
Revolving Commitment shall be deemed used to the extent of Revolving Outstandings. Such non-use
fee shall be payable in arrears on the last day of each calendar quarter and on the Termination
Date for any period then ending for
which such non-use fee shall not have previously been paid. The non-use fee shall be computed
for the actual number of days elapsed on the basis of a year of 360 days. Notwithstanding the
foregoing, such non-use fee shall not be due and owing following the Completion Date with respect
to any remaining Term Loan Commitment.


 


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5.2. Letter of Credit Fees.



The Borrower agrees to pay to the Administrative Agent for the account of each Lender a letter
of credit fee for each Letter of Credit equal to the L/C Fee Rate in effect from time to time of
such Lender’s Pro Rata Share (as adjusted from time to time) of the undrawn amount of such Letter
of Credit (computed for the actual number of days elapsed on the basis of a year of 360 days);
provided that, unless the Required Lenders otherwise consent, the rate applicable to each
Letter of Credit shall be increased by 2% at any time that an Event of Default exists. Such letter
of credit fee shall be payable in arrears on the last day of each calendar quarter and on the
Termination Date (or such later date on which such Letter of Credit expires or is terminated) for
the period from the date of the issuance of each Letter of Credit (or the last day on which the
letter of credit fee was paid with respect thereto) to the date such payment is due or, if earlier,
the date on which such Letter of Credit expired or was terminated.




5.3. Administrative Agent’s Fees.



The Borrower agrees to pay to the Administrative Agent such agent’s fees as are mutually
agreed to from time to time by the Borrower and the Administrative Agent including the fees set
forth in the Agent Fee Letter.




5.4. Fee Capitalization.



Notwithstanding any provision of this Agreement or any other Loan Document, so long as no
Event of Default is then in existence, during the period from the Closing Date to the Completion
Date, Borrower may elect, in its sole discretion, to satisfy any fees due and payable pursuant to
this Section 5 by increasing the outstanding principal amount of the Term Loan by the
amount of such fees otherwise due and payable in cash during such period.




SECTION 6. REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS.




6.1. Reduction or Termination of the Revolving Commitment.



6.1.1. Voluntary Reduction or Termination of the Revolving Commitment. The Borrower
may from time to time on at least five Business Days’ prior written notice received by the
Administrative Agent (which shall promptly advise each Lender thereof) permanently reduce the
Revolving Commitment to an amount not less than the Revolving Outstandings plus the
outstanding amount of all Swing Line Loans. Any such reduction shall be in an amount not less than
$500,000 or a higher integral multiple of $100,000. Concurrently with any reduction of the
Revolving Commitment to zero, the
Borrower shall pay all interest on the Revolving Loans, all non-use fees and all letter of
credit fees and shall Cash Collateralize in full all obligations arising with respect to the
Letters of Credit.


 


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6.1.2. Mandatory Reductions of Revolving Commitment. On the date of any Mandatory
Prepayment Event, the Revolving Commitment shall be permanently reduced by an amount (if any) equal
to the Designated Proceeds of such Mandatory Prepayment Event over the amount (if any) applied to
prepay Term Loans pursuant to Section 6.2.2.



6.1.3. All Reductions of the Revolving Commitment. All reductions of the Revolving
Commitment shall reduce the Revolving Commitments ratably among the Lenders according to their
respective Pro Rata Shares.




6.2. Prepayments.



6.2.1. Voluntary Prepayments. The Borrower may from time to time prepay the Loans
(subject to the provisions of Section 8.4, but without penalty and without any reduction of
the Revolving Commitments as a result thereof) in whole or in part; provided that the
Borrower shall give the Administrative Agent (which shall promptly advise each Lender) notice
thereof not later than 11:00 A.M., Chicago time, on the day of such prepayment (which shall be a
Business Day), specifying the Loans to be prepaid and the date and amount of prepayment. Any such
partial prepayment shall be in an amount equal to $100,000 or a higher integral multiple of $5,000.




6.2.2. Mandatory Prepayments.



(a) The Borrower shall make a prepayment of the Term Loan until paid in full upon the
occurrence of any of the following (each a “Mandatory Prepayment Event”) at the following
times and in the following amounts (such applicable amounts being referred to as “Designated
Proceeds”):




(i) Concurrently with the receipt by any Loan Party of any Net Cash Proceeds from any
Asset Disposition, in an amount equal to 100% of such Net Cash Proceeds.




(ii) Concurrently with the receipt by any Loan Party of any Net Cash Proceeds from any
issuance of any Debt of any Loan Party (excluding Debt permitted by clauses (a) through (e)
of Section 11.1), in an amount equal to 100% of such Net Cash Proceeds.




(iii) On or prior to the last Business Day of the second month after the end of the
first calendar quarter following the Completion Date, and on or prior to the last Business
Day of the second month after each calendar quarter thereafter (each such date being an
“ECF Payment Date”), in an amount equal to 50% of Excess Cash Flow for the most
recently ended four calendar quarters, minus the aggregate amount of any prepayments made
pursuant to this Section 6.2.2(a)(iii) for the last three ECF Payment Dates,
provided, however, that while an Event of Default exists, such
amount shall be equal to


 


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100%
of Excess Cash Flow for the most recently ended four
calendar quarters, minus the aggregate amount of any prepayments made pursuant to this
Section 6.2.2(a)(iii) for the last three ECF Payment Dates, and such payment shall
be made within 30 days after the end of the applicable calendar quarter. With respect to
any calendar quarter that is also the last quarter of a Fiscal Year, any such prepayment
required by this Section 6.2.2(iii) shall be reconciled with the financial
statements delivered by the Borrower to Administrative Agent and each Lender pursuant to
Section 10.1.1 of this Agreement with any such additional prepayments made within 30
days after such reconciliation or credited against future prepayments pursuant to this
Section 6.2.2(iii).



(b) If on any day the Revolving Outstandings plus the outstanding amount of the Swing
Line Loan exceeds the Borrowing Base, the Borrower shall immediately prepay Revolving Loans and/or
Cash Collateralize the outstanding Letters of Credit, or do a combination of the foregoing, in an
amount sufficient to eliminate such excess.



(c) If on any day on which the Revolving Commitment is reduced pursuant to Section
6.1.2 the Revolving Outstandings plus the outstanding amount of the Swing Line Loan
exceeds the Revolving Commitment, the Borrower shall immediately prepay Revolving Loans or Cash
Collateralize the outstanding Letters of Credit, or do a combination of the foregoing, in an amount
sufficient to eliminate such excess.




6.3. Manner of Prepayments.



6.3.1. All Prepayments. Any partial prepayment of a Group of LIBOR Loans shall be
subject to the proviso to Section 2.2.3(a). Any prepayment of a LIBOR Loan on a day other
than the last day of an Interest Period therefor shall include accrued and unpaid interest to the
date of such prepayment on the principal amount being repaid and shall be subject to Section
8.4. All prepayments of the Term Loan shall be applied in the inverse order of maturity to the
remaining installments thereof. Except as otherwise provided by this Agreement, all principal
payments in respect of the Loans (other than the Swing Line Loans) shall be applied first, to repay
outstanding Base Rate Loans and then to repay outstanding LIBOR Rate Loans in direct order of
Interest Period maturities.




6.4. Repayments.



6.4.1. Revolving Loans. The Revolving Loans of each Lender shall be paid in full and
the Revolving Commitment shall terminate on the Termination Date.



6.4.2. Term Loans. The Term Loan shall be paid in twenty-eight (28) equal
installments, based on the outstanding principal amount of the Term Loan on the Completion Date,
commencing on the last day of the first Fiscal Quarter after the Completion Date and continuing on
the last day of each Fiscal Quarter thereafter. Unless sooner paid in full, the outstanding
principal balance of the Term Loan shall be paid in full on the Term Loan Maturity Date.


 


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SECTION 7. MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.




7.1. Making of Payments.



All payments of principal or interest on the Notes, and of all fees, shall be made by the
Borrower to the Administrative Agent in immediately available funds at the office specified by the
Administrative Agent not later than noon, Chicago time, on the date due; and funds received after
that hour shall be deemed to have been received by the Administrative Agent on the following
Business Day. The Administrative Agent shall promptly remit to each Lender its share of all such
payments received in collected funds by the Administrative Agent for the account of such Lender.
All payments under Section 8.1 shall be made by the Borrower directly to the Lender entitled
thereto without setoff, counterclaim or other defense.




7.2. Application of Certain Payments.



7.2.1. Prior to Acceleration Event. So long as no Acceleration Event has occurred and
is continuing, (a) payments matching specific scheduled payments then due shall be applied to those
scheduled payments and (b) voluntary and mandatory prepayments shall be applied as set forth in
Sections 6.2 and 6.3.



7.2.2. During An Acceleration Event. If an Acceleration Event shall have occurred and
be continuing, notwithstanding anything herein or in any other Loan Document to the contrary,
Administrative Agent shall apply all or any part of payments in respect of the Obligations and
proceeds of Collateral, in each case as received by Administrative Agent, to the payment of the
Obligations in the following order:



(a) FIRST, to the payment of all fees, costs, expenses and indemnities due and owing to
Administrative Agent under this Agreement or any other Loan Document, and any other Obligations
owing to Administrative Agent in respect of sums advanced by Administrative Agent 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 Administrative Agent), until Paid in Full;



(b) SECOND, to the payment of all fees, costs, expenses and indemnities due and owing to
Lenders in respect of the Loans and Commitments, pro rata based on each Lender’s Pro Rate Share
thereof, until Paid in Full;



(c) THIRD, to the payment of all accrued and unpaid interest due and owing to Lenders in
respect of the Loans and Commitments, pro rata based on each Lender’s Pro Rata Share thereof, until
Paid in Full;



(d) FOURTH, to the payment of all principal of the Loans due and owning, pro rata based on
each Lender’s Pro Rata Share thereof, until Pain in Full;


 


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(e) FIFTH, pro rata to (A) the payment of Revolving Loans not then due and owing, pro rata
based on each Lender’s Pro Rata Share thereof, until Paid in Full, (B)
Cash Collateralize Obligations consisting of Term Loans not yet due and owing, pro rata based
on each Lender’s Pro Rata Share thereof, until Paid in Full, and (C) Cash Collateralize Obligations
in respect of outstanding Letters of Credit in a manner consistent with the provisions of
Section 13.2, pro rata based on each Lender’s Pro Rata Share thereof, until Paid in Full;



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



(g) SEVENTH, to the payment of all other Obligations owing to each Lender, pro rata based on
each Lender’s Pro Rata Share thereof, until Paid in Full.




7.3. Due Date Extension.



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 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.




7.4. Setoff.



The Borrower, for itself and each other Loan Party, agrees that the Administrative Agent and
each Lender have all rights of set-off and bankers’ lien provided by applicable law, and in
addition thereto, the Borrower, for itself and each other Loan Party, agrees that at any time any
Event of Default exists, the Administrative Agent and each Lender may apply to the payment of any
Obligations of the Borrower and each other Loan Party hereunder, whether or not then due, any and
all balances, credits, deposits, accounts or moneys of the Borrower and each other Loan Party then
or thereafter with the Administrative Agent or such Lender.




7.5. Proration of Payments.



If any Lender shall obtain any payment or other recovery (whether voluntary, involuntary, by
application of offset or otherwise, on account of (a) principal of or interest on any Loan, but
excluding (i) any payment pursuant to Section 8.7 or 15.6 and (ii) payments of
interest on any Affected Loan) or (b) its participation in any Letter of Credit) in excess of its
applicable Pro Rata Share of payments and other recoveries obtained by all Lenders on account of
principal of and interest on the Loans (or such participation) then held by them, then such Lender
shall purchase from the other Lenders such participations in the Loans (or sub-participations in
Letters of Credit) held by them as shall be necessary to cause such purchasing Lender to share the
excess payment or other recovery ratably with each of them; provided that if all or any
portion of the excess payment or other recovery is thereafter
recovered from such purchasing Lender, the purchase shall be rescinded and the purchase price
restored to the extent of such recovery.


 


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7.6. Taxes.



(a) All payments made by the Borrower hereunder or under any Loan Documents shall be made
without setoff, counterclaim, or other defense. To the extent permitted by applicable law, all
payments hereunder or under the Loan Documents (including any payment of principal, interest, or
fees) to, or for the benefit, of any person shall be made by the Borrower free and clear of and
without deduction or withholding for, or account of, any Taxes now or hereinafter imposed by any
taxing authority.



(b) If the Borrower makes any payment hereunder or under any Loan Document in respect of which
it is required by applicable law to deduct or withhold any Taxes, the Borrower shall increase the
payment hereunder or under any such Loan Document such that after the reduction for the amount of
Taxes withheld (and any taxes withheld or imposed with respect to the additional payments required
under this Section 7.6(b)), the amount paid to the Lenders or the Administrative Agent
equals the amount that was payable hereunder or under any such Loan Document without regard to this
Section 7.6(b). To the extent the Borrower withholds any Taxes on payments hereunder or
under any Loan Document, the Borrower shall pay the full amount deducted to the relevant taxing
authority within the time allowed for payment under applicable law and shall deliver to the
Administrative Agent within 30 days after it has made payment to such authority a receipt issued by
such authority (or other evidence satisfactory to the Administrative Agent) evidencing the payment
of all amounts so required to be deducted or withheld from such payment.



(c) If any Lender or the Administrative Agent is required by law to make any payments of any
Taxes on or in relation to any amounts received or receivable hereunder or under any other Loan
Document, or any Tax is assessed against a Lender or the Administrative Agent with respect to
amounts received or receivable hereunder or under any other Loan Document, the Borrower will
indemnify such person against (i) such Tax (and any reasonable counsel fees and expenses associated
with such Tax) and (ii) any taxes imposed as a result of the receipt of the payment under this
Section 7.6(c). A certificate prepared in good faith as to the amount of such payment by
such Lender or the Administrative Agent shall, absent manifest error, be final, conclusive, and
binding on all parties.



(d) (i) To the extent permitted by applicable law, each Lender that is not a United States
person within the meaning of Code Section 7701(a)(30) (a “Non-U.S. Participant”) shall
deliver to the Borrower and the Administrative Agent on or prior to the Closing Date (or in the
case of a Lender that is an Assignee, on the date of such assignment to such Lender) two accurate
and complete original signed copies of IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or
other applicable form prescribed by the IRS) certifying to such Lender’s entitlement to a complete
exemption from, or a reduced rate in, United States withholding tax on interest payments to be made
hereunder or any Loan. If a Lender that is a Non-U.S. Participant is



 


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claiming
a complete exemption from withholding on
interest pursuant to Code Sections 871(h) or 881(c), the Lender shall deliver (along with two
accurate and complete original signed copies of IRS Form W-8BEN) a certificate in form and
substance reasonably acceptable to Administrative Agent (any such certificate, a “Withholding
Certificate”). In addition, each Lender that is a Non-U.S. Participant agrees that from time
to time after the Closing Date, (or in the case of a Lender that is an Assignee, after the date of
the assignment to such Lender), when a lapse in time (or change in circumstances occurs) renders
the prior certificates hereunder obsolete or inaccurate in any material respect, such Lender shall,
to the extent permitted under applicable law, deliver to the Borrower and the Administrative Agent
two new and accurate and complete original signed copies of an IRS Form W-8BEN, W-8ECI, or W-8IMY
(or any successor or other applicable forms prescribed by the IRS), and if applicable, a new
Withholding Certificate, to confirm or establish the entitlement of such Lender or the
Administrative Agent to an exemption from, or reduction in, United States withholding tax on
interest payments to be made hereunder or any Loan.




(ii) Each Lender that is not a Non-U.S. Participant (other than any such Lender which is
taxed as a corporation for U.S. federal income tax purposes) shall provide two properly
completed and duly executed copies of IRS Form W-9 (or any successor or other applicable
form) to the Borrower and the Administrative Agent certifying that such Lender is exempt
from United States backup withholding tax. To the extent that a form provided pursuant to
this Section 7.6(d)(ii) is rendered obsolete or inaccurate in any material respects
as result of change in circumstances with respect to the status of a Lender, such Lender
shall, to the extent permitted by applicable law, deliver to the Borrower and the
Administrative Agent revised forms necessary to confirm or establish the entitlement to such
Lender’s or Agent’s exemption from United States backup withholding tax.




(iii) The Borrower shall not be required to pay additional amounts to a Lender, or
indemnify any Lender, under this Section 7.6 to the extent that such obligations
would not have arisen but for the failure of such Lender to comply with Section
7.6(d).




(iv) Each Lender agrees to indemnify the Administrative Agent and hold the
Administrative Agent harmless for the full amount of any and all present or future Taxes and
related liabilities (including penalties, interest, additions to tax and expenses, and any
Taxes imposed by any jurisdiction on amounts payable to the Administrative Agent under this
Section 7.6) which are imposed on or with respect to principal, interest or fees
payable to such Lender hereunder and which are not paid by the Borrower pursuant to this
Section 7.6, whether or not such Taxes or related liabilities were correctly or
legally asserted. This indemnification shall be made within 30 days from the date the
Administrative Agent makes written demand therefor.


 


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SECTION 8. INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS.




8.1. Increased Costs.



(a) If, after the date hereof, 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 charged with the
interpretation or administration thereof, or compliance by any Lender with any request or directive
(whether or not having the force of law) of any such authority, central bank or comparable agency:
(i) shall impose, modify or deem applicable any reserve (including any reserve imposed by the FRB,
but excluding any reserve included in the determination of the LIBOR Rate pursuant to Section
4), special deposit or similar requirement against assets of, deposits with or for the account
of, or credit extended by any Lender; or (ii) shall impose on any Lender any other condition
affecting its LIBOR Loans, its Note or its obligation to make LIBOR Loans; and the result of
anything described in clauses (i) and (ii) above is to increase the cost to (or to impose a cost
on) such Lender (or any LIBOR Office of such Lender) of making or maintaining any LIBOR Loan, or to
reduce the amount of any sum received or receivable by such Lender (or its LIBOR Office) under this
Agreement or under its Note with respect thereto, then upon demand by such 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, a copy of which shall be furnished to the Administrative
Agent), the Borrower shall pay directly to such Lender such additional amount as will compensate
such 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 such Lender first made demand therefor.



(b) If any 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 any Lender
or any Person controlling such 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 such Lender’s or such controlling
Person’s capital as a consequence of such Lender’s obligations hereunder or under any Letter of
Credit to a level below that which such Lender or such controlling Person could have achieved but
for such change, adoption, phase-in or compliance (taking into consideration such Lender’s or such
controlling Person’s policies with respect to capital adequacy) by an amount deemed by such Lender
or such controlling Person to be material, then from time to time, upon demand by such 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, a copy of which shall be furnished to the
Administrative Agent), the Borrower shall pay to such Lender such additional amount as will
compensate such 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 such Lender first made
demand therefor.


 


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8.2. Basis for Determining Interest Rate Inadequate or Unfair.




If:



(a) the Administrative Agent reasonably determines (which determination shall be binding and
conclusive on the Borrower) that by reason of circumstances affecting the interbank LIBOR market
adequate and reasonable means do not exist for ascertaining the applicable LIBOR Rate; or



(b) the Required Lenders advise the Administrative Agent that the LIBOR Rate as determined by
the Administrative Agent will not adequately and fairly reflect the cost to such Lenders of
maintaining or funding LIBOR Loans for such Interest Period (taking into account any amount to
which such Lenders may be entitled under Section 8.1) or that the making or funding of
LIBOR Loans has become impracticable as a result of an event occurring after the date of this
Agreement which in the opinion of such Lenders materially affects such Loans;



then the Administrative Agent shall promptly notify the other parties thereof and, so long
as such circumstances shall continue, (i) no Lender shall be under any obligation to make or
convert any Base Rate Loans into LIBOR Loans and (ii) 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.




8.3. Changes in Law Rendering LIBOR Loans Unlawful.



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, should make it (or in the good faith judgment of any
Lender cause a substantial question as to whether it is) unlawful for any Lender to make, maintain
or fund LIBOR Loans, then such Lender shall promptly notify each of the other parties hereto and,
so long as such circumstances shall continue, (a) such Lender shall have no obligation to make or
convert any Base Rate Loan into a LIBOR Loan (but shall make Base Rate Loans concurrently with the
making of or conversion of Base Rate Loans into LIBOR Loans by the Lenders which are not so
affected, in each case in an amount equal to the amount of LIBOR Loans which would be made or
converted into by such 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 such 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 a Lender which, but for the circumstances described in the foregoing sentence, would
be a LIBOR Loan (an “Affected Loan”) shall remain outstanding for the period corresponding
to the Group of LIBOR Loans of which such Affected Loan would be a part absent such circumstances.


 


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8.4. Funding Losses.



The Borrower hereby agrees that upon demand by any Lender (which demand shall be made within
180 days of the event giving rise to such demand and shall be accompanied by a statement setting
forth the basis for the amount being claimed, a copy of which shall be furnished to the
Administrative Agent), the Borrower will indemnify such Lender against any net loss or expense
which such 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 such Lender to fund or maintain
any LIBOR Loan), as reasonably determined by such Lender, as a result of (a) any payment,
prepayment or conversion of any LIBOR Loan of such Lender on a date other than the last day of an
Interest Period for such Loan (including any conversion pursuant to Section 8.3) or (b) any
failure of the 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 this purpose, all
notices to the Administrative Agent pursuant to this Agreement shall be deemed to be irrevocable.




8.5. Right of Lenders to Fund through Other Offices.



Each Lender may, if it so elects, fulfill its commitment as to any LIBOR Loan by causing a
foreign branch or Affiliate of such Lender to make such Loan; provided that in such event
for the purposes of this Agreement such Loan shall be deemed to have been made by such Lender and
the obligation of the Borrower to repay such Loan shall nevertheless be to such Lender and shall be
deemed held by it, to the extent of such Loan, for the account of such branch or Affiliate.




8.6. Discretion of Lenders as to Manner of Funding.



Notwithstanding any provision of this Agreement to the contrary, each Lender shall be entitled
to fund and maintain its funding of all or any part of its Loans in any manner it sees fit, it
being understood, however, that for the purposes of this Agreement all determinations hereunder
shall be made as if such Lender had 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.




8.7. Mitigation of Circumstances; Replacement of Lenders.



(a) Each Lender shall promptly notify the Borrower and the Administrative Agent of any event
of which it has knowledge which will result in, and will use reasonable commercial efforts
available to it (and not, in such Lender’s sole judgment, otherwise disadvantageous to such Lender)
to mitigate or avoid, (i) any obligation by the Borrower to pay any amount pursuant to Sections
7.6 or 8.1 or (ii) the occurrence of any circumstances described in Sections
8.2 or 8.3 (and, if any Lender has given notice of any such event described in clause
(i) or (ii) above and thereafter such event ceases to exist, such Lender shall promptly so notify
the Borrower and the Administrative Agent). Without limiting the foregoing, each Lender will
designate a different funding office if such
designation will avoid (or reduce the cost to the Borrower of) any event described in clause
(i) or (ii) above and such designation will not, in such Lender’s sole judgment, be otherwise
disadvantageous to such Lender.


 


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(b) If the Borrower becomes obligated to pay additional amounts to any Lender pursuant to
Sections 7.6 or 8.1, or any Lender gives notice of the occurrence of any
circumstances described in Sections 8.2 or 8.3, the Borrower may designate another
bank which is acceptable to the Administrative Agent and the Issuing Lender in their reasonable
discretion (such other bank being called a “Replacement Lender”) to purchase the Loans of
such Lender and such Lender’s rights hereunder, without recourse to or warranty by, or expense to,
such Lender, for a purchase price equal to the outstanding principal amount of the Loans payable to
such Lender plus any accrued but unpaid interest on such Loans and all accrued but unpaid fees owed
to such Lender and any other amounts payable to such Lender under this Agreement, and to assume all
the obligations of such Lender hereunder, and, upon such purchase and assumption (pursuant to an
Assignment Agreement), such Lender shall no longer be a party hereto or have any rights hereunder
(other than rights with respect to indemnities and similar rights applicable to such Lender prior
to the date of such purchase and assumption) and shall be relieved from all obligations to the
Borrower hereunder, and the Replacement Lender shall succeed to the rights and obligations of such
Lender hereunder.




8.8. Conclusiveness of Statements; Survival of Provisions.



Determinations and statements of any Lender pursuant to Sections 8.1, 8.2,
8.3 or 8.4 shall be conclusive absent demonstrable error. Lenders may use
reasonable averaging and attribution methods in determining compensation under Sections 8.1
and 8.4, and the provisions of such Sections shall survive repayment of the Obligations,
cancellation of any Notes, expiration or termination of the Letters of Credit and termination of
this Agreement.




SECTION 9. REPRESENTATIONS AND WARRANTIES.



To induce the Administrative Agent and the Lenders to enter into this Agreement and to induce
the Lenders to make Loans and issue and participate in Letters of Credit hereunder, the Borrower
represents and warrants to the Administrative Agent and the Lenders that:




9.1. Organization.



Each Transaction Party is validly existing and in good standing under the laws of its
jurisdiction of organization; and each Transaction 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 would not have a Material
Adverse Effect.


 


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9.2. Authorization; No Conflict.



Each Transaction Party is duly authorized to execute and deliver each Loan Document to which
it is a party, the Borrower is duly authorized to borrow monies hereunder and each Transaction
Party is duly authorized to perform its Obligations under each Loan Document to which it is a
party. The execution, delivery and performance by each Transaction Party of each Loan Document to
which it is a party, and the borrowings by the Borrower hereunder, do not and will not (a) require
any consent or approval, including permits and/or licenses of any governmental agency or authority
(other than any consent, approval, license or permit which has been obtained and is in full force
and effect or any license or permit, the failure of which to obtain could not reasonably be
expected to have a Material Adverse Effect), (b) conflict with (i) any provision of law, (ii) the
charter, by-laws or other organizational documents of any Transaction Party or (iii) any agreement,
indenture, instrument or other document, or any judgment, order or decree, which is binding upon
any Transaction Party or any of their respective properties or (c) require, or result in, the
creation or imposition of any Lien on any asset of any Transaction Party (other than Liens in favor
of the Administrative Agent created pursuant to the Collateral Documents).




9.3. Validity and Binding Nature.



Each of this Agreement and each other Loan Document to which any Transaction 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.




9.4. [Reserved].




9.5. No Material Adverse Change.



Over the period commencing on (i) September 30, 2006, in the case of Amsted Industries, Inc.,
(ii) December 31, 2006, in the case of American Railcar, Inc. and (iii) the date of formation of
Borrower, in the case of Borrower, and in each case through the Closing Date, here has been no
material adverse change in the financial condition, operations, assets, business, properties or
prospects of (i) either Guarantor or (ii) the Loan Parties taken as a whole.




9.6. Litigation and Contingent Liabilities.



No litigation (including derivative actions), arbitration proceeding or governmental
investigation or proceeding is pending or, to the Borrower’s knowledge, threatened against any Loan
Party or any Guarantor which might reasonably be expected to have a Material Adverse Effect, except
as set forth in Schedule 9.6. Other than any liability incident to such litigation or
proceedings, no Loan Party and no Guarantor has any material contingent liabilities not listed on
Schedule 9.6 or permitted, in the case of the Loan Parties, by Section 11.1.


 


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9.7. Ownership of Properties; Liens.



Each Loan Party owns good and, in the case of real property, valid title to, or valid
leasehold interests in, all of its properties or 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 for Permitted Liens.




9.8. Equity Ownership; Subsidiaries.



All issued and outstanding Capital Securities of each Loan Party are duly authorized and
validly issued, fully paid, non-assessable, and free and clear of all Liens other than those in
favor of the Administrative Agent, and such securities were issued in compliance with all
applicable state and federal laws concerning the issuance of securities. Schedule 9.8 sets
forth the authorized Capital Securities of each Loan Party as of the Closing Date. All of the
issued and outstanding Capital Securities of the Borrower are owned as set forth on Schedule
9.8 as of the Closing Date, and all of the issued and outstanding Capital Securities of each
Wholly-Owned Subsidiary is, directly or indirectly, owned by the Borrower. As of the Closing Date,
except as set forth on Schedule 9.8, 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 Capital Securities of any Loan Party.




9.9. Pension Plans.



No Loan Party maintains, or at any time has maintained, any Pension Plan or Multiemployer
Plan.




9.10. Investment Company Act.



No Loan Party is an “investment company” or a company “controlled” by an “investment company”
or a “subsidiary” of an “investment company,” within the meaning of the Investment Company Act of
1940.




9.11. [Reserved].




9.12. Regulation U.



The Borrower is not engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or carrying Margin Stock.


 


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9.13. Taxes.



Each Loan Party has timely filed all federal tax returns and reports, and all material state
and local tax returns and reports, required by law to have been filed by it and has paid all taxes
and governmental charges due and payable with respect to such return,
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. The Loan Parties have made adequate reserves on their books and records in
accordance with GAAP for all taxes that have accrued but which are not yet due and payable. No
Loan Party has participated in any transaction that relates to a year of the taxpayer (which is
still open under the applicable statute of limitations) which is a “reportable transaction” within
the meaning of Treasury Regulation Section 1.6011-4(b)(2) (irrespective of the date when the
transaction was entered into).




9.14. Solvency, etc.



On the Closing Date, and immediately prior to and after giving effect to the issuance of each
Letter of Credit and each borrowing hereunder and the use of the proceeds thereof, with respect to
the Loan Parties, collectively, (a) the fair value of their assets is greater than the amount of
their liabilities (including disputed, contingent and unliquidated liabilities) as such value is
established and liabilities evaluated in accordance with GAAP, (b) the present fair saleable value
of their assets is not less than the amount that will be required to pay the probable liability on
their debts as they become absolute and matured, (c) they are able to realize upon their assets and
pay their debts and other liabilities (including disputed, contingent and unliquidated liabilities)
as they mature in the normal course of business, (d) they do not intend to, and do not believe that
they will, incur debts or liabilities beyond their ability to pay as such debts and liabilities
mature and (e) they are not engaged in business or a transaction, and are not about to engage in
business or a transaction, for which their property would constitute unreasonably small capital.




9.15. Environmental Matters.



The on-going operations of each Loan Party comply in all respects with all Environmental Laws,
except such non-compliance which could not (if enforced in accordance with applicable law)
reasonably be expected to result, either individually or in the aggregate, in a Material Adverse
Effect. Each Loan Party has obtained, and maintained in good standing, all licenses, permits,
authorizations, registrations and other approvals required under any Environmental Law and required
for their respective ordinary course operations, and for their reasonably anticipated future
operations, and each Loan Party is in compliance with all terms and conditions thereof, except
where the failure to do so could not reasonably be expected to result in material liability to any
Loan Party and could not reasonably be expected to result, either individually or in the aggregate,
in a Material Adverse Effect. No Loan Party or any of its properties or operations is subject to,
or reasonably anticipates the issuance of, any written order from or agreement with any Federal,
state or local governmental authority, nor subject to any judicial or docketed administrative or
other proceeding, respecting any Environmental Law, Environmental Claim or Hazardous Substance.
There are no Hazardous Substances or other conditions or circumstances existing with respect to any
property, arising from operations prior to the Closing Date, or relating to any waste disposal, of
any Loan Party that would reasonably be expected to result, either individually or in the
aggregate, in a Material Adverse Effect. No Loan Party has any underground storage tanks that are
not properly registered or permitted under applicable
Environmental Laws or that at any time have released, leaked, disposed of or otherwise
discharged Hazardous Substances.


 


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9.16. Insurance.



Set forth on Schedule 9.16 is a complete and accurate summary of the property and
casualty insurance program of the Loan Parties as of the Closing Date (including the names of all
insurers, policy numbers, expiration dates, amounts and types of coverage, annual premiums,
exclusions, deductibles, self-insured retention, and a description in reasonable detail of any
self-insurance program, retrospective rating plan, fronting arrangement or other risk assumption
arrangement involving any Loan Party). Each Loan Party and its properties are insured with
financially sound and reputable insurance companies which are not Affiliates of the Loan Parties,
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 such Loan
Parties operate.




9.17. Real Property.



Set forth on Schedule 9.17 is a complete and accurate list, as of the Closing Date, of
the address of all real property owned or leased by any Loan Party, together with, in the case of
leased property, the name and mailing address of the lessor of such property.




9.18. Information.



All information heretofore or contemporaneously herewith furnished in writing by any Loan
Party to the Administrative Agent or any Lender for purposes of or in connection with this
Agreement and the transactions contemplated hereby is, and all written information hereafter
furnished by or on behalf of any Loan Party to the Administrative Agent or any 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 the Administrative Agent and
the Lenders that any projections and forecasts provided by the Borrower are based on good faith
estimates and assumptions believed by the 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).




9.19. Intellectual Property.



Each 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 businesses of the Loan Parties,
without any infringement upon rights of others which could reasonably be expected to have a
Material Adverse Effect.


 


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9.20. Burdensome Obligations.



No Loan Party is a party to any agreement or contract or subject to any restriction contained
in its organizational documents which could reasonably be expected to have a Material Adverse
Effect.




9.21. Labor Matters.



Except as set forth on Schedule 9.21, no Loan Party is subject to any labor or
collective bargaining agreement. There are no existing or threatened strikes, lockouts or other
labor disputes involving any 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 the
Loan Parties are not in violation of the Fair Labor Standards Act or any other applicable law, rule
or regulation dealing with such matters.




9.22. No Default.



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




SECTION 10. AFFIRMATIVE COVENANTS.



Until the expiration or termination of the Commitments and thereafter until all Obligations
hereunder and under the other Loan Documents are paid in full and all Letters of Credit have been
terminated or Cash Collateralized, the Borrower agrees that, unless at any time the Required
Lenders shall otherwise expressly consent in writing, it will:




10.1. Reports, Certificates and Other Information.




Furnish to the Administrative Agent and each Lender:



10.1.1. 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 the Borrower and its
Subsidiaries for such Fiscal Year, including therein consolidated balance sheets and statements of
earnings and cash flows of the Borrower and its Subsidiaries as at the end of such Fiscal Year,
certified without adverse reference to going concern value and without qualification by independent
auditors of recognized standing selected by the Borrower and reasonably acceptable to the
Administrative Agent, together with a comparison with the budget for such Fiscal Year and a
comparison with the previous Fiscal Year; and (b) a consolidating balance sheet of the Borrower and
its Subsidiaries as of the end of such Fiscal Year and consolidating statement of earnings and cash
flows for the Borrower and its Subsidiaries for such Fiscal Year, certified by a Senior Officer of
the Borrower.


 


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10.1.2. Interim Reports. Promptly when available and in any event within 45 days
after the end of each Fiscal Quarter, consolidated and consolidating balance sheets of the Borrower
and its Subsidiaries as of the end of such Fiscal Quarter, together with
consolidated and consolidating statements of earnings and cash flows for such Fiscal Quarter
and for the period beginning with the first day of such Fiscal Year and ending on the last day of
such Fiscal Quarter, 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 a Senior Officer of the Borrower.



10.1.3. Compliance Certificates. Contemporaneously with the furnishing of a copy of
each annual audit report pursuant to Section 10.1.1 and each set of quarterly statements
pursuant to Section 10.1.2, a duly completed compliance certificate in the form of
Exhibit B, with appropriate insertions, dated the date of such annual report or such
quarterly statements and signed by a Senior Officer of the Borrower, containing a computation of
each of the financial ratios and restrictions set forth in Section 11.14 and to the effect
that such officer has not become aware of any Event of Default or Unmatured Event of 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.



10.1.4. Reports to the SEC and to Shareholders. Promptly upon the filing or sending
thereof, copies of all regular, periodic or special reports of any Loan Party filed with the SEC;
copies of all registration statements of any Loan Party filed with the SEC (other than on Form
S-8); and copies of all proxy statements or other communications made to security holders
generally.



10.1.5. Notice of Default and Litigation. Promptly upon becoming aware of any of the
following, written notice describing the same and the steps being taken by the Borrower or the
Subsidiary affected thereby with respect thereto:




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



(b) any litigation, arbitration or governmental investigation or proceeding not previously
disclosed by the Borrower to the Lenders which has been instituted or, to the knowledge of the
Borrower, is threatened against any 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) any breach or default under any of the Material Debt Agreements to the extent such breach
or default constitutes or could reasonably be expected to result in a Default or Event of Default;




(d) any cancellation or material change in any insurance maintained by any 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 might reasonably be expected to have a Material Adverse Effect.


 


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10.1.6. Borrowing Base Certificates. Within 15 days of the end of each month, a
Borrowing Base Certificate dated as of the end of such month and executed by a Senior Officer of
the Borrower on behalf of the Borrower (provided that (a) the Borrower may deliver a
Borrowing Base Certificate more frequently if it chooses and (b) at any time an Event of Default
exists, the Administrative Agent may require the Borrower to deliver Borrowing Base Certificates
more frequently).



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



10.1.8. Projections. As soon as practicable, and in any event not later than 30 days
prior to the commencement of each Fiscal Year, financial projections for the Borrower and its
Subsidiaries for such Fiscal Year (including quarterly operating and cash flow budgets) prepared in
a manner consistent with the projections delivered by the Borrower to the Lenders prior to the
Closing Date or otherwise in a manner reasonably satisfactory to the Administrative Agent,
accompanied by a certificate of a Senior Officer of the Borrower on behalf of the Borrower to the
effect that (a) such projections were prepared by the Borrower in good faith, (b) the Borrower has
a reasonable basis for the assumptions contained in such projections and (c) such projections have
been prepared in accordance with such assumptions.




10.1.9. [Reserved].



10.1.10. Other Information. Promptly from time to time, such other information
concerning the Loan Parties as any Lender or the Administrative Agent may reasonably request.




10.2. Books, Records and 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, any Lender or the Administrative Agent or
any representative thereof to inspect the properties and operations of the Loan Parties; 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), any Lender or the
Administrative Agent 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 the Borrower hereby
authorizes such independent auditors to discuss such financial matters with any Lender or the
Administrative Agent or any representative thereof), and to examine (and, at the expense of the
Loan Parties, photocopy extracts from) any of its books or other records; and permit, and cause
each other Loan Party to permit, the Administrative Agent and its representatives to inspect the
Inventory and other tangible assets of the Loan Parties, to perform appraisals of the equipment of
the Loan Parties, 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
Inventory, Accounts and any other collateral. All such inspections or audits by the Administrative
Agent shall be at the Borrower’s expense, provided that so long as no Event of Default or
Unmatured Event of Default exists, the Borrower shall not be required to reimburse the
Administrative Agent for inspections or audits more frequently than once each Fiscal Year.


 


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10.3. Maintenance of Property; Insurance.



(a) Keep, and cause each other Loan Party to keep, all property useful and necessary in the
business of the Loan Parties 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 may be required by any law or governmental regulation or
court decree or order applicable to it and such other insurance, to such extent and against such
hazards and liabilities, as is customarily maintained by companies similarly situated, and shall
have insured amounts no less than, and deductibles no higher than, is customarily maintained by
companies similarly situated; and, upon request of the Administrative Agent or any Lender, furnish
to the Administrative Agent or such Lender a certificate setting forth in reasonable detail the
nature and extent of all insurance maintained by the Loan Parties. The Borrower shall cause each
issuer of an insurance policy to provide the Administrative Agent with an endorsement (i) showing
the Administrative Agent as loss payee with respect to each policy of property or casualty
insurance and naming the Administrative Agent as an additional insured with respect to each policy
of liability insurance, (ii) providing that 30 days’ notice will be given to the Administrative
Agent prior to any cancellation of, material reduction or change in coverage provided by or other
material modification to such policy and (iii) reasonably acceptable in all other respects to the
Administrative Agent. Upon the request of the Administrative Agent, the Borrower shall execute and
deliver to the Administrative Agent a collateral assignment, in form and substance satisfactory to
the Administrative Agent, of each business interruption insurance policy maintained by the
Borrower, and shall use commercially reasonable efforts to cause the applicable insurance broker or
agent to execute and deliver the same.



(c) UNLESS THE BORROWER PROVIDES THE ADMINISTRATIVE AGENT WITH EVIDENCE OF THE INSURANCE
COVERAGE REQUIRED BY THIS AGREEMENT, THE ADMINISTRATIVE AGENT MAY PURCHASE INSURANCE AT THE
BORROWER’S EXPENSE TO PROTECT THE ADMINISTRATIVE AGENT’S AND THE LENDERS’ INTERESTS IN THE
COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT ANY LOAN PARTY’S INTERESTS. THE COVERAGE
THAT THE ADMINISTRATIVE AGENT PURCHASES MAY NOT PAY ANY CLAIM THAT IS MADE AGAINST ANY LOAN PARTY
IN CONNECTION WITH THE COLLATERAL. THE BORROWER MAY LATER CANCEL ANY INSURANCE PURCHASED BY THE
ADMINISTRATIVE AGENT, BUT ONLY AFTER PROVIDING THE ADMINISTRATIVE AGENT WITH EVIDENCE THAT THE
BORROWER HAS OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE ADMINISTRATIVE AGENT
PURCHASES INSURANCE FOR THE COLLATERAL, THE 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. THE COSTS
OF THE INSURANCE MAY BE ADDED TO THE PRINCIPAL AMOUNT OF THE LOANS OWING HEREUNDER. THE COSTS OF
THE INSURANCE MAY BE MORE THAN THE COST OF THE INSURANCE THE LOAN PARTIES MAY BE ABLE TO OBTAIN ON
THEIR OWN.


 


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10.4. Compliance with Laws; Payment of Taxes and Liabilities.



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) of 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
(“BSA”) 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
collateral, 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 any 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
and, in the case of a claim which could become a Lien on any collateral, such contest proceedings
shall stay the foreclosure of such Lien or the sale of any portion of the collateral to satisfy
such claim.




10.5. Maintenance of Existence, etc.



Maintain and preserve, and (subject to Section 11.5) cause each other Loan Party to
maintain and preserve, (a) its existence and good standing in the jurisdiction of its organization
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 such jurisdictions in which the failure
to be qualified or in good standing could not reasonably be expected to have a Material Adverse
Effect).


 


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10.6. Use of Proceeds.



Use the proceeds of the Loans, and the Letters of Credit, solely to finance the Project, for
working capital purposes, for Capital Expenditures, to repay, on the Closing Date, unsecured Debt
owing by Borrower to Guarantors or their Affiliates and/or redeem Capital Securities of Borrower
held by Guarantors or their Affiliates in excess capital contributions made between February 1,
2007 and the Closing Date in excess of [REDACTED*], and for other general business purposes; and
not use or permit any proceeds of (i) any Loan to be used, either directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of “purchasing or carrying” any Margin Stock
and (ii) any Revolving Loan made during the Construction Period for any purpose other than working
capital purposes and for purposes directly related to initial axle production.




10.7. [Reserved].




10.8. Environmental Matters.



If any release or threatened release or other disposal of Hazardous Substances shall occur or
shall have occurred on any real property or any other assets of any Loan Party, the Borrower’s
shall, or shall cause 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 necessary to
comply with all Environmental Laws and to preserve the value of such real property or other assets.
Without limiting the generality of the foregoing, the Borrower shall, and shall cause each other
Loan Party to, comply with any Federal or state judicial or administrative order requiring the
performance at any real property of any Loan Party of activities in response to the release or
threatened release of a Hazardous Substance. To the extent that the transportation of Hazardous
Substances is not prohibited by this Agreement, the Borrower shall, and shall cause its
Subsidiaries to, dispose of such Hazardous Substances, or of any other wastes, only at licensed
disposal facilities operating in compliance with Environmental Laws.




10.9. Further Assurances.



Take, and cause each other Loan Party to take, such actions as are necessary or as the
Administrative Agent or the Required Lenders may reasonably request from time to time to ensure
that the Obligations of each Loan Party under the Loan Documents are secured by substantially all
of the assets of the Borrower and each Subsidiary (as well as all Capital Securities of each
domestic Subsidiary and guaranteed by each Subsidiary (including, upon the acquisition or creation
thereof, any Subsidiary acquired or created after the Closing Date), in each case as the
Administrative Agent may determine, 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.


 


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10.10. Deposit Accounts.



Unless the Administrative Agent otherwise consents in writing, in order to facilitate the
Administrative Agent’s and the Lenders’ maintenance and monitoring of their security interests in
the collateral, maintain all of their principal deposit accounts with the Administrative Agent.




10.11. Interest Rate Protection.



Enter into, not later than 18 months days after the Closing Date, a Hedging Agreement with a
term of at least three years on an ISDA standard form with one or more Lenders or Affiliates
thereof or with counterparties reasonably acceptable to the Administrative Agent to hedge the
interest rate with respect to not less than 50% of the principal amount of the Term Loans in form
and substance reasonably satisfactory to the Administrative Agent.




10.12. Supply Agreements.



Use its “best efforts” (defined for this purpose to include, without limitation, commercially
diligent efforts utilizing all reasonably available resources) to enter into Supply Agreements on
or prior to the Acceptance Date with Borrower’s customers covering one hundred percent (100%) of
the Borrower’s anticipated production capacity for axles and related products (after giving effect
to the Acceptance Date).




SECTION 11. NEGATIVE COVENANTS



Until the expiration or termination of the Commitments and thereafter until all Obligations
hereunder and under the other Loan Documents are paid in full and all Letters of Credit have been
terminated or Cash Collaterialized, the Borrower agrees that, unless at any time the Required
Lenders shall otherwise expressly consent in writing, it will:




11.1. 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 11.2(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 the Borrower to any domestic Wholly-Owned Subsidiary or Debt of any domestic
Wholly-Owned Subsidiary to the 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 the Administrative Agent and
pledged and delivered to the Administrative Agent pursuant to the Collateral Documents as
additional collateral security for the Obligations, and, if requested by the Administrative Agent,
the obligations under such demand note shall be subordinated to the Obligations of the Borrower
hereunder in a manner reasonably satisfactory to the Administrative Agent;


 


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(d) Hedging Obligations approved by Administrative Agent and incurred in favor of a Lender or
an Affiliate thereof for bona fide hedging purposes and not for speculation;



(e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof
so long as the principal amount thereof is not increased; and



(f) Contingent Liabilities arising with respect to customary indemnification obligations in
favor of purchasers in connection with dispositions permitted under Section 11.5, and
Contingent Liabilities in the form of unsecured guaranties of Debt or other obligations of another
Loan Party, provided such Debt or other obligations are not prohibited by this Agreement.




11.2. 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 contested in good faith by appropriate proceedings and, in each
case, for which it maintains adequate reserves;



(b) Liens arising in the ordinary course of business (such as (i) Liens of carriers, landlords
(limited, in the case of landlords, to Liens arising by law) warehousemen, mechanics and
materialmen and other similar Liens imposed by law and (ii) Liens in the form of deposits or
pledges 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), in each case with respect to the preceding
clauses (i) and (ii) for sums not overdue or being contested in good faith by appropriate
proceedings and not involving any advances or borrowed money or the deferred purchase price of
property or services and, in each case, for which it maintains adequate reserves;




(c) Liens described on Schedule 11.2 as of the Closing Date;



(d) subject to the limitation set forth in Section 11.1(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 any Loan Party (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 20 days of the acquisition thereof and attaches solely to the property so
acquired;


 


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(e) attachments, appeal bonds, judgments and other similar Liens, for sums not exceeding
$500,000 arising in connection with court proceedings, provided 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;



(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
any Loan Party;



(g) until the Acceptance Date, Liens on Equipment (as such term is defined on the Construction
Rider), securing amounts owing under Equipment Contracts (as such term is defined in the
Construction Rider); and




(h) Liens arising under the Loan Documents.




11.3. Operating Leases.



Not permit the aggregate amount of all rental payments under Operating Leases made (or
scheduled to be made) by the Loan Parties (on a consolidated basis) to exceed $500,000 in any
Fiscal Year.




11.4. Restricted Payments.



Not, and not permit any other Loan Party to, (a) make any distribution to any holders of its
Capital Securities, (b) purchase or redeem any of its Capital Securities, (c) pay any management
fees or similar fees to any of its equityholders or any Affiliate thereof, or (d) set aside funds
for any of the foregoing. Notwithstanding the foregoing, (i) any Subsidiary may pay dividends or
make other distributions to the Borrower or to a domestic Wholly-Owned Subsidiary; (ii) after the
third anniversary of the Completion Date, and no more than once per Fiscal Year, the Borrower may
make a distribution to the holders of its Capital Securities; provided, however,
that (a) no Event of Default or Unmatured Event of Default shall exist at the time of such
distribution and (b) the Fixed Charge Coverage Ratio for each of the two most recently ended Fiscal
Quarters for which financial statements were required to be delivered to Administrative Agent
pursuant to Section 10.1.2 (but prepared on a pro forma basis to give effect to the making
of any such distribution) shall equal or exceed 1.25 to 1.00 (the distributions permitted pursuant
to this clause (ii) being referred to as “Equity Distributions”); and (iii) the Borrower
may make Tax Distributions (which may only be paid annually based on the Borrower’s audited
financial statements or, so long as no Event of Default is then outstanding, in multiple
installments, based on the Borrower’s good faith and reasonable estimate of income to be generated
by the Borrower’s and its Subsidiaries’ business in such year), as reduced by the amount of Net Tax
Benefit realized by such members for any previous tax period, commencing from the tax period
including the Closing Date, but only to the extent such Net Tax Benefit has not already been
utilized to reduce, in
any tax period during which this Agreement is in effect, the amount of any Tax Distribution
otherwise permitted hereunder.


 


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11.5. Mergers, Consolidations, Sales.



Not, and not permit any other Loan Party to, (a) be a party to any merger or consolidation, or
purchase or otherwise acquire all or substantially all of the assets or any Capital Securities of
any class of, or any partnership or joint venture interests in, any other Person, (b) sell,
transfer, convey or lease all or any substantial part of its assets or Capital Securities
(including the sale of Capital Securities of any Subsidiary) except for sales of inventory in the
ordinary course of business, or (c) sell or assign with or without recourse any receivables, except
for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by
any Wholly-Owned Subsidiary into the Borrower or into any other domestic Wholly-Owned Subsidiary;
(ii) any such purchase or other acquisition by the Borrower or any domestic Wholly-Owned Subsidiary
of the assets or Capital Securities of any Wholly-Owned Subsidiary or permitted pursuant to
Section 11.11; and (iii) sales and dispositions of assets (excluding the Capital Securities
of Subsidiaries) for at least fair market value (as determined by the officers, members or Board of
Directors of the Borrower) so long as the net book value of all assets sold or otherwise disposed
of does not exceed $500,000 with respect to any such sale or disposition and $1,000,000 in the
aggregate for all such sales and dispositions in any Fiscal Year.




11.6. Modification of Organizational Documents.



Not permit the charter, by-laws or other organizational documents of any Loan Party to be
amended or modified in any way which could reasonably be expected to materially adversely affect
the interests of the Lenders; not change, or allow any Loan Party to change, its state of formation
or its organizational form.




11.7. Transactions with Affiliates.



Except as set forth on Schedule 11.7 and except for Supply Agreements entered into
with owners of the Borrower’s Capital Securities and/or their 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 (other than the Loan Parties) which is on terms which
are less favorable than are obtainable from any Person which is not one of its Affiliates.




11.8. Unconditional Purchase Obligations.



Not, and not permit any other Loan Party to, enter into or be a party to any contract for the
purchase of materials, supplies or other property or services if such contract requires that
payment be made by it regardless of whether delivery is ever made of such materials, supplies or
other property or services.


 


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11.9. 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 the Borrower hereunder or by the
performance by any Loan Party of any of its Obligations hereunder or under any other Loan Document,
(b) prohibit any Loan Party from granting to the Administrative Agent and the Lenders, a Lien on
any of its assets or (c) make effective any encumbrance or restriction on the ability of any
Subsidiary to (i) pay dividends or make other distributions to the Borrower or any other
Subsidiary, or pay any Debt owed to the Borrower or any other Subsidiary, (ii) make loans or
advances to any Loan Party or (iii) transfer any of its assets or properties to any Loan Party,
other than (A) customary restrictions and conditions contained in agreements relating to the sale
of all or a substantial part of the assets of any Subsidiary pending such sale, provided
that 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.




11.10. Business Activities; Issuance of Equity.



Not, and not permit any other Loan Party to, engage in any line of business other than the
businesses contemplated by the Project and businesses reasonably related thereto. Not, and not
permit any other Loan Party to, issue any Capital Securities other than (a) any issuance of shares
of the Borrower’s common Capital Securities to the extent not giving rise to an Event of Default or
(b) any issuance by a Subsidiary to the Borrower or another Subsidiary in accordance with
Section 11.4.




11.11. Investments.



Not, and not permit any other Loan Party to, make or permit to exist any Investment in any
other Person, except the following:



(a) contributions by the Borrower to the capital of any Wholly-Owned Subsidiary, or by any
Subsidiary to the capital of any other domestic Wholly-Owned Subsidiary, 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 Capital Securities and substantially all of its real and personal property, in
each case in accordance with Section 11.10;




(b) Investments constituting Debt permitted by Section 11.1;



(c) Contingent Liabilities constituting Debt permitted by Section 11.1 or Liens
permitted by Section 11.2;



(d) Cash Equivalent Investments;


 


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(e) bank deposits in the ordinary course of business, provided that the aggregate
amount of all such deposits (excluding amounts in payroll accounts or for accounts payable, in each
case to the extent that checks have been issued to third parties) which are maintained with any
bank other than a Lender shall not at any time exceed $50,000;



(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) loans to officers, directors and/or employees not to exceed $100,000 at any time; and




(h) Investments listed on Schedule 11.11 as of the Closing Date.



provided that (x) any Investment which when made complies with the requirements of this
Section 11.11 may continue to be held notwithstanding that such Investment if made
thereafter would not comply with such requirements; (y) no Investment otherwise permitted by clause
(b) or (c) shall be permitted to be made if, immediately before or after giving effect thereto, any
Event of Default or Unmatured Event of Default exists.




11.12. Subsidiaries.



Not form or acquire any Subsidiary other than Wholly-Owned Subsidiaries organized under the
laws of the United States or any state thereof formed or acquired in compliance with the terms and
provisions of this Agreement.




11.13. Fiscal Year.




Not change its Fiscal Year.




11.14. Financial Covenants.



11.14.1. Fixed Charge Coverage Ratio. Beginning with the Computation Period ending
December 31, 2009, and for each Computation Period thereafter, not permit the Fixed Charge Coverage
Ratio for such Computation Period to be less than 1.25 to 1.00.



11.14.2. Net Worth. Not permit the Borrower’s Net Worth to be less than (i)
[REDACTED*] at and as of the Completion Date, and (ii)
[REDACTED*] at any time from the day
following the Closing Date through the Completion Date; provided, that, commencing with the
first Fiscal Quarter following the Completion Date, the minimum required amount of Net Worth as of
any date shall be increased by [REDACTED*] of the Consolidated Net Income (to the extent a positive number)
for the Computation Period most recently ended prior to such date for which financial statements
were required to be delivered to Administrative Agent pursuant to Section 10.1.2 of this
Agreement.


 


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11.15. Pension Plan.



Not, and not permit any Loan Party to, (i) establish or maintain any Pension Plan or
Multiemployer Plan or (ii) become a member of any Controlled Group.




11.16. Future Corporate Reorganization.



Borrower has advised Administrative Agent and the Lenders that, in order to avoid the
occurrence of an Event of Default pursuant to Section 13.1.16, Borrower may desire to (i)
create a Wholly-Owned Subsidiary (“Newco”), (ii) contribute to Newco all or substantially
all of Borrower’s assets, subject to certain liabilities, indebtedness and obligations of Borrower
(including without limitation, the Obligations), (iii) cause Newco to become Borrower under the
Loan Documents and (iv) become the Pledgor, as defined herewith. Administrative Agent and the
Lenders hereby agree not to unreasonably withhold, condition or delay consent with respect to any
request by Borrower in connection with the transactions described in the preceding sentence, it
being understood that no such consents are provided on the Closing Date.




SECTION 12. EFFECTIVENESS; CONDITIONS OF LENDING, ETC.



The obligation of each Lender to make its Loans and of the Issuing Lender to issue Letters of
Credit is subject to the following conditions precedent:




12.1. Initial Credit Extension.



The obligation of the Lenders to make the initial Loans and the obligation of the Issuing
Lender to issue its initial Letter of Credit (whichever first occurs) is, in addition to the
conditions precedent specified in Section 12.2, subject to the conditions precedent that
the Administrative Agent shall have received all of the following, each duly executed and dated the
Closing Date (or such earlier date as shall be satisfactory to the Administrative Agent), in form
and substance satisfactory to the Administrative Agent (and the date on which all such conditions
precedent have been satisfied or waived in writing by the Administrative Agent and the Lenders is
called the “Closing Date”):




12.1.1. Notes. A Note for each Lender.



12.1.2. Authorization Documents. For each Transaction Party, such Person’s (a)
charter (or similar formation document), certified by the appropriate governmental authority; (b)
good standing certificates in its state of incorporation (or formation) and in each other state
requested by the Administrative Agent; (c) bylaws (or similar governing document); (d) 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 (e) signature and incumbency certificates of its officers executing any
of the Loan Documents (it being understood that the Administrative Agent and each Lender may
conclusively rely on each such certificate until formally advised by a like certificate of any
changes therein), all
certified by its secretary or an assistant secretary (or similar officer) as being in full
force and effect without modification.


 


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12.1.3. Consents, etc. Certified copies of all documents evidencing any necessary
corporate, partnership or limited liability company action, consents and governmental approvals (if
any) required for the execution, delivery and performance by the Transaction Parties of the
documents referred to in this Section 12.



12.1.4. Letter of Direction. A letter of direction containing funds flow information
with respect to the proceeds of the any Loans disbursed on the Closing Date.



12.1.5. Security Agreement. A counterpart of the Security Agreement executed by the
Borrower, together with all instruments, transfer powers and other items required to be delivered
in connection therewith.



12.1.6. Guarantees. A counterpart of each Guaranty executed by the applicable
Guarantor.




12.1.7. [Reserved].



12.1.8. Real Estate Documents. With respect to each parcel of real property owned by
any Loan Party, a duly executed Mortgage providing for a fully perfected Lien, in favor of the
Administrative Agent, in all right, title and interest of the Borrower or such Subsidiary in such
real property, together with:



(a) an ALTA Loan Title Insurance Policy, issued by an insurer acceptable to the Administrative
Agent, insuring the Administrative Agent’s first priority Lien on such real property and containing
such endorsements as the Administrative Agent may reasonably require (it being understood that the
amount of coverage, exceptions to coverage and status of title set forth in such policy shall be
acceptable to the Administrative Agent);



(b) copies of all documents of record concerning such real property as shown on the commitment
for the ALTA Loan Title Insurance Policy referred to above;



(c) original or certified copies of all insurance policies required to be maintained with
respect to such real property by this Agreement, the applicable Mortgage or any other Loan
Document;



(d) a survey certified to the Administrative Agent meeting such standards as the
Administrative Agent may reasonably establish and otherwise reasonably satisfactory to the
Administrative Agent; and



(e) a flood insurance policy concerning such real property, if required by the Flood Disaster
Protection Act of 1973.


 


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Additionally, in the case of any leased real property, if requested by the Administrative
Agent, a Collateral Access Agreement from the landlord of such property waiving any landlord’s Lien
in respect of personal property kept at the premises subject to such lease and (b) in the case of
any mortgaged real property, a waiver from the mortgagee thereof waiving any Lien in respect of
personal property kept at the premises subject to such Mortgage, permitting access to the location
by the Administrative Agent and its agents and containing such other terms and provisions as may be
required by the Administrative Agent.



12.1.9. Opinions of Counsel. Opinions of counsel for each Transaction Party,
including local counsel reasonably requested by the Administrative Agent.



12.1.10. Insurance. Evidence of the existence of insurance required to be maintained
pursuant to Section 10.3(b), together with evidence that the Administrative Agent has been
named as a lender’s loss payee and an additional insured on all related insurance policies,
together with an assignment of business interruption insurance as collateral security executed by
each insured Loan Party.



12.1.11. Payment of Fees. Evidence of payment by the Borrower of all accrued and
unpaid fees, costs and expenses to the extent then due and payable in cash on the Closing Date,
together with all Attorney Costs of the Administrative Agent to the extent invoiced prior to the
Closing Date, plus such additional amounts of Attorney Costs as shall constitute the
Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be incurred by the
Administrative Agent through the closing proceedings (provided that such estimate shall not
thereafter preclude final settling of accounts between the Borrower and the Administrative Agent).



12.1.12. Solvency Certificates. A Solvency Certificate executed by a Senior Officer
of the Borrower.



12.1.13. Environmental Reports. Environmental site assessment reports requested by
the Administrative Agent.



12.1.14. Search Results; Lien Terminations. Certified copies of Uniform Commercial
Code search reports dated a date reasonably near to the Closing Date, listing all effective
financing statements which name any Loan Party and any Pledgor (under their present names and any
previous names) as debtors, together with (a) copies of such financing statements, (b) such other
Uniform Commercial Code termination statements as the Administrative Agent may reasonably request.



12.1.15. Filings, Registrations and Recordings. The Administrative Agent shall have
received each document (including Uniform Commercial Code financing statements) required by the
Collateral Documents or under law or reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the Administrative Agent, for the benefit of
the Lenders, a perfected Lien on the collateral described therein, prior to any other Liens
(subject only to Liens permitted pursuant to Section 11.2), in proper form for filing,
registration or recording.


 


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12.1.16. Closing Certificate, Consents and Permits. A certificate executed by an
officer of the Borrower on behalf of the Borrower certifying the
matters set forth in Section 12.2.1 as of the Closing Date.



12.1.17. Other. Such other documents as the Administrative Agent or any Lender may
reasonably request.




12.2. Conditions.



The obligation (a) of each Lender to make each Loan and (b) of the Issuing Lender to issue
each Letter of Credit is subject to the following further conditions precedent that:



12.2.1. Compliance with Warranties, No Default, etc. Both before and after giving
effect to any borrowing and the issuance of any Letter of Credit, the following statements shall be
true and correct:



(a) the representations and warranties of each Loan Party set forth in this Agreement and the
other Loan Documents shall be true and correct in all 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 Unmatured Event of Default shall have then occurred and be
continuing.



12.2.2. Confirmatory Certificate. If requested by the Administrative Agent or any
Lender, the Administrative Agent shall have received (in sufficient counterparts to provide one to
each Lender) a certificate dated the date of such requested Loan or Letter of Credit and signed by
a duly authorized representative of the Borrower as to the matters set out in Section
12.2.1 (it being understood that each request by the Borrower for the making of a Loan or the
issuance of a Letter of Credit shall be deemed to constitute a representation and warranty by the
Borrower that the conditions precedent set forth in Section 12.2.1 will be satisfied at the
time of the making of such Loan or the issuance of such Letter of Credit), together with such other
documents as the Administrative Agent or any Lender may reasonably request in support thereof.




SECTION
13. EVENTS OF DEFAULT AND THEIR EFFECT.




13.1. Events of Default.




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



13.1.1. Non-Payment of the Loans, etc. Default in the payment when due of the
principal of any Loan; or default, and continuance thereof for five days, in the payment
when due of any interest, fee, reimbursement obligation with respect to any Letter of Credit
or other amount payable by the Borrower hereunder or under any other Loan Document.


 


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13.1.2. Non-Payment of Other Debt. Any default shall occur under (i) the terms
applicable to any Debt of any Loan Party in an aggregate amount (for all such Debt so affected and
including undrawn 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 any Loan Party to
purchase or redeem such Debt or post cash collateral in respect thereof) prior to its expressed
maturity and/or (ii) any Material Debt Agreement at any time that the Guarantors are Transaction
Parties and such default shall (a) consist of the failure to pay any Debt outstanding under any
Material Debt Agreement 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 any Guarantor to
purchase or redeem such Debt or post cash collateral in respect thereof) prior to its expressed
maturity, and any applicable grace periods shall be expired.



13.1.3. Other Material Obligations. Default in the payment when due, or in the
performance or observance of, any material obligation of, or condition agreed to by, any Loan Party
with respect to any material purchase or lease of goods or services where such default, singly or
in the aggregate with all other such defaults, might reasonably be expected to have a Material
Adverse Effect.



13.1.4. Bankruptcy, Insolvency, etc. Any Transaction 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 Transaction Party applies for, consents to, or acquiesces in the appointment of a
trustee, receiver or other custodian for such Transaction 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 Transaction 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
Transaction Party, and if such case or proceeding is not commenced by such Transaction Party, it is
consented to or acquiesced in by such Transaction Party, or remains for 60 days undismissed; or any
Transaction Party takes any action to authorize, or in furtherance of, any of the foregoing.



13.1.5. Non-Compliance with Loan Documents. (a) Failure by any Transaction Party to
comply with or to perform any covenant set forth in Sections 10.1.1, 10.1.2,
10.1.3, 10.1.5, 10.3(b) or 10.5 or Section 11; or (b)
failure by any Loan Party to comply with or to perform any other provision of this Agreement or any
other Loan Document (and not constituting an Event of Default under any other provision of this
Section 13) and continuance of such failure described in this clause (b) for 30 days.


 


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13.1.6. Representations; Warranties. Any representation or warranty made by any
Transaction 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 Transaction Party to the Administrative Agent or any 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.




13.1.7. [Reserved]



13.1.8. Judgments. Final judgments which exceed an aggregate of $500,000 shall be
rendered against any Transaction 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.



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




13.1.10. [Reserved].




13.1.11. Change of Control. A Change of Control shall occur.




13.1.12. [Reserved]



13.1.13. Project Completion. The Completion Date shall not have occurred on or prior
to the Outside Completion Date.



13.1.14. Capitalizations. The failure of Guarantors, between February 1, 2007 and the
Completion Date, to contribute not less than [REDACTED*] to the capital of Borrower through any
contribution of cash (including cash outlays by any Guarantor for goods and/or services, to the
extent the value in respect thereof has been transferred to Borrower) and real estate (with the
value of any such real estate subject to the Administrative Agent’s reasonable approval prior to
the Closing Date), all on terms and conditions reasonably satisfactory to Administrative Agent.



13.1.15. Construction Rider Conditions. The failure of Borrower to satisfy each of
the conditions contained in Section 4 of the Construction Rider on or before March 31, 2008.



13.1.16. Pledge Agreement. The failure of Pledgor to execute and deliver the Pledge
Agreement to the Administrative Agent within thirty (30) days of the Closing Date.


 


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13.2. Effect of Event of Default.



If any Event of Default described in Section 13.1.4 shall occur in respect of the
Borrower, the Commitments shall immediately terminate and the Loans and all other Obligations
hereunder shall become immediately due and payable and the Borrower shall become immediately
obligated to Cash Collateralize all Letters of Credit, all without presentment, demand, protest or
notice of any kind; and, if any other Event of Default shall occur and be continuing, the
Administrative Agent may (and, upon the written request of the Required Lenders shall) declare the
Commitments to be terminated in whole or in part and/or declare all or any part of the Loans and
all other Obligations hereunder to be due and payable and/or demand that the Borrower immediately
Cash Collateralize all or any Letters of Credit, whereupon the Commitments shall immediately
terminate (or be reduced, as applicable) and/or the Loans and other Obligations hereunder shall
become immediately due and payable (in whole or in part, as applicable) and/or the Borrower shall
immediately become obligated to Cash Collateralize the Letters of Credit (all or any, as
applicable), all without presentment, demand, protest or notice of any kind. The Administrative
Agent shall promptly advise the Borrower of any such declaration, but failure to do so shall not
impair the effect of such declaration. Any cash collateral delivered hereunder shall be held by
the Administrative Agent (without liability for interest thereon) and applied to the Obligations
arising in connection with any drawing under a Letter of Credit. After the expiration or
termination of all Letters of Credit, such cash collateral shall be applied by the Administrative
Agent to any remaining Obligations hereunder and any excess shall be delivered to the Borrower or
as a court of competent jurisdiction may elect.




SECTION
14. THE AGENTS.




14.1. Appointment and Authorization.



Each Lender hereby irrevocably (subject to Section 14.10) appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under the provisions of this
Agreement and each other Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the Administrative Agent shall
not have any duty or responsibility except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with any Lender or
participant, and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against
the Administrative Agent. Without limiting the generality of the foregoing sentence, the use of
the term “agent” herein and in other Loan Documents with reference to the Administrative Agent is
not intended to connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative relationship between
independent contracting parties.


 


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14.2. Issuing Lender.



The Issuing Lender shall act on behalf of the Lenders (according to their Pro Rata Shares)
with respect to any Letters of Credit issued by it and the documents associated therewith. The
Issuing Lender shall have all of the benefits and immunities (a) provided to the Administrative
Agent in this Section 14 with respect to any acts taken or omissions suffered by the
Issuing Lender in connection with Letters of Credit issued by it or proposed to be issued by it and
the applications and agreements for letters of credit pertaining to such Letters of Credit as fully
as if the term “Administrative Agent”, as used in this Section 14, included the Issuing
Lender with respect to such acts or omissions and (b) as additionally provided in this Agreement
with respect to the Issuing Lender.




14.3. Delegation of Duties.



The Administrative Agent may execute any of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful misconduct.




14.4. Exculpation of Administrative Agent.



None of the Administrative Agent nor any of its directors, officers, employees or agents shall
(a) be liable for any action taken or omitted to be taken by any of them under or in connection
with this Agreement or any other Loan Document or the transactions contemplated hereby (except to
the extent resulting from its own gross negligence or willful misconduct in connection with its
duties expressly set forth herein as determined by a final, nonappealable judgment by a court of
competent jurisdiction), or (b) be responsible in any manner to any Lender or participant for any
recital, statement, representation or warranty made by any Loan Party or Affiliate of the Borrower,
or any officer thereof, contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document (or the creation, perfection or priority of any Lien or security interest therein),
or for any failure of the Borrower or any other party to any Loan Document to perform its
Obligations hereunder or thereunder. The Administrative Agent shall not be under any obligation to
any Lender to ascertain or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Borrower or any of the Borrower’s Subsidiaries or Affiliates.


 


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14.5. Reliance by Administrative Agent.



The Administrative Agent shall be entitled to rely, and shall be fully protected in relying,
upon any writing, communication, signature, resolution, representation, notice, consent,
certificate, electronic mail message, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons, and upon advice and statements
of legal counsel (including counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, confirmation from the Lenders of their obligation to indemnify the Administrative
Agent against any and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Required Lenders and such request and any action taken
or failure to act pursuant thereto shall be binding upon each Lender. For purposes of determining
compliance with the conditions specified in Section 12, each Lender that has signed this
Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received written notice from
such Lender prior to the proposed Closing Date specifying its objection thereto.




14.6. Certain Notices.



The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
any Event of Default or Unmatured Event of Default except with respect to defaults in the payment
of principal, interest and fees required to be paid to the Administrative Agent for the account of
the Lenders, unless the Administrative Agent shall have received written notice from a Lender or
the Borrower referring to this Agreement, describing such Event of Default or Unmatured Event of
Default and stating that such notice is a “notice of default”. The Administrative Agent will
notify the Lenders of its receipt of any such notice. The Administrative Agent shall take such
action with respect to such Event of Default or Unmatured Event of Default as may be requested by
the Required Lenders in accordance with Section 13; provided that unless and until
the Administrative Agent has received any such request, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with respect to such Event
of Default or Unmatured Event of Default as it shall deem advisable or in the best interest of the
Lenders. In addition to the foregoing, (i) the Administrative Agent will notify the Lenders of its
receipt of any notice, pursuant to Section 3.4 of the Construction Rider, of the occurrence of a
Force Majeure Event (as defined in the Construction Rider) or any event which is likely to cause a
material delay or interruption of construction, or the timely occurrence of the Acceptance Date (as
defined in the Construction Rider) and (ii) absent exigent circumstances, the Administrative Agent
will provide commercially reasonable prior notice
to the Lenders of Administrative Agent’s desire to observe and/or inspect the Project, so as
to permit the Lenders to avail themselves of the right, set forth in Section 7.2 of the
Construction Rider, to accompany Administrative Agent on any such observations or inspections.


 


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14.7. Credit Decision.



Each Lender acknowledges that the Administrative Agent has not made any representation or
warranty to it, and that no act by the Administrative Agent hereafter taken, including any consent
and acceptance of any assignment or review of the affairs of the Loan Parties, shall be deemed to
constitute any representation or warranty by the Administrative Agent to any Lender as to any
matter, including whether the Administrative Agent has disclosed material information in its
possession. Each Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the Loan Parties, and
made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder.
Each Lender also represents that it will, independently and without reliance upon the
Administrative Agent and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit analysis, appraisals and decisions in taking or not
taking action under this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower. Except for notices, reports and other
documents expressly herein required to be furnished to the Lenders by the Administrative Agent, the
Administrative Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations, property, financial or
other condition or creditworthiness of the Borrower which may come into the possession of the
Administrative Agent.




14.8. Indemnification.



Whether or not the transactions contemplated hereby are consummated, each Lender shall
indemnify upon demand the Administrative Agent and its directors, officers, employees and agents
(to the extent not reimbursed by or on behalf of the Borrower and without limiting the obligation
of the Borrower to do so), according to its applicable Pro Rata Share, from and against any and all
Indemnified Liabilities (as hereinafter defined); provided that no Lender shall be liable
for any payment to any such Person of any portion of the Indemnified Liabilities to the extent
determined by a final, nonappealable judgment by a court of competent jurisdiction to have resulted
from the applicable Person’s own gross negligence or willful misconduct. No action taken in
accordance with the directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section. Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent upon demand for its ratable share
of any costs or out-of-pocket expenses (including Attorney Costs and Taxes) incurred by the
Administrative Agent in connection with the preparation, execution, delivery, administration,
modification,
amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive repayment of the Loans, cancellation of the Notes,
expiration or termination of the Letters of Credit, any foreclosure under, or modification, release
or discharge of, any or all of the Collateral Documents, termination of this Agreement and the
resignation or replacement of the Administrative Agent.


 


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14.9. Administrative Agent in Individual Capacity.



LaSalle and its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with the Loan Parties and Affiliates as
though LaSalle were not the Administrative Agent hereunder and without notice to or consent of any
Lender. Each Lender acknowledges that, pursuant to such activities, LaSalle or its Affiliates may
receive information regarding the Borrower or its Affiliates (including information that may be
subject to confidentiality obligations in favor of the Borrower or such Affiliate) and acknowledge
that the Administrative Agent shall be under no obligation to provide such information to them.
With respect to their Loans (if any), LaSalle and its Affiliates shall have the same rights and
powers under this Agreement as any other Lender and may exercise the same as though LaSalle were
not the Administrative Agent, and the terms “Lender” and “Lenders” include LaSalle and its
Affiliates, to the extent applicable, in their individual capacities.




14.10. Successor Administrative Agent.



The Administrative Agent may resign as Administrative Agent upon 30 days’ notice to the
Lenders. If the Administrative Agent resigns under this Agreement, the Required Lenders shall,
with (so long as no Event of Default exists) the consent of the Borrower (which shall not be
unreasonably withheld or delayed), appoint from among the Lenders a successor agent for the
Lenders. If no successor agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and
the Borrower, a successor agent from among the Lenders. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to all the rights, powers and duties
of the retiring Administrative Agent and the term “Administrative Agent” shall mean such successor
agent, and the retiring Administrative Agent’s appointment, powers and duties as Administrative
Agent shall be terminated. After any retiring Administrative Agent’s resignation hereunder as
Administrative Agent, the provisions of this Section 14 and Sections 15.5 and
15.17 shall inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement. If no successor agent has accepted appointment
as Administrative Agent by the date which is 30 days following a retiring Administrative Agent’s
notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above.


 


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14.11. Collateral Matters.



The Lenders irrevocably authorize the Administrative Agent, at its option and in its
discretion, (a) to release any Lien granted to or held by the Administrative Agent under any
Collateral Document (i) upon termination of the Commitments and payment in full of all Loans and
all other obligations of the Borrower hereunder and the expiration or termination of all Letters of
Credit; (ii) constituting property sold or to be sold or disposed of as part of or in connection
with any disposition permitted hereunder; or (iii) subject to Section 15.1, if approved,
authorized or ratified in writing by the Required Lenders; or (b) to subordinate its interest in
any Collateral to any holder of a Lien on such Collateral which is permitted by Section
11.2(d)(i) or (d)(iii) (it being understood that the Administrative Agent may
conclusively rely on a certificate from the Borrower in determining whether the Debt secured by any
such Lien is permitted by Section 11.1(b)). Upon request by the Administrative Agent at
any time, the Lenders will confirm in writing the Administrative Agent’s authority to release, or
subordinate its interest in, particular types or items of Collateral pursuant to this Section
14.11.




14.12. Administrative Agent May File Proofs of Claim.



In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any
Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then
be due and payable as herein expressed or by declaration or otherwise and irrespective of whether
the Administrative Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise:



(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, and all other Obligations that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the claims of the Lenders
and the Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative Agent and their respective agents
and counsel and all other amounts due the Lenders and the Administrative Agent under Sections
5, 15.5 and 15.17) allowed in such judicial proceedings; and



(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any
amount due for the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 5, 15.5 and 15.17.


 


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Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize
or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.




14.13. Other Agents; Arrangers and Managers.



None of the Lenders or other Persons identified on the facing page or signature pages of this
Agreement as a “syndication agent,” “documentation agent,” “co-agent,” “book manager,” “lead
manager,” “arranger,” “lead arranger” or “co-arranger”, if any, shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the
Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.




SECTION
15. GENERAL.




15.1.  Waiver; Amendments.



No delay on the part of the Administrative Agent or any Lender in the exercise of any right,
power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any
of them 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 or the other Loan Documents shall in any event be
effective unless the same shall be in writing and acknowledged by Lenders having an aggregate Pro
Rata Shares of not less than the aggregate Pro Rata Shares expressly designated herein with respect
thereto or, in the absence of such designation as to any provision of this Agreement, by the
Required Lenders, 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. No amendment,
modification, waiver or consent shall (a) extend or increase the Commitment of any Lender without
the written consent of such Lender, (b) extend the date scheduled for payment of any principal
(excluding mandatory prepayments) of or interest on the Loans or any fees payable hereunder without
the written consent of each Lender directly affected thereby, (c) reduce the principal amount of
any Loan, the rate of interest thereon or any fees payable hereunder, without the consent of each
Lender directly affected thereby (except for periodic adjustments of interest rates and fees
resulting from a change in the Applicable Margin as provided for in this Agreement); or (d) release
any party from all or any of its material obligations under the Guaranty, or reduce any of its
material obligations


 


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thereunder,
or all or substantially all of the Collateral granted under the Collateral Documents, change any Specified Definition, any
provision of this Section 15.1, any of the dollar or percentage amounts set forth in any of
Section 3.2 and/or Section 6(e) of the Construction Rider, or reduce the aggregate
Pro Rata Share required to effect an amendment, modification, waiver or consent, without, in each
case, the written consent of all Lenders. No provision of Sections 6.2.2 or 6.3
with respect to the timing or application of mandatory prepayments of the Loans shall be amended,
modified or waived without the consent of Lenders having a majority of the aggregate Pro Rata
Shares of the Term Loans affected thereby. No provision of Section 14 or other provision
of this Agreement affecting the Administrative Agent in its capacity as such shall be amended,
modified or waived without the consent of the Administrative Agent. No provision of this Agreement
relating to the rights or duties of the Issuing Lender in its capacity as such shall be amended,
modified or waived without the consent of the Issuing Lender. No provision of this Agreement
relating to the rights or duties of the Swing Line Lender in its capacity as such shall be amended,
modified or waived without the consent of the Swing Line Lender. Notwithstanding anything to the
contrary set forth in this Section 15.1, as between the Administrative Agent and the
Lenders (or any portion thereof), the Administrative Agent shall have the sole authority to modify,
amend or waive any conditions pursuant to the funding of any portion of the Term Loan if such
condition precedent is not material (as determined by Administrative Agent in its reasonable
discretion) and relates to a single disbursement of loan proceeds in an amount not in excess of
$4,000,000 (it being understood and agreed that the Administrative Agent shall not have the sole
authority to modify, amend or waive any such condition precedent that is material (as determined by
Administrative Agent in its reasonable discretion) or relates to a single disbursement of loan
proceeds in an amount in excess of $4,000,000).




15.2. Confirmations.



The Borrower and each holder of a Note agree from time to time, upon written request received
by it from the other, to confirm to the other in writing (with a copy of each such confirmation to
the Administrative Agent) the aggregate unpaid principal amount of the Loans then outstanding under
such Note.




15.3. Notices.



Except as otherwise provided in Sections 2.2.2 and 2.2.3, all notices
hereunder shall be in writing (including facsimile transmission) and shall be sent to the
applicable party at its address shown on Annex B 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 and 2.2.3, the Administrative Agent shall be entitled to rely on
telephonic instructions from any person that the Administrative Agent in good faith believes is an
authorized officer or employee of the Borrower, and the Borrower shall hold the Administrative
Agent and each other Lender harmless from any loss, cost or expense resulting from any such
reliance.


 


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15.4. Computations.



Where the character or amount of any asset or liability or item of income or expense is
required to be determined, or any consolidation or other accounting computation is required to be
made, for the purpose of this Agreement, such determination or calculation shall, to the extent
applicable and except as otherwise specified in this Agreement, be made in accordance with GAAP,
consistently applied; provided that if the Borrower notifies the Administrative Agent that
the Borrower wishes to amend any covenant in Sections 10 or 11.14 (or any related definition) to
eliminate or to take into account the effect of any change in GAAP on the operation of such
covenant (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to
amend Sections 10 or 11.14 (or any related definition) for such purpose), then the Borrower’s
compliance with such covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is withdrawn or such
covenant (or related definition) is amended in a manner satisfactory to the Borrower and the
Required Lenders.




15.5. Costs, Expenses and Taxes.



The Borrower agrees to pay on demand all reasonable out-of-pocket costs and expenses of the
Administrative Agent (including Attorney Costs and any Taxes) in connection with the preparation,
execution, syndication, delivery and administration (including perfection and protection of any
Collateral and the costs of Intralinks (or other similar service), if applicable) 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 amendment, supplement or waiver to
any Loan Document), whether or not the transactions contemplated hereby or thereby shall be
consummated, and all reasonable out-of-pocket costs and expenses (including Attorney Costs and any
Taxes) incurred by the Administrative Agent and each Lender after an Event of Default in connection
with the collection of the Obligations or the enforcement of this Agreement the other Loan
Documents or any such other documents or during any workout, restructuring or negotiations in
respect thereof. In addition, the Borrower agrees to pay, and to save the Administrative Agent and
the Lenders harmless from all liability for, any fees of the Borrower’s auditors in connection with
any reasonable exercise by the Administrative Agent and the Lenders of their rights pursuant to
Section 10.2. All Obligations provided for in this Section 15.5 shall survive
repayment of the Loans, cancellation of the Notes, expiration or termination of the Letters of
Credit and termination of this Agreement.




15.6. Assignments; Participations.


 


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15.6.1. Assignments.



(a) Any Lender may at any time assign to one or more Persons (any such Person, an
“Assignee”) all or any portion of such Lender’s Loans and Commitments, with the prior
written consent of the Administrative Agent, the Issuing Lender (for an assignment of the Revolving
Loans and the Revolving Commitment) and, so long as no Event of Default exists, the Borrower (which
consents shall not be unreasonably withheld or
delayed and shall not be required for an assignment by a Lender to a Lender or an Affiliate of
a Lender). Except as the Administrative Agent may otherwise agree, any such assignment shall be in
a minimum aggregate amount equal to $5,000,000 or, if less, the remaining Commitment and Loans held
by the assigning Lender. The Borrower and the Administrative Agent shall be entitled to continue
to deal solely and directly with such Lender in connection with the interests so assigned to an
Assignee until the Administrative Agent shall have received and accepted an effective assignment
agreement in substantially the form of Exhibit D hereto (an “Assignment Agreement”)
executed, delivered and fully completed by the applicable parties thereto and a processing fee of
$4,000. No assignment may be made to any Person if at the time of such assignment the Borrower
would be obligated to pay any greater amount under Sections 7.6 or 8 to the
Assignee than the Borrower is then obligated to pay to the assigning Lender under such Sections
(and if any assignment is made in violation of the foregoing, the Borrower will not be required to
pay such greater amounts). Any attempted assignment not made in accordance with this Section
15.6.1 shall be treated as the sale of a participation under Section 15.6.2. The
Borrower shall be deemed to have granted its consent to any assignment requiring its consent
hereunder unless the Borrower has expressly objected to such assignment within three Business Days
after notice thereof.



(b) From and after the date on which the conditions described above have been met, (i) such
Assignee shall be deemed automatically to have become a party hereto and, to the extent that rights
and obligations hereunder have been assigned to such Assignee pursuant to such Assignment
Agreement, shall have the rights and obligations of a Lender hereunder and (ii) the assigning
Lender, to the extent that rights and obligations hereunder have been assigned by it pursuant to
such Assignment Agreement, shall be released from its rights (other than its indemnification
rights) and obligations hereunder. Upon the request of the Assignee (and, as applicable, the
assigning Lender) pursuant to an effective Assignment Agreement, the Borrower shall execute and
deliver to the Administrative Agent for delivery to the Assignee (and, as applicable, the assigning
Lender) a Note in the principal amount of the Assignee’s Pro Rata Share of the Revolving Commitment
plus the principal amount of the Assignee’s Term Loan (and, as applicable, a Note in the principal
amount of the Pro Rata Share of the Revolving Commitment retained by the assigning Lender plus the
principal amount of the Term Loan retained by the assigning Lender). Each such Note shall be dated
the effective date of such assignment. Upon receipt by the assigning Lender of such Note, the
assigning Lender shall return to the Borrower any prior Note held by it.



(c) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.


 


-75-









 





15.6.2. Participations. Any Lender may at any time sell to one or more Persons
participating interests in its Loans, Commitments or other interests hereunder (any
such Person, a “Participant”). In the event of a sale by a Lender of a participating
interest to a Participant, (a) such Lender’s obligations hereunder shall remain unchanged for all
purposes, (b) the Borrower and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations hereunder and (c) all
amounts payable by the Borrower shall be determined as if such Lender had not sold such
participation and shall be paid directly to such Lender. No Participant shall have any direct or
indirect voting rights hereunder except with respect to any event described in Section 15.1
expressly requiring the unanimous vote of all Lenders or, as applicable, all affected Lenders.
Each Lender agrees to incorporate the requirements of the preceding sentence into each
participation agreement which such Lender enters into with any Participant. The Borrower agrees
that if amounts outstanding under this Agreement are due and payable (as a result of acceleration
or otherwise), each Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement and with respect to any Letter of
Credit to the same extent as if the amount of its participating interest were owing directly to it
as a Lender under this Agreement; provided that such right of set-off shall be subject to
the obligation of each Participant to share with the Lenders, and the Lenders agree to share with
each Participant, as provided in Section 7.5. The Borrower also agrees that each
Participant shall be entitled to the benefits of Section 7.6 or 8 as if it were a
Lender (provided that on the date of the participation no Participant shall be entitled to
any greater compensation pursuant to Section 7.6 or 8 than would have been paid to
the participating Lender on such date if no participation had been sold and that each Participant
complies with Section 7.6(d) as if it were an Assignee).




15.7. Register.



The Administrative Agent shall maintain a copy of each Assignment Agreement delivered and
accepted by it and register (the “Register”) for the recordation of names and addresses of
the Lenders and the Commitment of each Lender from time to time and whether such Lender is the
original Lender or the Assignee. No assignment shall be effective unless and until the Assignment
Agreement is accepted and registered in the Register. All records of transfer of a Lender’s
interest in the Register shall be conclusive, absent manifest error, as to the ownership of the
interests in the Loans. The Administrative Agent shall not incur any liability of any kind with
respect to any Lender with respect to the maintenance of the Register.




15.8. GOVERNING LAW.



THIS AGREEMENT AND EACH NOTE SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS
OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.


 


-76-









 






15.9. Confidentiality.



As required by federal law and the Administrative Agent’s policies and practices, the
Administrative Agent may need to obtain, verify, and record certain customer identification
information and documentation in connection with opening or maintaining accounts, or establishing
or continuing to provide services. The Administrative Agent and each Lender agree to use
commercially reasonable efforts (equivalent to the efforts the Administrative Agent or such 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 the Administrative Agent and each Lender may disclose such information (a) to Persons
employed or engaged by the Administrative Agent or such 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 15.9 (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 the Administrative Agent or such
Lender to be compelled by any court decree, subpoena or legal or administrative order or process;
(d) as, on the advice of the Administrative Agent’s or such 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 the Administrative Agent or such Lender is a party; (f) to
any nationally recognized rating agency that requires access to information about a Lender’s
investment portfolio in connection with ratings issued with respect to such Lender; (g) to any
Affiliate of the Administrative Agent, the Issuing Lender or any other Lender who may provide Bank
Products to the Loan Parties; or (h) that ceases to be confidential through no fault of the
Administrative Agent or any Lender. Notwithstanding the foregoing, the Borrower consents to the
publication by the Administrative Agent or any Lender of a tombstone or similar advertising
material relating to the financing transactions contemplated by this Agreement, and the
Administrative Agent reserves the right to provide to industry trade organizations information
necessary and customary for inclusion in league table measurements.




15.10. Severability.



Whenever possible each provision of this Agreement shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement. All obligations of the Borrower and rights of the
Administrative Agent and the Lenders expressed herein or in any other Loan Document shall be in
addition to and not in limitation of those provided by applicable law.


 


-77-









 






15.11. Nature of Remedies.



All Obligations of the Borrower and rights of the Administrative Agent and the Lenders
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 the Administrative Agent or any 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.




15.12. 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 (except as relates to the fees described in Section 5.3) and any prior arrangements
made with respect to the payment by the Borrower of (or any indemnification for) any fees, costs or
expenses payable to or incurred (or to be incurred) by or on behalf of the Administrative Agent or
the Lenders.




15.13. 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 of an
executed signature page to this Agreement by facsimile or other electronic transmission shall
constitute effective delivery thereof. Electronic records of executed Loan Documents maintained by
the Lenders shall deemed to be originals.




15.14. Successors and Assigns.



This Agreement shall be binding upon the Borrower, the Lenders and the Administrative Agent
and their respective successors and assigns, and shall inure to the benefit of the Borrower, the
Lenders and the Administrative Agent and the successors and assigns of the Lenders and the
Administrative Agent. 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. The Borrower may not assign or transfer any of its rights or Obligations
under this Agreement without the prior written consent of the Administrative Agent and each Lender.




15.15. Captions.



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


 


-78-









 






15.16. Customer Identification — USA Patriot Act Notice.



Each Lender and LaSalle (for itself and not on behalf of any other party) hereby notifies the
Loan Parties that, pursuant to the requirements of the USA Patriot Act, Title III of Pub. L.
107-56, signed into law October 26, 2001 (the “Act”), it is required to obtain, verify and record
information that identifies the Loan Parties, which information includes the name and address of
the Loan Parties and other information that will allow such Lender or LaSalle, as applicable, to
identify the Loan Parties in accordance with the Act.




15.17. INDEMNIFICATION BY THE BORROWER.



IN CONSIDERATION OF THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE ADMINISTRATIVE AGENT
AND THE LENDERS AND THE AGREEMENT TO EXTEND THE COMMITMENTS PROVIDED HEREUNDER, THE BORROWER HEREBY
AGREES TO INDEMNIFY, EXONERATE AND HOLD THE ADMINISTRATIVE AGENT, EACH LENDER AND EACH OF THE
OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS OF THE ADMINISTRATIVE AGENT AND EACH 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 ATTORNEY COSTS (COLLECTIVELY, THE
“INDEMNIFIED LIABILITIES”), INCURRED BY THE LENDER PARTIES OR ANY OF THEM AS A RESULT OF, OR
ARISING OUT OF, OR RELATING TO (A) ANY TENDER OFFER, MERGER, PURCHASE OF CAPITAL SECURITIES,
PURCHASE OF ASSETS 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 ANY 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 ANY OF THE LENDER PARTIES, EXCEPT FOR ANY SUCH INDEMNIFIED
LIABILITIES ARISING ON ACCOUNT OF THE APPLICABLE LENDER PARTY’S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT AS DETERMINED BY A FINAL, NONAPPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION.
IF AND TO THE EXTENT THAT THE FOREGOING UNDERTAKING MAY BE UNENFORCEABLE FOR ANY REASON, THE
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 15.17 SHALL SURVIVE REPAYMENT OF THE LOANS, CANCELLATION OF THE NOTES, EXPIRATION
OR TERMINATION OF THE LETTERS OF CREDIT, ANY FORECLOSURE UNDER, OR ANY MODIFICATION, RELEASE OR
DISCHARGE OF, ANY OR ALL OF THE COLLATERAL DOCUMENTS AND TERMINATION OF THIS AGREEMENT.


 


-79-









 






15.18. Nonliability of Lenders.



The relationship between the Borrower on the one hand and the Lenders and the Administrative
Agent on the other hand shall be solely that of borrower and lender. Neither the Administrative
Agent nor any Lender has any fiduciary relationship with or duty to any Loan Party arising out of
or in connection with this Agreement or any of the other Loan Documents, and the relationship
between the Loan Parties, on the one hand, and the Administrative Agent and the Lenders, on the
other hand, in connection herewith or therewith is solely that of debtor and creditor. Neither the
Administrative Agent nor any Lender undertakes any responsibility to any Loan Party to review or
inform any Loan Party of any matter in connection with any phase of any Loan Party’s business or
operations. The Borrower agrees, on behalf of itself and each other Loan Party, that neither the
Administrative Agent nor any Lender shall have liability to any Loan Party (whether sounding in
tort, contract or otherwise) for losses suffered by any Loan Party in connection with, arising out
of, or in any way related to the transactions contemplated and the relationship established by the
Loan Documents, or any act, omission or event occurring in connection therewith, unless it is
determined in a final non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of the party from which recovery is
sought. NO LENDER PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY OTHERS OF ANY
INFORMATION OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR OTHER SIMILAR INFORMATION
TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT, NOR SHALL ANY LENDER PARTY HAVE ANY
LIABILITY WITH RESPECT TO, AND THE BORROWER ON BEHALF OF ITSELF AND EACH OTHER LOAN PARTY, HEREBY
WAIVES, RELEASES AND AGREES NOT TO SUE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR
CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ARISING OUT OF ITS
ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH (WHETHER BEFORE OR AFTER THE CLOSING DATE). The
Borrower acknowledges that it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a party. No joint venture
is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Loan Parties and
the Lenders.


 


-80-









 






15.19. FORUM SELECTION AND 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
ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS;
PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE
ADMINISTRATIVE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION.
THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR
THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. THE BORROWER FURTHER IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF ILLINOIS. THE 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.




15.20. WAIVER OF JURY TRIAL.



EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH 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 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]



 


-81-









 





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.



	 	 	 	 	 	 	 	 	 
	 	 	AXIS, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ James J. Unger 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Representative of the Executive
Committee	 	 
	 

	 	 	 	 	 	 	 	 






Signature Page to Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	LASALLE BANK NATIONAL ASSOCIATION, as Administrative
Agent, as Issuing Lender and as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Stefan Loeb 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Vice President	 	 
	 

	 	 	 	 	 	 	 	 






Signature Page to Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	THE CIT GROUP/EQUIPMENT FINANCING, INC., as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Angela Harmon 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Senior Director	 	 
	 

	 	 	 	 	 	 	 	 






Signature Page to Credit Agreement





 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	FIRST BANK, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Edward L. Dehner 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Assistant Vice President	 	 
	 

	 	 	 	 	 	 	 	 






Signature Page to Credit Agreement




 


 









 







ANNEX A




LENDERS AND PRO RATA SHARES




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Revolving	 	 	 	 	 	 	 	 	 	 	 
	 	 	Commitment	 	 	 	 	 	 	Term Loan	 	 	 	 
	Lender	 	Amount	 	 	Pro Rata Share/	 	 	Commitment	 	 	Pro Rata Share/	 
	LaSalle Bank
National
Association
	 	$	3,333,333.34*/	 	 	 	33.333333334	%	 	$	20,000,000.00	 	 	 	33.333333334	%
	The CIT
Group/Equipment
Financing, Inc.
	 	$	3,333,333.33	 	 	 	33.333333333	%	 	$	20,000,000.00	 	 	 	33.333333333	%
	First Bank
	 	$	3,333,333.33	 	 	 	33.333333333	%	 	$	20,000,000.00	 	 	 	33.33333333	%
	TOTALS
	 	$	10,000,000.00	 	 	 	100	%	 	$	60,000,000.00	 	 	 	100	%








	 	 	 
	*/	 	Includes Swing Line Commitment Amount of $2,000,000.







 


Annex A









 







ANNEX B




ADDRESSES FOR NOTICES




AXIS, LLC




c/o American Railcar Industries, Inc.

100 Clark Street

St. Charles, Missouri 63301




Attention: Michael Obertop

Telephone: (636) 940-6054

Facsimile: (636) 940-5032




LASALLE BANK NATIONAL ASSOCIATION, as Administrative Agent, Issuing Lender and a Lender




Notices of Borrowing , Conversion, Continuation and Letter of Credit Issuance




135 South LaSalle Street

Chicago, Illinois 60603

Attention: Robert W. Hart

Telephone: (312) 904-7136

Facsimile: (312) 904-2903




All Other Notices




135 South LaSalle Street

Chicago, Illinois 60603

Attention: Robert W. Hart

Telephone: (312) 904-7136

Facsimile: (312) 904-2903



 


Annex B









 





THE CIT GROUP/EQUIPMENT FINANCING, INC., as a Lender




Notices of Borrowing , Conversion, Continuation and Letter of Credit Issuance




30 South Wacker Drive, Suite 3000

Chicago, Illinois 60606



Attention: Angela Harmon or Pam Mac

Telephone: (312) 906-5700

Facsimile: (312) 906-5823




All Other Notices




30 South Wacker Drive, Suite 3000

Chicago, Illinois 60606



Attention: Angela Harmon or Pam Mac

Telephone: (312) 906-5700

Facsimile: (312) 906-5823




FIRST BANK, as a Lender




Notices of Borrowing , Conversion, Continuation and Letter of Credit Issuance




135 N. Meramec Ave.

Clayton, Missouri 63105



Attention: Lesley Lutker / Ed Dehner

Telephone: (314) 854-5408 / (314) 854-4613

Facsimile: (314) 854-5454




All Other Notices




135 N. Meramec Ave.

Clayton, Missouri 63105



Attention: Lesley Lutker / Ed Dehner

Telephone: (314) 854-5408 / (314) 854-4613

Facsimile: (314) 854-5454



Signature Page to Credit Agreement


 


 









 







EXHIBIT A




FORM OF

NOTE




			
	 	 	 
	
 _____, 2007	 	 
	$                    
	 	Chicago, Illinois






The undersigned, for value received, promises to pay to the order of
 _____ 
(the
“Lender”) at the principal office of LaSalle Bank National Association (the
“Administrative Agent”) in Chicago, Illinois the aggregate unpaid amount of all Loans made
to the undersigned by the Lender pursuant to the Credit Agreement referred to below (as shown on
the schedule attached hereto (and any continuation thereof) or in the records of the Lender), such
principal amount to be payable on the dates set forth in the Credit Agreement.



The undersigned 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 December 28, 2007 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”; terms not otherwise defined
herein are used herein as defined in the Credit Agreement), among the undersigned, certain
financial institutions (including the Lender) and the Administrative Agent, 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 Illinois applicable to
contracts made and to be performed entirely within such State.



	 	 	 	 	 	 	 	 	 
	 	 	AXIS, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 








 


Exhibit A









 







EXHIBIT B




FORM OF COMPLIANCE CERTIFICATE




To: LaSalle Bank National Association, as Administrative Agent




Please refer to the Credit Agreement dated as of December 28, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”) among Axis,
LLC (the “Borrower”), various financial institutions and LaSalle Bank National Association,
as Administrative Agent. Terms used but not otherwise defined herein are used herein as defined in
the Credit Agreement.




	I.	 	Reports. Enclosed herewith is a copy of the [annual audited/quarterly/monthly]
report of the Borrower as at
 _____,
 _____ 
(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 the
Borrower as of the Computation Date and has been prepared in accordance with GAAP consistently
applied.







	II.	 	Financial Tests. The Borrower hereby certifies and warrants to you
that the following is a true and correct computation as at the
Computation Date of the following ratios and/or financial restrictions
contained in the Credit Agreement:

	 
	 	 	Section 11.14.2 — Minimum Fixed Charge Coverage Ratio






	 	 	 	 	 
	1. EBITDA
	 	$	                    	 
	2. Income taxes paid
	 	$	                    	 
	3. Tax Distributions made
	 	$	                    	 
	4. Distributions paid in cash
(other than Tax Distributions)
	 	$	                    	 
	5. Capital Expenditures
	 	$	                    	 
	6. Sum of (2), (3), (4) and (5)
	 	$	                    	 
	7. Remainder of (1) minus (6)
	 	$	                    	 
	8. Interest Expense
	 	$	                    	 
	9. Required payments of principal of
Funded Debt (including Term Loans
but excluding Revolving Loans)
	 	$	                    	 
	10. Sum of (8) and (9)
	 	$	                    	 
	11. Ratio of (7) to (10)
	 	____ to 1
	10. Minimum Required
	 	 	1.25 to 1	 






 


Exhibit B
Page 1









 








In accordance with Section 11.14.2 of the Credit Agreement, the Borrower has
maintained a Minimum Net Worth of at least $_____ 
since the last Compliance
Certificate was delivered.



The Borrower further certifies to you that no Event of Default or Unmatured Event of Default
has occurred and is continuing.



The Borrower has caused this Certificate to be executed and delivered by its duly authorized
officer on
 _____,
 _____.



	 	 	 	 	 	 	 	 	 
	 	 	AXIS, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 









 


Exhibit B

Page 2









 







EXHIBIT C




FORM OF BORROWING BASE CERTIFICATE




To: LaSalle Bank National Association, as Administrative Agent




Please refer to the Credit Agreement dated as of December 28, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”) among Axis,
LLC (the “Borrower”), various financial institutions and LaSalle Bank National Association,
as Administrative Agent. This certificate (this “Certificate”), together with supporting
calculations attached hereto, is delivered to you 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.



The Borrower hereby certifies and warrants to the Administrative Agent and the Lenders that at
the close of business on
 _____,
 _____ 
(the “Calculation Date”), the Borrowing Base
was $
 _____, computed as set forth on the schedule attached hereto.



The Borrower has caused this Certificate to be executed and delivered by its officer thereunto
duly authorized on
 _____,
 _____.



	 	 	 	 	 	 	 	 	 
	 	 	AXIS, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 







 


Exhibit C
Page 1









 







SCHEDULE TO BORROWING BASE CERTIFICATE

Dated as of [_________________]




	 	 	 	 	 
	1. Gross Accounts
	 	$	                    	 
	2. Less Ineligibles
	 	 	 	 
	 
	• Services not fully performed
	 	$	                    	 
	• Administrative Agent’s Lien Not Perfected
	 	$	                    	 
	• Subject to other Lien
	 	$	                    	 
	• Subject to Offset, etc.
	 	$	                    	 
	• Account Debtors subject to bankruptcy
	 	$	                    	 
	• Sale on Approval, Sale or Return,
Bill and Hold or Consignment
	 	$	                    	 
	• Account Debtor not in U.S., beyond
20% permitted foreign accounts
	 	$	                    	 
	• Not in ordinary course of business
	 	$	                    	 
	• Federal accounts not assigned
	 	$	                    	 
	• Exceeds credit limit
	 	$	                    	 
	• Evidenced by non-assignment
instrument, etc.
	 	$	                    	 
	• Over 60 days past due or
over 90 days past invoice date
	 	$	                    	 
	• Business Activity Report jurisdiction
	 	$	                    	 
	• Affiliate Receivables on Non-Favorable
Terms
	 	$	                    	 
	• Cross-aged Accounts
	 	$	                    	 
	• Concentration limit (50%)
	 	$	                    	 
	• Other Administrative Agent exclusions
	 	$	                    	 
	• Total
	 	$	                    	 
	 
	3. Eligible Accounts [Item 1 minus Item 2]
	 	$	                    	 
	 
	4. Item 3 times 85%
	 	$	                    	 
	 
	5. Gross Inventory
	 	$	                    	 
	 
	6. Less Ineligibles
	 	 	 	 
	• Administrative Agent’s Lien Not
Perfected
	 	$	                    	 
	• Subject to other Lien
	 	$	                    	 
	• Not Salable
	 	$	                    	 
	• Located off-site and no
Collateral Access Agreement, as
requested
	 	$	                    	 






 


Exhibit C
Page 2









 





	 	 	 	 	 
	• Not located in U.S.
	 	$	                    	 
	• “Hot Goods”
	 	$	                    	 
	• In-transit or held or delivered
on consignment
	 	$	                    	 
	• “Work-in-process”
	 	$	                    	 
	• Supply items; packaging
	 	$	                    	 
	• Advance payments received
	 	$	                    	 
	• Breaches representations, warranties
or covenants in Loan Documents
	 	$	                    	 
	• Other Administrative Agent exclusions
	 	$	                    	 
	• Total
	 	$	                    	 
	7. Eligible Inventory [Item 5 minus Item 6]
	 	$	                    	 
	 
	8. Item 7 times 65%
	 	$	                    	 
	 
	9. Borrowing Base [Item 4 plus Item 8]
	 	$	                    	 
	10. Lesser of Item 9 and
the Revolving Commitment
	 	$	                    	 
	 
	11. Revolving Outstandings (includes Stated
Amount of Letters of Credit)
	 	$	                    	 
	 
	12. Outstanding Swing Line Loans
	 	$	                    	 
	 
	13.
Revolving Loan Availability [Excess of Item 10 over Item 11]
	 	$	                    	 
	 
	14. Required
Prepayment [Excess of sum of Items 11 and 12
over Item 10]
	 	$	                    	 









 


Exhibit C
Page 3










 







EXHIBIT D




FORM OF

ASSIGNMENT AGREEMENT




Date:                    




	 	 	 
	To:

	 	Axis, LLC
	 
	 	 
	 

	 	and
	 
	 	 
	 

	 	LaSalle Bank National Association, as Administrative Agent
	 
	 	 
	Re:

	 	Assignment under the Credit
Agreement referred to below






Gentlemen and Ladies:



Please refer to Section 15.6.1 of the Credit Agreement dated as of December 28, 2007 (as
amended or otherwise modified from time to time, the “Credit Agreement”) among Axis, LLC
(the “Borrower”), various financial institutions and LaSalle Bank National Association, as
administrative agent (in such capacity, the “Administrative Agent”). Unless otherwise
defined herein or the context otherwise requires, terms used herein have the meanings provided in
the Credit Agreement.



                     (the “Assignor”) hereby sells and assigns, without recourse, to
                     (the “Assignee”), and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to the Assignor’s rights and obligations under the Credit Agreement
as of the date hereof equal to  % of all of the Loans, of the participation interests in
the Letters of Credit and of the Commitments, such sale, purchase, assignment and assumption to be
effective as of, _____, or such later date on which the Borrower and the
Administrative Agent shall have consented hereto (the “Effective Date”). After giving
effect to such sale, purchase, assignment and assumption, the Assignee’s and the Assignor’s
respective Commitments and Pro Rata Shares for purposes of the Credit Agreement will be as set
forth opposite their names on the signature pages hereof.



The Assignor hereby instructs the Administrative Agent to make all payments from and after the
Effective Date in respect of the interest assigned hereby directly to the Assignee. The Assignor
and the Assignee agree that all interest and fees accrued up to, but not including, the Effective
Date are the property of the Assignor, and not the Assignee. The Assignee agrees that, upon
receipt of any such interest or fees, the Assignee will promptly remit the same to the Assignor.



The Assignor represents and warrants that it is the legal and beneficial owner of the interest
being assigned by it hereunder and that such interest is free and clear of any adverse claim.








 


Exhibit D
Page 1









 







The Assignee represents and warrants to the Borrower and the Administrative Agent that, as of
the date hereof, the Borrower will not be obligated to pay any greater amount under Section 7.6 or
8 of the Credit Agreement than the Borrower is obligated to pay to the Assignor under such Section.
[The Assignee has delivered, or is delivering concurrently herewith, to the Borrower and the
Administrative Agent the forms required by Section 7.6 of the Credit Agreement.] [INSERT IF
ASSIGNEE IS ORGANIZED UNDER THE LAWS OF A JURISDICTION OTHER THAN THE UNITED STATES OF AMERICA OR A
STATE THEREOF.] The [Assignee/Assignor] [Borrower] shall pay the fee payable to the Administrative
Agent pursuant to Section 15.6.1.



The Assignee hereby confirms that it has received a copy of the Credit Agreement. Except as
otherwise provided in the Credit Agreement, effective as of the Effective Date:




(a) the Assignee (i) shall be deemed automatically to have become a
party to the Credit Agreement and to have all the rights and obligations of
a “Lender” under the Credit Agreement as if it were an original signatory
thereto to the extent specified in the second paragraph hereof; and (ii)
agrees to be bound by the terms and conditions set forth in the Credit
Agreement as if it were an original signatory thereto; and




(b) the Assignor shall be released from its obligations under the
Credit Agreement to the extent specified in the second paragraph hereof.



The Assignee hereby advises each of you of the following administrative details with respect
to the assigned Loans and Commitment:




(A) Institution Name:




Address:




Attention:




Telephone:




Facsimile:




(B) Payment Instructions:



This Assignment shall be governed by and construed in accordance with the laws of the State of
Illinois.







 


Exhibit D
Page 2









 







Please evidence your receipt hereof and your consent to the sale, assignment, purchase and
assumption set forth herein by signing and returning counterparts hereof to the Assignor and the
Assignee.



	 	 	 	 	 	 	 	 	 
	Percentage = _____%	 	[ASSIGNEE]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Adjusted Percentage = _____%	 	[ASSIGNOR]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 






	 	 	 	 	 	 	 
	ACKNOWLEDGED AND CONSENTED TO 


this ____ day of ________, ____	 	 
	 
	 	 	 	 	 	 
	LASALLE BANK NATIONAL ASSOCIATION, 

as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	ACKNOWLEDGED AND CONSENTED TO 


this ____ day of ________, ____	 	 
	 
	 	 	 	 	 	 
	AXIS, LLC	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 











 


Exhibit D
Page 3









 







EXHIBIT E




FORM OF NOTICE OF BORROWING




To: LaSalle Bank National Association, as Administrative Agent




Please refer to the Credit Agreement dated as of December 28, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”) among Axis, LLC (the
“Borrower”), various financial institutions and LaSalle Bank National Association, as
Administrative Agent. Terms used but not otherwise defined herein are used herein as defined in
the Credit Agreement.



The undersigned hereby gives irrevocable notice, pursuant to Section 2.2.2 of the
Credit Agreement, of a request hereby for a borrowing as follows:




i. The requested borrowing date for the proposed borrowing (which is a Business
Day) is
 _____,
 _____.




ii. The aggregate amount of the proposed borrowing is $
 _____, which
shall constitute a [Revolving Loan/portion of the Term Loan].




iii. The type of Loans comprising the proposed borrowing are [Base Rate]
[LIBOR] Loans.




iv. 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).



The undersigned hereby certifies that on the date hereof and on the date of borrowing set
forth above, and immediately after giving effect to the borrowing requested hereby: (i) there
exists and there shall exist no Unmatured Event of Default or Event of Default under the Credit
Agreement; and (ii) each of the representations and warranties contained in the Credit Agreement
and the other Loan Documents is true and correct as of the date hereof, except to the extent that
such representation or warranty expressly relates to another date and except for changes therein
expressly permitted or expressly contemplated by the Credit Agreement.



The Borrower has caused this Notice of Borrowing to be executed and delivered by its officer
thereunto duly authorized on
 _____,
 _____.



	 	 	 	 	 	 	 	 	 
	 	 	AXIS, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 











 


Exhibit E









 







EXHIBIT F




FORM OF NOTICE OF CONVERSION/CONTINUATION




To: LaSalle Bank National Association, as Administrative Agent




Please refer to the Credit Agreement dated as of December 28, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”) among Axis, LLC (the
“Borrower”), various financial institutions and LaSalle Bank National Association, as
Administrative Agent. Terms used but not otherwise defined herein are used herein as defined in
the Credit Agreement.



The undersigned hereby gives irrevocable notice, pursuant to Section 2.2.3 of the
Credit Agreement, of its request to:



(a) on [ date ] convert
$[_____]of the aggregate outstanding principal amount of the [_____] Loan, bearing interest at
the [_____] Rate, into a(n)
[_____] Loan [and, in the
case of a LIBOR Loan, having an Interest Period of [_____] month(s)];



[(b) on [ date ] continue
$[_____] of the aggregate outstanding principal amount of
the [_____] Loan, bearing interest at the LIBOR Rate, as a
LIBOR Loan having an Interest Period of [_____] month(s)].



The undersigned hereby represents and warrants that all of the conditions contained in
Section 12.2 of the Credit Agreement have been satisfied on and as of the date hereof, and
will continue to be satisfied on and as of the date of the conversion/continuation requested
hereby, before and after giving effect thereto.



The Borrower has caused this Notice of Conversion/Continuation to be executed and delivered by
its officer thereunto duly authorized on _____, _____.



	 	 	 	 	 	 	 	 	 
	 	 	AXIS, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 







 


Exhibit F









 







EXHIBIT G




CONSTRUCTION RIDER




See Attached









 


Exhibit G









 




Exhibit G to Credit Agreement





CONSTRUCTION RIDER TO CREDIT AGREEMENT




This Construction Rider to Credit Agreement (as amended, restated or otherwise modified from
time to time, this “Rider”) is attached to and made a part of the Credit Agreement dated
as of December 28, 2007 among Axis, LLC, as Borrower, LaSalle Bank National Association, as
Administrative Agent, and the Lenders from time to time parties thereto (as amended, restated or
otherwise modified from time to time, the “Credit Agreement”).



RECITALS:




This Rider sets forth the representations and covenants of the Borrower in connection with
the construction of the Improvements and the installation, testing and startup of the Equipment,
and the terms and conditions governing Term Loan Advances. Therefore, in addition to the covenants
and agreements made in the Credit Agreement, the Borrower, Administrative Agent and Lenders
further covenant and agree as follows:


1. Defined Terms. Terms used but not otherwise defined herein shall have the meanings
given to them in the Credit Agreement. Unless otherwise defined in the Credit Agreement, the
following capitalized terms used in this Rider shall have the meanings set forth below:




Acceptance Date means the date upon which the Borrower has delivered to Administrative
Agent each of (i) a certification from Contractor that the Improvements have been completed in
accordance with the Plans in all material respects and a final certificate of occupancy has been
issued by the City of Paragould, (ii) a certification from the Association of American Railroads
that the axle manufacturing process as contemplated by the Project is in compliance with the
requirements of the Association of American Railroads for producing and selling railcar axles,
(iii) a certification from each of the Major Equipment Sellers that such Major Equipment Seller has
satisfied the final acceptance test with respect to the installation of the Equipment furnished by
such Major Equipment Seller.



Application has the meaning set forth in Section 5.1(a) of this Rider.



Architect means the Contractor in its capacity as architect and engineer under the
Design/Build Contract.



As-Built Survey has the meaning set forth in Section 3.3 of this Rider.



Change Order has the meaning set forth in Section 3.2 of this Rider.



Completion Date means the first date upon which the last of the following shall have
occurred: (a) the Acceptance Date, (b) the Equipment has been in continuous production at a level
sufficient to support production of Inventory required to meet the projected financial performance
of the Project and in any event not less than 90 consecutive days, (c) the Borrower has provided
Administrative Agent the Completion Date Financial


 


 









 




Projections and (d) the Borrower has provided Administrative Agent the then-existing Supply
Agreements.




Completion Date Financial Projections means financial projections of the Borrower
(i) based on assumptions certified by the Borrower, (ii) supported by forecasts by a recognized
industry forecaster for new railcar production and (iii) reasonably acceptable to the Required
Lenders (and each of the Lenders existing on the Closing Date, so long as the then-existing Pro
Rate Share of each such Lender is not less than half the Pro Rata Share of such Lender as of the
Closing Date) in form and substance for the Project based on the then-existing Supply Agreements
and other relevant information demonstrating pro forma compliance with the financial covenants
set forth in Section 11.14 of the Credit Agreement through the Term Loan Maturity Date.



Construction Advance means a Term Loan Advance for items included in the
Construction Budget.



Construction Budget means the line item in the Project Budget allocated to
construction of the Improvements consisting of (for the avoidance of doubt) the item designated as
R5 in the Project Budget, as modified from time to time pursuant to Section 3.2 of this Rider.



Construction Completion Schedule means the construction completion schedule
indicating the anticipated progress of construction of the Improvements and installation of the
Equipment, as approved by Administrative Agent.



Construction Documents means, collectively, the Plans, the Design/Build Contract,
the Construction Completion Schedule and the Construction Budget.



Consultant means an independent consulting architect, inspector, and/or engineer
employed by Administrative Agent in Administrative Agent’s sole discretion.



Contractor means Forcum Lannom Contractors.



Design/Build Contract means the contract between Borrower and Contractor for the
design and construction of the Improvements in accordance with the Plans for a guaranteed maximum
amount not to exceed the total amount of the Construction Budget (i.e., [REDACTED*]), as such
contract is approved by Administrative Agent (which approval shall not be unreasonably withheld
or delayed).



Disbursement Request means a Disbursement Request in the form of Exhibit 1
attached to this Rider.



Equipment means the axle forging equipment to be utilized in the Project, including
without limitation, the Major Equipment.



Equipment Advance means a Term Loan Advance for payment of the purchase price of the
Equipment, the installation of the Equipment or the testing thereof.


 


-2-









 





Equipment Contract means each contract or purchase order for the purchase of
Equipment, including each Major Equipment Contract.



Equipment Seller means a seller of Equipment under an Equipment Contract.



Force Majeure Event means the occurrence of a delay caused by an event or
circumstance beyond Borrower’s control, such as fire, casualty or adverse weather.



Governmental Approvals means collectively, all consents, licenses, and permits and
all other authorizations or approvals required from any Governmental Authority to construct,
occupy or operate the Project.



Governmental Authority means each governmental or quasi-governmental unit or
authority having jurisdiction over the scope or performance of the Project or the use, occupancy
or operation of the Project or any portion thereof.



Improvements means collectively, the building and all other improvements to be
constructed on the Land as set forth on the Plans.



Land means certain real property located in the City of Paragould, County of Greene,
State of Arkansas and legally described in Schedule 1 attached to this Rider.



Laws means all laws, regulations and rules imposed by Governmental Authorities
governing the Project and/or the use, occupancy or operation of the Project.



Major Equipment Contract means each contract for the purchase of Equipment set forth
on Schedule 3 and any other contract for the purchase of a portion of the Equipment for an
amount equal to or greater than $2,000,000, in each case as approved by Administrative Agent
(which approval will not be unreasonably delayed or withheld).



Major Equipment Seller means each seller of Equipment under a Major Equipment
Contract.



Plans means the plans and specifications for construction of the Improvements, as
approved by Administrative Agent, and as modified from time to time pursuant to Section 3.2 of
this Rider.



Project means, as the context requires, the construction of the Improvements and the
installation, testing and start-up of the Equipment or, following the Acceptance Date,
collectively, the Land, the Improvements and the Equipment.



Project Advance means a Term Loan Advance, other than a Construction Advance or an
Equipment Advance, for any item in the Project Budget.



Project Budget means the project budget for the full development and completion of
the Project, which has been approved by Administrative Agent, a copy of




 


-3-









 







which is attached to this Rider as Schedule 2, as modified from time to time pursuant to
Section 3.2 of this Rider.



Real Property means, collectively, the Land and the Improvements.



Supply Agreements means supply agreements and/or letters of intent between the
Borrower and one or more of Borrower’s customers with regard to the production and sale by
Borrower of railcar axles and related products.



Term Loan Advance means, individually or collectively, any Construction Advance,
Equipment Advance or Project Advance, each constituting an advance of the Term Loan.



Title Insurer means Stewart Title Guaranty Company or such other title insurance
company licensed in the State of Arkansas as may be approved in writing by Administrative Agent in
Administrative Agent’s sole discretion.



Title Policy means a 2006 ALTA Mortgagee’s Loan Title Insurance Policy with extended
coverage issued by the Title Insurer insuring the lien of the Collateral Documents as a valid
first, prior and paramount lien upon the Real Property and all appurtenant easements, and subject
to no exceptions other than the Permitted Liens and those endorsements required by Administrative
Agent, including without limitation, zoning (ALTA 3.1 with parking, based upon the Plans), access
(ALTA 17), variable rate (ALTA 6 and ALTA 6.2), comprehensive (ALTA 9), future advance (ALTA 14),
location (ALTA 22), tax parcel (ALTA 18 or 18.1), contiguity (ALTA 19), usury and creditors’
rights (ALTA 21), environmental protection lien (ALTA 8.1), subdivision, utility facilities, and
same as survey.



2. Representations and Warranties. In addition to the representations and warranties made
by the Borrower in the Credit Agreement and the other Loan Documents, to induce each Lender to
make each Construction Advance, the Borrower represents and warrants to the Administrative Agent
and the Lenders that (as of the date of each Construction Advance):



2.1. Construction Documents. The Borrower has furnished Administrative Agent with
accurate and complete copies of all Construction Documents (each as amended, if applicable).



2.2. Design/Build Contract. The Design/Build Contract provides (or when executed will
provide) that Contractor will furnish to Borrower all architectural and engineering services
necessary for the design and completion of the Improvements.



2.3. Project Budget. The Project Budget represents the Borrower’s good faith estimate
of all costs and expenses of the Project, including soft costs, construction hard costs relating to
the Improvements, permit and entitlement fees and charges, Loan expenses and interest, insurance
costs, property taxes and the cost of purchasing, installing and testing the Equipment.


 


-4-









 





2.4. Construction Budget. The Construction Budget includes all costs of completing the
Improvements.



2.5. Status of Construction Work. Except as disclosed to Administrative Agent in
writing, no construction work has commenced on the Land. All completed construction work or
delivered materials, if any, has been fully paid or will be paid for with the applicable
Construction Advance.



2.6. Access, Utilities. To the best of the Borrower’s knowledge, all access from
public roads and utilities (including sanitary and storm sewers) necessary to complete the
construction of and operate the Improvements and the Equipment are available (whether or not
complete).



2.7. Compliance with Laws. The Project will at all times be in material compliance
with all Laws and all Governmental Approvals, including building permits, for the construction,
use, occupancy and operation of the Project.



2.8. Major Equipment Contracts. As of the date of this Rider, Schedule 3 sets
forth all of the Major Equipment Contracts and all change orders or amendments thereto.



3. Affirmative Covenants. In addition to the covenants set forth in the Credit Agreement
and the other Loan Documents, the Borrower covenants, unless at any time the Required Lenders (or
all Lenders, as set forth in Section 15.1 of the Credit Agreement) shall otherwise expressly
consent in writing, as follows:



3.1. Performance of Construction. The Borrower will cause the construction of the
Improvements to be performed diligently and continuously (except as otherwise permitted hereby) in
a good and workmanlike manner in accordance with the Construction Documents.



3.2. Change Orders. The Borrower will give Administrative Agent prompt written notice
of any proposed changes to the Construction Budget, the Project Budget or the Plans and not amend
any of the Construction Documents without (i) the prior written consent of Required Lenders and
(ii) obtaining any necessary Governmental Approvals; provided that the Borrower may without
Administrative Agent consent but only after reasonable prior notice to Administrative Agent
execute and implement change orders (each, a “Change Order”, collectively, the “Change
Orders”) to the Design/Build Contract and make changes to the Plans, the Project Budget and
the Construction Budget if (x) such change does not result in a material increase or decrease in
the scope or design of the Project or the quality of the Improvements, (y) the Change Order is for
less than $500,000, and (z) the aggregate sum of all Change Orders does not exceed $2,000,000;
provided further that the Borrower shall not reallocate any portion of the Construction Budget
amount to another line item in the Project Budget unless either (A) funds remaining in the
Construction Budget are sufficient to complete the Improvements or (B) the Improvements have been
completed and each of the Contractor and the Consultant has certified thereto, provided further
that Change Orders with respect to reallocations of up to fifty percent (50%) (in the aggregate)
of the contingency line




 


-5-









 







item set forth in the Project Budget to another line item in the Project Budget shall be
disregarded when determining compliance with clauses (y), (z), (A) and (B) of this Section 3.2.



3.3. Survey Delivery. Within sixty (60) days after the Acceptance Date, the Borrower
shall furnish Administrative Agent two copies of an as-built survey of the completed Project
prepared by a land surveyor registered in the State of Arkansas and prepared in accordance with
the 2005 American Land Title Association/American Congress on Surveying and Mapping Standards and
certified in favor of the Borrower, Administrative Agent and Title Insurer, such certification to
be substantially in the form attached as Exhibit 2 (the “As-Built Survey”).



3.4. Delay. The Borrower will not permit the pace of construction of the Improvements
or installation of the Equipment to materially vary from the Construction Completion Schedule, and
will not permit the material cessation of work for a period in excess of ten (10) consecutive days
without Administrative Agent’s prior written consent, except for a Force Majeure Event, in which
event the Borrower shall not permit cessation of work in excess of forty-five (45) consecutive
days. The Borrower shall furnish Administrative Agent with written notice within five (5) days of
the occurrence of a Force Majeure Event or any event which is likely to cause a material delay or
interruption of construction, or the timely occurrence of the Acceptance Date. It shall be an Event
of Default under the Credit Agreement if Contractor or any Major Equipment Seller terminates,
provides notice to the Borrower of its intention to terminate, anticipatorily repudiates the
Design/Build Contract or a Major Equipment Contract, as applicable, or notifies the Borrower that
its performance under the Design/Build Contract or a Major Equipment Contract, as applicable, will
be suspended, and within forty-five (45) days of such termination, notice or anticipatory
repudiation, the Borrower has not identified a replacement contractor, and within a reasonable time
thereafter not to exceed forty-five (45) days, entered into contracts and other agreements with
such replacement contractor or equipment seller, as applicable, as are approved by Administrative
Agent (such approval not to be unreasonably withheld or delayed) and reasonably necessary with
respect to the Project.



3.5. Compliance with Governmental Approvals. The Borrower will cause

the Project to be performed in material compliance with all applicable Laws, Governmental
Approvals, declarations, covenants or restrictions of record, and all other agreements
relating
to the Project or any part thereof. The Borrower shall not permit any Governmental
Approvals issued in connection with the development of the Project (to the extent that any
such permits or Governmental Approvals continue to remain necessary for the construction
of the Project) to expire (unless such expiration could not reasonably be expected to have a
Material Adverse Effect) and will proceed with the Project according to the Governmental
Approvals, including building permits, approved or issued by the Governmental Authorities
and in compliance with any time schedules or time limits imposed by such Governmental
Authorities. In no event shall any portion of the Project be performed unless all
Governmental Approvals required in connection with the performance of such portion of the
Project are then in full force and effect. All necessary Governmental Approvals shall be
legally valid and remain in full force and effect throughout the construction of the Project




 


-6-









 







(or, to the extent applicable, such lesser time period as shall be required by such authorities
and/or by applicable Law for the performance of the construction to which such Governmental
Approvals relate). In the event that any of such Governmental Approvals is suspended during such
time period, the Borrower shall take all necessary steps to cause any such suspended Governmental
Approvals to be reinstated to full force and effect within ten (10) days of their suspension.



3.6. Correction of Defects. The Borrower shall correct any structural or material
defect in the Plans or any material departure from the Plans or the specifications for the
Equipment not accepted by Administrative Agent, it being understood and agreed that the advance of
any Loan proceeds will not constitute a waiver of Administrative Agent’s right to require
compliance with this section with respect to any such defects or departures.



3.7. Mechanics’ Liens and Contest Thereof. The Borrower will not suffer or permit any
mechanics’ lien claims to be filed or otherwise asserted against the Project and will promptly
discharge the same in case of the filing of any claims for lien or proceedings for the enforcement
thereof; provided, however, that the Borrower shall have the right to contest in good faith and
with reasonable diligence the validity of any such lien or claim provided that the Borrower notify
Administrative Agent of its desire to do so in writing and post a statutory lien bond that removes
such lien from title to the Project within twenty (20) days of the earlier of written notice by
the Borrower to Administrative Agent of the existence of such lien or written notice by
Administrative Agent to the Borrower of the existence of the lien. Lenders will not be required to
make any further disbursements of the proceeds of the Term Loan unless or until either (a) all
mechanics’ lien claims have been removed, or completely banded over, or insured over by the Title
Insurer, or (b) Administrative Agent, at its sole option, elects to restrict disbursements to
reserve sufficient sums to pay 150% of all such lien claims. In the event the Borrower shall fail
to discharge any such lien, or such lien is not otherwise fully reserved for or bonded over as set
forth above, Administrative Agent may, at its election in its sole discretion, cause such lien to
be satisfied and released or otherwise provide security to the Title Insurer to indemnify over
such lien. Any amounts so expended by Administrative Agent or Lenders, including premiums paid or
security furnished in connection with the issuance of any surety company bonds, shall be deemed to
constitute disbursement of the proceeds of the Term Loan or, at Administrative Agent’s election,
the Revolving Loan. In settling, compromising or discharging any claims for lien, Administrative
Agent shall not be required to inquire into the validity or amount of any such claim.



3.8. Equipment Contracts. Borrower shall not enter into any Major Equipment Contract
without the approval of Administrative Agent, which approval will not be unreasonably withheld or
delayed. Administrative Agent acknowledges that each of the Equipment Contracts set forth on
Schedule 3 have been approved by Administrative Agent. The Borrower will timely perform
each of its material obligations under each Equipment Contract and diligently enforce the
obligations of each Major Equipment Seller under each Major Equipment Contract. The Borrower will
not materially amend any Major Equipment Contract or waive or permit the delay in performance of
any obligations of any Equipment Seller under any Equipment Contract. The Borrower will promptly
notify Administrative


 


-7-









 





Agent of the receipt or issuance by the Borrower of any notice of default under any Major
Equipment Contract and furnish Administrative Agent with a copy of any proposed amendment to a
Major Equipment Contract no less than two (2) Business Days before it is entered into. Borrower
will promptly furnish Administrative Agent with copies of all other Equipment Contracts and any
amendments thereto.



3.9. Contractor’s Insurance. The Borrower will cause the Contractor and Major
Subcontractor to maintain (and deliver to the Borrower) evidence of workers’ compensation and
employers’ liability insurance as required by Arkansas law.



3.10. Certifications. The Borrower will use commercially reasonable efforts to
provide that the certifications described in the defined term “Acceptance Date” are issued
directly to Administrative Agent or otherwise provide for reliance by Administrative Agent.



4. Conditions to First Construction Advance. In addition to the conditions set forth in
Section 12.2 of the Credit Agreement and Sections 5 and 7 of this Rider, the initial Construction
Advance is subject to the following conditions:



4.1. Title Policy. The Borrower shall have caused the Title Insurer to issue the
Title Policy, all premiums therefor having been paid.



4.2. Zoning. The Borrower shall have caused that portion of the Real Property which
is zoned for commercial use as of the date hereof to be rezoned for industrial/manufacturing use
consistent with the intended use of the Project as an axle manufacturing facility.



4.3. Easements. All easements for access, rail service and utilities required for the
operation of the Project, as determined by Administrative Agent, shall be in place and constitute
insured parcels under the Title Policy.



4.4. Collateral Assignment of Project Documents. The Borrower shall have executed and
delivered a Collateral Assignment of Project Documents in form and substance satisfactory to
Administrative Agent.



4.5. Title Documents. Administrative Agent shall have reviewed and approved all
documents of record referred to on Schedule B of the Title Policy.



4.6. Survey. Administrative Agent shall have received and approved a survey of the
Land containing a certification in the form of Exhibit 2.



4.7. Insurance. Administrative Agent shall have reviewed and approved (and received
copies of, together with original certificates of insurance for) insurance required by
Administrative Agent in connection with the construction of the Projects, including without
limitation (a) a so-called Builder’s Risk Completed Value non-reporting form insurance policy for
one hundred percent (100%) of the insurable replacement value of the Improvements with such other
coverages as Administrative Agent and (b) the insurance described in Section 3.9 with respect to
the Contractor.


 


-8-









 





4.8. Project Budget and Construction Documents. Administrative Agent shall have
received and approved each of the Project Budget, the Construction Budget, the Plans, the
Design/Build Contract and the Construction Completion Schedule.



4.9. Construction Consents. The Borrower shall have caused to be delivered to
Administrative Agent a separate consent to assignment and subordination of lien agreement in form
and substance satisfactory to Administrative Agent executed by Contractor.



4.10. Flood Insurance. The Borrower shall have caused to be delivered to
Administrative Agent a flood insurance policy covering the Real Property if required by the Flood
Disaster Protection Act of 1973.



4.11. Soil Report. Administrative Agent shall have reviewed and approved a soil
conditions report prepared by a qualified soil engineer.



4.12. Architect’s/Engineer’s Certificate. Administrative Agent shall have received a
certificate from the Contractor (in its capacity as architect and engineer under the
Design/Building Contract) in form and substance satisfactory to Administrative Agent.



4.13. Assignment of Equipment Contracts. Administrative Agent shall have received
evidence satisfactory to Administrative Agent that Borrower has been assigned, if applicable, and
is the owner of the Equipment Contracts (free of any liens or encumbrances except for Permitted
Liens), that each of the Equipment Sellers has consented to such assignment and Administrative
Agent’s Liens, in each case as applicable, such consents to be in form and substance satisfactory
to Administrative Agent.



4.14. Appraisal. Administrative Agent shall have received an “as complete” appraisal
of the Project, prepared by an independent appraiser engaged directly by the Administrative Agent,
which appraisal shall satisfy the requirements of the Financial Institutions Reform, Recovery and
Enforcement Act and shall evidence compliance with the supervisory loan-to-value limits set forth
in the Federal Deposit Insurance Corporation Improvement Act of 1991, if applicable.



5. Conditions to each Construction Advance.



5.1. Construction Advances. Each Construction Advance (including the initial
Construction Advance) shall be subject to satisfaction of the following conditions:



(a) At least ten (10) Business Days prior to the date of any Construction Advance, the
Borrower shall have delivered to Administrative Agent the following documentation (collectively
referred to herein as the “Application”): (i) a completed and executed Disbursement
Request, (ii) completed and executed American Institute of Architects (AIA) Forms G702 and G703
(or other forms acceptable to Administrative Agent) and lien waivers and such other waivers and
affidavits as may be required by the Title Insurer in order to issue the endorsement described in
clause (d) below from Contractor and each subcontractor seeking payment for work performed, and
(iii) copies of invoices,


 


-9-









 





cancelled checks, contracts, bills, change orders, and other statements and information as may be
requested by Administrative Agent;



(b) All Improvements to and including the stage represented in the current Application shall
have been completed in substantial accordance with the Plans, and the Borrower is in all material
respects meeting the dates set forth in the Construction Completion Schedule and completion of
the Project anticipated on or before the Acceptance Date;



(c) Administrative Agent or Consultant shall have reviewed each Disbursement Request and
shall have determined (which determination shall not be unreasonably withheld or delayed) that
(i) such Disbursement Request is approved for payment and that all work described in or covered
by such Disbursement Request has been performed in accordance with the Plans, and (ii) all
materials covered by the Disbursement Request have been incorporated into the Improvements or
adequately stored and insured on or off the Land in the manner required by this Rider;



(d) Administrative Agent shall have received, at the Borrower’s expense, an endorsement to
the Title Policy insuring the priority of the lien of the Mortgage on the Real Property with
respect to such disbursement and indicating that no intervening liens exist against the Project;



(e) Upon request, the Borrower shall deliver a foundation survey to Administrative Agent
after the footings and foundation of the Improvements are in place, which survey shall show the
location of the foundations of the Improvements on the Land with relation to the boundary lines
of the Land and all easements and set-back lines and shall be prepared by a registered engineer
who shall certify that such foundation is in compliance with all required set-back or building
restriction liens; and at any time a survey is required from the Borrower, as aforesaid, the
Contractor shall certify on each such survey that the construction completed to date as shown on
such survey disclosed no violations, encroachments, or variations of set-back or other
restrictions other than those which Administrative Agent may waive in writing; and



(f) The Borrower shall have paid to Administrative Agent or any Lender any and all fees then
due and payable in cash to Administrative Agent or such Lender and any and all costs then due and
payable in cash incurred by Administrative Agent and Lenders up to the date of such Construction
Advance (and the Borrower hereby authorizes Administrative Agent to increase the Disbursement
Request by such amounts to effectuate payment to Administrative Agent and Lenders).



5.2. Final Construction Advance. The final Construction Advance, including all
retainage (except for funds held by Administrative Agent pending completion of so-called “punch
list” items of work remaining, as identified by the Borrower and the Contractor and approved by
Administrative Agent) shall be made within thirty (30) days after completion of the Improvements
as determined by the Consultant (which determination will not be unreasonably withheld or delayed)
and, in addition to the conditions set forth in




 


-10-









 







Section 5 above, shall be conditioned upon the following: (a) satisfactory receipt by
Administrative Agent of a final certificate of occupancy or other approval issued by each
Governmental Authority having jurisdiction over the right to approve the use or occupancy of the
Project, (b) removal from the Title Policy of any general exception regarding mechanics’ liens,
and (c) delivery of an As-Built Survey in form and substance acceptable to Administrative Agent.



6. Conditions to Equipment Advances and Project Advances. Each Equipment Advance
and Project Advance shall be subject to satisfaction of the following conditions:



(a) Administrative Agent shall have reviewed and approved each Major Equipment Contracts;



(b) At least two (2) Business Days prior to the first Equipment Advance and ten (10) Business
Days prior to the date of any subsequent Equipment Advance or Project Advance, the Borrower shall
have submitted to Administrative Agent a Disbursement Request covering such Equipment Advance
and/or Project Advance together with copies of invoices and other information as may be requested
by Administrative Agent to verify that such Equipment Advance or Project Advance is for an
appropriate amount included in the Project Budget and that labor, material, service or expense
which is the subject of the Equipment Advance or Project Advance has been delivered or fully
performed;



(c) With respect to any Equipment Advance or Project Advance to pay for services or materials
which create mechanics’ or other statutory liens, the Borrower has complied with Section 5.1(a),
(d) and (e) as if such Equipment Advance or Project Advance were a Construction Advance;



(d) With respect to each Equipment Advance, each Equipment Contract is in full force and
effect without default; and



(e) Until each of the conditions set forth in Section 4 of this Rider is satisfied, Equipment
Advances and Project Advances shall not, in the aggregate, exceed [REDACTED*].



7. Additional Construction Covenants.



7.1. Applications. Notwithstanding anything to the contrary set forth herein, Term
Loan Advances shall be made no more often than monthly in a single advance in a minimum amount of
$500,000 pursuant to an Application covering any Construction Advance, Equipment Advance, and
Project Advance included in the Application. No Construction Advances or Equipment Advances shall
be made after the earlier of (a) the Outside Completion Date and (b) the Acceptance Date. Term
Loan Advances shall bear interest only after the funds are disbursed in accordance with the terms
hereof. Except as provided in Section 3.2, no line item shown in the Project Budget or the
Construction Budget may be used or reallocated for costs and expenses of any other line item
without the prior approval of Administrative Agent. Once the maximum stated amount in the Project
Budget




 


-11-









 







for any line item or the Construction Budget is disbursed, no further disbursements for that line
item or, in the case of the Construction Budget, with respect to cost of the Improvements, will be
made except for reallocations otherwise permitted under Section 3.2 (including without limitation,
for the avoidance of doubt, reallocations of contingency line items). The interest reserve in the
Project Budget shall not be reallocated without Administrative Agent’s consent. The approval of
Applications by Administrative Agent or Consultant shall not constitute an acceptance of the work
and materials nor be binding upon Administrative Agent or Lenders, except to the extent that the
facts actually are as represented when approved. Lenders agree to use reasonable efforts to make
Term Loan Advances within five (5) Business Days after Administrative Agent’s receipt of a
completed Application, however, Lenders shall have no liability to the Borrower or any other
entity or individual if such Lender fails to make any Term Loan Advance within said time frame.



7.2. Administrative Agent’s Inspection. Administrative Agent and its agents and
representatives, including without limitation, any Consultant, shall have the right, at any
reasonable time, to enter and visit the Project for the purpose of observing the Project and
inspecting the progress thereof. After notice to Administrative Agent, the agents and
representatives of any Lender, at the sole expense of such Lender, may accompany the agent and
representatives of Administrative Agent when observing or inspecting the Property. If, for any
reason, Administrative Agent deems it necessary to cause the construction of the Improvements or
the Equipment to be examined by its representatives or Consultant prior to making any Construction
Advance or Equipment Advance (including any Construction Advance relating to the stored materials
as more particularly set forth in Section 7.3 below), it shall have a reasonable time to do so or
to cause Consultant to do so, and pursuant thereto Administrative Agent and Contractor may request
a meeting with any Contractor or others to evaluate the status of the Project, and Lenders shall
not be required to make any Construction Advance or Equipment Advance until such examination or
meeting has been completed and is satisfactory to Administrative Agent. If, as a result of such
examination, Administrative Agent finds some portion of the Project unsatisfactory, Administrative
Agent shall provide for the Borrower a copy of the report of Consultant relating to such
examination. Any such inspection by Administrative Agent or its representatives shall be for the
sole benefit of Administrative Agent and the Borrower and for ensuring that the Project is
proceeding satisfactorily and that the Obligations are secure. In no event shall such inspection be
construed as participation by Administrative Agent or Lenders in the Project, as approval by
Administrative Agent or Lenders of the quality of the Project, or as a warranty that the
Improvements comply with local building codes or the Plans or that the Equipment complies with the
specifications in the applicable Equipment Contract. The Borrower agrees to pay all reasonable fees
and reasonable out-of-pocket charges and expenses incurred by Consultant and invoiced to Borrower.



7.3. Stored Materials. All materials for which a Construction Advance has been made
shall have been either incorporated into the Improvements, or stored in accordance with the
following requirements:



(a) All stored materials, whether stored at the Project or off-site, must be, in
Administrative Agent’s reasonable opinion, adequately stored, safeguarded and insured;


 


-12-









 





(b) The Borrower shall provide to Administrative Agent, with each requisition submitted wholly
or in part for materials to be stored, whether stored at the Project or off-site, a copy of the
relevant bill of sale and evidence of insurance, which shall show Administrative Agent as an
additional insured;



(c) To the extent the total value of all materials stored off-site would exceed $100,000.00,
such excess materials shall be stored in a bonded warehouse (except for lumber, which may be
stored in an insured reload center);



(d) The total value of all stored materials, whether stored at the Project or off-site, shall
not exceed ten percent (10%) of the Construction Budget at any one time. For purposes of
determining compliance with the limitation set forth in the foregoing clause (c) above and in this
clause (d), stored materials shall not be deemed to include any materials reflected as “stored
materials” on any particular Application that are actually incorporated into the Project as
fixtures prior to the submission of the next succeeding Application hereunder; and



(e) As a condition to any Construction Disbursement for materials stored outside the
Paragould, Arkansas, metropolitan area, Administrative Agent shall be entitled to require that the
Consultant inspect and approve such materials at the site where they are stored, and the Borrower
shall pay all costs and fees of the Consultant, including travel costs, incurred in connection
therewith.



7.4. Retainage. Provided that all other conditions to disburse amounts in the Term
Loan have been satisfied with respect to an Application, Lenders shall disburse to the Borrower,
in accordance with the Construction Budget, at least ninety percent (90%) of the amounts due to
contractors, subcontractors and laborers with respect to the construction of the Improvements,
except that (i) requests for payment made by the Contractor for “general conditions” expenses, the
Contractor’s fee, permits and direct material purchases shall not be subject to retainage, and
(ii) Lenders may disburse greater than ninety percent (90%) of the amounts due at any time in
Required Lenders’ discretion. Administrative Agent will release the balance of the retainage upon
satisfaction of the conditions of Section 5.2 of this Rider.



7.5. Use of Proceeds. The Borrower will use the proceeds of Term Loan Advances solely
for the costs described in the approved Project Budget and will promptly, upon receipt of a Term
Loan Advance, pay the expenses for which the Term Loan Advance was requested in the Disbursement
Request and related documents. The Borrower will receive Term Loan Advances to be made hereunder
and will hold the right to receive the same as a trust fund for the purposes of paying the costs
of the Project. The funds disbursed shall not be subject to any attachment against the Borrower or
any assignment by operation of law or otherwise. At Administrative Agent’s option, and without
limiting any provision hereof, Term Loan Advances shall be made by Administrative Agent to the
Borrower or directly to any third party entitled to payment of costs included in any Disbursement
Request, or through an escrow pursuant to an agreement with the Title Insurer (for payments


 


-13-









 





with respect to work or services for which any third party has a statutory right to file a lien
against the Project which may be superior to Administrative Agent’s lien priority).



7.6. Damage to Project. If the Land, Improvements, the Equipment or any of them,
suffer damage or destruction, Lenders may, without liability, refuse to make any further Term Loan
Advances until satisfactory arrangements for restoration or replacement of the Land and
Improvements have been made.



8. Additional Remedy. Upon the occurrence of and during the continuance of an Event of
Default under the Credit Agreement, this Rider or the other Loan Documents, Administrative Agent,
in addition to all other rights, options, and remedies granted to Administrative Agent under the
Loan Documents or at law or in equity, may take possession of the Project and do anything that is
necessary or appropriate in its sole judgment to fulfill the construction and completion
obligations of the Borrower under the Credit Agreement, this Rider and the other Loan Documents.
Without restricting the generality of the foregoing and for the purposes aforesaid, the Borrower
hereby appoints and constitutes Administrative Agent its lawful attorney-in-fact with full power of
substitution to complete construction of the Improvements and installation of the Equipment with
such changes to the Plan or the Equipment Contract as Administrative Agent may deem appropriate
using the Contractors or other contractors selected by Administrative Agent; to use any undisbursed
portion of the Term Loan or the Revolving Loan or which may be reserved, escrowed or set aside for
any purposes hereunder at any time, or to advance funds in excess of the Term Loan Commitment, to
pay, settle or compromise all existing and future bills and claims, which may be liens or security
interest, or to avoid such bills and claims becoming liens against the Project; to execute all
Disbursement Requests and certificates in the name of the Borrower or prosecute and defend all
actions or proceedings in connection with the Project; and to do any and every act which
the Borrower might do in it own behalf; it being understood and agreed that this power of attorney
shall be a power coupled with an interest and cannot be revoked. The Borrower agrees to pay all
reasonable out-of-pocket charges and expenses incurred by Administrative Agent (including the fees
and expenses of Administrative Agent’s counsel, advisors and consultants) in exercising its rights
and remedies pursuant to this Section 8, including the retention of construction management
consultants and other advisors or contractors necessary to supervise and complete construction of
the Improvements. Administrative Agent and Lenders shall have no obligation to take any of the
foregoing action nor shall taking any such action constitute an election of remedies which limits
any other remedies of Administrative Agent and Lenders.



9. Conflicts. The terms and conditions of this Rider shall prevail in the event of any
conflict between this Rider and the Credit Agreement to which it is attached and of which it is
made a part, except that the terms and conditions of Section 15.1 of the Credit Agreement shall
prevail in the event of any conflict between this Rider and such Section 15.1 of the Credit
Agreement regarding waivers and modifications.




 


-14-









 







EXHIBIT 1

TO CONSTRUCTION RIDER




(FORM OF DISBURSEMENT REQUEST)




Date:                                         



Pursuant to the Construction Rider attached to the Credit Agreement dated as of
                     among Axis, LLC, as borrower, LaSalle Bank National Association, as
Administrative Agent, and the Lenders from time to time parties thereto, the Borrower hereby
requests a Term Loan Advance in the amount of:



$                                        ; consisting of a Construction Advance in the amount of
$                    , an Equipment Advance in the amount of $                     and a Project Advance
in the amount of $                    .



The Borrower hereby certifies as true and swears under oath, to the Lender, the following:



With respect to the Construction Advance:




	 	(a)	 	The cost of Change Orders regarding the construction of the
Improvements is:






Change Orders agreed upon with Contractor: $                    .



Change Orders in dispute with Contractor: $                    .



Potential Change Orders under review by the Borrower or Contractor:
$                    .




	 	(b)	 	All Change Orders are reflected above or have been previously
submitted to Administrative Agent for approval or, if approval is not required
under Section 3.2, copies thereof have been delivered to Administrative Agent.







	 	(c)	 	The amount requested for the Construction Advance (i) has been
approved by the Borrower and Contractor (in its capacity as architect and
engineer under the Design/Build Contract) as payment for work and materials
furnished for the Project in conformance with the Plans (as modified by any
Change Orders), (ii) represents the actual amount payable to the Contractor or
subcontractors who have performed work on the Project, and (iii) will be used
as payment for the work described on the attached documentation and for no
other reason.






With respect to the Equipment Advance:


 


 









 





(a) the amount requested has been approved for payment by the Borrower and is due under the
applicable Equipment Contracts, which is in full force and effect without default.



(b) Schedule 1 to this Disbursement Request sets forth a breakdown of all payments to
Equipment Sellers identifying (i) each Equipment Contract with respect to which any portion of the
Equipment Advance will be applied, (ii) the amount of the payment, (iii) any Change Orders to such
Equipment Contract, (iv) payments under such Equipment Contract to date and (v) the balance due
under such Equipment Contract after application of such current payment.



With respect to the entire Term Loan Advance:




	 	(a)	 	All prior Term Loan Advances by Lender to the Borrower have been paid
to the parties entitled to such payment, and all such Loan proceeds have been
used for the purposes set forth in the Credit Agreement.







	 	(b)	 	(i) all conditions and obligations precedent to this Term Loan Advance
have been satisfied under the Construction Rider and the Credit Agreement; (ii)
all representations and warranties made by the Borrower to Lender continue to
be accurate; and (iii) no default has occurred and continues to exist.







	 	(c)	 	No event or condition exists which could result or has resulted in
Borrower, Contractor or any Equipment Seller failing to (or causing others to
fail to) satisfy all milestones or completion dates under the Construction
Completion Schedule.






Capitalized terms set forth above shall have the meanings described in the Credit Agreement and
the Construction Rider. The Borrower acknowledges that Lenders are relying on the accuracy of the
above statements in making the Term Loan Advance.



IN WITNESS WHEREOF, the Borrower has executed this Disbursement Requisition as of



DATE:                                               , 20      .



	 	 	 	 	 
	AXIS, LLC

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 



 


 









 





SCHEDULE 1

TO DISBURSEMENT REQUEST

dated                                         




BREAKDOWN OF EQUIPMENT ADVANCE





 


 









 







EXHIBIT 2

TO CONSTRUCTION RIDER




(FORM OF SURVEYOR’S CERTIFICATE)




The undersigned certifies to LaSalle Bank National Association (“Agent”) (as
Administrative Agent for certain Lenders under that certain Credit Agreement among Agent, the
Lenders party thereto from time to time and Axis LLC), and Axis LLC and their
respective successors, nominees and assigns, and [                     Title Insurance
Borrower] that this map or plat and the survey on which it is based were made in accordance with
the “Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys,” jointly established
and adopted by ALTA and NSPS in 2005, and includes the Items 1 through 18 (except item 5) of Table
A thereof. Pursuant to the Accuracy Standards as adopted by ALTA and NSPS and in effect on the date
of this certification, undersigned further certifies that in my professional opinion, as a land
surveyor registered in the State of Arkansas, the Relative Positional Accuracy of this survey does
not exceed that which is specified therein. In addition, the undersigned certifies that: (a) the
survey represented herein is an accurate survey of all the real property legally described herein
(the “Property”); (b) the within survey properly and accurately indicates and locates all
visible improvements
on the Property as of                      [current date]; (c) the within survey was prepared
under the direct supervision and control of the undersigned from an actual survey made of the
Property legally described herein; (d) there are no encroachments either across property
lines or zoning restriction lines in effect as of                      [current date]; (e) the
within survey properly designates and locates all visible or recorded easements as shown in
the title insurance Commitment issued by                                          dated
                    , 20      ; (f) ingress to and egress from the Property is provided by
                                                             Street(s) upon which the Property abuts, the same
being paved and dedicated rights-of-way maintained by the [City, Village, Town] of
                                        ; (g) the Property is not located in an area or zone designated as or
which constitutes a “Special Flood Hazard Area” as disclosed by the applicable Flood Insurance
Rate Map issued by FEMA; (h) the Property does not service any adjoining property for drainage,
ingress, egress or any other purpose; (i) the Property (as delineated) on the survey, does not
constitute an illegal subdivision of land under local, county or city ordinances; and (j) there
are no material conflicts between the standards described above and any applicable local or state
standards.


 


 









 





SCHEDULE 1

TO CONSTRUCTION RIDER




LEGAL DESCRIPTION OF LAND




That part of Section 7, Township 16 North, Range 6 East, described as follows: Beginning at the
Southeast corner of the SW 1/4 SW 1/4 of said Section 7, run thence N 89° 40’ W 159.7 feet to the
true point of beginning, run thence Northerly along a curve to the left having a radius of 70.3
feet a distance of 110.1 feet, run thence N 0° 34’ E 47.9 feet, run thence Northeasterly along a
curve to the right having a radius of 40.5 feet a distance of 9.9 feet, run thence N 14° 38’ E
183.2 feet, run thence Northerly along a curve to the left having a radius of 58.4 feet a distance
of 14.9 feet, run thence N 0° 01’ E 288.6 feet, run thence Northwesterly along a curve to the left
having a radius of 750.0 feet a distance of 186.3 feet, run thence Northwesterly along a curve to
the left having a radius of 71.0 feet a distance of 81.4 feet, run thence Westerly along a curve to
the left having radius of 750.0 feet a distance of 154.4 feet, run thence S 88° 40’ W 91.5 feet,
run thence Southerly along a curve to the left having a radius of 59.6 feet a distance of 94.0
feet, run thence S 1° 43’ E 411.4 feet, run thence Easterly along a curve to the left having a
radius of 6.1 feet a distance of 9.0 feet, run thence S 88° 46’ E 13.9 feet, run thence S 1° 53’ E
374.0 feet, run thence S 89° 40’ E 218.0 feet to the true point of beginning, containing 6.72
acres, more or less, SUBJECT to the right-of-way of Highway 358 off the South side thereof and all
utility easements.



ALSO AN EASEMENT FOR INGRESS AND EGRESS DESCRIBED AS FOLLOWS: That part of Section 7, Township 16
North, Range 6 East, described as follows: Beginning at the Southeast corner of the SW 1/4
SW 1/4 of said Section 7, run thence N 89° 40’ W 4.4 feet to the true point of beginning, run
thence N 89° 40’ W 155.3 feet, run thence Northerly along a curve to the left having a radius of
70.3 feet a distance of 110.1 feet, run thence N 0° 34’ E 47.9 feet, run thence Northeasterly along
a curve to the right having a radius of 40.5 feet a distance of 9.9 feet, run thence N 14° 38’ E
183.2 feet, run thence Northerly along a curve to the left having a radius of 58.4 feet a distance
of 14.9 feet, run thence N 0° 01’ E 288.6 feet, run thence Northwesterly along a curve to the left
having a radius of 750.0 feet a distance of 186.3 feet, run thence Northwesterly along a curve to
the left having a radius of 71.0 feet a distance of 81.4 feet, run thence Westerly along a curve to
the left having a radius of 750.0 feet a distance of 154.4 feet, run thence N 1° 20’ W 24.0 feet,
run thence N 88° 44’ E 218.1 feet, run thence Southerly along a curve to the right having a radius
of 39.1 feet a distance of 62.3 feet, run thence S 0° 01’ W 526.1 feet, run thence Southwesterly
along a curve to the right having a radius of 82.4 feet a distance of 21.0 feet, run thence S 14°
38’ W 183.2 feet, run thence Southerly along a curve to the left having a radius of 16.5 feet a
distance of 4.1 feet, run thence S 0° 34’ W 47.9 feet, run thence Southeasterly along a curve to
the left having a radius of 70.3 feet a distance of 101.4 feet to the true point of beginning.


 


 









 





SCHEDULE 2

TO CONSTRUCTION RIDER




PROJECT BUDGET



[REDACTED*]



 


 









 





SCHEDULE 3

TO CONSTRUCTION RIDER




MAJOR EQUIPMENT CONTRACTS




[REDACTED*]



 


 









 







EXHIBIT H




PLEDGE AGREEMENT




See Attached








 


Exhibit H











 





Axis Credit Agreement Disclosure Schedules



 


 









 





Schedule 9.6

Litigation and Contingent Liabilities




None.





 


 











 




Schedule 9.8

Equity Ownership; Subsidiaries




Axis, LLC:




	 	 	 	 	 	 	 	 	 
	Owner:	 	Percentage:	 	 	Number of Units:	 
	ARI Component Venture, LLC
	 	 	50	%	 	50 units
	ASF-Keystone, Inc.
	 	 	50	%	 	50 units





No pre-emptive or other outstanding rights, options, warrants, conversion rights or other similar
agreements or understandings for the purchase or acquisition of any Capital Securities of any Loan
Party, other than as set forth in the operating agreement of the Borrower, as amended from time to
time to the extent not prohibited by the Credit Agreement.





 


 









 







Schedule 9.16

Insurance




Please See Attached Insurance Certificates




 


 









 







Schedule 9.17

Real Property




Owned:

Axis, LLC

705 Jones Road

Highway 358

Paragould, AR 72450




Leased: None.






 


 









 







Schedule 9.21

Labor Matters




None.



 


 









 





Schedule 11.1

Existing Debt




None.



 


 









 





Schedule 11.2

Existing Liens




None.



 


 









 





Schedule 11.7

Transactions with Affiliates



1. Purchase and Sale Agreement for LLC Members Covering Railcar Axles, dated July 2, 2007, by and
between Axle Manufacturing, LLC (“Seller”) and American Railcar Industries, Inc. (“Buyer”).



2. Marketing Agreement, dated June 28, 2007, by and between Axle Manufacturing LLC
(“Supplier”) and ASF-Keystone (“ASF”).





 


 









 







Schedule 11.11

Investments




None.





 


 












 






FIRST AMENDMENT TO CREDIT AGREEMENT




This
First Amendment to Credit Agreement (this “Amendment”) is
dated as of the 28 day of
January, 2008, and is by and among LASALLE BANK NATIONAL ASSOCIATION, a national banking
association (in its capacity as Administrative Agent for all Lenders, “Administrative Agent”), the
undersigned Lenders and AXIS, LLC, a Delaware limited liability company (“Borrower”).



W I T N E S S E T H:




WHEREAS, Administrative Agent, Lenders and Borrower are parties to that certain Credit
Agreement, dated as of December 28, 2007 (as amended, modified or supplemented from time to time,
the “Credit Agreement”; unless otherwise defined herein, capitalized terms used herein shall have
the meanings ascribed to such terms in the Credit Agreement);



WHEREAS, Borrower has requested that Administrative Agent and Lenders amend the Credit
Agreement in certain respects as provided herein.



NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained
herein and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:



1. Amendments to Credit Agreement. In reliance upon the representations and
warranties of Borrower set forth in Section 3 below and subject to the conditions to effectiveness
set forth in Section 2 below, the Credit Agreement is hereby amended as follows:



(a) Section 13.1.16 of the Credit Agreement is hereby amended by deleting the reference to
“thirty (30) days” therein and inserting “sixty (60) days” in lieu thereof.



2. Conditions to Effectiveness. The effectiveness of this Amendment is subject to the
prior or concurrent consummation of each of the following conditions:



(a) Administrative Agent shall have received a fully-executed copy of this Amendment, together
with the Consent and Reaffirmation of each Guarantor attached hereto and such other documents,
agreements and instruments as Administrative Agent may require, each in form and substance
reasonably acceptable to Administrative Agent;



(b) All proceedings taken in connection with the transactions contemplated by this Amendment
and all documents, instruments and other legal matters incident thereto shall be reasonably
satisfactory to Agent and its legal counsel; and


 


 









 





(c) No Event of Default or Unmatured Event of Default shall have occurred and be continuing or
shall be caused by the transactions contemplated by this Amendment.



3. Representations and Warranties. To induce Administrative Agent and Lenders to
enter into this Amendment, Borrower hereby represents and warrants to Administrative Agent and
Lenders that:



(a) The execution, delivery and performance by Borrower of this Amendment and each of the
other agreements, instruments and documents contemplated hereby are within its corporate power,
have been duly authorized by all necessary limited liability company action, have received all
necessary governmental approvals (if any shall be required), and do not and will not contravene or
conflict with any provision of law applicable to any Transaction Party, the certificate of
formation and limited liability company agreement of Borrower or the certificate of incorporation
or bylaws of either Guarantor, any order, judgment or decree of any court or governmental agency,
or any agreement, instrument or document binding upon any Transaction Party or any of their
property;



(b) Each of the Credit Agreement and the other Loan Documents, as amended by this Amendment
and the documents and agreements contemplated thereby, are the legal, valid and binding obligation
of the Transactions Parties which are parties thereto, enforceable against such Transaction Party,
in accordance with its terms;



(c) The representations and warranties contained in the Credit Agreement and the other Loan
Documents are true and correct in all material respects as of the date hereof (except to the extent
such representations and warranties relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all materials respects as of such
earlier date), shall be deemed fully incorporated herein by this reference, and shall have the same
force and effect as if such had been made on and as of the date hereof.



(d) The Transaction Parties have performed all of their respective obligations under the
Credit Agreement and the other Loan Documents to be performed by them on or before the date hereof
and as of the date hereof, the Transaction Parties are in compliance with all applicable terms and
provisions of the Credit Agreement and each of the other Loan Documents to be observed and
performed by it and no Event of Default or Unmatured Event of Default has occurred and is
continuing.



4. Severability. Any provision of this Amendment held by a court of competent
jurisdiction to be invalid or unenforceable (other than with respect to a material provision or
term of this Amendment) shall not impair or invalidate the remainder of this Amendment and the
effect thereof shall be confined to the provision so held to be invalid or unenforceable.


 


-2-









 





5. References. Administrative Agent, Lenders and Borrower hereby agree that all
references to the Credit Agreement which are contained in any of the other Loan Documents shall
refer to the Credit Agreement as amended by this Amendment.




6. Release.



(a) In consideration of the agreements of Administrative Agent and Lenders contained herein
and for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Borrower, on behalf of itself and its successors, assigns, and other legal
representatives, hereby absolutely, unconditionally and irrevocably release, remise and forever
discharge Administrative Agent and Lenders and their successors and assigns, and their present and
former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers,
attorneys, employees, agents and other representatives (Administrative Agent, each Lender and all
such other Persons being hereinafter referred to collectively as the “Releasees” and individually
as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts,
controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any
and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities
whatsoever (individually, a “Claim” and collectively, “Claims”) of every name and nature, known or
unknown, suspected or unsuspected, both at law and in equity, Borrower or any of its successors,
assigns, or other legal representatives may now or hereafter own, hold, have or claim to have
against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or
thing whatsoever which arises at any time on or prior to the day and date of this Amendment,
including, without limitation, for or on account of, or in relation to, or in any way in connection
with any of the Credit Agreement, or any of the other Loan Documents or transactions thereunder or
related thereto.



(b) Borrower understands, acknowledges and agrees that the release set forth above may be
pleaded as a full and complete defense and may be used as a basis for an injunction against any
action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the
provisions of such release.



(c) Borrower agrees that no fact, event, circumstance, evidence or transaction which could now
be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and
unconditional nature of the release set forth above.



7. Counterparts. This Amendment may be executed in any number of counterparts, in
original, facsimile or other authenticated electronic transmission, and by the different parties 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 Amendment.



8. Continued Effectiveness. Except as specifically set forth herein, the Credit
Agreement and each of the other Loan Documents shall continue in full force and effect according to
its terms.


 


-3-









 





9. Costs and Expenses. Borrower hereby agrees that all expenses incurred by
Administrative Agent and Lenders in connection with the preparation, negotiation and closing of
this Amendment and the transactions contemplated hereby, including without limitation reasonable
attorneys’ fees and expenses, shall be part of the Obligations.



10. Binding Agreement. This Amendment shall be binding upon Borrower, Administrative
Agent and Lenders and their respective successors and assigns.


 


-4-









 





IN WITNESS WHEREOF, this Amendment has been executed as of, and is effective as of, the day
and year first written above.



	 	 	 	 	 	 	 	 	 
	 	 	AXIS, LLC, as Borrower	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ James J. Unger	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	Representative of the Executive
Committee 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	LASALLE BANK NATIONAL ASSOCIATION, as
Administrative Agent, as the Issuing
Lender and as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Stefan Loeb 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	Vice President	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	THE CIT GROUP/EQUIPMENT FINANCING,
INC., as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Angela Harmon 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	Senior Director 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	FIRST BANK, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Edward L. Dehner 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	Assistant Vice President	 	 
	 

	 	 	 	 	 	 	 	 






Signature Page to First Amendment to Credit Agreement





 


 









 







CONSENT AND REAFFIRMATION




The undersigned hereby (a) acknowledges receipt of a copy of the foregoing First Amendment to
Credit Agreement (the “Amendment”); (b) consents to Borrower’s execution and delivery of the
Amendment; (c) agrees to be bound by the Amendment; (d) affirms that nothing contained in the
Amendment shall modify in any respect whatsoever any Loan Document to which it is a party; and (e)
reaffirms that such Loan Documents shall continue to remain in full force and effect. Although the
undersigned has been informed of the matters set forth herein and has acknowledged and agreed to
same, the undersigned understands that Administrative Agent and Lenders have no obligation to
inform the undersigned of such matters in the future or to seek the undersigned’s acknowledgment or
agreement to future amendments, waivers or consents, and nothing herein shall create such a duty.



IN WITNESS WHEREOF, the undersigned has executed this Consent and Reaffirmation on and as of
the date of the Amendment.



	 	 	 	 	 	 	 	 	 
	 	 	AMERICAN RAILCAR, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ James J. Unger 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	President and CEO 	 	 
	 

	 	 	 	 	 	 	 	 






Consent and Reaffirmation to First Amendment to Credit Agreement





 


 









 







CONSENT AND REAFFIRMATION




The undersigned hereby (a) acknowledges receipt of a copy of the foregoing First Amendment to
Credit Agreement (the “Amendment”); (b) consents to Borrower’s execution and delivery of the
Amendment; (c) agrees to be bound by the Amendment; (d) affirms that nothing contained in the
Amendment shall modify in any respect whatsoever any Loan Document to which it is a party; and (e)
reaffirms that such Loan Documents shall continue to remain in full force and effect. Although the
undersigned has been informed of the matters set forth herein and has acknowledged and agreed to
same, the undersigned understands that Administrative Agent and Lenders have no obligation to
inform the undersigned of such matters in the future or to seek the undersigned’s acknowledgment or
agreement to future amendments, waivers or consents, and nothing herein shall create such a duty.



IN WITNESS WHEREOF, the undersigned has executed this Consent and Reaffirmation on and as of
the date of the Amendment.



	 	 	 	 	 	 	 	 	 
	 	 	AMSTED INDUSTRIES, INCORPORATED	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Matt Hower 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Vice President — Treasurer	 	 
	 

	 	 	 	 	 	 	 	 






Consent and Reaffirmation to First Amendment to Credit Agreement





 


 











 






CONSENT, ASSUMPTION AND SECOND AMENDMENT

TO CREDIT AGREEMENT




This Consent, Assumption and Second Amendment to Credit Agreement (this “Amendment”) is dated
as of the 29th day of February, 2008, and is by and among LASALLE BANK NATIONAL ASSOCIATION, a
national banking association (in its capacity as a Lender, “LaSalle” and in its capacity as
Administrative Agent for all Lenders, “Administrative Agent”), the undersigned Lenders, AXIS
OPERATING COMPANY LLC, a Delaware limited liability company (“Borrower”) and AXIS, LLC, a Delaware
limited liability company (“Old Borrower”).



W I T N E S S E T H:




WHEREAS, Administrative Agent, Lenders and Old Borrower are parties to that certain Credit
Agreement dated as of December 28, 2007 (as amended, modified or supplemented from time to time,
the “Credit Agreement”; unless otherwise defined herein, capitalized terms used herein shall have
the meanings ascribed to such terms in the Credit Agreement);



WHEREAS, Old Borrower has advised Agent and Lenders that Old Borrower desires to establish
Borrower as a Wholly-Owned Subsidiary of Old Borrower, which would otherwise be prohibited by
Section 11.12 of the Credit Agreement;



WHEREAS, Old Borrower has further advised Administrative Agent and Lenders that Old Borrower
desires, on the date hereof, to sell, transfer, convey and assign, subject in each case to the
Liens and security interests in favor of Administrative Agent, all of Old Borrower’s right, title
and interest in and to all of Old Borrower’s assets and liabilities (including without limitation,
the Obligations) and that Borrower desires to assume and agree to pay, perform and discharge when
due, all of Old Borrower’s liabilities (including without limitation, the Obligations) pursuant to
that certain Assignment, Assumption and Bill of Sale dated as of February 29, 2008 by and between
Borrower and Old Borrower (the “Purchase Agreement”), which transfers would otherwise be prohibited
by Sections 11.5 and 15.14 of the Credit Agreement (collectively, the “Asset Transfer”); and



WHEREAS, Old Borrower has requested that Administrative Agent and Lenders (x) consent to (i)
the creation of Borrower as a Wholly-Owned Subsidiary of Old Borrower and (ii) the Asset Transfer
and (y) amend the Credit Agreement in certain respects as provided herein in connection with the
transactions described herein.



 


 









 





NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained
herein and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:



1. Consent. In reliance upon the representations and warranties of Borrower set forth
in Section 5 below and subject to the conditions to effectiveness set forth in Section 4 below,
Administrative Agent and the Lenders hereby consent to (i) the creation of Borrower as a
Wholly-Owned Subsidiary of Old Borrower and (ii) the consummation of the Asset Transfer on the date
hereof and in accordance with the Purchase Agreement. Except as expressly set forth in this
Amendment, the foregoing consents shall not constitute (x) modifications or alterations of the
terms, conditions or covenants of the Credit Agreement or any other Loan Document or (y) waivers,
releases or limitations upon the exercise by Administrative Agent or any Lender of any of its
rights, legal or equitable, thereunder.



2. Assumption of Obligations. Borrower is hereby made and hereby agrees that it is
for all purposes hereafter and shall be party to, the Credit Agreement as the “Borrower”, and
Borrower hereby agrees to be bound by the terms and conditions (including without limitation all of
the representations and warranties and covenants) of each Loan Document to which “Borrower” is a
party, including without limitation the Credit Agreement, as if Borrower were a direct signatory
thereto as “Borrower”. In furtherance of the preceding sentence, and without limiting any
provision of any Loan Document to which Borrower is now becoming a party as “Borrower”, and
Borrower hereby agrees to be liable for the Loans and other Obligations, whether currently or
hereafter outstanding.



3. Amendments to Credit Agreement. In reliance upon the representations and
warranties of Borrower set forth in Section 5 below and subject to the conditions to effectiveness
set forth in Section 4 below, the Credit Agreement is hereby amended as follows:



(a) Each reference to “Axis, LLC” as Borrower is hereby deemed to be a reference to “AXIS
Operating Company LLC”.



(b) The following new definitions are hereby added to Section 1.1 of the Credit Agreement as
follows:




Holdings means Axis, LLC, a Delaware limited liability company.




Holdings Guarantee means the Guarantee dated as of February 29, 2008
delivered by Holdings to Administrative Agent.




Holdings Security Agreement means the Security Agreement dated as of
February 29, 2008 by and between Holdings and Administrative Agent.



(c) The following definitions set forth in the Credit Agreement are hereby amended and
restated in their entirety as follows:




Change of Control means the occurrence of any of the following events:
(a) Guarantors shall cease to own and control, directly or indirectly at least 60%
of the outstanding Capital Securities of Holdings; or (b) Holdings shall cease to
directly own and control 100% of the outstanding Capital Securities of the Borrower;
or (c) the Borrower shall cease to, directly or
indirectly, own and control 100% of each class of the outstanding Capital
Securities of each Subsidiary.


 


-2-









 






Collateral Documents means, collectively, the Security Agreement, the
Holdings Security Agreement, each Mortgage, the Pledge Agreement, each Collateral
Access Agreement, each control agreement and any other agreement or instrument
pursuant to which Holdings, the Borrower, any Subsidiary, any Guarantor, or any
other Person grants or purports to grant collateral to the Administrative Agent for
the benefit of the Lenders or otherwise relates to such collateral.




Loan Documents means this Amendment, the Notes, the Letters of Credit,
the Master Letter of Credit Agreement, the L/C Applications, the Agent Fee Letter,
the Collateral Documents, the Guarantees, the Holdings Guarantee, the Subordination
Agreements (if any) and all documents, instruments and agreements delivered in
connection with the foregoing.




Loan Party means Holdings, the Borrower and each Subsidiary.




Net Tax Benefit means (i) the total amount of reduction in the income
tax liability of the members of Holdings realized as a result of any loss generated
by Holdings and its Subsidiaries’ business during any prior tax year, assuming in
such calculation that the full amount of such loss has been used to reduce such
members’ gross income in the same tax year that such loss was generated by the
Holdings and its Subsidiaries’ business, plus (ii) the amount by which (a) the
aggregate amount of Tax Distributions made, based on good faith estimates, to such
member in any such tax year is in Borrower’s audited financial statements delivered
to Administrative Agent pursuant to Section 10.1.1; provided, that,
to the extent that any loss is included in clause (i) above in calculating Net Tax
Benefit then the amount to be used for such loss in clause (ii)(b) above in
calculating the Net Tax Benefit shall be deemed to be zero dollars ($0).




Pledge Agreement means the Securities Pledge Agreement dated as of
February 29, 2008 by and between Holdings and Administrative Agent.




Tax Distributions means, for any taxable year for which the Borrower
and Holdings are each treated under the Code as a partnership for income tax
purposes or disregarded under the Code as an entity separate from its owners for
income tax purposes, dividend and/or distributions paid by the Borrower to Holdings
and, in turn, by Holdings to its members in an amount not to exceed the product of
(i) taxable income related to such members’ ownership interest in the Holdings
multiplied by (ii) the highest combined net corporate federal and state income tax
rate in any state in which any member resides which are applicable in such taxable
year.


 


-3-









 






Transaction Party means each Loan Party and, until such time that the
Guarantees shall have been terminated in accordance with their terms, each
Guarantor.



(d) The definition “Pledgor” set forth in Section 1.1 of the Credit Agreement is hereby
deleted in its entirety.



(e) Clause (ii) of Section 11.4 of the Credit Agreement is hereby amended by deleting the
phrase “to the holders of its Capital Securities” therein and inserting “to Holdings and Holdings
may, in turn, make such distribution to the holders of its Capital Securities” in lieu thereof.



(f) Clause (iii) of Section 11.4 of the Credit Agreement is hereby amended by deleting the
reference to “the Borrower” therein and inserting “the Borrower and Holdings” in lieu thereof.



(g) Section 11.7 of the Credit Agreement is hereby amended and restated in its entirety as
follows:




Section 11.7 Transactions with Affiliates.




Except as set forth on Schedule 11.7 and except for Supply Agreements
entered into with owners of the Capital Securities of Holdings and/or their
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 (other than the Loan Parties) which is on terms which are less
favorable than are obtainable from any Person which is not one of its Affiliates.



(h) Clause (a) of Section 11.11 of the Credit Agreement is hereby amended and restated in its
entirety as follows:




(a) contributions by Holdings to the capital of the Borrower, by the Borrower
to the capital of any Wholly-Owned Subsidiary, or by any Subsidiary to the capital
of any other domestic Wholly-Owned Subsidiary, 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 Capital Securities and substantially all of its real and
personal property, in each case in accordance with Section 11.10;



(i) Clause (i) of Section 11.14.2 of the Credit Agreement is hereby amended by deleting the
reference therein to “Completion Date” and inserting “Closing Date” in lieu thereof.



(j) Section 11.16 of the Credit Agreement is hereby deleted in its entirety.


 


-4-









 





(k) Section 13.1.16 of the Credit Agreement is hereby amended and restated in its entirety as
follows:




13.1.16 Holding Company. Holdings shall conduct any business or any
other activity, other than business activities directly related to (a) the
maintenance of its existence as a holding company and (b) performance of its
obligations under the Loan Documents to which Holdings is a party.




(l) Exhibit H to the Credit Agreement is hereby deleted in its entirety.



4. Conditions to Effectiveness. The effectiveness of this Amendment is subject to the
prior or concurrent consummation of each of the following conditions:



(a) Administrative Agent shall have received a fully-executed copy of this Amendment, together
with the each of the additional documents, instruments and agreements listed on the Closing
Checklist attached hereto as Exhibit A, each in form and substance reasonably acceptable to
Administrative Agent, together with such other documents, agreements and instruments as
Administrative Agent may require;



(b) All proceedings taken in connection with the transactions contemplated by this Amendment
and all documents, instruments and other legal matters incident thereto shall be reasonably
satisfactory to Agent and its legal counsel; and



(c) No Event of Default or Unmatured Event of Default shall have occurred and be continuing or
shall be caused by the transactions contemplated by this Amendment.



5. Representations and Warranties. To induce Administrative Agent and Lenders to
enter into this Amendment, each of Borrower and Old Borrower hereby represents and warrants to
Administrative Agent and Lenders that:



(a) The execution, delivery and performance by each of Borrower and Old Borrower of this
Amendment and each of the other agreements, instruments and documents contemplated hereby are
within its corporate power, have been duly authorized by all necessary limited liability company
action, have received all necessary governmental approvals (if any shall be required), and do not
and will not contravene or conflict with any provision of law applicable to any Transaction Party,
the certificate of formation and limited liability company agreement of Borrower or Old Borrower or
the certificate of incorporation or bylaws of either Guarantor, any order, judgment or decree of
any court or governmental agency, or any agreement, instrument or document binding upon any
Transaction Party or any of their property;



(b) Each of the Credit Agreement and the other Loan Documents, as amended by this Amendment
and the documents and agreements contemplated thereby, are the legal, valid and binding obligation
of the Transactions Parties which are parties thereto, enforceable against such Transaction Party,
in accordance with its terms;


 


-5-









 





(c) The representations and warranties contained in the Credit Agreement and the other Loan
Documents are true and correct in all material respects as of the date hereof (except to the extent
such representations and warranties relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all materials respects as of such
earlier date), shall be deemed fully incorporated herein by this reference, and shall have the same
force and effect as if such had been made on and as of the date hereof.



(d) The Transaction Parties have performed all of their respective obligations under the
Credit Agreement and the other Loan Documents to be performed by them on or before the date hereof
and as of the date hereof, the Transaction Parties are in compliance with all applicable terms and
provisions of the Credit Agreement and each of the other Loan Documents to be observed and
performed by it and no Event of Default or Unmatured Event of Default has occurred and is
continuing.



6. Severability. Any provision of this Amendment held by a court of competent
jurisdiction to be invalid or unenforceable (other than with respect to a material provision or
term of this Amendment) shall not impair or invalidate the remainder of this Amendment and the
effect thereof shall be confined to the provision so held to be invalid or unenforceable.



7. References. Administrative Agent, Lenders and Borrower hereby agree that all
references to the Credit Agreement which are contained in any of the other Loan Documents shall
refer to the Credit Agreement as amended by this Amendment.




8. Release.



(a) In consideration of the agreements of Administrative Agent and Lenders contained herein
and for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Borrower, on behalf of itself and its successors, assigns, and other legal
representatives, hereby absolutely, unconditionally and irrevocably release, remise and forever
discharge Administrative Agent and Lenders and their successors and assigns, and their present and
former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers,
attorneys, employees, agents and other representatives (Administrative Agent, each Lender and all
such other Persons being hereinafter referred to collectively as the “Releasees” and individually
as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts,
controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any
and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities
whatsoever (individually, a “Claim” and collectively, “Claims”) of every name and nature, known or
unknown, suspected or unsuspected, both at law and in equity, Borrower or any of its successors,
assigns, or other legal representatives may now or hereafter own, hold, have or claim to have
against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or
thing whatsoever which arises at any time on or prior to the day and date of this Amendment,
including, without limitation, for or on account of, or in
relation to, or in any way in connection with any of the Credit Agreement, or any of the other
Loan Documents or transactions thereunder or related thereto.


 


-6-









 





(b) Borrower understands, acknowledges and agrees that the release set forth above may be
pleaded as a full and complete defense and may be used as a basis for an injunction against any
action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the
provisions of such release.



(c) Borrower agrees that no fact, event, circumstance, evidence or transaction which could now
be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and
unconditional nature of the release set forth above.



9. Counterparts. This Amendment may be executed in any number of counterparts, in
original, facsimile or other authenticated electronic transmission, and by the different parties 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 Amendment.



10. Continued Effectiveness. Except as specifically set forth herein, the Credit
Agreement and each of the other Loan Documents shall continue in full force and effect according to
its terms.



11. Costs and Expenses. Each of Borrower and Old Borrower hereby agrees that all
expenses incurred by Administrative Agent and Lenders in connection with the preparation,
negotiation and closing of this Amendment and the transactions contemplated hereby, including
without limitation reasonable attorneys’ fees and expenses, shall be part of the Obligations.



12. Binding Agreement. This Amendment shall be binding upon Borrower, Old Borrower,
Administrative Agent and Lenders and their respective successors and assigns.



[Signature Page Follows]



 


-7-









 





IN WITNESS WHEREOF, this Amendment has been executed as of, and is effective as of, the day
and year first written above.



	 	 	 	 	 	 	 	 	 
	 	 	AXIS OPERATING COMPANY LLC, as Borrower	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Michael Obertop 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	Secretary 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	AXIS, LLC, as Old Borrower	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ James J. Unger 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	Representative of the Executive
Committee 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	LASALLE BANK NATIONAL ASSOCIATION, as
Administrative Agent, as the Issuing
Lender and as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Stefan Loeb 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	Vice President	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	THE CIT GROUP/EQUIPMENT FINANCING, INC.,

as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Angela Harmon 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	Senior Director 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	FIRST BANK, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Edward L. Dehner 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	Assistant Vice President	 	 
	 

	 	 	 	 	 	 	 	 






Signature Page to Consent, Assumption and Second Amendment to Credit Agreement





 


 









 







EXHIBIT A




See attached





 


 











 




CLOSING CHECKLIST




Secured Loans by

LaSalle Bank National Association, individually and as Agent,

and certain other lenders

to

AXIS Operating Company LLC




Consent, Assumption and Second Amendment to Credit Agreement




Closing Date: February 29, 2008





	I.	 	Parties







	 	A.	 	LaSalle Bank National Association (“LaSalle” or “Agent”)

135 South LaSalle Street

Chicago, Illinois 60603

	 
	 	B.	 	The CIT Group/Equipment Financing, Inc. (“CIT”)

30 South Wacker Drive, Suite 3000

Chicago, Illinois 60606

	 
	 	C.	 	First Bank (“First Bank”)

135 N. Meramec

Clayton, Missouri 83105

	 
	 	D.	 	AXIS Operating Company LLC (“Borrower”)

705 Jones Road

Highway 358

Paragould, Arkansas 72450

	 
	 	E.	 	Axis, LLC (“Holdings”)

c/o American Railcar Industries, Inc.

100 Clark Street

St. Charles, Missouri 63301

	 
	 	F.	 	American Railcar Industries, Inc. (“ARI”)

100 Clark Street

St. Charles, Missouri 63301

	 
	 	G.	 	Amsted Industries Incorporated (“Amsted”)

Two Prudential Plaza

180 N. Stetson St.

Chicago, Illinois 60601





 


 









 





ARI and Amsted are hereinafter referred to individually as a “JV Guarantor” and collectively
as the “JV Guarantors”.




	II.	 	Counsel to Parties







	 	A.	 	LaSalle and Agent:

	 
	 	 	 	Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Ltd.

55 East Monroe Street, Suite 3300

Chicago, Illinois 60603

Attn: Joel F. Brown and Maria Hrvatin

Telephone: (312) 201-4000

Telecopy: (312) 332-2196

	 
	 	B.	 	Borrower, Amsted and Pledgor:

	 
	 	 	 	Schiff Hardin LLP

6600 Sears Tower

Chicago, Illinois 60606

Attn: Andrew Kling and Brendan Kelly

Telephone: (312) 258-5551

Telecopy: (312) 258-5600

	 
	 	C.	 	ARI:

	 
	 	 	 	Brown Rudnick Berlack Israels LLP

One Financial Center

Boston, Massachusetts 02111

Attn: Andrew Strehle

Telephone: (617) 856-8569

Telecopy: (617) 856-8201







	III.	 	Closing Documents







	 	A.	 	Items to be delivered by, or pertaining to, Borrower:







	 	1.	 	Consent, Assumption and First Amendment to Credit Agreement

	 
	 	2.	 	Amended and Restated $23,333,333.34 Note payable to LaSalle

	 
	 	3.	 	Amended and Restated $23,333,333.33 Note payable to CIT

	 
	 	4.	 	Amended and Restated $23,333,333.33 Note payable to First Bank

	 
	 	5.	 	Amended and Restated Security Agreement





 


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	 	6.	 	UCC financing statements showing Borrower as debtor and Agent
as secured party (listed on Exhibit A)

	 
	 	7.	 	Items with respect to insurance:







	 	a)	 	Certificates of insurance with respect to
Borrower’s property, vehicle and machinery insurance policies, showing
LaSalle as Agent, as certificate holder and loss payee

	 
	 	b)	 	Certificates of insurance with respect to
Borrower’s liability and other third party insurance policies, showing
LaSalle as Agent, as certificate holder and as an additional insured
party

	 
	 	c)	 	Assignment of Business Interruption Policy as
Collateral Security







	 	8.	 	Amended and Restated Fee Letter

	 
	 	9.	 	Certificates of Good Standing (listed on Exhibit B)

	 
	 	10.	 	Secretary’s Certificate as to:







	 	a)	 	Certificate of Formation, certified by the
Secretary of State of the State of Delaware

	 
	 	b)	 	Operating Agreement

	 
	 	c)	 	Resolutions of Board of Directors

	 
	 	d)	 	Incumbency of Officers







	 	B.	 	Items to be delivered by, or pertaining to, Holdings:







	 	1.	 	Guaranty

	 
	 	2.	 	Security Agreement

	 
	 	3.	 	Securities Pledge Agreement

	 
	 	4.	 	Secretary’s Certificate as to:







	 	a)	 	Certificate of Formation, certified by the
Secretary of State of the State of Delaware

	 
	 	b)	 	Operating Agreement

	 
	 	c)	 	Resolutions of Executive Committee





 


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	 	d)	 	Incumbency of Officers







	 	5.	 	Certificates of Good Standing (listed on Exhibit B)







	 	C.	 	Items to be delivered by, or pertaining to, each JV Guarantor:







	 	1.	 	Consent, Amendment and Reaffirmation of Guaranty







	 	D.	 	Documents Pertaining to Asset Transfer from Holdings to Borrower







	 	1.	 	Purchase and Sale Agreement

	 
	 	2.	 	Assignment, Assumption, and Bill of Sale

	 
	 	3.	 	Limited Liability Company Deed

	 
	 	4.	 	Consents re Assignment of Equipment Contracts

	 
	 	5.	 	Assumption of Mortgage

	 
	 	6.	 	[Others]







	 	E.	 	Other Items:







	 	1.	 	Pre-Closing UCC and other Public Record Searches

	 
	 	2.	 	Opinion of Schiff Hardin LLP re Loan Documents (covering
Borrower and Holdings)







	 	F.	 	Post-closing Items:







	 	1.	 	Post-Filing Searches

	 
	 	2.	 	Certified copies of insurance policies





 


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EXHIBIT A




UCC FINANCING STATEMENTS




	 	 	 	 	 
	Debtor	 	Jurisdiction	 	Filing Office
	 
	 	 	 	 
	Borrower

	 	Delaware
	 	Secretary of State
	 
	 	 	 	 
	Borrower

	 	Arkansas, Greene County
	 	Greene County Clerk of Circuit Court (fixture filing)





 


 









 





EXHIBIT B




GOOD STANDING CERTIFICATES




	 	 	 	 	 
	Debtor	 	Jurisdiction	 	Foreign Qualifications
	 
	 	 	 	 
	Borrower

	 	Delaware
	 	Arkansas
	 
	 	 	 	 
	Holdings

	 	Delaware
	 	Arkansas







 


 












 






THIRD AMENDMENT TO CREDIT AGREEMENT




This
Third Amendment to Credit Agreement (this “Amendment”) is
dated as of the 31 day of
March, 2008, and is by and among LASALLE BANK NATIONAL ASSOCIATION, a national banking association
(in its capacity as Administrative Agent for all Lenders, “Administrative Agent”), the undersigned
Lenders and AXIS OPERATING COMPANY LLC, a Delaware limited liability company (“Borrower”).



W I T N E S S E T H:




WHEREAS, Administrative Agent, Lenders and Borrower are parties to that certain Credit
Agreement, dated as of December 28, 2007 (as amended, modified or supplemented from time to time,
the “Credit Agreement”; unless otherwise defined herein, capitalized terms used herein shall have
the meanings ascribed to such terms in the Credit Agreement);



WHEREAS, Borrower has requested that Administrative Agent and Lenders amend the Credit
Agreement in certain respects as provided herein.



NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained
herein and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:



1. Amendments to Credit Agreement. In reliance upon the representations and
warranties of Borrower set forth in Section 3 below and subject to the conditions to effectiveness
set forth in Section 2 below, the Credit Agreement is hereby amended as follows:



(a) Section 13.1.15 of the Credit Agreement is hereby amended by deleting the reference to
“March 31, 2008” therein and inserting “April 7, 2008” in lieu thereof.



(b) The Legal Description of the Land in Schedule 1 to the Construction Rider to Credit
Agreement attached as Exhibit G to the Credit Agreement (the “Rider”) is hereby deleted and
replaced in its entirety with the Legal Description attached hereto.



(c) The Project Budget in Schedule 2 to the Rider is hereby deleted and replaced in its
entirety with the Project Budget attached hereto.



2. Conditions to Effectiveness. The effectiveness of this Amendment is subject to the
prior or concurrent consummation of each of the following conditions:



(a) Administrative Agent shall have received a fully-executed copy of this Amendment, together
with the Consent and Reaffirmation of each Guarantor attached hereto
and such other documents, agreements and instruments as Administrative Agent may require, each
in form and substance reasonably acceptable to Administrative Agent;


 


 









 





(b) All proceedings taken in connection with the transactions contemplated by this Amendment
and all documents, instruments and other legal matters incident thereto shall be reasonably
satisfactory to Agent and its legal counsel; and



(c) No Event of Default or Unmatured Event of Default shall have occurred and be continuing or
shall be caused by the transactions contemplated by this Amendment.



3. Representations and Warranties. To induce Administrative Agent and Lenders to
enter into this Amendment, Borrower hereby represents and warrants to Administrative Agent and
Lenders that:



(a) The execution, delivery and performance by Borrower of this Amendment and each of the
other agreements, instruments and documents contemplated hereby are within its corporate power,
have been duly authorized by all necessary limited liability company action, have received all
necessary governmental approvals (if any shall be required), and do not and will not contravene or
conflict with any provision of law applicable to any Transaction Party, the certificate of
formation and limited liability company agreement of Borrower or the certificate of incorporation
or bylaws of either Guarantor, any order, judgment or decree of any court or governmental agency,
or any agreement, instrument or document binding upon any Transaction Party or any of their
property;



(b) Each of the Credit Agreement and the other Loan Documents, as amended by this Amendment
and the documents and agreements contemplated thereby, are the legal, valid and binding obligation
of the Transactions Parties which are parties thereto, enforceable against such Transaction Party,
in accordance with its terms;



(c) The representations and warranties contained in the Credit Agreement and the other Loan
Documents are true and correct in all material respects as of the date hereof (except to the extent
such representations and warranties relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all materials respects as of such
earlier date), shall be deemed fully incorporated herein by this reference, and shall have the same
force and effect as if such had been made on and as of the date hereof.



(d) The Transaction Parties have performed all of their respective obligations under the
Credit Agreement and the other Loan Documents to be performed by them on or before the date hereof
and as of the date hereof, the Transaction Parties are in compliance with all applicable terms and
provisions of the Credit Agreement and each of the other Loan Documents to be observed and
performed by it and no Event of Default or Unmatured Event of Default has occurred and is
continuing.


 


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4. Severability. Any provision of this Amendment held by a court of competent
jurisdiction to be invalid or unenforceable (other than with respect to a material provision or
term of this Amendment) shall not impair or invalidate the remainder of this Amendment and the
effect thereof shall be confined to the provision so held to be invalid or unenforceable.



5. References. Administrative Agent, Lenders and Borrower hereby agree that all
references to the Credit Agreement which are contained in any of the other Loan Documents shall
refer to the Credit Agreement as amended by this Amendment.




6. Release.



(a) In consideration of the agreements of Administrative Agent and Lenders contained herein
and for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Borrower, on behalf of itself and its successors, assigns, and other legal
representatives, hereby absolutely, unconditionally and irrevocably release, remise and forever
discharge Administrative Agent and Lenders and their successors and assigns, and their present and
former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers,
attorneys, employees, agents and other representatives (Administrative Agent, each Lender and all
such other Persons being hereinafter referred to collectively as the “Releasees” and individually
as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts,
controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any
and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities
whatsoever (individually, a “Claim” and collectively, “Claims”) of every name and nature, known or
unknown, suspected or unsuspected, both at law and in equity, Borrower or any of its successors,
assigns, or other legal representatives may now or hereafter own, hold, have or claim to have
against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or
thing whatsoever which arises at any time on or prior to the day and date of this Amendment,
including, without limitation, for or on account of, or in relation to, or in any way in connection
with any of the Credit Agreement, or any of the other Loan Documents or transactions thereunder or
related thereto.



(b) Borrower understands, acknowledges and agrees that the release set forth above may be
pleaded as a full and complete defense and may be used as a basis for an injunction against any
action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the
provisions of such release.



(c) Borrower agrees that no fact, event, circumstance, evidence or transaction which could now
be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and
unconditional nature of the release set forth above.



7. Counterparts. This Amendment may be executed in any number of counterparts, in
original, facsimile or other authenticated electronic transmission, and by the different parties 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 Amendment.


 


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8. Continued Effectiveness. Except as specifically set forth herein, the Credit
Agreement and each of the other Loan Documents shall continue in full force and effect according to
its terms.



9. Costs and Expenses. Borrower hereby agrees that all expenses incurred by
Administrative Agent and Lenders in connection with the preparation, negotiation and closing of
this Amendment and the transactions contemplated hereby, including without limitation reasonable
attorneys’ fees and expenses, shall be part of the Obligations.



10. Binding Agreement. This Amendment shall be binding upon Borrower, Administrative
Agent and Lenders and their respective successors and assigns.


 


-4-









 





IN WITNESS WHEREOF, this Amendment has been executed as of, and is effective as of, the day
and year first written above.



	 	 	 	 	 	 	 	 	 
	 	 	AXIS OPERATING COMPANY, LLC, as Borrower	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ James J. Unger 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	Director 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	LASALLE BANK NATIONAL ASSOCIATION, as
Administrative Agent, as the Issuing Lender
and as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Stefan Loeb 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	Vice President 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	THE CIT GROUP/EQUIPMENT FINANCING,
INC., as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Carrie Stead 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	Senior Vice President 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	FIRST BANK, as a Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Edward L. Dehner 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	Vice President 	 	 
	 

	 	 	 	 	 	 	 	 






Signature Page to Third Amendment to Credit Agreement





 


 









 







SCHEDULE 1

TO CONSTRUCTION RIDER




LEGAL DESCRIPTION OF THE LAND




Greene County, Arkansas:



That part of Section 7, Township 16 North, Range 6 East, described as follows: Beginning at the
Southeast corner of the SW 1/4 SW 1/4 of said Section 7, run thence N 89° 40’ W 159.7 feet to the true
point of beginning, run thence Northerly along a curve to the left having a radius of 70.3 feet a
distance of 110.1 feet, run thence N 0° 34’ E 47.9 feet, run thence Northeasterly along a curve to
the right having a radius of 40.5 feet a distance of 9.9 feet, run thence N 14° 38’ E 183.2 feet,
run thence Northerly along a curve to the left having a radius of 58.4 feet a distance of 14.9
feet, run thence N 0° 01’ E 288.6 feet, run thence Northwesterly along a curve to the left having a
radius of 750.0 feet a distance of 186.3 feet, run thence Northwesterly along a curve to the left
having a radius of 71.0 feet a distance of 81.4 feet, run thence Westerly along a curve to the left
having radius of 750.0 feet a distance of 154.4 feet, run thence S 88° 40’ W 91.5 feet, run thence
Southerly along a curve to the left having a radius of 59.6 feet a distance of 94.0 feet, run
thence S 1° 43’ E 411.4 feet, run thence Easterly along a curve to the left having a radius of 6.1
feet a distance of 9.0 feet, run thence S 88° 46’ E 13.9 feet, run thence S 1° 53’ E 374.0 feet,
run thence S 89° 40’ E 218.0 feet to the true point of beginning, containing 6.72 acres, more or
less, SUBJECT to the right-of-way of Highway 358 off the South side thereof and all utility
easements.



EASEMENT TRACT I: ALSO AN EASEMENT FOR INGRESS AND EGRESS OVER AND ACROSS THE FOLLOWING DESCRIBED
LANDS IN GREENE COUNTY, ARKANSAS, TO-WIT:



That part of Section 7, Township 16 North, Range 6 East, described as follows: Beginning at the
Southeast corner of the SW 1/4 SW 1/4 of said Section 7, run thence N 89° 40’ W 4.4 feet to the true
point of beginning, run thence N 89° 40’ W 155.3 feet, run thence Northerly along a curve to the
left having a radius of 70.3 feet a distance of 110.1 feet, run thence N 0° 34’ E 47.9 feet, run
thence Northeasterly along a curve to the right having a radius of 40.5 feet a distance of 9.9
feet, run thence N 14° 38’ E 183.2 feet, run thence Northerly along a curve to the left having a
radius of 58.4 feet a distance of 14.9 feet, run thence N 0° 01’ E 288.6 feet, run thence
Northwesterly along a curve to the left having a radius of 750.0 feet a distance of 186.3 feet, run
thence Northwesterly along a curve to the left having a radius of 71.0 feet a distance of 81.4
feet, run thence Westerly along a curve to the left having a radius of 750.0 feet a distance of
154.4 feet, run thence N 1° 20’ W 24.0 feet, run thence N 88° 44’ E 218.1 feet, run thence
Southerly along a curve to the right having a radius of 39.1 feet a distance of 62.3 feet, run
thence S 0° 01’ W 526.1 feet, run thence Southwesterly along a curve to the right having a radius
of 82.4 feet a distance of 21.0 feet, run thence S 14° 38’ W 183.2 feet, run thence Southerly along
a curve to the left having a radius of 16.5 feet a distance of 4.1 feet, run thence S 0° 34’ W
47.9 feet, run thence Southeasterly along a curve to the left having a radius of 70.3 feet a
distance of 101.4 feet to the true point of beginning.


 


 









 





EASEMENT TRACT II: ALSO A RAIL EASEMENT OVER AND ACROSS THE FOLLOWING DESCRIBED LANDS IN GREENE
COUNTY, ARKANSAS, TO-WIT:

That part of the South Half of the Northeast Quarter of Section 12, Township 16 North, Range 5
East, AND that part of the Southwest Quarter of the Northwest Quarter of Section 7, Township 16
North, Range 6 East, described as follows: Beginning at the Southwest corner of said SW1/4 NW1/4,
run thence S0°05’E 45.1 feet, run thence N40°34’W 246.2 feet, run thence N47°43’W 503.4 feet, run
thence Northwesterly along a curve to the right having a radius of 653.2 feet a distance of 337.7
feet to the existing East right-of-way of the railroad, run thence N26°59’E along said right-of-way
73.8 feet, run thence Southeasterly along a curve to the left having a radius of 603.2 feet a
distance of 364.0 feet, run thence S47°43’E 506.5 feet, run thence S40°34’E 232.2 feet, run thence
S89°01’W 26.9 feet to the true point of beginning.



EASEMENT TRACT III: ALSO A RAIL EASEMENT OVER AND ACROSS THE FOLLOWING DESCRIBED LANDS IN GREENE
COUNTY, ARKANSAS, TO-WIT:


That part of the Northwest Quarter of the Southwest Quarter AND that part of the Southwest Quarter
of the Southwest Quarter of Section 7, Township 16 North, Range 6 East, described as follows:
Beginning at the Northwest corner of said NW1/4 SW1/4, run thence S0°05’E 45.1 feet, run thence
S40°34’E 43.9 feet, run thence Southeasterly along a curve to the right having a radius of 653.0
feet a distance of 461.4 feet, run thence S0°05’E 600.7 feet, run thence Southeasterly along a
curve to the left having a radius of 225.0 feet a distance of 244.3 feet, run thence S62°19’E 278.3
feet, run thence Southeasterly along a curve to the right having a radius of 125.0 feet a distance
of 133.1 feet, run thence S8°01’E 55.1 feet, run thence Southeasterly along a curve to the right
having a radius of 189.5 feet a distance of 188.3 feet, run thence S70°08’E 127.9 feet, run thence
S62°54’E 40.0 feet, run thence Southeasterly along a curve to the right having a radius of 125.0
feet a distance of 55.5 feet, run thence Northeasterly along a curve to the right having a radius
of 59.6 feet a distance of 64.2 feet, run thence N88°40’E 91.5 feet, run thence Easterly along a
curve to the right having a radius of 750.0 feet a distance of 55.1 feet, run thence Northwesterly
along a curve to the left having a radius of 175.0 feet a distance of 140.3 feet, run thence
N84°02’W 150.4 feet, run thence Northwesterly along a curve to the right having a radius of 175.0
feet a distance of 20.7 feet, run thence N77°15’W 65.6 feet, run thence N69°39’W 27.9 feet, run
thence Northwesterly along a curve to the right having a radius of 135.8 feet a distance of 32.5
feet, run thence N89°59’W 1.4 feet, run thence N0°23’W 1.0 feet, run thence Northwesterly along a
curve to the right having a radius of 135.8 feet a distance of 101.3 feet, run thence N8°01’W 51.9
feet, run thence Northwesterly along a curve to the right having a radius of 175.0 feet a distance
of 183.2 feet, run thence N62°19’W 278.3 feet, run thence Northwesterly along a curve to the right
having a radius of 175.0 feet a distance of 190.0 feet, run thence N0°05’W 600.7 feet, run thence
Northwesterly along a curve to the left having a radius of 703.0 feet a distance of 496.7 feet, run
thence N40°34’W 61.0 feet, run thence S89°01’W 26.9 feet to the true point of beginning.


 


 









 





EASEMENT TRACT IV: ALSO A UTILITY EASEMENT OVER, UNDER, ACROSS AND THROUGH THE FOLLOWING DESCRIBED
LANDS IN GREENE COUNTY, ARKANSAS, TO-WIT:



That part of Section 7, Township 16 North, Range 6 East, described as follows: Beginning at the
Southeast corner the SW 1/4 SW 1/4 of said Section 7, run thence North 89 degrees 40 minutes West
622.5 feet, run thence North 0 degrees 04 minutes West 350.03 feet, run thence North 0 degrees 24
minutes West 549.1 feet to the true point of beginning, run thence North 0 degrees 24 minutes West
20.0 feet, run thence North 88 degrees 15 minutes East 458.5 feet, run thence Southeasterly along a
curve to the right having a radius of 50.0 feet a distance of 83.1 feet, run thence South 1 degrees
45 minutes East 39.1 feet, run thence Northwesterly along a curve to the left having a radius of
750.0 feet a distance of 20.4 feet, run thence North 1 degrees 45 minutes West 35.3 feet, run
thence Northwesterly along a curve to the left having a radius of 30.0 feet a distance of 51.6
feet, run thence South 88 degrees 15 minutes West 459.0 feet to the true point of beginning.




 


 









 







SCHEDULE 2

TO CONSTRUCTION RIDER




PROJECT BUDGET



[REDACTED*]



 


 









 





CONSENT AND REAFFIRMATION




The undersigned hereby (a) acknowledges receipt of a copy of the foregoing Third Amendment to
Credit Agreement (the “Amendment”); (b) consents to Borrower’s execution and delivery of the
Amendment; (c) agrees to be bound by the Amendment; (d) affirms that nothing contained in the
Amendment shall modify in any respect whatsoever any Loan Document to which it is a party; and (e)
reaffirms that such Loan Documents shall continue to remain in full force and effect. Although the
undersigned has been informed of the matters set forth herein and has acknowledged and agreed to
same, the undersigned understands that Administrative Agent and Lenders have no obligation to
inform the undersigned of such matters in the future or to seek the undersigned’s acknowledgment or
agreement to future amendments, waivers or consents, and nothing herein shall create such a duty.



IN WITNESS WHEREOF, the undersigned has executed this Consent and Reaffirmation on and as of
the date of the Amendment.



	 	 	 	 	 	 	 	 	 
	 	 	AMERICAN RAILCAR, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ James J. Unger 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	President and CEO	 	 
	 

	 	 	 	 	 	 	 	 






Consent and Reaffirmation to Third Amendment to Credit Agreement





 


 









 







CONSENT AND REAFFIRMATION




The undersigned hereby (a) acknowledges receipt of a copy of the foregoing Third Amendment to
Credit Agreement (the “Amendment”); (b) consents to Borrower’s execution and delivery of the
Amendment; (c) agrees to be bound by the Amendment; (d) affirms that nothing contained in the
Amendment shall modify in any respect whatsoever any Loan Document to which it is a party; and (e)
reaffirms that such Loan Documents shall continue to remain in full force and effect. Although the
undersigned has been informed of the matters set forth herein and has acknowledged and agreed to
same, the undersigned understands that Administrative Agent and Lenders have no obligation to
inform the undersigned of such matters in the future or to seek the undersigned’s acknowledgment or
agreement to future amendments, waivers or consents, and nothing herein shall create such a duty.



IN WITNESS WHEREOF, the undersigned has executed this Consent and Reaffirmation on and as of
the date of the Amendment.



	 	 	 	 	 	 	 	 	 
	 	 	AMSTED INDUSTRIES, INCORPORATED	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Matt Hower 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Vice President — Treasurer 	 	 
	 

	 	 	 	 	 	 	 	 






Consent and Reaffirmation to Third Amendment to Credit Agreement






 


 









 







CONSENT AND REAFFIRMATION




The undersigned hereby (a) acknowledges receipt of a copy of the foregoing Third Amendment to
Credit Agreement (the “Amendment”); (b) consents to Borrower’s execution and delivery of the
Amendment; (c) agrees to be bound by the Amendment; (d) affirms that nothing contained in the
Amendment shall modify in any respect whatsoever any Loan Document to which it is a party; and (e)
reaffirms that such Loan Documents shall continue to remain in full force and effect. Although the
undersigned has been informed of the matters set forth herein and has acknowledged and agreed to
same, the undersigned understands that Administrative Agent and Lenders have no obligation to
inform the undersigned of such matters in the future or to seek the undersigned’s acknowledgment or
agreement to future amendments, waivers or consents, and nothing herein shall create such a duty.



IN WITNESS WHEREOF, the undersigned has executed this Consent and Reaffirmation on and as of
the date of the Amendment.



	 	 	 	 	 	 	 	 	 
	 	 	AXIS, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ James J. Unger 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Representative of the
Executive Committee 	 	 
	 

	 	 	 	 	 	 	 	 






Consent and Reaffirmation to Third Amendment to Credit Agreement





 


 











 




Execution Copy




FOURTH AMENDMENT TO CREDIT AGREEMENT




This Fourth Amendment to Credit Agreement (this “Amendment”) is dated as of the 5th day of
August, 2009, and is by and among ARI Component Venture LLC, a Delaware limited liability company
(in its capacity as Co-Administrative Agent for all Lenders, “ARI Co-Administrative Agent”),
ASF-Keystone, Inc., a Delaware corporation (in its capacity as Co-Administrative Agent for all
Lenders, “Amsted Co-Administrative Agent” and, together with ARI Co-Administrative Agent,
collectively, the “Administrative Agent”), the undersigned Lenders and Axis Operating Company LLC,
a Delaware limited liability company (“Borrower”).



 W I T N E S S E T H:




WHEREAS, immediately prior to giving effect to the Assignment Transactions referenced below,
Bank of America, N.A., a national banking association, successor by merger to LaSalle Bank National
Association (in its capacity as Administrative Agent for the Prior Lenders, “Prior Administrative
Agent”), the Prior Lenders referred to below and Borrower were parties to that certain Credit
Agreement, dated as of December 28, 2007 (as amended, modified or supplemented from time to time,
the “Credit Agreement”; unless otherwise defined herein, capitalized terms used herein shall have
the meanings ascribed to such terms in the Credit Agreement);



WHEREAS, on the date hereof, immediately before giving effect hereto, the Administrative
Agent, the Lenders and the Borrower entered into (i) that certain Master Assignment Agreement,
dated as of August 5, 2009 (the “Master Assignment”), by and among the Prior Administrative Agent,
Bank of America, N.A., The CIT Group/Equipment Financing, Inc. and First Bank (collectively, the
“Prior Lenders”), Amsted Industries Incorporated and American Railcar Industries, Inc.
(collectively, the “Guarantors”), ARI Component Venture LLC, a Delaware limited liability company
(in its capacity as a Lender, the “ARI Lender”), ASF-Keystone, Inc., a Delaware corporation (in its
capacity as a Lender, the “Amsted Lender” and, together with ARI Lender, the “New Lenders”), and
the Borrower pursuant to which, among other things, the Prior Lenders assigned 100% of the Loans
and their rights under the Loan Documents to the New Lenders; and (ii) that certain Agreement
Regarding Agency Resignation, Appointment and Acceptance, dated as of August 5, 2009 (the “Agency
Agreement”; the transactions contemplated by the Master Assignment and the Agency Agreement are
referred to herein, collectively, as the “Assignment Transactions”), by and among the Prior
Administrative Agent, the ARI Co-Administrative Agent, the Amsted Co-Administrative Agent and the
Borrower, pursuant to which, among other things, the Prior Administrative Agent resigned as
Administrative Agent under the Credit Agreement and ARI Co-Administrative Agent and the Amsted
Co-Administrative Agent were appointed, collectively, as Administrative Agent for the Lenders under
the Credit Agreement; and



WHEREAS, Borrower has requested that Administrative Agent and Lenders amend the Credit
Agreement in certain respects as provided herein;



NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained
herein and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:


 


 









 





1. Amendments to Credit Agreement. In reliance upon the representations and
warranties of Borrower set forth in Section 4 below and subject to the conditions to effectiveness
set forth in Section 3 below, the Credit Agreement is hereby amended as follows:



(a) Section 1.1 of the Credit Agreement is amended by adding, or amending and restating, as
applicable, the following defined terms:




Assignment Effective Date means August 5, 2009.



Base Rate Margin means, for any date of determination, 2.50% per annum.



Borrowing Base means an amount equal to the total of (a) 85% of the unpaid
amount (net of such reserves and allowances, in each case following the Construction Period,
as the Administrative Agent deems necessary in its reasonable discretion) of all Eligible
Accounts plus (b) 65% of the value of all Eligible Inventory valued at the lower of cost or
market (net of such reserves and allowances, in each case following the Construction Period,
as the Administrative Agent deems necessary in its reasonable discretion); provided, that
prior to December 31, 2010, the Borrowing Base shall not be less than $3,000,000. Absent
(i) circumstances that the Administrative Agent deems exigent in its sole discretion or
(ii) circumstances relating directly to Accounts and/or Inventory, the Administrative Agent
shall give the Borrower not less than 3 Business Days’ prior notice before instituting any
such new reserve.




EBITDA means, for any period, Consolidated Net Income for such period plus
capital contributions made by members of Holdings to Holdings during such period to the
extent Holdings makes capital contributions to the Borrower during such period plus, to the
extent deducted in determining such Consolidated Net Income, Interest Expense, income tax
expense, depreciation and amortization for such period.




L/C Fee Rate means, for any date of determination, 4.75% per annum.




LIBOR Margin means, for any date of determination, 4.75% per annum.




Non-Use Fee Rate – means 0.50% per annum.




Swing Line Lender means, collectively, the Lenders.



(b) The last sentence of Section 2.1.2 of the Credit Agreement is hereby amended and restated
in its entirety as follows:




“The Commitments of the Lenders to make Term Loans shall expire on December
31, 2010.”




(c) A new sentence is added to the end of Section 2.1.3 of the Credit Agreement as follows:




“Notwithstanding the foregoing or any other provision of this Agreement, on
and after the Assignment Effective Date, the Issuing Lender shall have no
obligation to issue Letters of Credit.”


 


2









 





(d) Section 4.1(a) of the Credit Agreement is hereby amended and restated in its entirety as
follows:




“(a) at all times while such Loan is a Base Rate Loan, at a rate per annum
equal to the greater of (i) 7.75% or (ii) the sum of the Base Rate from time to time
in effect plus the Base Rate Margin from time to time in effect; and”



(e) Section 4.1(b) of the Credit Agreement is hereby amended and restated in its entirety as
follows:




“(b) at all times while such Loan is a LIBOR Loan, at a rate per annum equal to
the greater of (i) 7.75% or (ii) the sum of the LIBOR Rate applicable to each
Interest Period for such Loan plus the LIBOR Margin from time to time in effect;
and”



(f) Section 4.2(b) of the Credit Agreement is hereby amended and restated in its entirety as
follows:




“(b) Notwithstanding any provision of this Agreement or the other Loan
Documents, so long as no Event of Default is then in existence, during the period
from the Closing Date to December 31, 2010 Borrower may elect, in its sole
discretion, to satisfy any interest due and payable pursuant to this Section
4.2 by increasing the outstanding principal amount of the Term Loan by the
amount of interest otherwise due and payable in cash during such period.”



(g) With respect to Section 5.3 of the Credit Agreement, the Administrative Agent confirms
that there is no Agent Fee Letter in effect and that therefore the Borrower does not have any
payment obligations under Section 5.3 of the Credit Agreement.



(h) Section 6.4.2 of the Credit Agreement is hereby amended and restated in its entirety as
follows:




“6.4.2. Term Loans. The Term Loan shall be paid in twenty-two (22) equal
installments, based on the outstanding principal amount of the Term Loan on December
31, 2010, commencing on the last day of the first Fiscal Quarter thereafter and
continuing on the last day of each Fiscal Quarter thereafter. Unless sooner paid in
full, the outstanding principal balance of the Term Loan shall be paid in full on
the Term Loan Maturity Date.”



(i) The text of Sections 9.5, 10.10, 10.11, 10.12, 13.1.13, 13.1.14, 13.1.15 and 13.1.16 of
the Credit Agreement are each hereby amended and restated in their entirety as follows:
“[Reserved]”



(j) Section 11.11(e) of the Credit Agreement is hereby amended and restated in its entirety as
follows:




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



(k) Section 15.1 of the Credit Agreement is hereby amended to remove the


 


3









 





following parenthetical therefrom: “(except for periodic adjustments of interest rates and
fees resulting from a change in the Applicable Margin as provided for in this Agreement).”


(l) Annex A, Annex B and Exhibit A to the Credit Agreement are each hereby amended and
restated in their entirety as set forth on Annex A, Annex B and Exhibit A attached hereto.



2. Release of ARI and Amsted Guarantees. In consideration of the Assignment
Transactions and the amendments to the Credit Agreement made in Section 1 hereof, the parties
hereto agree that the Guaranty Agreement, dated as December 28, 2007, by American Railcar, Inc., a
Delaware corporation, in favor of the Administrative Agent for the benefit of the Lenders, and the
Guaranty Agreement, dated as December 28, 2007, by Amsted Industries Incorporated, a Delaware
corporation, in favor of the Administrative Agent for the benefit of the Lenders, are each hereby
released, terminated and of no further force or effect, and neither American Railcar, Inc. nor
Amsted Industries Incorporated shall be a Guarantor or Transaction Party under any Loan Document
for any purpose.



3. Conditions to Effectiveness. This Amendment shall be effective as of the
Assignment Effective Date immediately after consummation of the Assignment Transactions upon
consummation of each of the following conditions:



(a) Administrative Agent shall have received a fully-executed copy of this Amendment, together
with the Consent and Reaffirmation of the Guarantor attached hereto and such other documents,
agreements and instruments as Administrative Agent may require, each in form and substance
reasonably acceptable to Administrative Agent;



(b) Administrative Agent shall have received a fully-executed copy of the resolutions of the
Executive Committee of the Guarantor and the Board of Directors of the Borrower in the form
attached hereto as Exhibit B;



(c) All proceedings taken in connection with the transactions contemplated by this Amendment
and all documents, instruments and other legal matters incident thereto shall be reasonably
satisfactory to Administrative Agent and its legal counsel;



(d) Administrative Agent shall have received, in form and substance acceptable to
Administrative Agent, a Note in favor of each Lender in the forms attached hereto as Exhibit C
reflecting the Pro Rata Shares of the Loans held by each such Lender set forth on Annex A attached
hereto; and



(e) No Event of Default or Unmatured Event of Default shall have occurred and be continuing or
shall be caused by the transactions contemplated by this Amendment.



4. Representations and Warranties. To induce Administrative Agent and Lenders to
enter into this Amendment, Borrower hereby represents and warrants to Administrative Agent and
Lenders that:



(a) The execution, delivery and performance by Borrower of this Amendment and each of the
other agreements, instruments and documents contemplated hereby are within its limited liability
company power, have been duly authorized by all necessary limited liability


 


4









 





company action, have received all necessary governmental approvals (if any shall be required),
and do not and will not contravene or conflict with any provision of law applicable to any
Transaction Party, the certificate of formation and limited liability company agreement of any
Transaction Party, any order, judgment or decree of any court or governmental agency, or any
agreement, instrument or document binding upon any Transaction Party or any of their property;



(b) Each of the Credit Agreement and the other Loan Documents, as amended by this Amendment
and the documents and agreements contemplated thereby, are the legal, valid and binding obligation
of the Transactions Parties which are parties thereto, enforceable against such Transaction Party,
in accordance with its terms;



(c) The representations and warranties contained in the Credit Agreement and the other Loan
Documents are true and correct in all material respects as of the date hereof (except to the extent
such representations and warranties relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material respects as of such
earlier date), shall be deemed fully incorporated herein by this reference, and shall have the same
force and effect as if such had been made on and as of the date hereof.



(d) The Transaction Parties have performed all of their respective obligations under the
Credit Agreement and the other Loan Documents to be performed by them on or before the date hereof
and as of the date hereof, the Transaction Parties are in compliance with all applicable terms and
provisions of the Credit Agreement and each of the other Loan Documents to be observed and
performed by it and no Event of Default or Unmatured Event of Default has occurred and is
continuing.



5. No Default; Waiver. For the avoidance of doubt, the parties hereto agree that the
Acceptance Date and the Completion Date occurred on June 26, 2009. Furthermore the parties hereto
agree that to the extent the Prior Administrative Agent or any Prior Lender gave notice of or
otherwise declared an Event of Default to be in existence under the Credit Agreement, including
without limitation, pursuant to that certain letter dated June 16, 2009 from the Administrative
Agent to the Company, the parties hereto agree such Events of Default are hereby waived.



6. Severability. Any provision of this Amendment held by a court of competent
jurisdiction to be invalid or unenforceable (other than with respect to a material provision or
term of this Amendment) shall not impair or invalidate the remainder of this Amendment and the
effect thereof shall be confined to the provision so held to be invalid or unenforceable.



7. References. Administrative Agent, Lenders and Borrower hereby agree that all
references to the Credit Agreement which are contained in any of the other Loan Documents shall
refer to the Credit Agreement as amended by this Amendment.



8. Counterparts. This Amendment may be executed in any number of counterparts, in
original, facsimile or other authenticated electronic transmission, and by the different parties 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 Amendment.


 


5









 




9. Continued Effectiveness. Except as specifically set forth herein, the Credit
Agreement and each of the other Loan Documents shall continue in full force and effect according to
its terms.



10. Costs and Expenses. Borrower hereby agrees that all expenses incurred by
Administrative Agent and Lenders in connection with the preparation, negotiation and closing of
this Amendment and the transactions contemplated hereby, including without limitation reasonable
attorneys’ fees and expenses, shall be part of the Obligations.



11. Binding Agreement. This Amendment shall be binding upon Borrower, Administrative
Agent and Lenders and their respective successors and assigns.



[signature page follows]



 


6









 





IN WITNESS WHEREOF, this Amendment has been executed as of, and is effective as of, the day
and year first written above.



	 	 	 	 	 	 	 
	 	 	AXIS OPERATING COMPANY, LLC, as Borrower	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ James J. Unger 	 	 
	 

	 	 	 	 	 	 
	 

	 	Its	 	Director 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	ARI COMPONENT VENTURE LLC, as co-Administrative Agent, as co-Issuing Lender and
as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ James J. Unger 	 	 
	 

	 	 	 	 	 	 
	 

	 	Its	 	Manager 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	ASF-KEYSTONE, INC., as co-Administrative Agent, as co-Issuing Lender and as a
Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ John Worries	 	 
	 

	 	 	 	 	 	 
	 

	 	Its	 	President	 	 
	 

	 	 	 	 	 	 






Signature Page to Fourth Amendment to Credit Agreement






 


 









 







CONSENT AND REAFFIRMATION




The undersigned hereby (a) acknowledges receipt of a copy of the foregoing Fourth Amendment to
Credit Agreement (the “Amendment”); (b) consents to Borrower’s execution and delivery of the
Amendment; (c) agrees to be bound by the Amendment; (d) affirms that nothing contained in the
Amendment shall modify in any respect whatsoever any Loan Document to which it is a party; and
(e) reaffirms that such Loan Documents shall continue to remain in full force and effect. Although
the undersigned has been informed of the matters set forth herein and has acknowledged and agreed
to same, the undersigned understands that Administrative Agent and Lenders have no obligation to
inform the undersigned of such matters in the future or to seek the undersigned’s acknowledgment or
agreement to future amendments, waivers or consents, and nothing herein shall create such a duty.



IN WITNESS WHEREOF, the undersigned has executed this Consent and Reaffirmation on and as of
the date of the Amendment.



	 	 	 	 	 	 	 	 	 
	 	 	AXIS, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ James J. Unger 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Representative of the Executive
Committee 	 	 
	 

	 	 	 	 	 	 	 	 






Consent and Reaffirmation to Fourth Amendment to Credit Agreement






 


 









 







ANNEX A




LENDERS AND PRO RATA SHARES




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Revolving	 	 	 	 	 	 	 	 	 	 
	 	 	Commitment	 	 	Pro Rata	 	 	Term Loan	 	 	 	 
	Lender	 	Amount	 	 	Share	 	 	Commitment	 	 	Pro Rata Share	 
	 
	ARI Component
Venture, LLC
	 	$	5,000,000.00	*	 	 	50.0	%	 	$	30,000,000.00	 	 	 	50.0	%
	ASF-Keystone, Inc.
	 	$	5,000,000.00	*	 	 	50.0	%	 	$	30,000,000.00	 	 	 	50.0	%
	TOTALS
	 	$	10,000,000.00	**	 	 	100	%	 	$	60,000,000.00	 	 	 	100	%








	 	 	 
	*/	 	Includes individual Swing Line Commitment Amount of $1,000,000.

	 
	**/	 	Includes aggregate Swing Line Commitment Amount of $2,000,000.





 


ANNEX A









 







ANNEX B




ADDRESSES FOR NOTICES




AXIS, LLC




AXIS OPERATING COMPANY, LLC




c/o American Railcar Industries, Inc.

100 Clark Street

St. Charles, Missouri 63301




Attention: Michael Obertop

Telephone: (636) 940-6054

Facsimile: (636) 940-5032




ARI COMPONENT VENTURE LLC, as co-Administrative Agent, co-Issuing Lender and a Lender




c/o American Railcar Industries, Inc.

100 Clark Street

St. Charles, Missouri 63301




Attention: Michael Obertop

Telephone: (636) 940-6054

Facsimile: (636) 940-5032




ASF-KEYSTONE, INC., as co-Administrative Agent, co-Issuing Lender and a Lender




c/o Amsted Industries Incorporated

180 North Stetson Street

Chicago, Illinois 60601




Attention: Matthew Hower

Telephone: (312) 819-8500

Facsimile: (877) 325-3906





 


Annex A









 







EXHIBIT A




FORM OF

NOTE




			
	 	 	 
	[date]	 	 
	$                    
	 	Chicago, Illinois






The undersigned, for value received, promises to pay to the order of
 _____ 
(the
“Lender”) at the location from time to time designated by it, the aggregate unpaid amount
of all Loans made to the undersigned by the Lender pursuant to the Credit Agreement referred to
below (as shown on the schedule attached hereto (and any continuation thereof) or in the records of
the Lender), such principal amount to be payable on the dates set forth in the Credit Agreement.



The undersigned 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 December 28, 2007 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”; terms not otherwise defined
herein are used herein as defined in the Credit Agreement), among the undersigned, certain
financial institutions (including the Lender) and the Administrative Agent, 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 Illinois applicable to
contracts made and to be performed entirely within such State.



	 	 	 	 	 	 	 
	 	 	AXIS OPERATING COMPANY, LLC
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 







 


 









 







EXHIBIT B




RESOLUTIONS




(see attached)





 


 









 





EXHBIT C




NOTES




(see attached)





 


 









 







NOTE




			
	 	 	 
	August 5, 2009	 	 
	$35,000,000.00
	 	Chicago, Illinois






The undersigned, for value received, promises to pay to the order of ARI Component Venture
LLC, a Delaware limited liability company (the “Lender”), at the location from time to time
designated by it, Illinois the aggregate unpaid amount of all Loans made to the undersigned by the
Lender pursuant to the Credit Agreement referred to below (as shown on the schedule attached hereto
(and any continuation thereof) or in the records of the Lender), such principal amount to be
payable on the dates set forth in the Credit Agreement.



The undersigned 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 December 28, 2007 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”; terms not otherwise defined
herein are used herein as defined in the Credit Agreement), among the undersigned, certain
financial institutions (including the Lender) and the Administrative Agent, 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 Illinois applicable to
contracts made and to be performed entirely within such State.



	 	 	 	 	 	 	 	 	 
	 	 	AXIS OPERATING COMPANY, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ James J. Unger 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Director 	 	 
	 

	 	 	 	 	 	 	 	 







 


 









 







NOTE




			
	 	 	 
	August 5, 2009	 	 
	$35,000,000.00
	 	Chicago, Illinois






The undersigned, for value received, promises to pay to the order of ASF-Keystone, Inc., a
Delaware corporation (the “Lender”), at the location from time to time designated by it,
the aggregate unpaid amount of all Loans made to the undersigned by the Lender pursuant to the
Credit Agreement referred to below (as shown on the schedule attached hereto (and any continuation
thereof) or in the records of the Lender), such principal amount to be payable on the dates set
forth in the Credit Agreement.



The undersigned 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 December 28, 2007 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”; terms not otherwise defined
herein are used herein as defined in the Credit Agreement), among the undersigned, certain
financial institutions (including the Lender) and the Administrative Agent, 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 Illinois applicable to
contracts made and to be performed entirely within such State.



	 	 	 	 	 	 	 	 	 
	 	 	AXIS OPERATING COMPANY, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ James J. Unger 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Director