Exhibit 10.03


 


Execution Copy


 


$750,000,000


 


AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated
as of June 19, 2007


 


Among


 


STEEL
DYNAMICS, INC.


 


as  Borrower


 


and


 


THE
INITIAL LENDERS, INITIAL ISSUING BANK AND


 


SWING
LINE BANK NAMED OR DESCRIBED HEREIN


 


as  Initial Lenders, Initial Issuing Bank
and  Swing Line Bank


 


and


 


NATIONAL
CITY BANK


 


as  Collateral Agent


 


and


 


NATIONAL
CITY BANK and WELLS FARGO BANK, NATIONAL ASSOCIATION


 


as  Administrative Agents


 


and


 


BANK
OF AMERICA, N.A. and NATIONAL CITY BANK


 


as  Syndication Agents


 


and


 


BANC
OF AMERICA SECURITIES LLC and NATIONAL CITY BANK


 


as  Joint Lead Arrangers


 


Steel
Dynamics — Amended and Restated Credit Agreement


 
















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  I

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DEFINITIONS AND
  ACCOUNTING TERMS

  	
   

  	
   

  
	
  Section 1.01.

  	
   

  	
  Certain Defined Terms

  	
   

  	
  2

  
	
  Section 1.02.

  	
   

  	
  Computation of Time Periods; Other Definitional
  Provisions

  	
   

  	
  24

  
	
  Section 1.03.

  	
   

  	
  Accounting Terms

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  II

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  AMOUNTS AND
  TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
   

  	
  The Advances and the Letters of Credit

  	
   

  	
  24

  
	
  Section 2.02.

  	
   

  	
  Making the Advances

  	
   

  	
  26

  
	
  Section 2.03.

  	
   

  	
  Issuance of and Drawings and Reimbursement Under
  Letters of Credit

  	
   

  	
  29

  
	
  Section 2.04.

  	
   

  	
  Repayment of Advances

  	
   

  	
  30

  
	
  Section 2.05.

  	
   

  	
  Termination or Reduction of the Commitments

  	
   

  	
  31

  
	
  Section 2.06.

  	
   

  	
  Prepayments

  	
   

  	
  32

  
	
  Section 2.07.

  	
   

  	
  Interest

  	
   

  	
  33

  
	
  Section 2.08.

  	
   

  	
  Fees

  	
   

  	
  34

  
	
  Section 2.09.

  	
   

  	
  Conversion of Advances

  	
   

  	
  35

  
	
  Section 2.10.

  	
   

  	
  Increased Costs, Etc

  	
   

  	
  36

  
	
  Section 2.11.

  	
   

  	
  Payments and Computations

  	
   

  	
  37

  
	
  Section 2.12.

  	
   

  	
  Taxes

  	
   

  	
  39

  
	
  Section 2.13.

  	
   

  	
  Sharing of Payments, Etc

  	
   

  	
  41

  
	
  Section 2.14.

  	
   

  	
  Use of Proceeds

  	
   

  	
  42

  
	
  Section 2.15.

  	
   

  	
  Defaulting Lenders

  	
   

  	
  42

  
	
  Section 2.16.

  	
   

  	
  Evidence of Debt

  	
   

  	
  44

  
	
  Section 2.17.

  	
   

  	
  Increase in Revolving Credit Facility

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  III

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CONDITIONS OF
  EFFECTIVENESS, LENDING AND ISSUANCES OF LETTERS OF CREDIT

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
   

  	
  Conditions Precedent to Initial Extension of Credit

  	
   

  	
  46

  
	
  Section 3.02.

  	
   

  	
  Conditions Precedent to Each Borrowing and Issuance
  and Renewal

  	
   

  	
  50

  
	
  Section 3.03.

  	
   

  	
  Determinations Under Section 3.01

  	
   

  	
  51

  



 

















 


	
  

  	
   

  	
  ARTICLE
  IV

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
   

  	
  Representations and Warranties of the Borrower

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  V

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COVENANTS OF THE
  BORROWER

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
   

  	
  Affirmative Covenants

  	
   

  	
  57

  
	
  Section 5.02.

  	
   

  	
  Negative Covenants

  	
   

  	
  62

  
	
  Section 5.03.

  	
   

  	
  Reporting Requirements

  	
   

  	
  69

  
	
  Section 5.04.

  	
   

  	
  Financial Covenants

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  VI

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EVENTS OF
  DEFAULT

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
   

  	
  Events of Default

  	
   

  	
  73

  
	
  Section 6.02.

  	
   

  	
  Actions in Respect of the Letters of Credit upon
  Default

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  VII

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE AGENTS, ETC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
   

  	
  Authorization and Action

  	
   

  	
  76

  
	
  Section 7.02.

  	
   

  	
  Reliance, Etc

  	
   

  	
  77

  
	
  Section 7.03.

  	
   

  	
  Bank of America, N.A., National City Bank, Wells
  Fargo Bank, National Association and Affiliates

  	
   

  	
  77

  
	
  Section 7.04.

  	
   

  	
  Lender Party Credit Decision

  	
   

  	
  78

  
	
  Section 7.05.

  	
   

  	
  Indemnification

  	
   

  	
  78

  
	
  Section 7.06.

  	
   

  	
  Successor Agents

  	
   

  	
  79

  
	
  Section 7.07.

  	
   

  	
  The Joint Lead Arrangers, the Syndication Agent and
  the Documentation Agent

  	
   

  	
  80

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE
  VIII

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MISCELLANEOUS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
   

  	
  Amendments, Etc

  	
   

  	
  80

  
	
  Section 8.02.

  	
   

  	
  Notices, Etc

  	
   

  	
  81

  
	
  Section 8.03.

  	
   

  	
  No Waiver; Remedies

  	
   

  	
  81

  
	
  Section 8.04.

  	
   

  	
  Costs and Expenses

  	
   

  	
  81

  
	
  Section 8.05.

  	
   

  	
  Right of Set-off

  	
   

  	
  83

  
	
  Section 8.06.

  	
   

  	
  Binding Effect

  	
   

  	
  84

  
	
  Section 8.07.

  	
   

  	
  Assignments and Participations

  	
   

  	
  84

  
	
  Section 8.08.

  	
   

  	
  Execution in Counterparts

  	
   

  	
  87

  



 


ii

















 


	
  Section 8.09.

  	
   

  	
  No Liability of the Issuing Banks

  	
   

  	
  87

  
	
  Section 8.10.

  	
   

  	
  Confidentiality

  	
   

  	
  87

  
	
  Section 8.11.

  	
   

  	
  Release of Collateral

  	
   

  	
  88

  
	
  Section 8.12.

  	
   

  	
  Jurisdiction, Etc

  	
   

  	
  88

  
	
  Section 8.13.

  	
   

  	
  Governing Law

  	
   

  	
  89

  
	
  Section 8.14.

  	
   

  	
  Reallocation and Assignment of Existing Facility

  	
   

  	
  89

  
	
  Section 8.15.

  	
   

  	
  Effect of this Agreement

  	
   

  	
  89

  
	
  Section 8.16.

  	
   

  	
  No Advisory or Fiduciary Responsibility

  	
   

  	
  90

  
	
  Section 8.17.

  	
   

  	
  Patriot Act Notice

  	
   

  	
  90

  
	
  Section 8.18

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  90

  



 


iii

















 


SCHEDULES


 


	
  Schedule A

  	
   

  	
  -

  	
   

  	
  Existing Letter of Credit

  
	
  Schedule I

  	
   

  	
  -

  	
   

  	
  Commitments and Applicable Lending Offices

  
	
  Schedule II

  	
   

  	
  -

  	
   

  	
  Subsidiary Guarantors

  
	
  Schedule 4.01(a)

  	
   

  	
  -

  	
   

  	
  Loan Parties

  
	
  Schedule 4.01(b)

  	
   

  	
  -

  	
   

  	
  Subsidiaries

  
	
  Schedule 4.01(d)

  	
   

  	
  -

  	
   

  	
  Authorizations, Approvals, Actions, Notices and
  Filings

  
	
  Schedule 4.01(f)

  	
   

  	
  -

  	
   

  	
  Disclosed Litigation

  
	
  Schedule 4.01(o)

  	
   

  	
  -

  	
   

  	
  Plans, Multiemployer Plans and Welfare Plans

  
	
  Schedule 4.01(p)

  	
   

  	
  -

  	
   

  	
  Environmental Disclosure

  
	
  Schedule 4.01(q)

  	
   

  	
  -

  	
   

  	
  Open Years

  
	
  Schedule 4.01(s)

  	
   

  	
  -

  	
   

  	
  Existing Debt

  
	
  Schedule 4.01(t)

  	
   

  	
  -

  	
   

  	
  Surviving Debt

  
	
  Schedule 4.01(u)

  	
   

  	
  -

  	
   

  	
  Liens

  
	
  Schedule 4.01(v)

  	
   

  	
  -

  	
   

  	
  Investments

  
	
  Schedule 4.01(w)

  	
   

  	
  -

  	
   

  	
  Intellectual Property

  



 


EXHIBITS


 


	
  Exhibit A

  	
   

  	
  -

  	
   

  	
  Form of Revolving Credit Note

  
	
  Exhibit B

  	
   

  	
  -

  	
   

  	
  Form of Notice of Borrowing

  
	
  Exhibit C

  	
   

  	
  -

  	
   

  	
  Form of Assignment and Assumption

  
	
  Exhibit D

  	
   

  	
  -

  	
   

  	
  Form of Security Agreement

  
	
  Exhibit E

  	
   

  	
  -

  	
   

  	
  Form of Subsidiary Guaranty

  
	
  Exhibit F

  	
   

  	
  -

  	
   

  	
  Form of Solvency Certificate

  
	
  Exhibit G-1

  	
   

  	
  -

  	
   

  	
  Form of Opinion of Barrett & McNagny,
  LLC, Counsel to the Loan Parties

  
	
  Exhibit G-2

  	
   

  	
  -

  	
   

  	
  Form of Opinion of Greenberg Traurig LLP,
  Counsel to the Loan Parties

  



 


iv
















 


Execution Copy


 


AMENDED AND RESTATED CREDIT AGREEMENT


 


This AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 19,
2007 among Steel Dynamics, Inc., an Indiana corporation (the “Borrower”), the
banks, financial institutions and other lenders listed on the signature pages hereof
as the Initial Lenders (the “Initial Lenders”), National City Bank (“National City”) as the Initial
Issuing Bank (the “Initial
Issuing Bank” and, together with the Initial Lenders, the “Initial Lender Parties”),
the Swing Line Bank (as hereinafter defined), National City, as collateral
agent (together with any successor collateral agent appointed pursuant to Article VII,
in such capacity, the “Collateral
Agent”), and National City and Wells Fargo Bank, National
Association (“Wells Fargo”), as
co-administrative agents (together with any successor administrative agents
appointed pursuant to Article VII, in such capacity, the “Administrative Agents”
and, together with the Collateral Agent and the Paying Agent (as defined
herein), the “Agents”),
for the Lender Parties (as hereinafter defined), Bank of America, N.A. (“Bank of America”), General Electric
Capital Corporation (“GECC”),
Fifth Third Bank and BMO Capital Markets Financing, Inc., as Documentation
Agents, Bank of America and National City, as Syndication Agents, and Banc of
America Securities LLC (“BAS”) and
National City, as Joint Lead Arrangers (in such capacity, the “Joint Lead Arrangers”).


 


PRELIMINARY STATEMENTS:


 


(1)           The Borrower entered into that
certain Credit Agreement dated as of September 7, 2005 (as amended,
supplemented or otherwise modified through the date hereof, the “Existing Credit Agreement”) with the
lenders party thereto from time to time, National City, as agent for the
lenders party thereto and Morgan Stanley Senior Funding, Inc. (“Morgan Stanley”) and BAS as Joint
Lead Arrangers and Morgan Stanley as the syndication agent thereunder, pursuant
to which the lenders thereunder (the “Existing Lenders”)
were committed to make extensions of credit to the Borrower on the terms and
conditions set forth therein, including: (a) $350,000,000 in revolving
credit loans, (b) a $30,000,000 letter of credit sublimit, including
existing letters of credit separately issued by Harris N.A. under the Existing
Credit Agreement and listed on Schedule A hereto (the “Existing
Letters of Credit”) and (c) a $20,000,000 swingline
subfacility (together with the existing revolving credit facility and the
Existing Letters of Credit, the “Existing Facility”).


 


(2)           The Borrower desires to refinance
and/or rollover the amounts outstanding under the Existing Facility (the “Refinancing”).


 


(3)           In order to effect the Refinancing
and to finance certain ongoing working capital and general corporate needs of
the Borrower and the Subsidiary Guarantors, the Borrower desires to, among
other things, increase the commitment to make revolving loans to an aggregate
principal amount of up to $750,000,000, increase the letter of credit sublimit
to an aggregate amount at any time outstanding of up to $100,000,000, increase
the swingline subfacility to an aggregate principal amount of $40,000,000 and
obtain Commitments to make Loans and other Credit Extensions as set forth
herein.


 


(4)           In connection with the foregoing, the
Borrower has requested that the Existing Credit Agreement be amended and
restated in its entirety to become effective and


 

















 


binding on the Borrower pursuant to the terms hereof,
and the Lenders (including the Existing Lenders that are parties hereto) have
agreed (subject to the terms of this Agreement) to amend and restate the
Existing Credit Agreement in its entirety to read as set forth herein, and it
has been agreed by the parties hereto that (a) the commitments which the
Existing Lenders that are parties hereto extended to the Borrower under the
Existing Credit Agreement and the commitments of new Lenders that become
parties hereto shall be extended or advanced upon the amended and restated
terms and conditions contained in this Agreement and (b) to the extent the
other Obligations outstanding under the Existing Credit Agreement are not
refinanced in connection with the Refinancing, such Obligations shall be
governed by and deemed to be outstanding under the amended and restated terms
and conditions contained herein.


 


(5)           All existing Obligations that are not
refinanced in connection with the Refinancing, are and shall continue to be
(and all Obligations incurred pursuant hereto shall be) secured by, among other
things, the Collateral Documents.


 


NOW, THEREFORE, the parties hereto hereby agree to amend and restate
the Existing Credit Agreement, and the Existing Credit Agreement is hereby
amended and restated, in its entirety as follows:


 


Article I


 


DEFINITIONS
AND ACCOUNTING TERMS


 


Section 1.01.        Certain
Defined Terms.  As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):


 


“Administrative
Agents” has the meaning specified in the recital of parties to
this Agreement.


 


“Advance”
means, a Revolving Credit Advance, a Swing Line Advance or a Letter of Credit
Advance.


 


“Affiliate”
means, as to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person or is a
director or officer of such Person.  For
purposes of this definition, the term “control” (including the terms “controlling”,
“controlled by” and “under common control with”) of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the Voting
Interests of such Person or to direct or cause the direction of the management
and policies of such Person, whether through the ownership of Voting Interests,
by contract or otherwise.


 


“Agents”
has the meaning specified in the recital of parties to this Agreement.


 


“Agreement”
means, on any date, the Existing Credit Agreement, as amended and restated by
this Amended and Restated Credit Agreement and as hereafter from time to time
further amended, supplemented, amended and restated or otherwise modified from
time to time and in effect on such date.


 


2

















 


“Agreement Value”
means, for each Hedge Agreement, on any date of determination, an amount equal
to:  (a) in the case of a Hedge
Agreement documented pursuant to the Master Agreement (Multicurrency-Cross
Border) published by the International Swap and Derivatives Association, Inc.
(the “Master Agreement”),
the amount, if any, that would be payable by any Loan Party or any of its
Subsidiaries to its counterparty to such Hedge Agreement, as if (i) such
Hedge Agreement was being terminated early on such date of determination, and (ii) such
Loan Party or Subsidiary was the sole “Affected Party”; or (b) in the case
of a Hedge Agreement traded on an exchange, the mark-to-market value of such
Hedge Agreement, which will be the unrealized loss on such Hedge Agreement to
the Loan Party or Subsidiary of a Loan Party party to such Hedge Agreement
based on the settlement price of such Hedge Agreement on such date of
determination; or (c) in all other cases, the mark-to-market value of such
Hedge Agreement, which will be the unrealized loss on such Hedge Agreement to
the Loan Party or Subsidiary of a Loan Party party to such Hedge Agreement as
the amount, if any, by which (i) the present value of the future cash
flows to be paid by such Loan Party or Subsidiary exceeds (ii) the present
value of the future cash flows to be received by such Loan Party or Subsidiary
pursuant to such Hedge Agreement; capitalized terms used and not otherwise
defined in this definition shall have the respective meanings set forth in the
above described Master Agreement.


 


“Applicable
Lending Office” means, with respect to each Lender Party, such
Lender Party’s Domestic Lending Office in the case of a Base Rate Advance and
such Lender Party’s Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.


 


“Applicable
Margin” means, on the Effective Date, 0.00% per annum for Base
Rate Advances and 0.50% per annum for Eurodollar Rate Advances, and thereafter,
a percentage per annum determined by reference to the Total Debt/Consolidated
EBITDA Ratio as set forth below:


 


	
   

  	
   

  	
  Base Rate Advances

  	
   

  	
  Eurodollar Rate Advances

  	
   

  
	
  Level I

  < than 2.0 :
  1.0

  	
   

  	
  0.00

  	
  %

  	
  0.50

  	
  %

  
	
  Level II

  > 2.0 : 1.0, but < than 3.0 : 1.0

  	
   

  	
  0.00

  	
  %

  	
  0.75

  	
  %

  
	
  Level III

  > 3.0 : 1.0, but < than 4.0 : 1.0

  	
   

  	
  0.00

  	
  %

  	
  1.00

  	
  %

  
	
  Level IV

  > 4.0 : 1.0

  	
   

  	
  0.25

  	
  %

  	
  1.25

  	
  %

  



 


The Applicable Margin for each Base Rate Advance and the Applicable
Margin for each Eurodollar Rate Advance shall be determined by reference to the
ratio in effect from time to time as reflected in the financial statements most
recently delivered pursuant to Section 5.03(b) or (c), as the case
may be; provided, however, that in any event, (a) no
change in the Applicable Margin shall be effective until three Business Days
after the date on which the Paying Agent receives the financial statements
required to be delivered pursuant to Section 5.03(b) or (c), as the
case may be, and a certificate of the Financial Officer of the


 


3

















 


Borrower demonstrating such ratio, and (b) the
Applicable Margin shall be at Level IV for so long as the Borrower has not
submitted to the Paying Agent the information described in clause (a) of
this proviso as and when required under Section 5.03(b) or (c), as
the case may be.


 


“Applicable
Percentage” means, as of any date, a percentage per annum
determined by reference to the Total Debt/Consolidated EBITDA Ratio as set
forth below:


 


	
   

  	
   

  	
  Applicable Percentage

  	
   

  
	
  Level I

  < than 2.0 :
  1.0

  	
   

  	
  0.125

  	
  %

  
	
  Level II

  >
  2.0 : 1.0, but < than 3.0 : 1.0

  	
   

  	
  0.175

  	
  %

  
	
  Level III

  >
  3.0 : 1.0, but < than 4.0 : 1.0

  	
   

  	
  0.225

  	
  %

  
	
  Level IV

  >
  4.0 : 1.0

  	
   

  	
  0.30

  	
  %

  



 


It is understood and agreed that (a) no change in
the Applicable Percentage shall be effective until three Business Days after
the date on which the Paying Agent receives the financial statements required
to be delivered pursuant to Section 5.03(b) or (c), as the case may
be, and a certificate of the Financial Officer of the Borrower demonstrating
such ratio, and (b) the Applicable Percentage shall be at Level IV for so
long as the Borrower has not submitted to the Paying Agent the information
described in clause (a) as and when required under Section 5.03(b) or
(c), as the case may be.


 


“Appropriate
Lender” means, at any time, with respect to (a) the
Revolving Credit Facility, a Lender that has a Commitment with respect to such
Facility at such time, (b) the Letter of Credit Facility, (i) any
Issuing Bank and (ii) if the other Revolving Credit Lenders have made
Letter of Credit Advances pursuant to Section 2.03(c) that are
outstanding at such time, each such other Revolving Credit Lender and (c) the
Swing Line Facility, (i) the Swing Line Bank and (ii) if the other
Revolving Credit Lenders have made Swing Line Advances pursuant to Section 2.02(b) that
are outstanding at such time, each such other Revolving Credit Lender.


 


“Approved Fund”
means, (a) any CLO and (b) with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.


 


“Assignment and
Assumption” means, an assignment and assumption entered into by
a Lender Party and an Eligible Assignee, and (to the extent required) accepted
by the Paying Agent, in accordance with Section 8.07 and in substantially
the form of Exhibit C hereto.


 


“Auction Rate Notes” means, a
floating-rate note with an interest rate that is reset on the basis of bids
received at a “Dutch auction” conducted near
or at the end of each rate period.


 


4

















 


“Available
Amount” of any Letter of Credit means, at any time, the maximum
amount available to be drawn under such Letter of Credit at such time (assuming
compliance at such time with all conditions to drawing).


 


“Bank of America” has the
meaning specified in the recitals of parties to this Agreement.


 


“BAS” has the meaning
specified in the recitals of parties to this Agreement.


 


“Base Rate”
means, a fluctuating interest rate per annum in effect from time to time, which
rate per annum shall at all times be equal to the higher of:


 


(a)                                  the Prime Rate; and


 


(b)                                 1/2 of 1% per annum above the Federal
Funds Rate.


 


If for any reason the Paying Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Rate, including the inability or
failure of the Paying Agent to obtain sufficient quotations in accordance with
the terms thereof, the Base Rate shall be determined without regard to
clause (b) of this definition, until the circumstances giving rise to
such inability no longer exist.  Any
change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change.


 


“Base Rate
Advance” means, an Advance that bears interest as provided in Section 2.07(a)(i).


 


“Borrower”
has the meaning specified in the recital of parties to this Agreement.


 


“Borrower’s
Account” means, the account of the Borrower maintained by the
Borrower with Harris N.A., as confirmed in writing by the Borrower to the
Paying Agent, or such other account as the Borrower shall specify in writing to
the Paying Agent.


 


“Borrowing”
means, a Revolving Credit Borrowing or a Swing Line Borrowing.


 


“Business Day”
means, a day of the year on which banks are not required or authorized by law
to close in New York City and, if the applicable Business Day relates to any
Eurodollar Rate Advances, a day on which dealings are carried on in the London
interbank market.


 


“Capitalized
Leases” means, all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.


 


“Cash
Equivalents” means, any of the following, to the extent owned by
the Borrower or any of the Subsidiary Guarantors free and clear of all Liens
other than Liens created under the Collateral Documents and having a maturity
of not greater than 180 days from the date of acquisition thereof:  (a) readily marketable direct
obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the


 


5

















 


full faith and credit of the Government of the United
States, (b) certificates of deposit of or time deposits with any
commercial bank that is a Lender Party or a member of the Federal Reserve
System, issues (or the parent of which issues) commercial paper rated as
described in clause (c) below, is organized under the laws of the
United States or any State thereof and has combined capital and surplus of at
least $1 billion, (c) commercial paper in an aggregate amount of no more
than $15,000,000 per issuer outstanding at any time, issued by any corporation
organized under the laws of any State of the United States and rated at least “Prime-2”
(or the then equivalent grade) by Moody’s Investors Service, Inc. or “A-2”
(or the then equivalent grade) by Standard & Poor’s, a division of The
McGraw-Hill Companies, Inc., (d) Investments, classified in
accordance with GAAP as current assets of the Borrower or any of its
Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by financial
institutions that have the highest rating obtainable from either Moody’s or
S&P or (e) Auction Rate Notes with a maximum time between interest
rate resets of one month and a rating of at least A by Moody’s or A by S&P,
and the portfolios of which are limited solely to Investments of the character,
quality and maturity described in clauses (a), (b) and (c) of
this definition.


 


“CERCLA”
means, the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended from time to time.


 


“CERCLIS”
means, the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection Agency.


 


“Change of
Control” means, the occurrence of any of the following:  (a) any Person or two or more Persons
acting in concert shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934), directly or indirectly, of Voting Interests
of the Borrower (or other securities convertible into such Voting Interests)
representing 35% or more of the combined voting power of all Voting Interests
of the Borrower; (b) individuals who on the Effective Date constitute the
board of directors of the Borrower (together with any new directors whose
election by the board of directors of the Borrower or whose nomination by the
board of directors of the Borrower for election by the Borrower’s stockholders
was approved by a vote of at least two-thirds of the members of the board of
directors of the Borrower then in office who either were members of the board
of directors of the Borrower on the Effective Date or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the members of the board of directors of the Borrower
then in office; (c) any Person or two or more Persons acting in concert
shall have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or their
acquisition of the power to exercise, directly or indirectly, a controlling
influence over the management or policies of the Borrower or (d) any “Change
of Control” or “Change in Control” as defined in the Indenture or under any
other Indebtedness permitted under this Agreement.


 


“CLO”
means, any entity (whether a corporation, partnership, trust or otherwise) that
is engaged in making, purchasing, holding or otherwise investing in bank loans
and similar extensions of credit in the ordinary course of its business and is
administered or managed by a Lender or an Affiliate of such Lender.


 


6

















 


“Collateral”
means, all “Collateral” referred to in the Collateral Documents and all other
property that is or is intended to be subject to any Lien in favor of the
Collateral Agent for the benefit of the Secured Parties which, for the
avoidance of doubt, shall include the Subject Property.


 


“Collateral
Agent” has the meaning specified in the recital of parties to
this Agreement.


 


“Collateral
Documents” means, the Security Agreement and any other agreement
that creates or purports to create a Lien in favor of the Collateral Agent for
the benefit of the Secured Parties.


 


“Commitment”
means, Revolving Credit Commitment or a Letter of Credit Commitment.


 


“Confidential
Information” has the meaning specified in Section 8.10.


 


“Consolidated”
refers to the consolidation of accounts in accordance with GAAP.


 


“Contingent
Obligation” means, with respect to any Person, any Obligation or
arrangement of such Person to guarantee or intended to guarantee any Debt,
leases, dividends or other payment Obligations (“primary obligations”) of any other
Person (the “primary
obligor”) in any manner, whether directly or indirectly,
including, without limitation, (a) the direct or indirect guarantee,
endorsement (other than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of the Obligation of a primary obligor, (b) the Obligation to make
take-or-pay or similar payments, if required, regardless of nonperformance by
any other party or parties to an agreement (other than Obligations to make
take-or-pay or similar payments pursuant to contracts entered into by such
Person in the ordinary course of business not inconsistent with the prior
practice of such Person) or (c) any Obligation of such Person, whether or
not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to
advance or supply funds (A) for the purchase or payment of any such
primary obligation or (B) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, assets, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof.  The amount of any Contingent Obligation shall
be deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made (or,
if less, the maximum amount of such primary obligation for which such Person
may be liable pursuant to the terms of the instrument evidencing such
Contingent Obligation) or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder), as determined by such Person in good faith.


 


“Conversion”,
“Convert”
and “Converted”
each refer to a conversion of Advances of one Type into Advances of the other
Type pursuant to Section 2.09 or 2.10.


 


7

















 


“Convertible
Notes Documents” means the 4% convertible subordinated notes
issued December 23, 2002 due 2012 in an aggregate principal amount of $115
million, the current outstanding principal balance of which is now $37.5
million, and all agreements, documents, indentures and instruments pursuant to
which such notes are issued, in each case as amended, to the extent permitted
under the Loan Documents.


 


“Debt”
of any Person means, without duplication, (a) all indebtedness of such
Person for borrowed money, (b) all Obligations of such Person for the
deferred purchase price of property or services (other than trade payables not
overdue by more than 60 days incurred in the ordinary course of such Person’s
business), (c) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all Obligations of such
Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property), (e) all
Obligations of such Person as lessee under Capitalized Leases, (f) all
Obligations of such Person under acceptance, letter of credit or similar
facilities, (g) all Obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any Equity
Interests in such Person or any other Person or any warrants, rights or options
to acquire such capital stock, valued, in the case of Redeemable Preferred
Interests, at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends, (h) all Obligations of such Person in
respect of Hedge Agreements, valued at the Agreement Value thereof, (i) all
Contingent Obligations of such Person and (j) all indebtedness and other
payment Obligations referred to in clauses (a) through (i) above
of another Person secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the
payment of such indebtedness or other payment Obligations.


 


“Debt for
Borrowed Money” of any Person means, without duplication, all
items described in clauses (a), (c), (e), (f) and, to the extent it
supports an obligation of the type described in any of clauses (a), (c), (e) and
(f), any item described in clause (i) or (j), in each case of the
definition of Debt.


 


“Default”
means, any Event of Default or any event that would constitute an Event of
Default but for the requirement that notice be given or time elapse or both.


 


“Default
Termination Notice” has the meaning specified in Section 2.01(e).


 


“Defaulted
Advance” means, with respect to any Lender Party at any time, the
portion of any Advance required to be made by such Lender Party to the Borrower
pursuant to Section 2.01 or 2.02 at or prior to such time that has not
been made by such Lender Party or by the Paying Agent for the account of such
Lender Party pursuant to Section 2.02(e) as of such time.  In the event that a portion of a Defaulted
Advance shall be deemed made pursuant to Section 2.15(a), the remaining
portion of such Defaulted Advance shall be considered a Defaulted Advance
originally required to be made pursuant to Section 2.01 on the same date
as the Defaulted Advance so deemed made in part.


 


8

















 


“Defaulted
Amount” means, with respect to any Lender Party at any time, any
amount required to be paid by such Lender Party to any Agent or any other
Lender Party hereunder or under any other Loan Document at or prior to such
time that has not been so paid as of such time, including, without limitation,
any amount required to be paid by such Lender Party to (a) the Swing Line
Bank pursuant to Section 2.02(b) to purchase a portion of a Swing
Line Advance made by the Swing Line Bank, (b) any Issuing Bank pursuant to
Section 2.03(c) to purchase a portion of a Letter of Credit Advance
made by such Issuing Bank, (c) the Paying Agent pursuant to Section 2.02(e) to
reimburse the Paying Agent for the amount of any Advance made by the Paying
Agent for the account of such Lender Party, (d) any other Lender Party
pursuant to Section 2.13 to purchase any participation in Advances owing
to such other Lender Party and (e) any Agent or any Issuing Bank pursuant
to Section 7.05 to reimburse such Agent or such Issuing Bank for such
Lender Party’s ratable share of any amount required to be paid by the Lender
Parties to such Agent or such Issuing Bank as provided therein.  In the event that a portion of a Defaulted
Amount shall be deemed paid pursuant to Section 2.15(b), the remaining
portion of such Defaulted Amount shall be considered a Defaulted Amount
originally required to be paid hereunder or under any other Loan Document on
the same date as the Defaulted Amount so deemed paid in part.


 


“Defaulting
Lender” means, at any time, any Lender Party that, at such time,
(a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take
any action or be the subject of any action or proceeding of a type described in
Section 6.01(f).


 


“Disclosed
Litigation” has the meaning specified in Section 3.01(f).


 


“Documentation
Agent” has the meaning specified in the recital of parties to
this Agreement.


 


“Domestic
Lending Office” means, with respect to any Lender Party, the
office of such Lender Party specified as its “Domestic Lending Office” opposite
its name on Schedule I hereto or in the Assignment and Assumption pursuant
to which it became a Lender Party, as the case may be, or such other office of
such Lender Party as such Lender Party may from time to time specify to the
Borrower and the Paying Agent.


 


“EBITDA”
means, for any period, the sum, determined on a Consolidated basis, of (a) net
income (or net loss) excluding any extraordinary, unusual or nonrecurring gains
and any extraordinary, unusual or nonrecurring losses comprised of Non-Cash
Charges, (b) interest expense, (c) income tax expense, (d) depreciation
expense and (e) amortization expense, in each case of the Borrower and its
Subsidiaries, determined in accordance with GAAP for such period (and, in the
case of clauses (b) through (e), to the extent deducted in
determining the net income described in clause (a)).


 


“Effective Date”
means, the first date on which the conditions set forth in Article III
shall have been satisfied.


 


“Eligible
Assignee” means, any commercial bank or financial institution
(including, without limitation any Approved Fund) as approved by the Joint Lead
Arrangers and, so long as no Default or Event of Default has occurred and is
continuing at the time of such


 


9

















 


assignment, by the Borrower (such approvals not to be
unreasonably withheld or delayed); provided,
however, that (a) neither
any Loan Party nor any Affiliate of a Loan Party shall qualify as an Eligible
Assignee under this definition and (b) no approval of the Administrative
Agents or the Borrower shall be required for assignments to Affiliates or
Approved Funds of Lender Parties or for assignments to Lenders.


 


“Environmental
Action” means, any action, suit, demand, demand letter, claim,
notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, any Environmental Permit or
Hazardous Material or arising from alleged injury or threat to health, safety
or the environment, including, without limitation, (a) by any governmental
or regulatory authority for enforcement, cleanup, removal, response, remedial
or other actions or damages and (b) by any governmental or regulatory
authority or third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.


 


“Environmental
Law” means, any Federal, state, local or foreign statute, law,
ordinance, rule, regulation, code, order, writ, judgment, injunction, decree or
judicial or agency interpretation, policy or guidance relating to pollution or
protection of the environment, health, safety or natural resources, including,
without limitation, those relating to the use, handling, transportation,
treatment, storage, disposal, release or discharge of Hazardous Materials.


 


“Environmental
Permit” means, any permit, approval, identification number,
license or other authorization required under any Environmental Law.


 


“Equity
Interests” means, with respect to any Person, shares of capital
stock of (or other ownership or profit interests in) such Person, warrants,
options or other rights for the purchase or other acquisition from such Person
of shares of capital stock of (or other ownership or profit interests in) such
Person, securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or other acquisition from such Person of such
shares (or such other interests), and other ownership or profit interests in
such Person (including, without limitation, partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not such
shares, warrants, options, rights or other interests are authorized or
otherwise existing on any date of determination.


 


“ERISA”
means, the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.


 


“ERISA Affiliate”
means, any Person that for purposes of Title IV of ERISA is a member of the
controlled group of any Loan Party, or under common control with any Loan
Party, within the meaning of Section 414 of the Internal Revenue Code.


 


“ERISA Event”
means, (a) (i) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by the
PBGC or (ii) the requirements of Section 4043(b) of ERISA apply
with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10), (11),


 


10

















 


(12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan, pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment referred to
in Section 4041(e) of ERISA); (d) the cessation of operations at
a facility of any Loan Party or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the withdrawal by any
Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan
year for which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (f) the conditions for imposition of a lien under Section 302(f) of
ERISA shall have been met with respect to any Plan; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan pursuant
to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of a
trustee to administer, such Plan.


 


“Eurocurrency
Liabilities” has the meaning specified in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to
time.


 


“Eurodollar
Lending Office” means, with respect to any Lender Party, the
office of such Lender Party specified as its “Eurodollar Lending Office”
opposite its name on Schedule I hereto or in the Assignment and Assumption
pursuant to which it became a Lender Party (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the Paying
Agent.


 


“Eurodollar Rate”
means, for any Interest Period, an interest rate per annum equal to the rate
per annum obtained by dividing (a) the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on the page of the
Telerate screen (or any successor page) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period (provided that, if for any reason such
rate does not appear on such page or service or such page or service
shall not be available, the term “Eurodollar Rate” shall mean the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
rate determined by the Paying Agent to be the offered rate on such other page or
other service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period) by (b) a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage for such Interest Period.


 


“Eurodollar Rate
Advance” means, an Advance that bears interest as provided in Section 2.07(a)(ii).


 


“Eurodollar Rate
Reserve Percentage” for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing means the reserve
percentage applicable


 


11

















 


two Business Days before the first day of such
Interest Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the Federal
Reserve System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to any
other category of liabilities that includes deposits by reference to which the
interest rate on Eurodollar Rate Advances is determined) having a term equal to
such Interest Period.


 


“Events of
Default” has the meaning specified in Section 6.01.


 


“Excluded
Subsidiary” means each of Paragon Steel Enterprises LLC, an
Indiana limited liability company, STLD Holdings, Inc., an Indiana
corporation, and Dynamic Aviation LLC, an Indiana limited liability company,
each of their respective direct and indirect subsidiaries and each other
Subsidiary of the Borrower designated by the Borrower as an Excluded Subsidiary
by written notice to the Joint Lead Arrangers in accordance with Section 5.01(j);
provided that, in the event any Excluded Subsidiary guarantees any Indebtedness
of the Borrower or any Subsidiary Guarantor (other than the Obligations set
forth herein), then such Subsidiary shall be required to execute and deliver a
guaranty and a security agreement supplement and all other necessary documents
in accordance with Section 5.01(j), and such Excluded Subsidiary shall be
considered a Subsidiary Guarantor  (and
cease to be an Excluded Subsidiary) for all purposes set forth herein.


 


“Existing Credit
Agreement” has the meaning specified in the Preliminary
Statements hereto.


 


“Existing Facility” has the
meaning specified in the Preliminary Statements hereto.


 


“Existing Debt”
means, the Debt of each Loan Party and its Subsidiaries outstanding immediately
before giving effect to the consummation of the Transaction.


 


“Existing Lenders” has the
meaning specified in the Preliminary Statements hereto.


 


“Existing Letters of Credit”
has the meaning specified in the Preliminary Statements hereto.


 


“Extraordinary
Receipt” means, any cash received by or paid to or for the
account of any Person not in the ordinary course of business, consisting of
proceeds of insurance, condemnation awards (and payments in lieu thereof) and
indemnity payments, in each case, with respect to assets constituting
Collateral; provided, however, that an Extraordinary
Receipt shall not include cash receipts received from proceeds of insurance,
condemnation awards (or payments in lieu thereof) or indemnity payments to the
extent that such proceeds, awards or payments (a) in respect of loss or
damage to inventory are applied (or in respect of which expenditures were
previously incurred) to replace or repair the inventory in respect of which
such proceeds were received in accordance with the terms of the Loan Documents,
so long as such application is made within 12 months after the occurrence of
such damage or loss or (b) are


 


12

















 


received by any Person in respect of any third party
claim against such Person and applied to pay (or to reimburse such Person for
its prior payment of) such claim and the costs and expenses of such Person with
respect thereto.


 


“Facility”
means, the Revolving Credit Facility, the Swing Line Facility or the Letter of
Credit Facility.


 


“Federal Funds
Rate” means, for any period, a fluctuating interest rate per
annum 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 that is a Business Day, the average (rounded upwards, if necessary, to
the next higher 1/100th of 1%) of the quotations for such day for such
transactions received by the Paying Agent from three Federal funds brokers of
recognized standing selected by it.


 


“Fee Letter”
means, the fee letter dated May 21, 2007 between the Borrower and the
Joint Lead Arrangers, as amended, supplemented or otherwise modified from time
to time.


 


“Financial
Officer” means, any of the Chief Executive Officer, the Chief
Financial Officer, the Chief Accounting Officer and the Corporate
Controller/Assistant Secretary.


 


“Fiscal Year”
means, a fiscal year of the Borrower and its Consolidated Subsidiaries ending
on December 31 in any calendar year.


 


“Funded Debt”
of any Person means, Debt in respect of the Advances, in the case of the
Borrower, and all other Debt of such Person that by its terms matures more than
one year after the date of determination or matures within one year from such
date but is renewable or extendible, at the option of such Person, to a date
more than one year after such date or arises under a revolving credit or
similar agreement that obligates the lender or lenders to extend credit during
a period of more than one year after such date, including, without limitation,
all amounts of Funded Debt of such Person required to be paid or prepaid within
one year after the date of determination.


 


“GAAP”
has the meaning specified in Section 1.03.


 


“Guaranties”
means, collectively, each Subsidiary Guaranty entered into from time to time.


 


“Guarantors”
means, the Subsidiary Guarantors.


 


“Hazardous
Materials” means, (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing materials,
polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.


 


13

















 


“Hedge
Agreements” means, interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other hedging agreements.


 


“Hedge Bank”
means, any Lender Party or an Affiliate of a Lender Party in its capacity as a
party to a Secured Hedge Agreement.


 


“Indemnified
Party” has the meaning specified in Section 8.04(b).


 


“Indenture”
means, the Indenture dated as of April 3, 2007 and entered into by and
among the Borrower, SDI Investment Company, a Delaware corporation, as
guarantor, the other guarantors set forth therein and The Bank of New York, as
trustee, as such Indenture may be amended, supplemented or otherwise modified
from time to time in accordance herewith and therewith.


 


“Information
Memorandum” means, the confidential information memorandum dated
[May], 2007 used by the Joint Lead Arrangers in connection with the syndication
of the Commitments.


 


“Initial
Extension of Credit” means, the earlier to occur of the initial
Borrowing and the initial issuance of a Letter of Credit hereunder.


 


“Initial Issuing
Bank”, “Initial
Lender Parties” and “Initial Lenders” each has the meaning
specified in the recital of parties to this Agreement.


 


“Interest
Coverage Ratio” means, at any date of determination, the ratio
of (a) Consolidated EBITDA to (b) interest payable on, and
amortization of debt discount in respect of, all Debt for Borrowed Money, in
each case, of or by the Borrower and its Subsidiaries during the four
consecutive fiscal quarters most recently ended for which financial statements
are required to be delivered to the Lender Parties pursuant to Section 5.03(b) or
(c), as the case may be.


 


“Insufficiency”
means, with respect to any Plan, the amount, if any, of its unfunded benefit
liabilities, as defined in Section 4001(a)(18) of ERISA.


 


“Interest Period”
means, for each Eurodollar Rate Advance comprising part of the same Borrowing,
the period commencing on the date of such Eurodollar Rate Advance or the date
of the Conversion of any Base Rate Advance into such Eurodollar Rate Advance,
and ending on the last day of the period selected by the Borrower pursuant to
the provisions below and, thereafter, each subsequent period commencing on the
last day of the immediately preceding Interest Period and ending on the last
day of the period selected by the Borrower pursuant to the provisions
below.  The duration of each such
Interest Period shall be one, two, three or six months, as the Borrower may,
upon notice received by the Paying Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of such
Interest Period, select; provided,
however, that:


 


(a)           the Borrower may not select any Interest
Period with respect to any Eurodollar Rate Advance under a Facility that ends
after any principal repayment installment date for such Facility unless, after
giving effect to such selection, the


 


14

















 


aggregate principal
amount of Base Rate Advances and of Eurodollar Rate Advances having Interest
Periods that end on or prior to such principal repayment installment date for
such Facility shall be at least equal to the aggregate principal amount of
Advances under such Facility due and payable on or prior to such date;


 


(b)           Interest Periods commencing on the same
date for Eurodollar Rate Advances comprising part of the same Borrowing shall
be of the same duration;


 


(c)           whenever the last day of any Interest
Period would otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next succeeding
Business Day, provided,
however, that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;


 


(d)           whenever the first day of any Interest
Period occurs on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in such
Interest Period, such Interest Period shall end on the last Business Day of
such succeeding calendar month; and


 


(e)           at any one time no more than twelve (12)
different Interest Periods shall be in effect.


 


“Internal
Revenue Code” means, the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.


 


“Inventory”
means, all Inventory referred to in Section 1(b) of the Security
Agreement.


 


“Investment”
in any Person means, any loan or advance to such Person, any purchase or other
acquisition of any Equity Interests or Debt or the assets comprising a division
or business unit or a substantial part or all of the business of such Person,
any capital contribution to such Person or any other direct or indirect
investment in such Person, including, without limitation, any acquisition by
way of a merger or consolidation and any arrangement pursuant to which the
investor incurs Debt of the types referred to in clause (i) or (j) of
the definition of “Debt”
in respect of such Person.


 


“Issuing Bank”
means, the Initial Issuing Bank, any other financial institution approved as an
Issuing Bank by the Paying Agent and the Borrower, any Eligible Assignee to
which all or a portion of a Letter of Credit Commitment hereunder has been
assigned pursuant to Section 8.07 so long as such Eligible Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as an Issuing Bank and notifies the Paying Agent of its assumption of such
duties, for so long as such Initial Issuing Bank, financial institution or
Eligible Assignee, as the case may be, shall have a Letter of Credit Commitment
and in any case with respect to the Existing Letters of Credit, Harris N.A.


 


15

















 


“Joint Lead Arrangers” has the meaning
specified in the recitals of parties to this Agreement.


 


“L/C Cash
Collateral Account” has the meaning specified in the Security
Agreement.


 


“L/C Related
Documents” has the meaning specified in Section 2.04(e)(ii).


 


“Lender Party”
means, any Lender, any Issuing Bank or the Swing Line Bank.


 


“Lenders”
means, the Initial Lenders and each Person that shall become a Lender hereunder
pursuant to Section 8.07 for so long as such Initial Lender or Person, as
the case may be, shall be a party to this Agreement.


 


“Letter of
Credit Advance” means, an advance made by any Issuing Bank or
any Revolving Credit Lender pursuant to Section 2.03(c).


 


“Letter of
Credit Agreement” has the meaning specified in Section 2.03(a).


 


“Letter of
Credit Commitment” means, with respect to any Issuing Bank at
any time, the amount set forth opposite such Issuing Bank’s name on
Schedule I hereto under the caption “Letter of Credit
Commitment” or, if such Issuing Bank or a subsequent Issuing
Bank has entered into an Assignment and Assumption, set forth for each such
Issuing Bank in the Register maintained by the Paying Agent pursuant to Section 8.07(d) as
such Issuing Bank’s “Letter of Credit
Commitment”, as such amount may be reduced at or prior to such
time pursuant to Section 2.05.


 


“Letter of
Credit Facility” means, at any time, an amount equal to the
lesser of (a) the aggregate amount of the Issuing Banks’ Letter of Credit
Commitments at such time and (b) $100,000,000, as such amount may be
reduced at or prior to such time pursuant to Section 2.05.


 


“Letters of
Credit” means, collectively, (a) the letters of credit
issued pursuant to Section 2.01(c) hereof from time to time and (b) the
Existing Letters of Credit.


 


“Lien”
means, any lien, security interest or other charge or encumbrance of any kind,
or any other type of preferential arrangement, including, without limitation,
the lien or retained security title of a conditional vendor and any easement,
right of way or other encumbrance on title to real property.


 


“Loan Documents”
means, (a) for purposes of this Agreement and the Notes and any amendment,
supplement or modification hereof or thereof, (i) this Agreement, (ii) the
Notes, (iii) the Guaranties, (iv) the Collateral Documents, (v) the
Fee Letter and (vi) each Letter of Credit Agreement and (b) for purposes
of the Guaranties and the Collateral Documents and for all other purposes other
than for purposes of this Agreement and the Notes, (i) this Agreement, (ii) the
Notes, (iii) the Guaranties, (iv) the Collateral Documents, (v) the
Fee Letter, (vi) each Letter of Credit Agreement, (vii) each Secured
Hedge Agreement and (viii) each Secured Cash Management Agreement, in each
case as amended.


 


16

















 


“Loan Parties”
means, the Borrower and the Guarantors.


 


“Margin Stock”
has the meaning specified in Regulation U.


 


“Material
Adverse Change” means, any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.


 


“Material
Adverse Effect” means, a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower or the Borrower and its Subsidiaries,
taken as a whole, (b) the rights and remedies of any Agent or any Lender
Party under any Loan Document, (c) the ability of any Loan Party to
perform its Obligations under any Loan Document to which it is or is to be a
party or (d) the Transaction.


 


“Mesabi Nugget”
means, Mesabi Nugget, LLC, Mesabi Nugget Delaware, LLC or their respective
parents or Subsidiaries, including, without limitation, any Excluded
Subsidiary, involved directly or indirectly in the development, application and
use of the Itmk3 technology.


 


“Morgan Stanley”
has the meaning specified in the recital of parties to this Agreement.


 


“Multiemployer
Plan” means, a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.


 


“Multiple
Employer Plan” means, a single employer plan, as defined in Section 4001(a)(15)
of ERISA, that (a) is maintained for employees of any Loan Party or any
ERISA Affiliate and at least one Person other than the Loan Parties and the
ERISA Affiliates or (b) was so maintained and in respect of which any Loan
Party or any ERISA Affiliate could have liability under Section 4064 or
4069 of ERISA in the event such plan has been or were to be terminated.


 


“National City” has the
meaning specified in the recital of parties to this Agreement.


 


“Net Cash
Proceeds” means, with respect to any Extraordinary Receipt, the
aggregate amount of cash received in connection therewith.


 


“Non-Cash
Charges” means, with respect to the Borrower and its
Subsidiaries, for any period, the aggregate non-cash charges and expenses
reducing net income of the Borrower and its Subsidiaries for such period, all
as determined on a Consolidated basis; provided
that “Non-Cash Charges” shall not include any such charges that require an
accrual of or a reserve for cash for any future period.


 


17

















 


“Note”
means, a promissory note of the Borrower payable to the order of any Revolving
Credit Lender, in substantially the form of Exhibit A hereto, evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from the
Revolving Credit Advances, Letter of Credit Advances and Swing Line Advances
made by such Lender, as amended, endorsed, extended or otherwise modified from
time to time.


 


“Notice of
Borrowing” has the meaning specified in Section 2.02(a).


 


“Notice of
Issuance” has the meaning specified in Section 2.03(a).


 


“Notice of
Renewal” has the meaning specified in Section 2.01(c).


 


“Notice of Swing
Line Borrowing” has the meaning specified in Section 2.02(b).


 


“Notice of
Termination” has the meaning specified in Section 2.01(c).


 


“NPL”
means, the National Priorities List under CERCLA.


 


“Obligation”
means, with respect to any Person, any payment, performance or other obligation
of such Person of any kind, including, without limitation, any liability of
such Person on any claim, whether or not the right of any creditor to payment
in respect of such claim is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, disputed, undisputed, legal, equitable, secured or
unsecured, and whether or not such claim is discharged, stayed or otherwise affected
by any proceeding referred to in Section 6.01(f).  Without limiting the generality of the
foregoing, the Obligations of any Loan Party under the Loan Documents include (a) the
obligation to pay principal, interest, Letter of Credit commissions, charges,
expenses, fees, attorneys’ fees and disbursements, indemnities and other
amounts payable by such Loan Party under any Loan Document and (b) the
obligation of such Loan Party to reimburse any amount in respect of any of the
foregoing that any Lender Party, in its sole discretion, may elect to pay or
advance on behalf of such Loan Party.


 


“Open Year”
has the meaning specified in Section 4.01(q)(ii).


 


“Other Taxes”
has the meaning specified in Section 2.12(b).


 


“Patriot Act”
has the meaning specified in Section 8.14.


 


“Paying Agent” means, National
City, or any successor thereto in accordance with Article VII.


 


“Paying Agent’s
Account” means, the account of the Paying Agent maintained by
the Paying Agent at its offices in Cleveland, Ohio, as confirmed by the Paying
Agent in writing to the Lender Parties or such other account as the Paying
Agent shall specify in writing to the Lender Parties.


 


“PBGC”
means, the Pension Benefit Guaranty Corporation (or any successor).


 


18

















 


“Permitted Liens”
means, such of the following as to which no enforcement, collection, execution,
levy or foreclosure proceeding shall have been commenced:  (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid under Section 5.01(b);
(b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’,
workmen’s and repairmen’s Liens and other similar Liens arising in the ordinary
course of business securing obligations that (i) are not overdue for a
period of more than 30 days or otherwise are contested in good faith and for
which a bond shall have been posted in the amount of such obligations and (ii) individually
or together with all other Permitted Liens outstanding on any date of determination
do not materially adversely affect the use of the property to which they
relate; and (c) pledges or deposits to secure obligations under workers’
compensation laws or similar legislation or to secure public or statutory
obligations.


 


“Person”
means, an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency thereof.


 


“Plan”
means, a Single Employer Plan or a Multiple Employer Plan.


 


“Pledged Debt”
has the meaning specified in the Security Agreement.


 


“Pledged Shares”
has the meaning specified in the Security Agreement.


 


“Preferred
Interests” means, with respect to any Person, Equity Interests
issued by such Person that are entitled to a preference or priority over any
other Equity Interests issued by such Person upon any distribution of such
Person’s property and assets, whether by dividend or upon liquidation.


 


“Prime Rate”
means, the rate publicly quoted from time to time by National City.  The “prime rate” is a rate set by National
City based upon various factors including National City’s costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate.  Any change in such
rate announced by National City shall take effect at the opening of business on
the day specified in the public announcement of such change.


 


“Process Agent”
has the meaning specified in Section 8.13.


 


“Pro Rata Share”
of any amount means, with respect to any Revolving Credit Lender at any time,
the product of such amount times a fraction the numerator of which is the
amount of such Lender’s Revolving Credit Commitment at such time (or, if the
Commitments shall have been terminated pursuant to Section 2.05 or 6.01,
such Lender’s Revolving Credit Commitment as in effect immediately prior to
such termination) and the denominator of which is the Revolving Credit Facility
at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05
or 6.01, the Revolving Credit Facility as in effect immediately prior to such
termination).


 


“Receivables”
means, all Receivables referred to in Section 1(c) of the Security
Agreement.


 


19

















 


“Redeemable”
means, with respect to any Equity Interest, any Debt or any other right or
Obligation, any such Equity Interest, Debt, right or Obligation that (a) the
issuer has undertaken to redeem at a fixed or determinable date or dates,
whether by operation of a sinking fund or otherwise, or upon the occurrence of
a condition not solely within the control of the issuer or (b) is
redeemable at the option of the holder.


 


“Refinancing”
has the meaning specified in the Preliminary Statements.


 


“Register”
has the meaning specified in Section 8.07(d).


 


“Regulation U”
means, Regulation U of the Board of Governors of the Federal Reserve System, as
in effect from time to time.


 


“Related
Documents” means, the Senior Notes Debt Documents, any
intercompany notes issued pursuant to Section 5.02(b)(i)(B) or (ii) and
the Convertible Notes Documents.


 


“Required
Lenders” means, at any time, Lenders owed or holding at least a
majority in interest of the sum of (a) the aggregate principal amount of
the Advances outstanding at such time, (b) the aggregate Available Amount
of all Letters of Credit outstanding at such time, and (c) the aggregate
Unused Revolving Credit Commitments at such time; provided, however, that if any Lender shall
be a Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (A) the aggregate principal
amount of the Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, (B) such Lender’s Pro Rata Share of the
aggregate Available Amount of all Letters of Credit outstanding at such time,
and (C) the Unused Revolving Credit Commitment of such Lender at such
time.  For purposes of this definition,
the aggregate principal amount of Swing Line Advances owing to the Swing Line
Bank and of Letter of Credit Advances owing to any Issuing Bank and the
Available Amount of each Letter of Credit shall be considered to be owed to the
Revolving Credit Lenders ratably in accordance with their respective Revolving
Credit Commitments, except to the extent a Revolving Credit Lender is a
Defaulting Lender.


 


“Responsible
Officer” means, any officer of any Loan Party or any of its
Subsidiaries.


 


“Revolving
Credit Advance” has the meaning specified in Section 2.01(a).


 


“Revolving
Credit Borrowing” means, a borrowing consisting of simultaneous
Revolving Credit Advances of the same Type made by the Revolving Credit
Lenders.


 


“Revolving
Credit Commitment” means, with respect to any Revolving Credit
Lender at any time, the amount set forth opposite such Lender’s name on
Schedule I hereto under the caption “Revolving Credit
Commitment” or, if such Lender has entered into one or more
Assignment and Assumptions, set forth for such Lender in the Register
maintained by the Paying Agent pursuant to Section 8.07(d) as such
Lender’s “Revolving Credit Commitment”, as such amount may be reduced at or
prior to such time pursuant to Section 2.05 or increased pursuant to Section 2.17.


 


20
















 


“Revolving Credit Facility”
means, at any time, the aggregate amount of the Revolving Credit Lenders’
Revolving Credit Commitments at such time.


 


“Revolving Credit Increase Effective
Date” has the meaning specified in Section 2.17(d).


 


“Revolving Credit Lender”
means, any Lender that has a Revolving Credit Commitment.


 


“Secured Cash Management Agreement”
means, any cash management agreement, deposit maintenance agreement, credit
card services agreement (provided that the aggregate amount of Debt owing under
such credit card services agreements does not exceed $20 million) or similar
agreement between any Loan Party and a bank which is a Lender Party or an
Affiliate of a Lender Party.


 


“Secured Hedge Agreement”
means, any Hedge Agreement permitted under Article V that is entered into
by and between any Loan Party and any Hedge Bank.


 


“Secured Obligations”
has the meaning specified in Section 2 of the Security Agreement.


 


“Secured Parties”
means, the Agents, the Lender Parties, the banks that are party to any Secured
Cash Management Agreement and the Hedge Banks.


 


“Security Agreement”
has the meaning specified in Section 3.01(a)(ii).


 


“Senior Notes” means,
the Borrower’s 63⁄4% Senior Notes due 2015 issued under the Indenture.


 


“Senior Notes Debt Documents”
means, the Indenture and any and all other agreements, documents, indentures
and instruments pursuant to which the Senior Notes are issued, in each case as
amended, to the extent permitted under the Loan Documents.


 


“Single Employer Plan”
means, a single employer plan, as defined in Section 4001(a)(15) of ERISA,
that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or
(b) was so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4069 of ERISA in the event
such plan has been or were to be terminated.


 


“Solvent” and “Solvency” mean, with
respect to any Person on a particular date, that on such date (a) the fair
value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay such debts and liabilities as
they mature and (d) such Person is not engaged in a business or
transaction, and is not about to engage in a business or transaction, for which
such Person’s property would constitute an unreasonably small capital.


 


21

















 


The amount of contingent
liabilities at any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.


 


“Standby Letter of Credit”
means, any Letter of Credit issued under the Letter of Credit Facility, other
than a Trade Letter of Credit.


 


“Subject Property”
means, all property and assets acquired after the Effective Date that are or
are intended to be Collateral, including, without limitation, all inventory,
accounts receivable and related documents and related general intangibles.


 


“Subsidiary” of any
Person means, any corporation, partnership, joint venture, limited liability
company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a
majority of the Board of Directors of such corporation (irrespective of whether
at the time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such partnership, joint venture or
limited liability company or (c) the beneficial interest in such trust or
estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person’s other Subsidiaries; provided, however, there shall be
excluded, in any event, from this definition of Subsidiary, other than for
purposes of (i) the preparation and delivery of financial statements
pursuant to Sections 5.03(b) and (c), and (ii) the calculation
of and compliance with the financial covenants set forth in Sections 5.04(a) through
(c), the Excluded Subsidiaries.


 


“Subsidiary Guarantors”
means, the Subsidiaries of the Borrower listed on Schedule II hereto and
each other Subsidiary of the Borrower that elects to execute and deliver a
guaranty pursuant to Section 5.01(j).


 


“Subsidiary Guaranty”
has the meaning specified in Section 3.01(a)(iii).


 


“Surviving Debt”
means, the Senior Notes and the other Debt of each Loan Party and its
Subsidiaries outstanding immediately before and after giving effect to the
Transaction and listed on Schedule 4.01(t).


 


“Swing Line Advance”
means, an advance made by (a) the Swing Line Bank pursuant to Section 2.01(b) or
(b) any Revolving Credit Lender pursuant to Section 2.02(b).


 


“Swing Line Bank”
means, initially, National City Bank, and thereafter each Person that shall
become the Swing Line Bank hereunder pursuant to Section 8.07.


 


“Swing Line Borrowing”
means, a borrowing consisting of a Swing Line Advance made by the Swing Line
Bank pursuant to Section 2.01(b) or the Revolving Credit Lenders
pursuant to Section 2.02(b).


 


“Swing Line Facility”
has the meaning specified in Section 2.01(b).


 


“Swing Line Reserve”
has the meaning specified in Section 2.02(b)(i).


 


22

















 


“Taxes” has the meaning
specified in Section 2.12(a).


 


“Termination Date”
means, the earlier of (a) the date of termination in whole of the
Revolving Credit Commitments, and the Letter of Credit Commitment, pursuant to Section 2.05
or 6.01, and (b) June 19, 2012.


 


“Total Debt/Consolidated EBITDA Ratio”
means, at any date of determination, the ratio of Consolidated total Debt for
Borrowed Money of the Borrower and its Subsidiaries as at such date of
determination to Consolidated EBITDA of the Borrower and its Subsidiaries for
the most recently ended fiscal quarter of the Borrower for which financial
statements are required to be delivered to the Lender Parties pursuant to Section 5.03(b) or
(c), as the case may be, and the immediately preceding three fiscal quarters.


 


“Trade Letter of Credit”
means, any Letter of Credit that is issued under the Letter of Credit Facility
for the benefit of a supplier of Inventory to the Borrower or any of its
Subsidiaries to effect payment for such Inventory.


 


“Transaction” means,
the Refinancing and the other transactions contemplated by the Transaction
Documents.


 


“Transaction Documents”
means, collectively, the Loan Documents and the Related Documents.


 


“Type” refers to the
distinction between Advances bearing interest at the Base Rate and Advances
bearing interest at the Eurodollar Rate.


 


“Unused Revolving Credit Commitment”
means, with respect to any Revolving Credit Lender at any time, (a) such
Lender’s Revolving Credit Commitment at such time minus (b) the sum of (i) the
aggregate principal amount of all Revolving Credit Advances, Swing Line
Advances and Letter of Credit Advances made by such Lender (in its capacity as
a Lender) and outstanding at such time plus (ii) such Lender’s Pro Rata
Share of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time, (B) the aggregate principal amount of all Letter
of Credit Advances made by the Issuing Banks pursuant to Section 2.03(c) and
outstanding at such time and (C) the Swing Line Reserve at such time.


 


“Voting Interests” means,
shares of capital stock issued by a corporation, or equivalent Equity Interests
in any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even if the right so to vote has
been suspended by the happening of such a contingency.


 


“Welfare Plan” means,
a welfare plan, as defined in Section 3(1) of ERISA, that is
maintained for employees of any Loan Party or in respect of which any Loan
Party could have liability.


 


“Withdrawal Liability”
has the meaning specified in Part I of Subtitle E of Title IV of ERISA.


 


23

















 


Section 1.02.          Computation of Time Periods; Other
Definitional Provisions.  In this
Agreement and the other Loan Documents in the computation of periods of time
from a specified date to a later specified date, the word “from” means “from and
including” and the words “to”
and “until”
each mean “to but excluding”.  References
in the Loan Documents to any agreement or contract “as amended” shall
mean and be a reference to such agreement or contract as amended, amended and
restated, supplemented or otherwise modified from time to time in accordance
with its terms.


 


Section 1.03.          Accounting Terms.  All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the financial
statements referred to in Section 4.01(g) (“GAAP”).


 


ARTICLE II


 


AMOUNTS AND TERMS OF THE ADVANCES


AND THE LETTERS OF CREDIT


 


Section 2.01.          The Advances and the Letters of
Credit.


 


(a)           The Revolving Credit Advances.  Each Revolving Credit Lender severally
agrees, on the terms and conditions hereinafter set forth, to make advances
(each, a “Revolving Credit Advance”) to the Borrower from time to time on any Business
Day during the period from the Effective Date until the Termination Date (i) in
an amount for each such Advance not to exceed such Lender’s Unused Revolving
Credit Commitment at such time and (ii) in an aggregate amount for all
revolving Credit Advances outstanding at any one time not to exceed an amount
equal to (A) the aggregate Revolving Credit Commitments of all Revolving Credit
Lenders, minus (B) the aggregate Swing Line Advances, minus (C) the
aggregate Available Amount of all outstanding Letters of Credit, in each case
at such time.  Each Revolving Credit
Borrowing shall be in an aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof (other than a Borrowing the proceeds of which
shall be used solely to repay or prepay in full outstanding Swing Line Advances
or outstanding Letter of Credit Advances) and shall consist of Revolving Credit
Advances made simultaneously by the Revolving Credit Lenders ratably according
to their Revolving Credit Commitments. 
Within the limits of each Revolving Credit Lender’s Unused Revolving
Credit Commitment in effect from time to time, the Borrower may borrow under
this Section 2.01(a), prepay pursuant to Section 2.06(a) and
reborrow under this Section 2.01(a).


 


(b)           The Swing Line Advances.  Subject to other arrangements as referred to
in Section 2.02(b)(i), the Borrower may request the Swing Line Bank to
make, and the Swing Line Bank may, if in its sole discretion it elects to do
so, make, on the terms and conditions hereinafter set forth, Swing Line
Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until the Termination Date (i) in an
aggregate amount not to exceed at any time outstanding $40,000,000 (the “Swing
Line Facility”)
and (ii) in an amount not at any time exceeding the amount of the then
applicable Swing Line Reserve.  No Swing
Line Advance shall be used for the purpose of funding the payment of principal
of any other Swing Line Advance.  Each
Swing Line Borrowing shall be in a minimum


 


24

















 


amount and in multiples
as agreed between the Borrower and the Swing Line Bank and shall be made as a
Base Rate Advance.  Within the limits of
the Swing Line Facility and within the limits referred to in clause (ii) above,
so long as the Swing Line Bank, in its sole discretion, elects to make Swing
Line Advances, the Borrower may borrow under this Section 2.01(b), repay
pursuant to Section 2.04(d) or prepay pursuant to Section 2.06(a) and
reborrow under this Section 2.01(b).


 


(c)           The Letters of Credit.  Each Issuing Bank severally agrees, on the
terms and conditions hereinafter set forth, to issue (or cause its Affiliate
that is a commercial bank to issue on its behalf) letters of credit for the
account of the Borrower from time to time on any Business Day during the period
from the Effective Date until 60 days before the Termination Date in an
aggregate Available Amount (i) for each such Letter of Credit, together
with all other Letters of Credit not to exceed at any time the Letter of Credit
Facility at such time and (ii) for each such Letter of Credit not to
exceed at any time the lesser of (x) such Issuing Bank’s Letter of Credit
Commitment at such time and (y) the Unused Revolving Credit Commitments of
the Revolving Credit Lenders at such time. 
It is understood and agreed that the Existing Letters of Credit shall be
deemed to be Letters of Credit issued hereunder for all purposes under this
Agreement and the Loan Documents.  No
Letter of Credit shall have an expiration date (including all rights of the
Borrower or the beneficiary to require renewal) later than the earlier of 60
days before the Termination Date and (A) in the case of a Standby Letter
of Credit, one year after the date of issuance thereof, but may by its terms be
renewable annually upon notice (a “Notice of Renewal”) given to the Issuing Bank and the Paying
Agent on or prior to any date for notice of renewal set forth in such Letter of
Credit but in any event at least ten Business Days prior to the date of the
proposed renewal of such Standby Letter of Credit and upon fulfillment of the
applicable conditions set forth in Article III unless such Issuing Bank
has notified the Borrower (with a copy to the Paying Agent) on or prior to the
date for notice of termination set forth in such Letter of Credit but in any
event at least ten Business Days prior to the then effective expiration date of
its election not to renew such Standby Letter of Credit (a “Notice
of Termination”;
it being understood and agreed that an Issuing Bank shall not be entitled to
issue a Notice of Termination with respect to such a renewal unless (i) the
conditions precedent to the issuance of Letters of Credit set forth in Section 3.02
shall not have been fulfilled or waived in accordance herewith, or (ii) a
Default shall have occurred and be continuing, or (iii) pursuant to such
renewal the effective expiration date of such Letter of Credit would occur
after the Termination Date or (iv) such Issuing Bank shall have procured a
replacement Issuing Bank) and (B) in the case of a Trade Letter of Credit,
60 days after the date of issuance thereof; provided that the terms of each
Standby Letter of Credit that is renewable annually shall (x) require the
Issuing Bank that issued such Standby Letter of Credit to give the beneficiary
named in such Standby Letter of Credit notice of any Notice of Termination, (y) permit
such beneficiary, upon receipt of such notice, to draw under such Standby
Letter of Credit prior to the date such Standby Letter of Credit otherwise
would have been automatically renewed and (z) not permit the expiration
date (after giving effect to any renewal) of such Standby Letter of Credit in
any event to be extended to a date later than 60 days before the Termination
Date.  If either a Notice of Renewal is
not given by the Borrower or a Notice of Termination is given by the relevant
Issuing Bank pursuant to the immediately preceding sentence, such Standby
Letter of Credit shall expire on the date on which it otherwise would have been
renewed; provided, however, that even in the absence of receipt of a Notice of
Renewal the relevant Issuing Bank may in its discretion, unless instructed to
the contrary by the Paying Agent or the Borrower, deem that a Notice of Renewal


 


25

















 


had been timely delivered
and in such case, a Notice of Renewal shall be deemed to have been so delivered
for all purposes under this Agreement. 
Each Standby Letter of Credit shall contain a provision authorizing the
Issuing Bank thereunder to deliver to the beneficiary of such Letter of Credit,
upon the occurrence and during the continuance of an Event of Default, a notice
(a “Default Termination Notice”) terminating such Letter of Credit and
giving such beneficiary 15 days to draw such Letter of Credit.  Within the limits of the Letter of Credit
Facility, and subject to the limits referred to above, the Borrower may request
the issuance of Letters of Credit under this Section 2.01(c), repay any
Letter of Credit Advances resulting from drawings thereunder pursuant to Section 2.03(c) and
request the issuance of additional Letters of Credit under this Section 2.01(c).


 


Section 2.02.          Making the Advances.


 


(a)           Except as otherwise provided in Section 2.02(b) or
2.03, each Borrowing shall be made on notice, given not later than 1:00 P.M.
(New York City time) on the third Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate
Advances, or the date of the proposed Borrowing in the case of a Borrowing
consisting of Base Rate Advances, by the Borrower to the Paying Agent, which
shall give to each Appropriate Lender prompt notice thereof by telex or
telecopier.  Each such notice of a
Borrowing (a “Notice of Borrowing”) shall be in writing or by telephone,
confirmed immediately in writing, or telex or telecopier, in substantially the
form of Exhibit B hereto, specifying therein the requested (i) date
of such Borrowing, (ii) Facility under which such Borrowing is to be made,
(iii) Type of Advances comprising such Borrowing, (iv) aggregate
amount of such Borrowing and (v) in the case of a Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for each such Advance.  Each Appropriate Lender shall, before (A) 11:00 A.M.
(New York City time) on the date of such Borrowing, in the case of a Borrowing
consisting of Eurodollar Rate Advances or (B) 3:00 P.M. (New York
City time) on the date of such Borrowing, in the case of a Borrowing consisting
of Base Rate Advances, make available for the account of its Applicable Lending
Office to the Paying Agent at the Paying Agent Account, in same day funds, such
Lender’s ratable portion of such Borrowing in accordance with the respective
Commitments under the applicable Facility of such Lender and the other
Appropriate Lenders.  After the Paying
Agent’s receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Paying Agent will make such funds available
to the Borrower by crediting the Borrower’s Account; provided, however, that,
in the case of any Revolving Credit Borrowing, the Paying Agent shall first
make a portion of such funds equal to the aggregate principal amount of any
Swing Line Advances and Letter of Credit Advances made by the Swing Line Bank
or any Issuing Bank, as the case may be, and by any other Revolving Credit
Lender and outstanding on the date of such Revolving Credit Borrowing, plus
interest accrued and unpaid thereon to and as of such date, available to the
Swing Line Bank or such Issuing Bank, as the case may be, and such other
Revolving Credit Lenders for repayment of such Swing Line Advances and Letter
of Credit Advances.


 


(b)           Swing Line Borrowings may be made
either upon notice as set forth in Section 2.02(b)(ii) below or
pursuant to this Section 2.02(b)(i) on a daily basis under mechanics
mutually agreed to by the Borrower and the Swing Line Bank, subject in any case
to the fulfillment of the applicable conditions precedent set forth in Article III
hereof.  The Swing Line Reserve at any
time shall be the amount most recently established by the Borrower by written


 


26

















 


notice to the Paying
Agent confirmed in writing by the Swing Line Bank as the maximum aggregate
principal amount of Swing Line Borrowings to be outstanding at any one time
(the “Swing Line Reserve”), provided that in no event shall the Swing Line
Reserve exceed $40,000,000 at any time. 
Swing Line Advances made pursuant to this Section 2.02(b)(i) shall
be made without any requirement for a prior written or telephonic request given
to the Paying Agent.  The Swing Line Bank
will notify the Paying Agent, on a monthly basis, of any Swing Line Advances so
made.  The Swing Line Bank shall not at
any time permit the aggregate outstanding amount of the Swing Line Advances to
exceed the then applicable amount of the Swing Line Reserve.


 


(i)            Each Swing Line
Borrowing, if not made in accordance with Section 2.02(b)(i) above,
shall be made on notice, given not later than 3:00 P.M. (New York City
time) on the date of the proposed Swing Line Borrowing, by the Borrower to the
Swing Line Bank and the Paying Agent. 
Each such notice of a Swing Line Borrowing (a “Notice of Swing Line
Borrowing”)
shall be in writing or by telephone, confirmed immediately in writing, or telex
or telecopier, specifying therein the requested (i) date of such
Borrowing, (ii) amount of such Borrowing and (iii) maturity of such
Borrowing (which maturity shall be no later than the seventh day after the
requested date of such Borrowing).  If,
in its sole discretion, it elects to make the requested Swing Line Advance, the
Swing Line Bank will make the amount thereof available to the Paying Agent at
the Paying Agent Account, in same day funds. 
After the Paying Agent’s receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Paying Agent will
make such funds available to the Borrower by crediting the Borrower’s Account.


 


(ii)           Upon written demand
by the Swing Line Bank, with a copy of such demand to the Paying Agent, each
other Revolving Credit Lender shall purchase from the Swing Line Bank, and the
Swing Line Bank shall sell and assign to each such other Revolving Credit
Lender, such other Lender’s Pro Rata Share of such outstanding Swing Line
Advance as of the date of such demand, by making available for the account of
its Applicable Lending Office to the Paying Agent for the account of the Swing
Line Bank, by deposit to the Paying Agent’s Account, in same day funds, an
amount equal to the portion of the outstanding principal amount of such Swing
Line Advance to be purchased by such Lender. 
The Borrower hereby agrees to each such sale and assignment, and all
parties hereto acknowledge and agree that the obligations of such other
Revolving Credit Lenders to purchase outstanding Swing Line Advances is
absolute and unconditional under all circumstances, and shall be enforceable
notwithstanding the occurrence of any Default or Event of Default, the
termination of the Revolving Credit Commitments or any other
circumstances.  Each Revolving Credit
Lender agrees to purchase its Pro Rata Share of an outstanding Swing Line
Advance on (i) the Business Day on which demand therefor is made by the
Swing Line Bank, provided that notice of such demand is given not later than
11:00 A.M. (New York City time) on such Business Day or (ii) the
first Business Day next succeeding such demand if notice of such demand is
given after such time.  Upon any such
assignment by the Swing Line Bank to any other Revolving Credit Lender of a
portion of a Swing Line Advance, the Swing Line Bank represents and warrants to
such other Lender that the Swing Line Bank is the legal and beneficial owner of
such interest being assigned by it, but makes no other representation or
warranty and assumes no responsibility with respect to such Swing Line Advance,
the Loan Documents or any Loan Party.  If
and to the extent that any Revolving Credit Lender shall not have so made the
amount of such Swing Line Advance available to the Paying


 


27

















 


Agent, or if the
Swing Line Lender must disgorge or return any amounts paid by the Borrower in
respect thereof, such Revolving Credit Lender agrees to pay to the Paying Agent
for the account of the Swing Line Bank forthwith on demand such amount together
with interest thereon, for each day from the date of demand by the Swing Line
Bank until the date such amount is paid to the Paying Agent, at the Base
Rate.  If such Lender shall pay to the
Paying Agent such amount for the account of the Swing Line Bank on any Business
Day, such amount so paid in respect of principal shall constitute a Swing Line
Advance made by such Lender on such Business Day for purposes of this
Agreement, and the outstanding principal amount of the Swing Line Advance made
by the Swing Line Bank shall be reduced by such amount on such Business Day.


 


(c)           Anything in subsection (a) above
to the contrary notwithstanding, (i) the Borrower may not select
Eurodollar Rate Advances for any Borrowing if the aggregate amount of such
Borrowing is less than $5,000,000 or if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.09
or 2.10 and (ii) the Revolving Credit Advances may not be outstanding as
part of more than twelve separate Borrowings.


 


(d)           Each Notice of Borrowing and Notice
of Swing Line Borrowing shall be irrevocable and binding on the Borrower.  In the case of any Borrowing that the related
Notice of Borrowing specifies is to be comprised of Eurodollar Rate Advances,
the Borrower shall indemnify each Appropriate Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the Advance to be made by such Lender as
part of such Borrowing when such Advance, as a result of such failure, is not
made on such date.


 


(e)           Unless the Paying Agent shall have
received notice from an Appropriate Lender prior to the date of any Borrowing
under a Facility under which such Lender has a Commitment that such Lender will
not make available to the Paying Agent such Lender’s ratable portion of such
Borrowing, the Paying Agent may assume that such Lender has made such portion
available to the Paying Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Paying Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount.  If and to the
extent that such Lender shall not have so made such ratable portion available
to the Paying Agent, such Lender and the Borrower severally agree to repay or
pay to the Paying Agent forthwith on demand such corresponding amount and to
pay interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid or paid to the Paying
Agent, at (i) in the case of the Borrower, the interest rate applicable at
such time under Section 2.07 to Advances comprising such Borrowing and (ii) in
the case of such Lender, the Base Rate. 
If such Lender shall pay to the Paying Agent such corresponding amount,
such amount so paid shall constitute such Lender’s Advance as part of such
Borrowing for all purposes.


 


(f)            The failure of any Lender to make
the Advance to be made by it as part of any Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its


 


28

















 


Advance on the date of
such Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of any
Borrowing.


 


Section 2.03.          Issuance of and Drawings and
Reimbursement Under Letters of Credit. 
(a) Request for Issuance. 
Each Letter of Credit shall be issued upon notice, given not later than
11:00 A.M. (New York City time) on the fifth Business Day prior to the
date of the proposed issuance of such Letter of Credit, by the Borrower to any
Issuing Bank, which shall give to the Paying Agent and each Revolving Credit
Lender prompt notice thereof by telex or telecopier or other writing.  Each such notice of issuance of a Letter of
Credit (a “Notice of
Issuance”) shall be in writing or by telephone, confirmed
immediately in writing, or telex or telecopier, specifying therein the
requested (i) date of such issuance (which shall be a Business Day), (ii) Available
Amount of such Letter of Credit, (iii) expiration date of such Letter of
Credit, (iv) name and address of the beneficiary of such Letter of Credit
and (v) form of such Letter of Credit, and shall be accompanied by such
application and agreement for letter of credit as such Issuing Bank may specify
to the Borrower for use in connection with such requested Letter of Credit (a “Letter of Credit Agreement”).  If (x) the requested form of such Letter
of Credit is acceptable to such Issuing Bank in its sole discretion and (y) it
has not received notice of objection to such issuance from Lenders holding at
least a majority of the Revolving Credit Commitments, such Issuing Bank will,
upon fulfillment of the applicable conditions set forth in Article III,
make such Letter of Credit available to the Borrower at its office referred to
in Section 8.02 or as otherwise agreed with the Borrower in connection
with such issuance.  In the event and to
the extent that the provisions of any Letter of Credit Agreement shall conflict
with this Agreement, the provisions of this Agreement shall govern.


 


(b)           Letter of Credit Reports.  Each Issuing Bank shall furnish (i) to
the Paying Agent on or about the first Business Day of each week a written
report summarizing issuance and expiration dates of Letters of Credit issued by
such Issuing Bank during the previous week and drawings during such week under
all Letters of Credit, (ii) to each Revolving Credit Lender on or about
the first Business Day of each month a written report summarizing issuance and
expiration dates of Letters of Credit issued by such Issuing Bank during the
preceding month and drawings during such month under all such Letters of Credit
and (iii) to the Paying Agent and each Revolving Credit Lender on or about
the first Business Day of each calendar quarter a written report setting forth
the average daily aggregate Available Amount during the preceding calendar
quarter of all Letters of Credit issued by such Issuing Bank.


 


(c)           Drawing and Reimbursement.  The payment by any Issuing Bank of a draft
drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by such Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft.  Upon written demand by any Issuing Bank, with
a copy of such demand to the Paying Agent, each Revolving Credit Lender shall
purchase from such Issuing Bank, and such Issuing Bank shall sell and assign to
each such Revolving Credit Lender, such Lender’s Pro Rata Share of such
outstanding Letter of Credit Advance as of the date of such purchase, by making
available for the account of its Applicable Lending Office to the Paying Agent
for the account of such Issuing Bank, by deposit to the Paying Agent’s Account,
in same day funds, an amount equal to the portion of the outstanding principal
amount of such Letter of Credit Advance to be purchased by such Lender.  Promptly after receipt thereof, the Paying


 


29

















 


Agent shall transfer such
funds to such Issuing Bank.  The Borrower
hereby agrees to each such sale and assignment, and all parties hereto
acknowledge and agree that the obligations of such other Revolving Credit
Lenders to purchase outstanding Letter of Credit Advances is absolute and
unconditional under all circumstances, and shall be enforceable notwithstanding
the occurrence of any Default or Event of Default, the termination of the
Revolving Credit Commitments or any other circumstances.  Each Revolving Credit Lender agrees to
purchase its Pro Rata Share of an outstanding Letter of Credit Advance on (i) the
Business Day on which demand therefor is made by the applicable Issuing Bank,
provided that notice of such demand is given not later than 11:00 A.M.
(New York City time) on such Business Day, or (ii) the first Business Day
next succeeding such demand if notice of such demand is given after such
time.  Upon any such assignment by an
Issuing Bank to any Revolving Credit Lender of a portion of a Letter of Credit
Advance, such Issuing Bank represents and warrants to such other Lender that
such Issuing Bank is the legal and beneficial owner of such interest being
assigned by it, free and clear of any liens, but makes no other representation
or warranty and assumes no responsibility with respect to such Letter of Credit
Advance, the Loan Documents or any Loan Party. 
If and to the extent that any Revolving Credit Lender shall not have so
made the amount of such Letter of Credit Advance available to the Paying Agent,
or if an Issuing Bank must disgorge or return any amounts paid by the Borrower
in respect thereof, such Revolving Credit Lender agrees to pay to the Paying
Agent for the account of such Issuing Bank forthwith on demand such amount
together with interest thereon, for each day from the date of demand by such
Issuing Bank until the date such amount is paid to the Paying Agent, at the
Federal Funds Rate for its account or the account of such Issuing Bank, as
applicable.  If such Lender shall pay to
the Paying Agent such amount for the account of such Issuing Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Letter of Credit Advance made by such Lender on such Business Day for purposes
of this Agreement, and the outstanding principal amount of the Letter of Credit
Advance made by such Issuing Bank shall be reduced by such amount on such
Business Day.


 


(d)           Failure to Make Letter of Credit
Advances.  The failure of any Lender
to make the Letter of Credit Advance to be made by it on the date specified in Section 2.03(c) shall
not relieve any other Lender of its obligation hereunder to make its Letter of
Credit Advance on such date, but no Lender shall be responsible for the failure
of any other Lender to make the Letter of Credit Advance to be made by such
other Lender on such date.


 


Section 2.04.          Repayment of Advances.  (a)  Revolving Credit Advances.  The Borrower shall repay to the Paying Agent
for the ratable account of the Revolving Credit Lenders on the Termination Date
the aggregate principal amount of the Revolving Credit Advances then
outstanding.


 


(b)           Swing Line Advances.  The Borrower shall repay to the Paying Agent
for the account of the Swing Line Bank and each other Revolving Credit Lender
that has made a Swing Line Advance the outstanding principal amount of each
Swing Line Advance made by each of them on the earlier of the maturity date
specified in the applicable Notice of Swing Line Borrowing (which maturity
shall be no later than the seventh day after the requested date of such
Borrowing) and the Termination Date.


 


30

















 


(c)           Letter of Credit Advances.


 


(i)            The Borrower shall
repay to the Paying Agent for the account of each Issuing Bank and each other
Revolving Credit Lender that has made a Letter of Credit Advance on the earlier
of demand and the Termination Date the outstanding principal amount of each
Letter of Credit Advance made by each of them.


 


(ii)           The Obligations of
the Borrower under this Agreement, any Letter of Credit Agreement and any other
agreement or instrument relating to any Letter of Credit, and the obligations
of Revolving Credit Lenders to reimburse any Issuing Bank for Letter of Credit
Advances not reimbursed by the Borrower, shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement, such Letter of Credit Agreement and such other agreement or
instrument under all circumstances, including, without limitation, the
following circumstances:


 


(A)    any lack
of validity or enforceability of any Loan Document, any Letter of Credit
Agreement, any Letter of Credit or any other agreement or instrument relating
thereto (all of the foregoing being, collectively, the “L/C Related Documents”);


 


(B)    any change
in the time, manner or place of payment of, or in any other term of, all or any
of the Obligations of the Borrower in respect of any L/C Related Document or
any other amendment or waiver of or any consent to departure from all or any of
the L/C Related Documents;


 


(C)    the
existence of any claim, set-off, defense or other right that the Borrower may
have at any time against any beneficiary or any transferee of a Letter of
Credit (or any Persons for which any such beneficiary or any such transferee
may be acting), any Issuing Bank or any other Person, whether in connection
with the transactions contemplated by the L/C Related Documents or any
unrelated transaction;


 


(D)    any
statement or any other document presented under a Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;


 


(E)     payment
by any Issuing Bank under a Letter of Credit against presentation of a draft or
certificate that does not comply with the terms of such Letter of Credit;


 


(F)     any
exchange, release or non-perfection of any Collateral or other collateral, or
any release or amendment or waiver of or consent to departure from the Guaranties
or any other guarantee, for all or any of the Obligations of the Borrower in
respect of the L/C Related Documents; or


 


(G)    any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including, without limitation, any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Borrower or
a Guarantor.


 


Section 2.05.          Termination or Reduction of the
Commitments.  (a)  Optional.  The Borrower may, upon at least five Business
Days’ notice to the Paying Agent, terminate in whole or reduce in part the
unused portions of the Letter of Credit Facility and the Unused


 


31

















 


Revolving Credit
Commitments; provided, however, that each partial reduction of a Facility (i) shall
be in an aggregate amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof and (ii) shall be made ratably among the Appropriate
Lenders in accordance with their Commitments with respect to such Facility.


 


(b)           Mandatory.


 


(i)            The Letter of
Credit Facility shall be permanently reduced from time to time on the date of
each reduction in the Revolving Credit Facility by the amount, if any, by which
the amount of the Letter of Credit Facility exceeds the Revolving Credit
Facility after giving effect to such reduction of the Revolving Credit
Facility.


 


(ii)           The Swing Line
Facility shall be permanently reduced from time to time on the date of each
reduction in the Revolving Credit Facility by the amount, if any, by which the
amount of the Swing Line Facility exceeds the Revolving Credit Facility after
giving effect to such reduction of the Revolving Credit Facility.


 


Section 2.06.          Prepayments.  (a)  Optional.  The Borrower may, upon at least one Business
Day’s notice in the case of Base Rate Advances and three Business Days’ notice
in the case of Eurodollar Rate Advances, in each case to the Paying Agent
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given the Borrower shall, prepay the outstanding aggregate
principal amount of the Advances comprising part of the same Borrowing in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the aggregate principal amount prepaid; provided, however, that (x) each
partial prepayment shall be in an aggregate principal amount of $5,000,000 or
an integral multiple of $1,000,000 in excess thereof and (y) if any
prepayment of a Eurodollar Rate Advance is made on a date other than the last
day of an Interest Period for such Advance, the Borrower shall also pay any
amounts owing pursuant to Section 8.04(c). 
Each such prepayment shall be applied, at the option of the Borrower
either (i) to the Revolving Credit Facility or (ii) to the Swing Line
Advances or (iii) to the Letter of Credit Advances.  Notwithstanding the foregoing, prepayment of
Swing Line Advances held by the Swing Line Bank shall not require any prior
notice.


 


(b)           Mandatory.  The Borrower shall, on the date of receipt of
the Net Cash Proceeds of any Extraordinary Receipt by the Borrower or any of
its Subsidiaries, prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings and deposit an amount in the L/C Cash
Collateral Account in accordance with clause (iv) below in an amount
equal to the amount of such Net Cash Proceeds. 
Each such prepayment shall be applied to the Revolving Credit Facility
as set forth in clause (iv) below.


 


(i)            The Borrower shall,
on each Business Day, prepay an aggregate principal amount of the Revolving
Credit Advances comprising part of the same Borrowings, the Letter of Credit
Advances and the Swing Line Advances and deposit an amount in the L/C Cash
Collateral Account in accordance with clause (iv) below in an amount
equal to the amount by which (A) the sum of the aggregate principal amount
of (x) the Revolving Credit Advances, (y) the Letter of Credit
Advances and (z) the Swing Line Advances then outstanding plus the
aggregate Available Amount of all Letters of Credit then outstanding exceeds (B) the
Revolving Credit Facility on such Business Day.


 


32

















 


(ii)           The Borrower shall,
on each Business Day, pay to the Paying Agent for deposit in the L/C Cash
Collateral Account an amount sufficient to cause the aggregate amount on
deposit in the L/C Cash Collateral Account to equal the amount by which the
aggregate Available Amount of all Letters of Credit then outstanding exceeds
the Letter of Credit Facility on such Business Day.


 


(iii)          At any time after (i) any
assets of a type that would constitute Collateral have been pledged by any
Subsidiary to any Person financing a transaction permitted under Section 5.02(f)(vii) or
(ii) the Borrower has otherwise elected not to cause a newly-formed or
newly-acquired Subsidiary to pledge its assets to the Collateral Agent as would
otherwise be required under Section 5.01(j), if (A) the sum of the
aggregate principal amount of (x) the Revolving Credit Advances, (y) the
Letter of Credit Advances and (z) the Swing Line Advances then outstanding
plus the aggregate Available Amount of all Letters of Credit then outstanding
exceeds (B) 85% of the book value of accounts receivables that constitute
Collateral and (x) 65% of the book value of inventory that constitutes
Collateral plus (y) the aggregate Agreement Value of all Cash
Management Agreements and Secured Hedge Agreements at such time, then the
Borrower shall immediately prepay such excess.


 


(iv)          Prepayments of the
Revolving Credit Facility made pursuant to clause (i), (ii) or (iii) above
shall be first applied to prepay Letter of Credit Advances then outstanding
until such Advances are paid in full, second applied to prepay Swing Line
Advances then outstanding until such Advances are paid in full, third applied
to prepay Revolving Credit Advances then outstanding comprising part of the
same Borrowings until such Advances are paid in full and fourth deposited in
the L/C Cash Collateral Account to cash collateralize 100% of the Available
Amount of the Letters of Credit then outstanding; and, in the case of
prepayments of the Revolving Credit Facility required pursuant to
clause (i), (ii) or (iii) above, the amount remaining (if any)
after the prepayment in full of the Advances then outstanding and the 100% cash
collateralization of the aggregate Available Amount of Letters of Credit then
outstanding may be retained by the Borrower. 
Upon the drawing of any Letter of Credit for which funds are on deposit
in the L/C Cash Collateral Account, such funds shall be applied to reimburse
the Issuing Banks or Revolving Credit Lenders, as applicable.


 


(v)           All prepayments
under this subsection (b) shall be made together with accrued
interest to the date of such prepayment on the principal amount prepaid.


 


Section 2.07.          Interest.  (a)  Scheduled Interest.  The Borrower shall pay interest on the unpaid
principal amount of each Advance owing to each Lender from and including the
date of such Advance until (but excluding) the date such principal amount shall
be paid in full, at the following rates per annum:


 


(i)            Base
Rate Advances.  During such periods
as such Advance is a Base Rate Advance, a rate per annum equal at all times to
the sum of (A) the Base Rate in effect from time to time plus (B) the
Applicable Margin in effect from time to time, payable in arrears quarterly on
the last day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be Converted or paid in
full.


 


33

















 


(ii)           Eurodollar
Rate Advances.  During such periods
as such Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A) the
Eurodollar Rate for such Interest Period for such Advance plus (B) the
Applicable Margin in effect on the first day of such Interest Period, payable
in arrears on the last day of such Interest Period and, if such Interest Period
has a duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest Period
and on the date such Eurodollar Rate Advance shall be Converted or paid in
full.


 


(b)           Default Interest.  Upon the occurrence and during the
continuance of a Default, the Borrower shall pay interest on (i) the
unpaid principal amount of each Advance owing to each Lender, payable in
arrears on the dates referred to in clause (a)(i) or (a)(ii) above
and on demand, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on such Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law, the
amount of any interest, fee or other amount payable under the Loan Documents
that is not paid when due, from the date such amount shall be due until such
amount shall be paid in full, payable in arrears on the date such amount shall
be paid in full and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid, in the case of interest, on
the Type of Advance on which such interest has accrued pursuant to
clause (a)(i) or (a)(ii) above and, in all other cases, on Base
Rate Advances pursuant to clause (a)(i) above.


 


(c)           Notice of Interest Period and
Interest Rate.  Promptly after receipt
of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.09 or a notice of selection of an
Interest Period pursuant to the terms of the definition of “Interest
Period”, the
Paying Agent shall give notice to the Borrower and each Appropriate Lender of
the applicable Interest Period and the applicable interest rate determined by
the Paying Agent for purposes of clause (a)(i) or (a)(ii) above.


 


Section 2.08.          Fees.  (a)  Commitment Fee.  The Borrower shall pay to the Paying Agent
for the account of the Revolving Credit Lenders a commitment fee, from the
Effective Date in the case of each Initial Lender (and from the effective date
specified in the Assignment and Assumption pursuant to which it became a Lender
in the case of each other Lender) until the Termination Date, payable in
arrears quarterly on the last day of each March, June, September and
December, commencing on June 30, 2007 and on the Termination Date, at the
rate of (i) on the Effective Date, 0.125% per annum and (ii) thereafter,
at a rate per annum equal to the Applicable Percentage, in each case on the
average daily portion of the sum of each Revolving Credit Lender’s Unused
Revolving Credit Commitment plus its Pro Rata Share of the Swing Line Reserve
during such period; provided, however, that any commitment fee accrued with
respect to any of the Commitments of a Defaulting Lender during the period
prior to the time such Lender became a Defaulting Lender and unpaid at such
time shall not be payable by the Borrower so long as such Lender shall be a
Defaulting Lender except to the extent that such commitment fee shall otherwise
have been due and payable by the Borrower prior to such time; and provided
further that no commitment fee shall accrue on any of the Commitments of a
Defaulting Lender so long as such Lender shall be a Defaulting Lender.


 


34

















 


(b)           Letter of Credit Fees, Etc.


 


(i)            The Borrower shall
pay to the Paying Agent for the account of each Revolving Credit Lender a
commission, payable in arrears quarterly on the last day of each March, June, September and
December, commencing June 30, 2007, and on the Termination Date, on such
Lender’s Pro Rata Share of the average daily aggregate Available Amount during
such quarter of Letters of Credit outstanding from time to time at the rate
equal to the Applicable Margin for Eurodollar Loans.


 


(ii)           The Borrower shall
pay to each Issuing Bank, for its own account, (A) an issuance fee for
each Letter of Credit issued by such Issuing Bank in an amount as the Borrower
and such Issuing Bank may agree, payable on the date of issuance and on renewal
of such Letter of Credit, and (B) such other commissions, fronting fees,
transfer fees and other fees and charges in connection with the issuance or
administration of each Letter of Credit issued by such Issuing Bank as the
Borrower and such Issuing Bank shall agree.


 


(c)           Agents’ Fees.  The Borrower shall pay to each Agent and each
Joint Lead Arranger for its own account such fees as may from time to time be
agreed between the Borrower and such Agent or such Joint Lead Arranger, as the
case may be, including the fees payable to the Joint Lead Arrangers pursuant to
the Fee Letter.


 


Section 2.09.          Conversion of Advances.  (a)  Optional.  The Borrower may on any Business Day, upon
notice given to the Paying Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the date of the proposed Conversion
and subject to the provisions of Sections 2.07 and 2.10, Convert all or
any portion of the Advances of one Type comprising the same Borrowing into
Advances of the other Type; provided, however, that any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made only on the last
day of an Interest Period for such Eurodollar Rate Advances, any Conversion of
Base Rate Advances into Eurodollar Rate Advances shall be in an amount not less
than the minimum amount specified in Section 2.02(c), no Conversion of any
Advances shall result in more separate Borrowings than permitted under Section 2.02(c) and
each Conversion of Advances comprising part of the same Borrowing under any
Facility shall be made ratably among the Appropriate Lenders in accordance with
their Commitments under such Facility.  Each
such notice of Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be
Converted and (iii) if such Conversion is into Eurodollar Rate Advances,
the duration of the initial Interest Period for such Advances.  Each notice of Conversion shall be
irrevocable and binding on the Borrower.


 


(b)           Mandatory.  On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $5,000,000, such
Advances shall automatically Convert into Base Rate Advances.


 


(i)            If the Borrower
shall fail to select the duration of any Interest Period for any Eurodollar
Rate Advances in accordance with the provisions contained in the definition of “Interest
Period” in Section 1.01, the Paying Agent will forthwith so notify the
Borrower and the


 


35

















 


Appropriate Lenders, whereupon each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance.


 


(ii)           Upon the occurrence
and during the continuance of any Default, (x) each Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (y) the obligation
of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances
shall be suspended.


 


Section 2.10.          Increased Costs, Etc.  (a)  If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the cost to any Lender Party of
agreeing to make or of making, funding or maintaining Eurodollar Rate Advances
or of agreeing to issue or of issuing or maintaining or participating in
Letters of Credit or of agreeing to make or of making or maintaining Letter of
Credit Advances (excluding, for purposes of this Section 2.10, any such
increased costs resulting from (x) Taxes or Other Taxes (as to which Section 2.12
shall govern) and (y) changes in the basis of taxation of overall net income
or overall gross income by the United States or by the foreign jurisdiction or
state under the laws of which such Lender Party is organized or has its
Applicable Lending Office or any political subdivision thereof), then the
Borrower shall from time to time, upon demand by such Lender Party (with a copy
of such demand to the Paying Agent), pay to the Paying Agent for the account of
such Lender Party additional amounts sufficient to compensate such Lender Party
for such increased cost; provided, however, that a Lender Party claiming
additional amounts under this Section 2.10(a) agrees to use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for, or reduce the amount
of, such increased cost that may thereafter accrue and would not, in the
reasonable judgment of such Lender Party, be otherwise disadvantageous to such
Lender Party.  A notice as to the amount
of such increased cost, submitted to the Borrower by such Lender Party, shall
be conclusive and binding for all purposes, absent manifest error.


 


(b)           If, due to either (i) the
introduction of or any change in or in the interpretation of any law or regulation
or (ii) the compliance with any guideline or request from any central bank
or other governmental authority (whether or not having the force of law), there
shall be any increase in the amount of capital required or expected to be
maintained by any Lender Party or any corporation controlling such Lender Party
as a result of or based upon the existence of such Lender Party’s commitment to
lend or to issue or participate in Letters of Credit hereunder and other
commitments of such type or the issuance or maintenance of or participation in
the Letters of Credit (or similar contingent obligations), then, upon demand by
such Lender Party or such corporation (with a copy of such demand to the Paying
Agent), the Borrower shall pay to the Paying Agent for the account of such
Lender Party, from time to time as specified by such Lender Party, additional
amounts sufficient to compensate such Lender Party in the light of such
circumstances, to the extent that such Lender Party reasonably determines such
increase in capital to be allocable to the existence of such Lender Party’s
commitment to lend or to issue or participate in Letters of Credit hereunder or
to the issuance or maintenance of or participation in any Letters of
Credit.  A notice as to such amounts
submitted to the Borrower by such Lender Party shall be conclusive and binding
for all purposes, absent manifest error.


 


36

















 


(c)           If, with respect to any Eurodollar
Rate Advances under any Facility, the Required Lenders notify the Paying Agent
that the Eurodollar Rate for any Interest Period for such Advances will not
adequately reflect the cost to such Lenders of making, funding or maintaining
their Eurodollar Rate Advances for such Interest Period, the Paying Agent shall
forthwith so notify the Borrower and the Appropriate Lenders, whereupon (i) each
such Eurodollar Rate Advance under such Facility will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (ii) the obligation of the Appropriate Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended until
the Paying Agent shall notify the Borrower that such Lenders have determined
that the circumstances causing such suspension no longer exist.


 


(d)           Notwithstanding any other provision
of this Agreement, if the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful, or any central
bank or other governmental authority shall assert that it is unlawful, for any
Lender or its Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances hereunder, then, on notice thereof and demand therefor by such
Lender to the Borrower through the Paying Agent, (i) each Eurodollar Rate
Advance under each Facility under which such Lender has a Commitment will
automatically, upon such demand, Convert into a Base Rate Advance and (ii) the
obligation of the Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Paying Agent shall notify
the Borrower that such Lender has determined that the circumstances causing
such suspension no longer exist; provided, however, that, before making any
such demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender.


 


Section 2.11.          Payments and Computations.  (a)  The Borrower shall make each
payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off, not later than 11:00 A.M. (New York City time) on
the day when due in U.S. dollars to the Paying Agent at the Paying Agent’s
Account in same day funds, with payments being received by the Paying Agent
after such time being deemed to have been received on the next succeeding
Business Day.  The Paying Agent will
promptly thereafter cause like funds to be distributed (i) if such payment
by the Borrower is in respect of principal, interest, commitment fees or any
other Obligation then payable hereunder and under the Notes to more than one
Lender Party, to such Lender Parties for the account of their respective
Applicable Lending Offices ratably in accordance with the amounts of such
respective Obligations then payable to such Lender Parties and (ii) if
such payment by the Borrower is in respect of any Obligation then payable
hereunder to one Lender Party, to such Lender Party for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement.  Upon its
acceptance of an Assignment and Assumption and recording of the information
contained therein in the Register pursuant to Section 8.07(d), from and
after the effective date of such Assignment and Assumption, the Paying Agent
shall make all payments hereunder and under the Notes in respect of the
interest assigned thereby to the Lender Party assignee thereunder, and the
parties to such


 


37

















 


Assignment and Assumption
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.


 


(b)           The Borrower hereby authorizes each
Lender Party and each of its Affiliates, if and to the extent payment owed to
such Lender Party is not made when due hereunder or, in the case of a Lender,
under the Note held by such Lender, to charge from time to time, to the fullest
extent permitted by law, against any or all of the Borrower’s accounts with
such Lender Party or such Affiliate any amount so due.


 


(c)           All computations of interest based on
the Prime Rate shall be made by the Paying Agent on the basis of a year of 365
or 366 days, as the case may be, and all computations of interest based on the
Eurodollar Rate or the Federal Funds Rate and of fees and Letter of Credit
commissions shall be made by the Paying Agent on the basis of a year of 360
days, in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest, fees
or commissions are payable.  Each
determination by the Paying Agent of an interest rate, fee or commission
hereunder shall be conclusive and binding for all purposes, absent manifest
error.


 


(d)           Whenever any payment hereunder or
under the Notes shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment
of interest or commitment fee, as the case may be; provided, however, that, if
such extension would cause payment of interest on or principal of Eurodollar
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.


 


(e)           Unless the Paying Agent shall have
received notice from the Borrower prior to the date on which any payment is due
to any Lender Party hereunder that the Borrower will not make such payment in
full, the Paying Agent may assume that the Borrower has made such payment in
full to the Paying Agent on such date and the Paying Agent may, in reliance
upon such assumption, cause to be distributed to each such Lender Party on such
due date an amount equal to the amount then due such Lender Party.  If and to the extent the Borrower shall not
have so made such payment in full to the Paying Agent, each such Lender Party
shall repay to the Paying Agent forthwith on demand such amount distributed to
such Lender Party together with interest thereon, for each day from the date
such amount is distributed to such Lender Party until the date such Lender
Party repays such amount to the Paying Agent, at the Base Rate.


 


(f)            If the Paying Agent
receives funds for application to the Obligations under the Loan Documents
under circumstances for which the Loan Documents do not specify the Advances or
the Facility to which, or the manner in which, such funds are to be applied,
the Paying Agent may, but shall not be obligated to, elect to distribute such
funds to each Lender Party ratably in accordance with such Lender Party’s
proportionate share of the principal amount of all outstanding Advances and the
Available Amount of all Letters of Credit then outstanding, in repayment or
prepayment of such of the outstanding Advances or other Obligations owed to
such Lender Party, and for application to such principal installments, as the
Paying Agent shall direct.


 


38
















 


Section 2.12.          Taxes.  (a)  Any and all payments by the
Borrower to or for the account of any Lender Party or any Agent hereunder or
under any Notes shall be made free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender Party and each Agent, taxes that are imposed on its overall net
income by the United States and taxes that are imposed on its overall net
income (and franchise taxes imposed in lieu thereof) by the state or foreign
jurisdiction under the laws of which such Lender Party or such Agent, as the
case may be, is organized or any political subdivision thereof and, in the case
of each Lender Party, taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction
of such Lender Party’s Applicable Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under the
Notes being hereinafter referred to as “Taxes”). 
If the Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Note to any Lender Party or
any Agent, (i) the sum payable by the Borrower shall be increased as may
be necessary so that after the Borrower and the Paying Agent have made all
required deductions (including deductions applicable to additional sums payable
under this Section 2.12) such Lender Party or such Agent, as the case may
be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make all such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.


 


(b)           In addition, the Borrower shall pay
any present or future stamp, documentary, excise, property or similar taxes, charges
or levies that arise from any payment made hereunder or under any Notes or from
the execution, delivery or registration of, performance under, or otherwise
with respect to, this Agreement, any Notes or any other Loan Documents or the
transfer of any Notes (hereinafter referred to as “Other
Taxes”).


 


(c)           The Borrower shall indemnify each
Lender Party and each Agent for and hold them harmless against the full amount
of Taxes and Other Taxes, and for the full amount of taxes of any kind imposed
or assessed by any jurisdiction on amounts payable under this Section 2.12,
imposed on or paid by such Lender Party or such Agent (as the case may be) and
any liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto. 
This indemnification shall be made within 30 days from the date such
Lender Party or such Agent (as the case may be) makes written demand therefor.


 


(d)           Within 30 days after the date of any
payment of Taxes, the Borrower shall furnish to the Paying Agent, at its
address referred to in Section 8.02, the original or a certified copy of a
receipt evidencing such payment, to the extent such a receipt is issued
therefor, or other written proof of payment thereof that is reasonably
satisfactory to the Paying Agent.  In the
case of any payment hereunder or under the Notes by or on behalf of the
Borrower through an account or branch outside the United States or by or on
behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Paying Agent, at
such address, an opinion of counsel acceptable to the Paying Agent stating that
such payment is exempt from Taxes.  For
purposes of subsections (d) and (e) of this Section 2.12,
the terms


 


39

















 


“United
States” and “United
States person”
shall have the meanings specified in Section 7701 of the Internal Revenue
Code.


 


(e)           Each Lender Party organized under the
laws of a jurisdiction outside the United States shall, on or prior to the date
of its execution and delivery of this Agreement in the case of each Initial
Lender Party and on the date of the Assignment and Acceptance pursuant to which
it becomes a Lender Party in the case of each other Lender Party, and from time
to time thereafter as reasonably requested in writing by the Borrower (but only
so long thereafter as such Lender Party remains lawfully able to do so),
provide each of the Paying Agent and the Borrower with two original Internal
Revenue Service Forms W-8ECI (or successor forms), as appropriate, or in the
case of a Lender Party that is claiming a reduced rate of United States
withholding tax because of a tax treaty or that has certified in writing to the
Paying Agent that it is not (i) a “bank” as defined in Section 881(c)(3)(A) of
the Internal Revenue Code, (ii) a 10-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of the
Borrower or (iii) a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Internal Revenue
Code), Internal Revenue Service Form W-8BEN or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender Party
is exempt from or entitled to a reduced rate of United States withholding tax
on payments pursuant to this Agreement or any Notes or, in the case of a Lender
Party that has certified that it is not a “bank” as described above, certifying
that such Lender Party is a foreign corporation, partnership, estate or
trust.  If the forms provided by a Lender
Party at the time such Lender Party first becomes a party to this Agreement
indicate a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender Party provides the appropriate forms certifying that a lesser
rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such forms; provided,
however, that if, at the effective date of the Assignment and Assumption
pursuant to which a Lender Party becomes a party to this Agreement, the Lender
Party assignor was entitled to payments under subsection (a) of this Section 2.12
in respect of United States withholding tax with respect to interest paid at
such date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender Party assignee on such date.  If any form or document referred to in this
subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required on
the date hereof by Internal Revenue Service Forms W-8BEN or W-8ECI or the
related certificate described above, that the applicable Lender Party reasonably
considers to be confidential, such Lender Party shall give notice thereof to
the Borrower and shall not be obligated to include in such form or document
such confidential information.


 


(f)            For any period with respect to which
a Lender Party has failed to provide the Borrower with the appropriate form,
certificate or other document described in subsection (e) above
(other than if such failure is due to a change in law, or in the interpretation
or application thereof, occurring after the date on which a form, certificate
or other document originally was required to be provided or if such form,
certificate or other document otherwise is not required under subsection (e) above),
such Lender Party shall not be entitled to indemnification under subsection (a) or
(c) of this Section 2.12 with respect to Taxes imposed by the United
States by reason of such failure; provided, however, that should a Lender Party
become subject to Taxes


 


40

















 


because of its failure to
deliver a form, certificate or other document required hereunder, the Borrower
shall take such steps as such Lender Party shall reasonably request to assist
such Lender Party to recover such Taxes.


 


(g)           Any Lender Party claiming any
additional amounts payable pursuant to this Section 2.12 agrees to use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Applicable Lending
Office if the making of such a change would avoid the need for, or reduce the
amount of, any such additional amounts that may thereafter accrue and would
not, in the reasonable judgment of such Lender Party, be otherwise
disadvantageous to such Lender Party. 
Nothing in this Section 2.12 or otherwise in this Agreement shall
require any Lender Party to disclose to the Borrower any of its tax returns (or
any other information that it deems to be confidential or proprietary).


 


(h)           Without prejudice to the survival of
any other agreement contained herein, the agreements and obligations contained
in this Section 2.12 shall survive the payment in full of the principal of
and interest on all Notes and Advances made hereunder.


 


Section 2.13.          Sharing of Payments, Etc.  If any Lender Party shall obtain at any time
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise, other than as a result of an assignment pursuant to Section 8.07)
(a) on account of Obligations due and payable to such Lender Party
hereunder and under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations due and
payable to such Lender Party at such time to (ii) the aggregate amount of
the Obligations due and payable to all Lender Parties hereunder and under the
Notes at such time) of payments on account of the Obligations due and payable
to all Lender Parties hereunder and under the Notes at such time obtained by
all the Lender Parties at such time or (b) on account of Obligations owing
(but not due and payable) to such Lender Party hereunder and under the Notes at
such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations owing to such Lender Party at such time to (ii) the
aggregate amount of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time) of payments on
account of the Obligations owing (but not due and payable) to all Lender
Parties hereunder and under the Notes at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from
the other Lender Parties such interests or participating interests in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that if all or any portion of
such excess payment is thereafter recovered from such purchasing Lender Party,
such purchase from each other Lender Party shall be rescinded and such other
Lender Party shall repay to the purchasing Lender Party the purchase price to
the extent of such Lender Party’s ratable share (according to the proportion of
(i) the purchase price paid to such Lender Party to (ii) the
aggregate purchase price paid to all Lender Parties) of such recovery together
with an amount equal to such Lender Party’s ratable share (according to the
proportion of (i) the amount of such other Lender Party’s required
repayment to (ii) the total amount so recovered from the purchasing Lender
Party) of any interest or other amount paid or payable by the purchasing Lender
Party in respect of the total amount so recovered; provided further that, so
long as the Obligations under the Loan Documents shall not have been
accelerated, any excess payment received by any Appropriate Lender shall be
shared on a pro rata basis only with other Appropriate Lenders.  The Borrower


 


41

















 


agrees that any Lender
Party so purchasing an interest or participating interest from another Lender
Party pursuant to this Section 2.13 may, to the fullest extent permitted
by law, exercise all its rights of payment (including the right of set-off)
with respect to such interest or participating interest, as the case may be, as
fully as if such Lender Party were the direct creditor of the Borrower in the
amount of such interest or participating interest, as the case may be.


 


Section 2.14.          Use of Proceeds.  The proceeds of the Advances and issuances of
Letters of Credit shall be available (and the Borrower agrees that it shall use
such proceeds and Letters of Credit), (a) for the Refinancing and to pay
transaction fees and expenses incurred in connection therewith and (b) to
provide working capital for the Loan Parties and for other general corporate
purposes, including, without limitation, for purposes of making capital
expenditures, share repurchases permitted under Section 5.02(g) and
acquisitions and other Investments permitted under Section 5.02(f).


 


Section 2.15.          Defaulting Lenders.  (a)  In the event that, at any one time,
(i) any Lender Party shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Amount to any Agent or any of the other
Lender Parties and (iii) the Borrower shall make any payment hereunder or
under any other Loan Document to the Paying Agent for the account of such
Defaulting Lender, then the Paying Agent may, on its behalf or on behalf of
such other Agents or such other Lender Parties and to the fullest extent
permitted by applicable law, apply at such time the amount so paid by the
Borrower to or for the account of such Defaulting Lender to the payment of each
such Defaulted Amount to the extent required to pay such Defaulted Amount.  In the event that the Paying Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Paying Agent shall constitute for all purposes of
this Agreement and the other Loan Documents payment, to such extent, of such
Defaulted Amount on such date.  Any such
amount so applied by the Paying Agent shall be retained by the Paying Agent or
distributed by the Paying Agent to such other Agents or such other Lender
Parties, ratably in accordance with the respective portions of such Defaulted
Amounts payable at such time to the Paying Agent, such other Agents and such
other Lender Parties and, if the amount of such payment made by the Borrower
shall at such time be insufficient to pay all Defaulted Amounts owing at such
time to the Paying Agent, such other Agents and such other Lender Parties, in
the following order of priority:


 


(i)            first, to the Agents for any Defaulted
Amounts then owing to them, in their capacities as such, ratably in accordance
with such respective Defaulted Amounts then owing to the Agents;


 


(ii)           second, to the Issuing Banks and the Swing
Line Bank for any Defaulted Amounts then owing to them, in their capacities as
such, ratably in accordance with such respective Defaulted Amounts then owing to
the Issuing Banks and the Swing Line Bank; and


 


(iii)          third, to any other Lender Parties for any
Defaulted Amounts then owing to such other Lender Parties, ratably in
accordance with such respective Defaulted Amounts then owing to such other
Lender Parties.


 


42

















 


Any portion of such
amount paid by the Borrower for the account of such Defaulting Lender
remaining, after giving effect to the amount applied by the Paying Agent
pursuant to this subsection (a), shall be applied by the Paying Agent as
specified in subsection (b) of this Section 2.15.


 


(b)           In the event that, at any one time, (i) any
Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender
shall not owe a Defaulted Advance or a Defaulted Amount and (iii) the
Borrower, any Agent or any other Lender Party shall be required to pay or
distribute any amount hereunder or under any other Loan Document to or for the
account of such Defaulting Lender, then the Borrower or such Agent or such
other Lender Party shall pay such amount to the Paying Agent to be held by the
Paying Agent, to the fullest extent permitted by applicable law, in escrow or
the Paying Agent shall, to the fullest extent permitted by applicable law, hold
in escrow such amount otherwise held by it. 
Any funds held by the Paying Agent in escrow under this subsection (b) shall
be deposited by the Paying Agent in such account as the Paying Agent shall
designate in writing to the Borrower and the Defaulting Lender, in the name and
under the control of the Paying Agent, but subject to the provisions of this
subsection (b).  The terms
applicable to such account, including the rate of interest payable with respect
to the credit balance of such account from time to time, shall be the Paying Agent’
standard terms applicable to escrow accounts maintained with it.  Any interest credited to such account from
time to time shall be held by the Paying Agent in escrow under, and applied by
the Paying Agent from time to time in accordance with the provisions of, this
subsection (b).  The Paying Agent
shall, to the fullest extent permitted by applicable law, apply all funds so
held in escrow from time to time to the extent necessary to make any Advances
required to be made by such Defaulting Lender and to pay any amount payable by
such Defaulting Lender hereunder and under the other Loan Documents to the
Paying Agent or any other Lender Party, as and when such Advances or amounts
are required to be made or paid and, if the amount so held in escrow shall at
any time be insufficient to make and pay all such Advances and amounts required
to be made or paid at such time, in the following order of priority:


 


(i)            first, to the Agents for any amounts then
due and payable by such Defaulting Lender to them hereunder, in their
capacities as such, ratably in accordance with such respective amounts then due
and payable to the Agents;


 


(ii)           second, to the Issuing Banks and the Swing
Line Bank for any amounts then due and payable to them hereunder, in their
capacities as such, by such Defaulting Lender, ratably in accordance with such
respective amounts then due and payable to the Issuing Banks and the Swing Line
Bank;


 


(iii)          third, to any other Lender Parties for any
amount then due and payable by such Defaulting Lender to such other Lender
Parties hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lender Parties; and


 


(iv)          fourth, to the Borrower for any Advance
then required to be made by such Defaulting Lender pursuant to a Commitment of
such Defaulting Lender.


 


In the event that any
Lender Party that is a Defaulting Lender shall, at any time, cease to be a
Defaulting Lender, any funds held by the Paying Agent in escrow at such time
with respect to


 


43

















 


such Lender Party shall
be distributed by the Paying Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.


 


(c)           The rights and remedies against a
Defaulting Lender under this Section 2.15 are in addition to other rights
and remedies that the Borrower may have against such Defaulting Lender with
respect to any Defaulted Advance and that any Agent or any Lender Party may
have against such Defaulting Lender with respect to any Defaulted Amount.


 


Section 2.16.          Evidence of Debt.  (a)  Each Lender Party shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing
to such Lender Party from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.  The Borrower agrees that upon notice by any
Lender Party to the Borrower (with a copy of such notice to the Paying Agent)
to the effect that a promissory note or other evidence of indebtedness is
required or appropriate in order for such Lender Party to evidence (whether for
purposes of pledge, enforcement or otherwise) the Advances owing to, or to be
made by, such Lender Party, the Borrower shall promptly execute and deliver to
such Lender Party, with a copy to the Paying Agent, a Note substantially the
form of Exhibit A hereto, respectively, payable to the order of such
Lender Party in a principal amount equal to the Revolving Credit Commitment of
such Lender Party.  All references to
Notes in the Loan Documents shall mean Notes, if any, to the extent issued
hereunder.


 


(b)           The Register maintained by the Paying
Agent pursuant to Section 8.07(d) shall include an account for each
Lender Party, in which account shall be recorded (i) the date and amount
of each Borrowing made hereunder, the Type of Advances comprising such
Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the
terms of each Assignment and Assumption delivered to and accepted by it, (iii) the
amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender Party hereunder, and (iv) the
amount of any sum received by the Paying Agent from the Borrower hereunder and
each Lender Party’s share thereof.


 


(c)           Entries made in good faith by the Paying
Agent in the Register pursuant to subsection (b) above, and by each
Lender Party in its account or accounts pursuant to subsection (a) above,
shall be prima facie evidence of the amount of principal and interest due and
payable or to become due and payable from the Borrower to, in the case of the
Register, each Lender Party and, in the case of such account or accounts, such
Lender Party, under this Agreement, absent manifest error; provided, however, that the failure of the
Paying Agent or such Lender Party to make an entry, or any finding that an
entry is incorrect, in the Register or such account or accounts shall not limit
or otherwise affect the obligations of the Borrower under this Agreement.


 


Section 2.17.          Increase in Revolving Credit
Facility.  (a)  Request for
Increase.  Provided (i) there
exists no Default, (ii) after giving effect thereto, the Borrower shall be
in pro forma compliance with
the covenants contained in Section 5.04, (iii) the aggregate of (A) 85%
of the book value of accounts receivables that constitute Collateral and (B) 65%
of the book


 


44

















 


value of inventory that
constitutes Collateral exceeds the sum of (A) aggregate principal amount
outstanding under the Revolving Credit Facility at such time (including
outstanding Letters of Credit and Swing Line Advances) plus (B) the
aggregate amount of obligations outstanding under Secured Cash Management
Agreements at such time plus (C) the aggregate Agreement Value of
all Secured Hedge Agreements at such time and (iv) the incurrence of such
Indebtedness and the Liens securing such Indebtedness shall be permitted under
the Related Documents, upon written notice to the Paying Agent, the Borrower
may, from time to time, request an increase in the Revolving Credit Facility by
an amount (for all such requests) not to exceed $350,000,000; provided that any such request for an
increase shall be in a minimum amount of $50,000,000.  If the Borrower elects to request that
existing Revolving Credit Lenders participate in such increase, then at the
time of sending such notice, the Borrower shall request that the Paying Agent
promptly notify the existing Revolving Credit Lenders of such request and (in
consultation with the Paying Agent) shall specify the time period within which
each Revolving Credit Lender is requested to respond (which shall in no event
be less than ten Business Days from the date of delivery of such notice to the
Revolving Credit Lenders).


 


(b)           Lender Elections to Increase.  If requested by the Borrower to provide an
increase, each Revolving Credit Lender shall notify the Paying Agent within
such time period as set forth in the notice referred to in clause (a) whether
or not it agrees to increase its Revolving Credit Commitment and, if so,
whether by an amount equal to, greater than, or less than its Pro Rata Share of
such requested increase.  Any Revolving
Credit Lender not responding within such time period shall be deemed to have
declined to increase its Revolving Credit Commitment.  The Paying Agent shall notify the Borrower
and each Revolving Credit Lender of the Revolving Credit Lenders’ responses to
each request made hereunder.


 


(c)           Additional Revolving Credit
Lenders.  Subject to the approval of
the Administrative Agents, the Joint Lead Arrangers, the Issuing Bank and the
Swing Line Lender (which approvals shall not be unreasonably withheld), the
Borrower may, in lieu of or in addition to requesting that the Revolving Credit
Lenders provide such increase, invite additional Eligible Assignees to become
Revolving Credit Lenders pursuant to a joinder agreement in form and substance
satisfactory to the Joint Lead Arrangers and their counsel.


 


(d)           Effective Date and Allocations.  If the Revolving Credit Facility is increased
in accordance with this Section, the Paying Agent and the Borrower shall
determine the effective date (the “Revolving Credit Increase
Effective Date”)
and the final allocation of such increase. 
The Paying Agent shall promptly notify the Borrower and the Revolving
Credit Lenders (including Eligible Assignees that become Revolving Credit
Lenders in accordance with clause (c) above) of the final allocation of
such increase and the Revolving Credit Increase Effective Date.


 


(e)           Conditions to Effectiveness of
Increase.  As a condition precedent
to such increase, the Borrower shall deliver to the Paying Agent a certificate
of each Loan Party dated as of the Revolving Credit Increase Effective Date (in
sufficient copies for each Lender) signed by a Responsible Officer of such Loan
Party (i) certifying and attaching the resolutions adopted by such Loan
Party approving or consenting to such increase, and (ii) in the case of
the Borrower, certifying that, before and after giving effect to such increase,
(A) the representations and warranties contained in Article IV and
the other Loan Documents are true and correct on and as


 


45

















 


of the Revolving Credit
Increase Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this Section 2.17,
the representations and warranties contained in subsections (g) and (h) of
Section 4.01 shall be deemed to refer to the most recent statements
furnished pursuant to subsections (b) and (c), respectively, of Section 5.03,
(B) no Default exists, (C) the aggregate of (x) 85% of the book
value of accounts receivables that constitute Collateral and (y) 65% of
the book value of inventory that constitutes Collateral exceeds the sum of (x) aggregate
principal amount outstanding under the Revolving Credit Facility at such time
(including outstanding Letters of Credit and Swing Line Advances) plus (y) the
aggregate amount of obligations outstanding under Secured Cash Management
Agreements plus (z) the aggregate Agreement Value of all Secured
Hedge Agreements at such time and (D) the Borrower is in pro forma compliance with the covenants in
Section 5.04.  The Borrower shall
prepay any Revolving Credit Loans outstanding on the Revolving Credit Increase
Effective Date (and pay any additional amounts required pursuant to Section 8.04(c))
to the extent necessary to keep the outstanding Revolving Credit Loans ratable
with any revised Pro Rata Shares arising from any nonratable increase in the
Revolving Credit Commitments under this Section.


 


(f)            Conflicting Provisions.  This Section shall supersede any
provisions in Sections 2.13 or 8.01 to the contrary.


 


ARTICLE III


 


CONDITIONS OF EFFECTIVENESS, LENDING AND


ISSUANCES OF LETTERS OF CREDIT


 


Section 3.01.          Conditions Precedent to Initial
Extension of Credit.  The
effectiveness of this Amended and Restated Credit Agreement, and the obligation
of each Lender to make an Advance or of any Issuing Bank to issue a Letter of
Credit on the occasion of the Initial Extension of Credit hereunder is subject
to the satisfaction of the following conditions precedent before or
concurrently with such effectiveness or Initial Extension of Credit:


 


(a)           The Administrative Agents shall have
received on or before the day of the Initial Extension of Credit the following,
each dated such day (unless otherwise specified), in form and substance
satisfactory to the Joint Lead Arrangers and the Administrative Agents (unless
otherwise specified) and (except for the Notes) in sufficient copies for each
Lender Party:


 


(i)            The
Notes payable to the order of the Lenders to the extent requested pursuant to Section 2.16.


 


(ii)           A
security agreement in substantially the form of Exhibit D hereto (together
with each other security agreement and security agreement supplement delivered
pursuant to Section 5.01(j), in each case as amended, supplemented or
otherwise modified from time to time, the “Security Agreement”), duly executed by each Loan Party,
together with:


 


46

















 


(A)    certificates
representing the Pledged Shares referred to therein accompanied by undated
stock powers executed in blank and instruments evidencing the Pledged Debt
indorsed in blank,


 


(B)    acknowledgment
copies of proper financing statements, duly filed on or before the day of the
Initial Extension of Credit under the Uniform Commercial Code of all
jurisdictions that the Joint Lead Arrangers may deem necessary or desirable in
order to perfect and protect the first priority liens and security interests
created under the Security Agreement, covering the Collateral described in the
Security Agreement,


 


(C)    completed
requests for information, dated on or before the date of the Initial Extension
of Credit, listing the financing statements referred to in clause (B) above
and all other effective financing statements filed in all jurisdictions that
the Joint Lead Arrangers may deem necessary or desirable that name any Loan
Party as debtor, together with copies of such other financing statements,


 


(D)    evidence
of the completion of all other recordings and filings of or with respect to the
Security Agreement that the Joint Lead Arrangers may deem necessary or desirable
in order to perfect and protect the Liens created thereby,


 


(E)     evidence
of the insurance required by the terms of the Security Agreement naming the
Collateral Agent, on behalf of the Lender Parties, as additional insured and
loss payee with such responsible and reputable insurance companies or
associations, and in such amounts and covering such risks, as is satisfactory
to the Administrative Agents and the Joint Lead Arrangers, and


 


(F)     evidence
that all other action that the Joint Lead Arrangers may deem necessary or
desirable in order to perfect and protect the first priority liens and security
interests created under the Security Agreement has been taken (including,
without limitation, receipt of duly executed payoff letters, UCC-3 termination
statements and landlords’ and bailees’ waiver and consent agreements).


 


(iii)          A
guaranty in substantially the form of Exhibit E hereto (together with each
other guaranty and guaranty supplement delivered pursuant to Section 5.01(j),
in each case as amended, supplemented or otherwise modified from time to time,
the “Subsidiary Guaranty”), duly executed by each Subsidiary Guarantor.


 


(iv)          Certified
copies of the resolutions of the board of directors or of the members or
managers of each Loan Party approving the Transaction and each Transaction
Document to which it is or is to be a party, and of all documents evidencing
other necessary corporate action and governmental and other third party
approvals and consents, if any, with respect to the Transaction and each Transaction
Document to which it is or is to be a party.


 


(v)           A
copy of a certificate of the Secretary of State of the jurisdiction of
incorporation or organization of each Loan Party, dated reasonably near the
date of the


 


47

















 


Initial Extension of Credit, certifying (A) as to a true and
correct copy of the charter, articles of incorporation or articles of
organization, as the case may be (“Organizational Documents”) of such Loan Party and each amendment
thereto on file in such Secretary’s office and (B) that (1) such
amendments are the only amendments to such Loan Party’s Organizational
Documents on file in such Secretary’s office, (2) if applicable, such Loan
Party has paid all franchise taxes to the date of such certificate and (C) such
Loan Party is duly incorporated or organized and in good standing or presently
subsisting under the laws of the State of the jurisdiction of its incorporation
or organization.


 


(vi)          A
copy of a certificate of the Secretary of State of each jurisdiction reasonably
requested by the Joint Lead Arrangers, dated reasonably near the date of the
Initial Extension of Credit, stating that a Loan Party is duly qualified and in
good standing as a foreign entity in such State and has filed all annual
reports required to be filed to the date of such certificate.


 


(vii)         A
certificate of each Loan Party, signed on behalf of such Loan Party by a
Responsible Officer, dated the date of the Initial Extension of Credit (the
statements made in which certificate shall be true on and as of the date of the
Initial Extension of Credit), certifying as to (A) the absence of any
amendments to the Organizational Documents of such Loan Party since the date of
the Secretary of State’s certificate referred to in Section 3.01(a)(v), (B) a
true and correct copy of the bylaws or operating agreement, as applicable, of
such Loan Party as in effect on the date on which the resolutions referred to
in Section 3.01(a)(iv) were adopted and on the date of the Initial
Extension of Credit, (C) the due incorporation/organization and good
standing or valid existence of such Loan Party as a corporation or limited
liability company organized under the laws of the jurisdiction of its
incorporation or organization, and the absence of any proceeding for the
dissolution or liquidation of such Loan Party, (D) the truth of the
representations and warranties contained in the Loan Documents as though made
on and as of the date of the Initial Extension of Credit and (E) the
absence of any event occurring and continuing, or resulting from the Initial
Extension of Credit, that constitutes a Default.


 


(viii)        A
certificate of a Responsible Officer of each Loan Party certifying the names
and true signatures of the officers of such Loan Party authorized to sign each
Transaction Document to which it is or is to be a party and the other documents
to be delivered hereunder and thereunder.


 


(ix)           Certified
copies of each of the Related Documents, duly executed by the parties thereto
and in form and substance satisfactory to the Lender Parties, together with all
agreements, instruments and other documents delivered in connection therewith
as the Administrative Agents or the Joint Lead Arrangers shall request.


 


(x)            Certificates,
in substantially the form of Exhibit F, attesting to the Solvency of each
Loan Party individually and together with its Subsidiaries, taken as a whole,
before and after giving effect to the Transaction, from its Chief Financial
Officer, if any, or other Responsible Officer if none.


 


48

















 


(xi)           Audited
annual financial statements dated December 31, 2006, interim financial
statements dated the end of the most recent fiscal quarter for which financial
statements are available, pro forma consolidated financial statements as to the
Borrower and its Subsidiaries and forecasts prepared by management of the
Borrower, in form and substance satisfactory to the Administrative Agents and
the Joint Lead Arrangers, of balance sheets, income statements and cash flow
statements on an annual basis for each year following the Effective Date until
the Termination Date.


 


(xii)          A
Notice of Borrowing or Notice of Issuance, as applicable, relating to the
Initial Extension of Credit.


 


(xiii)         Favorable
opinions of Barrett & McNagny, LLP and Greenberg Traurig LLP counsel
for the Loan Parties, in substantially the forms of respectively
Exhibits G-1 and G-2 hereto and as to such other matters as the
Administrative Agents or the Joint Lead Arrangers may reasonably request.


 


(xiv)        Evidence
satisfactory to the Administrative Agents and the Joint Lead Arrangers that CT
Corporation System shall have been appointed as Process Agent under Section 8.12
hereof.


 


(b)           The Administrative Agents and the
Joint Lead Arrangers shall be satisfied with the corporate and legal structure
and capitalization of each Loan Party and each of its Subsidiaries the Equity
Interests in which Subsidiaries are being pledged pursuant to the Loan
Documents, including the terms and conditions of the charter, bylaws and each
class of Equity Interest in each Loan Party and each such Subsidiary and of
each agreement or instrument relating to such structure or capitalization.


 


(c)           All Equity Interests of the
Guarantors shall be owned by the Borrower or one or more of the Borrower’s
Subsidiaries, in each case free and clear of any Lien other than Liens created
under the Loan Documents.


 


(d)           The Administrative Agents and the
Joint Lead Arrangers shall be satisfied that all Existing Debt, other than
Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise
satisfied and extinguished and that all Surviving Debt shall be on terms and
conditions satisfactory to the Administrative Agents and the Joint Lead
Arrangers.


 


(e)           Before giving effect to the Transaction,
there shall have occurred no Material Adverse Change since December 31,
2006.


 


(f)            There shall exist no action, suit,
investigation, litigation or proceeding affecting any Loan Party or any of its
Subsidiaries pending or threatened before any court, governmental agency or
arbitrator that (i) could reasonably be expected to have a Material
Adverse Effect other than the matters described on Schedule 4.01(f) hereto
(the “Disclosed Litigation”) or (ii) purports to affect the legality,
validity or enforceability of any Transaction Document or the consummation of
the Transaction, and there shall have been no adverse change in the status, or
financial effect on, any Loan Party or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 4.01(f) hereto.


 


49

















 


(g)           All governmental and third party
consents and approvals necessary in connection with the Transaction shall have
been obtained (without the imposition of any conditions that are not acceptable
to the Joint Lead Arrangers and the Administrative Agents) and shall remain in
effect; and no law or regulation shall be applicable in the judgment of the
Joint Lead Arrangers and the Administrative Agents, in each case that
restrains, prevents or imposes materially adverse conditions upon the
Transaction.


 


(h)           The Borrower shall have paid all
accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and
all accrued expenses of the Joint Lead Arrangers (including the accrued fees
and expenses of counsel to the Joint Lead Arrangers and local counsel to the
Lender Parties).


 


(i)            The Refinancing shall have been
consummated or shall be consummated or concurrently consummated with the
Initial Extension of Credit, all advances and other amounts owing under the
Existing Credit Agreement shall have been repaid in full, the commitments
thereunder shall have terminated and the letters of credit issued thereunder
shall have been canceled or the reimbursement of draws thereunder provided for
in a manner acceptable to the Paying Agent (it being understood that treating
such letters of credit as Existing Letters of Credit hereunder is acceptable to
the Paying Agent), and all Liens and guaranties supporting any Debt under the
Existing Credit Agreement shall have been fully released and terminated.


 


Section 3.02.          Conditions Precedent to Each
Borrowing and Issuance and Renewal. 
The obligation of each Appropriate Lender to make an Advance (other than
a Letter of Credit Advance made by an Issuing Bank or a Revolving Credit Lender
pursuant to Section 2.03(c) and a Swing Line Advance made by a
Revolving Credit Lender pursuant to Section 2.02(b)) on the occasion of
each Borrowing (including the initial Borrowing), and the obligation of an
Issuing Bank to issue a Letter of Credit (including the initial issuance) or
renew a Letter of Credit and the right of the Borrower to request a Swing Line
Borrowing, shall be subject to the further conditions precedent that on the
date of such Borrowing or issuance or renewal (a) the following statements
shall be true (and each of the giving of the applicable Notice of Borrowing,
Notice of Swing Line Borrowing, Notice of Issuance or Notice of Renewal and the
acceptance by the Borrower of the proceeds of such Borrowing or of such Letter
of Credit or the renewal of such Letter of Credit shall constitute a
representation and warranty by the Borrower that both on the date of such
notice and on the date of such Borrowing or issuance or renewal such statements
are true):


 


(i)            the
representations and warranties contained in each Loan Document are true and
correct in all material respects on and as of such date, before and after
giving effect to such Borrowing or issuance or renewal and to the application
of the proceeds therefrom, as though made on and as of such date, other than
any such representations or warranties that, by their terms, refer to a
specific date other than the date of such Borrowing or issuance or renewal, in
which case as of such specific date; and


 


(ii)           no
Default has occurred and is continuing, or would result from such Borrowing or
issuance or renewal or from the application of the proceeds therefrom; and


 


50

















 


(iii)          in
the event that at the time of such Borrowing (x) any assets of a type that
would constitute Collateral have been pledged by any Subsidiary to any Person
financing a transaction permitted under Section 5.02(f)(vii) or (y) the
Borrower has otherwise elected not to cause a newly-formed or newly-acquired
Subsidiary to pledge its assets to the Collateral Agent as would otherwise be
required under Section 5.01(j), then, after giving effect to such
Borrowing or issuance or renewal, the aggregate of (A) 85% of the book
value of accounts receivables that constitute Collateral and (B) 65% of
the book value of inventory that constitutes Collateral will not be less than
the sum of (A) aggregate principal amount outstanding under the Revolving
Credit Facility at such time (including outstanding Letters of Credit and Swing
Line Advances) plus (B) the aggregate amount of obligations
outstanding under Secured Cash Management Agreements at such time plus (C) the
aggregate Agreement Value of all Secured Hedge Agreements at such time;


 


and (b) the
Administrative Agents shall have received such other approvals, opinions or
documents as the Administrative Agents or the Joint Lead Arrangers may
reasonably request.


 


Section 3.03.          Determinations Under Section 3.01.  For purposes of determining compliance with
the conditions specified in Section 3.01, each Lender Party 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 the Lender Parties unless an officer of the
Paying Agent responsible for the transactions contemplated by the Loan
Documents shall have received notice from such Lender Party prior to the
Initial Extension of Credit specifying its objection thereto and, if the Initial
Extension of Credit consists of a Borrowing, such Lender Party shall not have
made available to the Paying Agent such Lender Party’s ratable portion of such
Borrowing.


 


ARTICLE IV


 


REPRESENTATIONS AND WARRANTIES


 


Section 4.01.          Representations and Warranties of
the Borrower.  The Borrower
represents and warrants as follows:


 


(a)           Each
Loan Party and each of its Subsidiaries (i) is a corporation or a limited
liability company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its formation, (ii) is duly qualified and
in good standing as a foreign corporation or limited liability company in each
other jurisdiction in which it owns or leases property or in which the conduct
of its business requires it to so qualify or be licensed except where the
failure to so qualify or be licensed would not be reasonably likely to have a
Material Adverse Effect and (iii) has all requisite entity power and
authority (including, without limitation, all governmental licenses, permits and
other approvals) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.  Set forth on Schedule 4.01(a) hereto
is a complete and accurate list of all Loan Parties, showing as of the date hereof
(as to each Loan Party) the jurisdiction of its formation, the address of its
principal place of business and its U.S. taxpayer identification number or, in
the case of any non-U.S. Loan Party


 


51

















 


that does not have a U.S.
taxpayer identification number, its unique identification number issued to it
by the jurisdiction of its formation. 
The copy of the charter of each Loan Party and each amendment thereto
provided pursuant to Section 3.01(a)(vii) is a true and correct copy
of each such document, each of which is valid and in full force and effect.


 


(b)           Set forth on Schedule 4.01(b) hereto
is a complete and accurate list of all Subsidiaries of each Loan Party, showing
as of the date hereof (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of its Equity Interests
authorized, and the number outstanding, on the date hereof and the percentage
of each such class of its Equity Interests owned (directly or indirectly) by
such Loan Party and the number of shares covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at the date
hereof.  All of the outstanding Equity
Interests in each Loan Party’s Subsidiaries has been validly issued, are fully
paid and non-assessable and are owned by such Loan Party or one or more of its
Subsidiaries free and clear of all Liens, except those created under the
Collateral Documents.


 


(c)           The execution, delivery and
performance by each Loan Party of each Transaction Document to which it is or
is to be a party, and the consummation of the Transaction, are within such Loan
Party’s corporate powers, have been duly authorized by all necessary corporate
action, and do not (i) contravene such Loan Party’s charter or bylaws, (ii) violate
any law, rule, regulation (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award, (iii) conflict with or result
in the breach of, or constitute a default or require any payment to be made
under, any contract, loan agreement, indenture, mortgage, deed of trust, lease
or other instrument binding on or affecting any Loan Party, any of its
Subsidiaries or any of their properties or (iv) except for the Liens
created under the Loan Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of any
Loan Party or any of its Subsidiaries. 
No Loan Party or any of its Subsidiaries is in violation of any such
law, rule, regulation, order, writ, judgment, injunction, decree, determination
or award or in breach of any such contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument, the violation or breach of
which could be reasonably likely to have a Material Adverse Effect.


 


(d)           No authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body or any other third party is required for (i) the due
execution, delivery, recordation, filing or performance by any Loan Party of
any Transaction Document to which it is or is to be a party, or for the
consummation of the Transaction, (ii) the grant by any Loan Party of the
Liens granted by it pursuant to the Collateral Documents, (iii) the
perfection or maintenance of the Liens created under the Collateral Documents
(including the first priority nature thereof) or (iv) the exercise by any
Agent or any Lender Party of its rights under the Loan Documents or the
remedies in respect of the Collateral pursuant to the Collateral Documents,
except for the authorizations, approvals, actions, notices and filings listed
on Schedule 4.01(d) hereto, all of which have been duly obtained,
taken, given or made and are in full force and effect.  All applicable waiting periods in connection
with the Transaction have expired without any action having been taken by any
competent authority restraining, preventing


 


52

















 


or imposing
materially adverse conditions upon the Transaction or the rights of the Loan
Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to
create any Lien on, any properties now owned or hereafter acquired by any of them.


 


(e)           This Agreement has been, and each
other Transaction Document when delivered hereunder will have been, duly
executed and delivered by each Loan Party party thereto.  This Agreement is, and each other Transaction
Document when delivered hereunder will be, the legal, valid and binding
obligation of each Loan Party party thereto, enforceable against such Loan
Party party in accordance with its terms.


 


(f)            There is no action, suit,
investigation, litigation or proceeding affecting any Loan Party or any of its
Subsidiaries, including any Environmental Action, pending or threatened before
any court, governmental agency or arbitrator that (i) could be reasonably
likely to have a Material Adverse Effect (other than the Disclosed Litigation)
or (ii) purports to affect the legality, validity or enforceability of any
Transaction Document or the consummation of the Transaction, and there has been
no material adverse change in the status, or financial effect on any Loan Party
or any of its Subsidiaries, of the Disclosed Litigation from that described on
Schedule 4.01(f) hereto.


 


(g)           The Consolidated balance sheet of the
Borrower and its Subsidiaries as at December 31, 2006, and the related
Consolidated statement of income and Consolidated statement of cash flows of
the Borrower and its Subsidiaries for the fiscal year then ended, accompanied
by an unqualified opinion of Ernst & Young LLP, independent public
accountants, and the Consolidated balance sheet of the Borrower and its
Subsidiaries as at March 31, 2007, and the related Consolidated statements
of income and Consolidated statement of cash flows of the Borrower and its
Subsidiaries for the three months then ended, duly certified by the Chief
Financial Officer of the Borrower, copies of which have been furnished to each
Lender Party, fairly present, subject, in the case of said balance sheet as at March 31,
2007, and said statements of income and cash flows for the three months then
ended, to year-end audit adjustments, the Consolidated financial condition of
the Borrower and its Subsidiaries as at such dates and the Consolidated results
of operations of the Borrower and its Subsidiaries for the periods ended on
such dates, all in accordance with generally accepted accounting principles
applied on a consistent basis, and since December 31, 2006, there has been
no Material Adverse Change and no event has occurred or condition arisen that
could reasonably be expected to have a Material Adverse Effect.  Each reconciliation for the Borrower on a
stand-alone basis with respect to each of the financial statements referred to
above as at each such date for each such period, duly certified by the Chief
Financial Officer of the Borrower, a copy of which has been furnished to each
Lender Party, fairly present the financial condition and results of operations
of the Borrower on a stand-alone basis as at each such date.


 


(h)           The Consolidated forecasted balance
sheet, statement of income and statement of cash flows of the Borrower and its
Subsidiaries delivered to the Lender Parties pursuant to Section 3.01(a)(xi)
or 5.03 were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were fair in light of the conditions


 


53

















 


existing at the
time of delivery of such forecasts, and represented, at the time of delivery,
the Borrower’s best estimate of its future financial performance.


 


(i)            Neither the Information Memorandum
nor any other information, exhibit or report furnished by or on behalf of
any Loan Party to any Agent or any Lender Party in connection with the
negotiation and syndication of the Loan Documents or pursuant to the terms of
the Loan Documents contained any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements made therein not
misleading.


 


(j)            The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying Margin
Stock, and no proceeds of any Advance or drawings under any Letter of Credit
will be used to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock.


 


(k)           Neither any Loan Party nor any of its
Subsidiaries is an “investment company”, or an “affiliated person” of, or “promoter”
or “principal underwriter” for, an “investment company”, as such terms are
defined in the Investment Company Act of 1940, as amended.  Neither any Loan Party nor any of its
Subsidiaries is a “holding company”, or a “subsidiary company” of a “holding
company”, or an “affiliate” of a “holding company” or of a “subsidiary company”
of a “holding company”, as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.  Neither
the making of any Advances, nor the issuance of any Letters of Credit, nor the
application of the proceeds or repayment thereof by the Borrower, nor the
consummation of the other transactions contemplated by the Transaction
Documents, will violate any provision of any such Act or any rule, regulation
or order of the Securities and Exchange Commission thereunder.


 


(l)            Neither any Loan Party nor any of
its Subsidiaries is a party to any indenture, loan or credit agreement or any
lease or other agreement or instrument or subject to any charter or corporate
restriction that could be reasonably likely to have a Material Adverse Effect.


 


(m)          All filings and other actions
necessary or desirable to perfect and protect the security interest in the
Collateral created under the Collateral Documents have been duly made or taken
and are in full force and effect, and the Collateral Documents create in favor
of the Collateral Agent for the benefit of the Secured Parties a valid and,
together with such filings and other actions, perfected first priority security
interest in the Collateral, securing the payment of the Secured Obligations,
and all filings and other actions necessary or desirable to perfect and protect
such security interest have been duly taken. 
The Loan Parties are the legal and beneficial owners of the Collateral free
and clear of any Lien, except for the liens and security interests created or
permitted under the Loan Documents.


 


(n)           Each Loan Party is, individually and
together with its Subsidiaries, Solvent.


 


54

















 


(o)           Set forth on Schedule 4.01(o) hereto
is a complete and accurate list of all Plans, Multiemployer Plans and Welfare
Plans.


 


(i)            No
ERISA Event has occurred or is reasonably expected to occur with respect to any
Plan that has resulted in or is reasonably expected to result in a material
liability of any Loan Party or any ERISA Affiliate.


 


(ii)           Schedule B
(Actuarial Information) to the most recent annual report (Form 5500
Series) for each Plan, copies of which have been filed with the Internal
Revenue Service and furnished to the Lender Parties, is complete and accurate
and fairly presents the funding status of such Plan, and since the date of such
Schedule B there has been no material adverse change in such funding
status.


 


(iii)          Neither
any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected
to incur any Withdrawal Liability to any Multiemployer Plan.


 


(iv)          Neither
any Loan Party nor any ERISA Affiliate has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has
been terminated, within the meaning of Title IV of ERISA, and no such
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA.


 


(p)           Except as otherwise set forth on Part I
of Schedule 4.01(p) hereto, the operations and properties of each
Loan Party and each of its Subsidiaries comply in all material respects with
all applicable Environmental Laws and Environmental Permits, all past
non-compliance with such Environmental Laws and Environmental Permits has been
resolved without ongoing obligations or costs, and no circumstances exist that
could be reasonably likely to (A) form the basis of an Environmental
Action against any Loan Party or any of its Subsidiaries or any of their
properties that could have a Material Adverse Effect or (B) cause any such
property to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law.


 


(i)            Except
as otherwise set forth on Part II of Schedule 4.01(p) hereto,
none of the properties currently or formerly owned or operated by any Loan
Party or any of its Subsidiaries is listed or proposed for listing on the NPL
or on the CERCLIS or any analogous foreign, state or local list or is adjacent
to any such property; there are no and never have been any underground or
aboveground storage tanks or any surface impoundments, septic tanks, pits,
sumps or lagoons in which Hazardous Materials are being or have been treated,
stored or disposed on any property currently owned or operated by any Loan
Party or any of its Subsidiaries or, to the best of its knowledge, on any
property formerly owned or operated by any Loan Party or any of its
Subsidiaries; there is no asbestos or asbestos-containing material on any
property currently owned or operated by any Loan Party or any of its
Subsidiaries; and Hazardous Materials have not been released, discharged or
disposed of on any property currently or formerly owned or operated by any Loan
Party or any of its Subsidiaries.


 


55

















 


(ii)           Except
as otherwise set forth on Part III of Schedule 4.01(p) hereto,
neither any Loan Party nor any of its Subsidiaries is undertaking, and has not
completed, either individually or together with other potentially responsible
parties, any investigation or assessment or remedial or response action
relating to any actual or threatened release, discharge or disposal of
Hazardous Materials at any site, location or operation, either voluntarily or
pursuant to the order of any governmental or regulatory authority or the
requirements of any Environmental Law; and all Hazardous Materials generated,
used, treated, handled or stored at, or transported to or from, any property
currently or formerly owned or operated by any Loan Party or any of its
Subsidiaries have been disposed of in a manner not reasonably expected to
result in material liability to any Loan Party or any of its Subsidiaries.


 


(q)           Neither any Loan Party nor any of its
Subsidiaries is party to any tax sharing agreement.


 


(i)            Each
Loan Party and each of its Subsidiaries and Affiliates has filed, has caused to
be filed or has been included in all tax returns (Federal, state, local and
foreign) required to be filed and has paid all taxes shown thereon to be due,
together with applicable interest and penalties.


 


(ii)           Set
forth on Part I of Schedule 4.01(q) hereto is a complete and
accurate list, as of the date hereof, of each taxable year of each Loan Party
and each of its Subsidiaries and Affiliates for which Federal income tax
returns have been filed and for which the expiration of the applicable statute
of limitations for assessment or collection has not occurred by reason of
extension or otherwise (an “Open Year”).


 


(iii)          There
are no pending tax audits or examinations, except as set forth on Part II
of Schedule 4.01(q) hereof, and no deficiencies or other claims for
unpaid taxes are proposed in writing in respect of taxes (Federal, state, local
and foreign) due from, or with respect to, any of the Loan Parties, their
Subsidiaries or Affiliates or with respect to any tax return filed by, or in
respect of, any of them, except as set forth on Part II of
Schedule 4.01(q) hereof.


 


(r)            Neither the business nor the
properties of any Loan Party or any of its Subsidiaries are affected by any
fire, explosion, accident, strike, lockout or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) that could be reasonably likely
to have a Material Adverse Effect.


 


(s)           Set forth on Schedule 4.01(s) hereto
is a complete and accurate list of all Existing Debt (other than Surviving
Debt), showing as of the date hereof the obligor and the principal amount outstanding
thereunder.


 


(t)            Set forth on Schedule 4.01(t) hereto
is a complete and accurate list of all Debt which will remain outstanding after
giving effect to the consummation of the Transaction, showing as of the date
hereof the obligor and the principal amount outstanding thereunder, the
maturity date thereof and the amortization schedule therefor,


 


56

















 


together with a
true and complete copy of the Indenture and of the form of Senior Notes and of
the Convertible Debt Documents.


 


(u)           Set forth on Schedule 4.01(u) hereto
is a complete and accurate list of all Liens on the property or assets of any
Loan Party or any of its Subsidiaries, showing as of the date hereof the
lienholder thereof, the principal amount of the obligations secured thereby and
the property or assets of such Loan Party or such Subsidiary subject thereto.


 


(v)           Set forth on Schedule 4.01(v) hereto
is a complete and accurate list of all Investments held by any Loan Party or
any of its Subsidiaries on the date hereof, showing as of the date hereof the
amount, obligor or issuer and maturity, if any, thereof.


 


(w)          Set forth on Schedule 4.01(w) hereto
is a complete and accurate list of all patents, trademarks, trade names,
service marks and copyrights, and all applications therefor and licenses
thereof, of each Loan Party or any of its Subsidiaries, showing as of the date
hereof the jurisdiction in which registered, the registration number, the date
of registration and the expiration date.


 


ARTICLE V


 


COVENANTS OF THE BORROWER


 


Section 5.01.          Affirmative Covenants.  So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any Commitment
hereunder, the Borrower will:


 


(a)           Compliance
with Laws, Etc.  Comply, and cause
each of its Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA, the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970 and the
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001, Pub. L. 107-56 and all other laws and
regulations relating to money laundering and terrorist activities.


 


(b)           Payment
of Taxes, Etc.  Pay and discharge,
and cause each of its Subsidiaries to pay and discharge, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to pay or discharge any
such tax, assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to its
property and becomes enforceable against its other creditors.


 


(c)           Compliance
with Environmental Laws.  Comply, and
cause each of its Subsidiaries and all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and


 


57

















 


Environmental Permits;
obtain and renew and cause each of its Subsidiaries to obtain and renew all
Environmental Permits necessary for its operations and properties; and conduct,
and cause each of its Subsidiaries to conduct, any investigation, study,
sampling and testing, and undertake any cleanup, removal, remedial or other
action necessary to remove and clean up all Hazardous Materials from any of its
properties, in accordance with the requirements of all Environmental Laws; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its obligation to
do so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such circumstances.


 


(d)           Maintenance of Insurance.  Maintain, and cause each of its Subsidiaries
to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which the Borrower or such Subsidiary operates.


 


(e)           Preservation of Corporate
Existence, Etc.  Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
existence, legal structure, legal name, rights (charter and statutory),
permits, licenses, approvals, privileges and franchises; provided, however, that the Borrower and
its Subsidiaries may consummate any merger or consolidation permitted under Section 5.02(d) and
provided further that neither the
Borrower nor any of its Subsidiaries shall be required to preserve any right,
permit, license, approval, privilege or franchise if the Board of Directors of
the Borrower or such Subsidiary shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Borrower or such
Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower, such Subsidiary or the
Lender Parties.


 


(f)            Visitation Rights.  At any reasonable time and from time to time,
permit any of the Agents or any of the Lender Parties, or any agents or
representatives thereof, to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Borrower and
any of its Subsidiaries, and to discuss the affairs, finances and accounts of
the Borrower and any of its Subsidiaries with any of their officers or
directors and with their independent certified public accountants.


 


(g)           Keeping of Books.  Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the
Borrower and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.


 


(h)           Maintenance of Properties, Etc.  Maintain and preserve, and cause each of its
Subsidiaries to maintain and preserve, all of its properties that are used or
useful in the conduct of its business in good working order and condition,
ordinary wear and tear excepted.


 


58

















 


(i)            Transactions with Affiliates and
Excluded Subsidiaries.  Conduct, and
cause each of its Subsidiaries to conduct, all transactions otherwise permitted
under the Loan Documents with any of their Affiliates (including any Excluded
Subsidiaries) on terms that are fair and reasonable and no less favorable to
the Borrower or such Subsidiary than it would obtain in a comparable arm’s-length
transaction with a Person not an Affiliate.


 


(j)            Covenant to Guarantee Obligations
and Give Security.  Upon (x) the
request of the Collateral Agent following the occurrence and during the
continuance of a Default, (y) the formation or acquisition of any new
direct or indirect Subsidiaries by any Loan Party (unless, in the case of this
clause (y), the Borrower otherwise elects by designating such Subsidiary as an
Excluded Subsidiary in a writing delivered to the Joint Lead Arrangers within
15 days after the date of such formation or acquisition, in which case the
provisions of this Agreement that by their terms become effective upon the
Borrower’s making such election shall thereafter be in effect) or any
Subsidiary’s ceasing to be an Excluded Subsidiary pursuant to the definition of
“Excluded Subsidiary” or (z) the acquisition of any Subject Property
by any Loan Party, and such Subject Property, in the judgment of the Collateral
Agent, shall not already be subject to a perfected first priority security
interest in favor of the Collateral Agent for the benefit of the Secured
Parties, then the Borrower shall, and in the case of clause (y), may, in each
case at the Borrower’s expense:


 


(i)            in connection with the formation or
acquisition of a Subsidiary or any Subsidiary’s ceasing to be an Excluded
Subsidiary, within 15 days after such formation or acquisition, cause each such
Subsidiary, and cause each direct and indirect parent of such Subsidiary (if it
has not already done so), to duly execute and deliver to the Collateral Agent a
guaranty or guaranty supplement, in form and substance satisfactory to the
Collateral Agent, guaranteeing the other Loan Parties’ obligations under the
Loan Documents,


 


(ii)           within 15 days after such request,
formation or acquisition or any Subsidiary’s ceasing to be an Excluded Subsidiary,
furnish to the Collateral Agent a description of the personal properties of the
Loan Parties and their respective Subsidiaries constituting Subject Property in
detail satisfactory to the Collateral Agent,


 


(iii)          within 30 days after such request,
formation or acquisition or any Subsidiary’s ceasing to be an Excluded
Subsidiary, duly execute and deliver, and cause each such Subsidiary and each
direct and indirect parent of such Subsidiary (if it has not already done so)
to duly execute and deliver, to the Collateral Agent pledges, assignments,
security agreement supplements and other security agreements, as specified by
and in form and substance satisfactory to the Collateral Agent, securing
payment of all the Obligations of the applicable Loan Party, such Subsidiary or
such parent, as the case may be, under the Loan Documents and constituting
Liens on all such properties which constitute Subject Property,


 


59

















 


(iv)          within 30 days after such request, formation
or acquisition or any Subsidiary’s ceasing to be an Excluded Subsidiary, take,
and cause such Subsidiary or such parent to take, whatever action (including,
without limitation, the filing of Uniform Commercial Code financing statements,
and the giving of notices) may be necessary or advisable in the opinion of the
Collateral Agent to vest in the Collateral Agent (or in any representative of
the Collateral Agent designated by it) valid and subsisting Liens on the
Subject Property purported to be subject to the pledges, assignments, security
agreement supplements and security agreements delivered pursuant to this Section 5.01(j),
enforceable against all third parties in accordance with their terms,


 


(v)           within 60 days after such request,
formation or acquisition or any Subsidiary’s ceasing to be an Excluded
Subsidiary, deliver to the Collateral Agent, upon the request of the Collateral
Agent in its sole discretion, a signed copy of a favorable opinion, addressed
to the Collateral Agent and the other Secured Parties, of counsel for the Loan
Parties acceptable to the Collateral Agent as to the matters contained in
clauses (i), (iii) and (iv) above, as to such guaranties,
guaranty supplements, pledges, assignments, security agreement supplements and
security agreements being legal, valid and binding obligations of each Loan
Party party thereto enforceable in accordance with their terms, as to the
matters contained in clause (iv) above, as to such recordings,
filings, notices, endorsements and other actions being sufficient to create
valid perfected Liens on such Subject Property, and as to such other matters as
the Collateral Agent may reasonably request,


 


(vi)          upon the occurrence and during the
continuance of a Default, promptly cause to be deposited any and all cash
dividends paid or payable to it or any of its Subsidiaries from any of its
Subsidiaries from time to time into the Collateral Account, and with respect to
all other dividends paid or payable to it or any of its Subsidiaries from time
to time, promptly execute and deliver, or cause such Subsidiary to promptly
execute and deliver, as the case may be, any and all further instruments and
take or cause such Subsidiary to take, as the case may be, all such other
action as the Collateral Agent may deem necessary or desirable in order to
obtain and maintain from and after the time such dividend is paid or payable a
perfected, first priority lien on and security interest in such dividends, and


 


(vii)         at any time and from time to time,
promptly execute and deliver any and all further instruments and documents and
take all such other action as the Collateral Agent may deem necessary or
desirable in obtaining the full benefits of, or in perfecting and preserving
the Liens of, such guaranties, pledges, assignments, security agreement
supplements and security agreements.


 


(k)           Further
Assurances.  (i) Promptly upon
request by any Agent, or any Lender Party through the Paying Agent, correct,
and cause each of its Subsidiaries promptly to correct, any defect or error
that may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof, and


 


60
















 


(ii)           Promptly upon request by any Agent, or any Lender
Party through the Paying Agent, do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all such further
acts, deeds, conveyances, pledge agreements, assignments, financing statements
and continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments as any Agent, or any
Lender Party through the Paying Agent, may reasonably require from time to time
in order to (A) carry out more effectively the purposes of the Loan
Documents, (B) to the fullest extent permitted by applicable law, subject
any Loan Party’s or any of its Subsidiaries’ properties, assets, rights or
interests to the Liens now or hereafter intended to be covered by any of the
Collateral Documents, (C) perfect and maintain the validity, effectiveness
and priority of any of the Collateral Documents and any of the Liens intended
to be created thereunder and (D) assure, convey, grant, assign, transfer,
preserve, protect and confirm more effectively unto the Secured Parties the
rights granted or now or hereafter intended to be granted to the Secured
Parties under any Loan Document or under any other instrument executed in
connection with any Loan Document to which any Loan Party or any of its
Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do
so, and


 


(iii)          In the event that any of the Loan Parties organized
under the laws of Virginia or South Carolina have not, as of the date which is
60 days after the Closing Date, been merged into a Subsidiary of the Borrower
organized in Delaware, Indiana or Ohio, deliver to the Paying Agent promptly
after request therefor an opinion of counsel in Virginia and South Carolina, as
applicable, as to the due authorization, execution and delivery by such
Subsidiary of the Loan Documents to which it is a party and as to such other
matters as the Paying Agent may reasonably request.


 


(iv)          In the event that RESCO Steel Products Corporation and
Roanoke Technical Treatment & Services, Inc. have not, as of the
date which is 30 days after the Closing Date, been merged into a Subsidiary of
the Borrower certificates representing the shares of which have been delivered
to the Collateral Agent, deliver to the Collateral Agent promptly after request
therefor certificates representing the Pledged Shares of such entities
accompanied by undated stock powers executed in blank.


 


(l)            Performance of Related Documents.  Perform and observe, and cause each of its
Subsidiaries to perform and observe, all of the terms and provisions of each
Related Document to be performed or observed by it, maintain each such Related
Document in full force and effect, enforce such Related Document in accordance
with its terms, take all such action to such end as may be from time to time
requested by the Paying Agent and, upon request of the Paying Agent, make to
each other party to each such Related Document such demands and requests for
information and reports or for action as any Loan Party or any of its
Subsidiaries is entitled to make under such Related Document.


 


(m)          Preparation of Environmental Reports.  At the request of the Joint Lead Arrangers or
the Collateral Agent from time to time, provide to the Lender Parties within 60
days after such request, at the expense of the Borrower, an environmental site
assessment report for any of its or its Subsidiaries’ properties described in
such request, prepared by an environmental consulting firm acceptable to the
Joint Lead Arrangers or


 


61

















 


the Collateral Agent, indicating the presence or absence of Hazardous
Materials and the estimated cost of any compliance, removal or remedial action
in connection with any Hazardous Materials on such properties; without limiting
the generality of the foregoing, if the Joint Lead Arrangers or the Collateral
Agent determines at any time that a material risk exists that any such report
will not be provided within the time referred to above, the Joint Lead
Arrangers or the Collateral Agent may retain an environmental consulting firm
to prepare such report at the expense of the Borrower, and the Borrower hereby
grants and agrees to cause any Subsidiary that owns any property described in
such request to grant at the time of such request to the Joint Lead Arrangers,
the Lender Parties, such firm and any agents or representatives thereof an
irrevocable non-exclusive license, subject to the rights of tenants, to enter
onto their respective properties to undertake such an assessment.


 


(n)           Compliance with Terms of Leaseholds.  Make all payments and otherwise perform all
obligations in respect of all leases of real property to which the Borrower or
any of its Subsidiaries is a party, keep such leases in full force and effect
and not allow such leases to lapse or be terminated or any rights to renew such
leases to be forfeited or cancelled, notify the Paying Agent of any default by
any party with respect to such leases and cooperate with the Paying Agent in
all respects to cure any such default, and cause each of its Subsidiaries to do
so, except, in any case, where the failure to do so, either individually or in
the aggregate, could not be reasonably likely to have a Material Adverse
Effect.


 


Section 5.02.          Negative Covenants.  So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will not, at any time:


 


(a)           Liens, Etc.  Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character (including,
without limitation, accounts) whether now owned or hereafter acquired, or sign
or file or suffer to exist, or permit any of its Subsidiaries to sign or file
or suffer to exist, under the Uniform Commercial Code of any jurisdiction, a
financing statement that names the Borrower or any of its Subsidiaries as
debtor, or sign or suffer to exist, or permit any of its Subsidiaries to sign
or suffer to exist, any security agreement authorizing any secured party
thereunder to file such financing statement, or assign, or permit any of its Subsidiaries
to assign, any accounts or other right to receive income, except:


 


(i)            Liens created under the Loan Documents;


 


(ii)           Permitted Liens;


 


(iii)          Liens existing on the date hereof and described on
Schedule 4.01(u) hereto;


 


62

















 


(iv)          purchase money Liens arising from financings upon or
in real property or equipment acquired or held by the Borrower or any of its
Subsidiaries in the ordinary course of business to secure the purchase price of
such property or equipment or to secure Debt incurred solely for the purpose of
financing the acquisition, construction or improvement of any such property or
equipment to be subject to such Liens, or Liens existing on any such property
or equipment at the time of acquisition (other than any such Liens created in
contemplation of such acquisition that do not secure the purchase price), or
extensions, renewals or replacements of any of the foregoing for the same or a
lesser amount; provided, however, that no such
Lien shall extend to or cover any property other than the property or equipment
being acquired, constructed or improved, and no such extension, renewal or
replacement shall extend to or cover any property not theretofore subject to
the Lien being extended, renewed or replaced; and provided
further that the Debt secured by Liens permitted by this
clause (iv) shall be permitted under Section 5.02(b)(iii)(B);


 


(v)           Liens on or with respect to the Equity Interests or
assets of a newly-formed or newly-acquired Subsidiary granted in connection
with financing the formation of, or the acquisition
of all of the Equity Interests or all or substantially all of the assets of,
such Person, as contemplated in Section 5.02(f)(vii); and


 


(vi)          Liens not otherwise permitted under this Section 5.02(a);
provided that (A) such Liens shall
not extend to or cover any Collateral and (B) the book value of the assets
subject to such Liens shall not exceed, in the aggregate, 15% of the book value
of the Borrower’s Consolidated property, plant and equipment, in each case as
such book value is determined in accordance with GAAP.


 


(b)           Debt.  Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
Debt, except:


 


(i)            in the case of the Borrower or a Subsidiary
Guarantor,


 


(A)          Debt in respect of Hedge Agreements
permitted under Section 5.02(m) hereof;


 


(B)           Debt owed to a Subsidiary Guarantor,
which Debt (x) shall constitute Pledged Debt, (y) shall be
subordinated to the Facilities and on terms acceptable to the Joint Lead
Arrangers and (z) shall be evidenced by promissory notes in form and
substance satisfactory to the Joint Lead Arrangers and such promissory notes
shall be pledged as security for the Obligations of the holder thereof under
the Loan Documents to which such holder is a party and delivered to the
Collateral Agent pursuant to the terms of the Security Agreement;


 


(C)           so long as no Event of Default has
occurred and is continuing, or would result therefrom, (x) other unsecured
Debt and (y) Debt secured by Liens permitted under Section 5.02(a)(vi);
provided that before and after
giving effect to such Debt, the Borrower is in pro
forma compliance with the covenants in Section 5.04, calculated
based on the financial statements most recently delivered


 


63

















 


pursuant to Section 5.03 and as though such Debt
had been incurred at the beginning of the four-quarter period covered thereby;


 


(ii)           in the case of any Subsidiary of the Borrower,


 


(A)          Debt owed to the Borrower or to a
Subsidiary Guarantor, provided
that, in each case, such Debt (x) shall constitute Pledged Debt, (y) shall
be subordinated to the Facilities and on terms acceptable to the Joint Lead
Arrangers and (z) shall be evidenced by promissory notes in form and
substance satisfactory to the Joint Lead Arrangers and such promissory notes
shall be pledged as security for the Obligations of the holder thereof under
the Loan Documents to which such holder is a party and delivered to the
Collateral Agent pursuant to the terms of the Security Agreement;


 


(B)           so long as no Event of Default has
occurred and is continuing or would result therefrom, other unsecured Debt in
an aggregate principal amount not to exceed $50 million at any one time
outstanding; and


 


(C)           Debt of a newly-formed or newly-acquired
Subsidiary owed to a Person financing the formation
of such Subsidiary or the acquisition of all of the Equity Interests in or all
or substantially all of the assets of such Subsidiary as contemplated by
Section 5.02(f)(vii);


 


(iii)          in the case of the Borrower and its Subsidiaries,


 


(A)          Debt under the Loan Documents,


 


(B)           so long as no Event of Default has
occurred and is continuing, or would result therefrom, Debt secured by Liens
permitted by Section 5.02(a)(v); provided,
that before and after giving effect to such Debt, the Borrower is in pro forma
compliance with the financial covenants set forth in Section 5.04 hereof
calculated based on the financial statements most recently delivered pursuant
to Section 5.03 and as though such Debt was incurred at the beginning of
the four-quarter period covered thereby, and


 


(C)           the Surviving Debt, and any Debt
extending the maturity of, or refunding or refinancing, in whole or in part,
any Surviving Debt, provided that
the terms of any such extending, refunding or refinancing Debt, and of any
agreement entered into and of any instrument issued in connection therewith,
are otherwise permitted by the Loan Documents, provided
further that the principal amount of such Surviving Debt shall not
be increased above the principal amount thereof outstanding immediately prior
to such extension, refunding or refinancing (except by an amount equal to a
reasonable premium paid, and reasonable fees and expenses incurred, in
connection with such refinancing), and the direct and contingent obligors
therefor shall not be changed, as a result of or in connection with such
extension, refunding or refinancing, provided
still further that the terms relating to principal amount,
amortization, maturity, collateral (if any) and subordination (if any), and
other material terms taken as a whole, of any such


 


64

















 


extending,
refunding or refinancing Debt, and of any agreement entered into and of any
instrument issued in connection therewith, are no less favorable in any
material respect to the Loan Parties or the Lender Parties than the terms of
any agreement or instrument governing the Surviving Debt being extended,
refunded or refinanced and the interest rate applicable to any such extending,
refunding or refinancing Debt does not exceed the then applicable market
interest rate.


 


(c)           Change in Nature of Business.  Make, or permit any of its Subsidiaries to
make, any material change in the nature of its business as carried on at the
date hereof.


 


(d)           Mergers, Etc.  Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries to do so,
except that:


 


(i)            any Subsidiary of the
Borrower may merge into or consolidate with the Borrower (so
long as such Subsidiary is a Subsidiary Guarantor) or any other Subsidiary of
the Borrower, provided that, in the case of any
such merger or consolidation, the Person formed by such merger or consolidation
shall be a wholly owned Subsidiary of the Borrower, provided
further that, in the case of any such merger or consolidation to
which a Subsidiary Guarantor is a party, the Person formed by such merger or
consolidation shall be a Subsidiary Guarantor; and


 


(ii)           in connection with any acquisition permitted under Section 5.02(f),
any Subsidiary of the Borrower may merge into or consolidate with any other
Person or permit any other Person to merge into or consolidate with it; provided that the Person surviving such merger shall be a
wholly owned Subsidiary of the Borrower and such Person shall become a
Subsidiary Guarantor hereunder;


 


provided,  however,
that in each case, immediately after giving effect thereto, no event shall
occur and be continuing that constitutes a Default and, in the case of any such
merger to which the Borrower is a party, the Borrower is the surviving
corporation.


 


(e)           Sales, Etc., of Assets.  Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of, any assets, or grant any option or other right to purchase, lease
or otherwise acquire, except:


 


(i)            sales of Inventory in the ordinary course of its
business;


 


(ii)           in a transaction authorized by Section 5.02(d);


 


(iii)          so long as no Event of Default has occurred and is
continuing or would occur after giving effect thereto, sales of assets
consisting of real property, plant and equipment for cash and for fair value in
an aggregate amount for all such dispositions from and after the Closing Date
not to exceed, at any time, 10% of the aggregate amount of property, plant and
equipment (determined in accordance with GAAP) as reflected on the Borrower’s
consolidated balance sheet contained in the financial statements most recently
delivered pursuant to Section 5.03(b), it being understood that for the
purposes of sales of assets permitted by this clause (iii), the Subject
Property related to such assets may be sold in connection therewith;


 


65

















 


(iv)          sales, transfers and other dispositions of assets
among Loan Parties;


 


(v)           sales of assets acquired after the Effective Date
that do not constitute Collateral under the Loan Documents; it being understood
that for the purposes of sales of assets permitted by this clause (v), the
Subject Property related to such assets may be sold in connection therewith;
and


 


(vi)          the sale in one transaction or series of related
transactions, for cash and for fair value, of all of the Equity Interests or all
or substantially all of the assets of a Subsidiary or related group of
Subsidiaries of the Borrower that in any case constitute a single business,
provided that the fair market value of the Equity Interests and assets so
disposed of shall not exceed $250,000,000 in the aggregate.


 


(f)            Investments in Other Persons.  Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person, except:


 


(i)            Investments by (x) the Borrower in Subsidiary
Guarantors, (y) Subsidiary Guarantors in the Borrower and other Subsidiary
Guarantors, and (z) the Borrower or Subsidiary Guarantors in new
Subsidiaries, provided, that such Subsidiaries become Subsidiary Guarantors
hereunder;


 


(ii)           loans and advances to employees in the ordinary
course of the business of the Borrower and its Subsidiaries as presently
conducted in an aggregate principal amount not to exceed $500,000 at any time
outstanding;


 


(iii)          Investments by the Borrower and its Subsidiaries in
Cash Equivalents;


 


(iv)          Investments existing on the date hereof and
described on Schedule 4.01(v) hereto;


 


(v)           Investments by the Borrower in Hedge Agreements
permitted under Section 5.02(b)(i)(A);


 


(vi)          Investments consisting of intercompany Debt
permitted under Section 5.02(b)(i)(B) or 5.02(b)(ii);


 


(vii)         so long as no Event of Default has occurred and is
continuing or would occur after giving effect thereto, other Investments
consisting of acquisitions or formations of all or substantially all of the
Equity Interests or assets of another Person; provided
that with respect to any Investments made under this clause (vii):  (A) if such Investment is in the Equity
Interests of such Person, either (1) such Person shall be a Subsidiary
Guarantor hereunder or (2) either (x) such acquisition or formation
is financed with the proceeds of Indebtedness secured by (and only by) the
accounts receivables, inventory and related documents and general intangibles
of the Subsidiary so acquired and its respective Subsidiaries, which
Indebtedness is not recourse to (including by way of guaranty) the Borrower and
its other Subsidiaries or (y) the Borrower otherwise elects in accordance
with Section 5.01(j) that such newly-acquired Subsidiary shall be an
Excluded Subsidiary; (B) immediately before and after giving effect thereto,
no Default


 


66

















 


shall have occurred and be continuing or would result therefrom; (C) any
company or business acquired or invested in pursuant to this clause (vii) shall
be in the same or related line of business as the business of the Borrower or
any of its Subsidiaries; (D) immediately after giving effect to the
acquisition of a company or business pursuant to this clause (vii), the
Borrower shall be in pro forma
compliance with the covenants contained in Section 5.04, calculated based
on the financial statements most recently delivered to the Lender Parties
pursuant to Section 5.03 and as though such acquisition had occurred at
the beginning of the four-quarter period covered thereby, as evidenced by a certificate
of the Chief Financial Officer of the Borrower delivered to the Lender Parties
demonstrating such compliance; and (E) within 30 days after the
acquisition of a company or business pursuant to this clause (vii) the
Borrower shall provide revised forecasts of the type referred to in Section 5.03(e) giving
pro forma effect to such acquisition;


 


(viii)        so long as no Event of Default has occurred and is
continuing or would occur after giving effect thereto, Investments in other
Persons that are not controlled by the Borrower up to an aggregate amount of
10% of the consolidated total assets of the Borrower (determined in accordance
with GAAP) as reflected on the Borrower’s consolidated balance sheet contained
in the financial statements most recently delivered pursuant to Section 5.03(b);
and


 


(ix)           Investments in Mesabi Nugget; provided,
that, both before and after giving effect to any such Investment the Borrower
is in pro forma compliance with the covenants contained in Section 5.04,
calculated based on the financial statements most recently delivered to the
Lender Parties pursuant to Section 5.03 and as though such Investment had
occurred at the beginning of the four-quarter period covered thereby.


 


(g)           Restricted Payments.  Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its Equity
Interests now or hereafter outstanding, return any capital to its stockholders,
partners or members (or the equivalent Persons thereof) as such, make any
distribution of assets, Equity Interests, obligations or securities to its
stockholders, partners or members (or the equivalent Persons thereof) as such,
or permit any of its Subsidiaries to do any of the foregoing, or permit any of
its Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for
value any Equity Interests in the Borrower or to issue or sell any Equity
Interests or accept any capital contributions, except that, so long as no
Default shall have occurred and be continuing at the time of any action
described in clause (i) through (iv) below or would result
therefrom:


 


(i)            the Borrower may (A) declare and pay dividends
and distributions payable only in common stock of the Borrower, (B) 
purchase, redeem, retire, defease or otherwise acquire shares of its capital
stock with the proceeds received contemporaneously from the issue of new shares
of its capital stock with equal or inferior voting powers, designations,
preferences and rights and (C) purchase, redeem, retire or defease any
Debt that is convertible into Equity Interests,


 


67

















 


(ii)           any Subsidiary of the Borrower may (A) declare
and pay cash dividends to the Borrower, (B) declare and pay cash dividends
to any other Loan Party of which it is a Subsidiary and (C) accept capital
contributions from its parent to the extent permitted under Section 5.01(f)(i),


 


(iii)          the Borrower may make payments restricted by this Section 5.02(g) so
long as immediately after giving pro forma effect to such payment, the Total
Debt/Consolidated EBITDA Ratio is no higher than 3.50:1.00; provided however during any fiscal quarter of the Borrower
that the Total Debt/Consolidated EBITDA Ratio exceeds 3.50:1.00, then the
Borrower may declare and pay dividends and distributions restricted by this Section 5.02(g) so
long as the aggregate amount of such dividends or distributions does not exceed
$25,000,000 for such fiscal quarter.


 


(iv)          so long as no Default has occurred and is continuing
or would result therefrom, the Borrower may make payments of contractual
dividends on convertible equity securities.


 


(h)           Amendments of Constitutive Documents.  Amend, or permit any of its Subsidiaries to
amend, its certificate of incorporation or bylaws or other constitutive
documents in any respect which could be materially adverse to the interest of
the Lender Parties.


 


(i)            Accounting Changes.  Make or permit any change in (i) accounting
policies or reporting practices, except as required or permitted by GAAP, or (ii) Fiscal
Year.


 


(j)            Amendment, Etc., of Related Documents.  Cancel or terminate any Related Document
(except in connection with the prepayment of any Debt permitted to be prepaid
hereunder) or consent to or accept any cancellation or termination thereof,
amend, modify or change in any manner any term or condition of any Related
Document or give any consent, waiver or approval thereunder, waive any default
under or any breach of any term or condition of any Related Document, agree in
any manner to any other amendment, modification or change of any term or
condition of any Related Document or take any other action in connection with
any Related Document that would impair the value of the interest or rights of
any Loan Party thereunder or that would impair the rights or interests of any
Agent or any Lender Party, or permit any of its Subsidiaries to do any of the
foregoing.


 


(k)           Negative Pledge.  Enter into or suffer to exist, or permit any
of its Subsidiaries to enter into or suffer to exist, any agreement prohibiting
or conditioning the creation or assumption of any Lien upon any of its property
or assets except (i) in favor of the Secured Parties or (ii) in
connection with (A) any Surviving Debt and (B) any purchase money
Debt permitted by Section 5.02(b)(iii)(B) solely to the extent that
the agreement or instrument governing such Debt prohibits a Lien on the
property acquired with the proceeds of such Debt.


 


68

















 


(l)            Partnerships, Etc.  Become a general partner in any general or
limited partnership or joint venture, or permit any of its Subsidiaries to do
so, other than any Subsidiary the sole assets of which consist of its interest
in such partnership or joint venture.


 


(m)          Speculative Transactions.  Engage, or permit any of its Subsidiaries to
engage, in any transaction involving commodity options or futures contracts or
any similar speculative transactions other than in any event transactions
entered into in the ordinary course of business consistent with past practice;
it being understood, however, that the Borrower may engage in interest rate
management transactions that are not speculative so long as the other
requirements of this Agreement are complied with.


 


(n)           Payment Restrictions Affecting Subsidiaries.  Directly or indirectly, enter into or suffer
to exist, or permit any of its Subsidiaries to enter into or suffer to exist,
any agreement or arrangement limiting the ability of any of its Subsidiaries to
declare or pay dividends or other distributions in respect of its Equity Interests
or repay or prepay any Debt owed to, make loans or advances to, or otherwise
transfer assets to or invest in, the Borrower or any Subsidiary of the Borrower
(whether through a covenant restricting dividends, loans, asset transfers or
investments, a financial covenant or otherwise), except (i) the Loan
Documents and (ii) any agreement or instrument evidencing Surviving Debt.


 


(o)           Borrowing Base Covenant.  At any time after (i) any assets of a
type that would constitute Collateral have been pledged by any Subsidiary to
any Person financing a transaction permitted under Section 5.02(f)(vii) or
(ii) the Borrower has elected to designate a newly-formed or
newly-acquired Subsidiary as an Excluded Subsidiary as permitted under Section 5.01(j),
then, the Borrower shall not permit at any time thereafter the aggregate of (x) 85%
of the book value of the accounts receivable that constitute Collateral and (y) 65%
of the book value of the inventory that constitutes Collateral to be less than
the sum of (A) the aggregate principal amount outstanding under the
Revolving Credit Facility at such time (including outstanding Letters of Credit
and Swing Line Advances) plus (B) the aggregate amount of
obligations outstanding under Secured Cash Management Agreements at such time plus
(C) the aggregate Agreement Value of all Secured Hedge Agreements at such
time.


 


Section 5.03.          Reporting Requirements.  So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will furnish to the Agents and the Lender
Parties:


 


(a)           Default Notice.  As soon as possible and in any event within
two days after the occurrence of each Default or any event, development or
occurrence reasonably likely to have a Material Adverse Effect continuing on
the date of such statement, a statement of the chief financial officer of the
Borrower setting forth details of such Default and the action that the Borrower
has taken and proposes to take with respect thereto.


 


69

















 


(b)           Annual Financials.  As soon as available and in any event within
90 days after the end of each Fiscal Year, a copy of the annual audit report
for such year for the Borrower and its Subsidiaries, including therein a
Consolidated balance sheet of the Borrower and its Subsidiaries as of the end
of such Fiscal Year and a Consolidated statement of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for such Fiscal
Year, in each case accompanied by an opinion acceptable to the Required Lenders
of Ernst & Young LLP or other independent public accountants of
recognized standing acceptable to the Required Lenders together with a
certificate of a Financial Officer of the Borrower stating that no Default has
occurred and is continuing or, if a default has occurred and is continuing, a
statement as to the nature thereof and the action that the Borrower has taken
and proposes to take with respect thereto.


 


(c)           Quarterly Financials.  As soon as available and in any event within
45 days after the end of each of the first three quarters of each Fiscal Year,
a Consolidated balance sheet of the Borrower and its Subsidiaries as of the end
of such quarter and a Consolidated statement of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous fiscal quarter and ending with the end of
such fiscal quarter and a Consolidated statement of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the end of
such quarter, setting forth in each case in comparative form the corresponding
figures for the corresponding date or period of the preceding Fiscal Year, all
in reasonable detail and duly certified (subject to normal year-end audit
adjustments) by a Financial Officer of the Borrower as having been prepared in
accordance with GAAP, together with (i) a certificate of said officer
stating that no Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature thereof and the action
that the Borrower has taken and proposes to take with respect thereto, and (ii) a
schedule in form satisfactory to the Joint Lead Arrangers of the computations
used by the Borrower in determining compliance with the covenants contained in Section 5.04,
provided that in the event of any change in GAAP used in the preparation of
such financial statements, the Borrower shall also provide, if necessary for
the determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP.


 


(d)           Monthly Certificate.  To the extent that (i) any assets of a
type that would constitute Collateral have been pledged by any Subsidiary to
any Person financing a transaction permitted under Section 5.02(f)(vii) or
(ii) the Borrower has elected to designate a Subsidiary as an Excluded
Subsidiary as permitted under Section 5.01(j), then, as soon as available
and in any event within 15 days after the end of each month, a certificate of a
Financial Officer of the Borrower, in form and substance satisfactory to the
Joint Lead Arrangers and the Administrative Agents, demonstrating that the
aggregate of (x) 85% of the book value of the accounts receivable that
constitute Collateral, and (y) 65% of the book value of the inventory that
constitutes Collateral exceeds the sum of (A) the aggregate principal
amount outstanding under the Revolving Credit Facility (including outstanding
Letters of Credit and Swing Line Advances plus (B) the aggregate
amount of obligations outstanding under Secured Cash Management Agreements at
such


 


70

















 


time plus (C) the aggregate Agreement Value of all Secured
Hedge Agreements at such time.


 


(e)           Annual Forecasts.  As soon as available and in any event no
later than 15 days before the end of each Fiscal Year, forecasts prepared by
management of the Borrower, in form satisfactory to the Joint Lead Arrangers,
of balance sheets, income statements and cash flow statements on an annual
basis for the Fiscal Year following such Fiscal Year and for each Fiscal Year
thereafter until the Termination Date. 
Such forecasts shall set forth a statement of the principal assumptions
reflected therein.


 


(f)            Litigation.  Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and proceedings in
which the amount involved is in excess of $25,000,000 before any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, affecting any Loan Party or any of its Subsidiaries of the
type described in Section 4.01(f), and promptly after the occurrence
thereof, notice of any material adverse change in the status or the financial
effect on any Loan Party or any of its Subsidiaries of the Disclosed Litigation
from that described on Schedule 4.01(f) hereto.


 


(g)           Securities Reports.  Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports that any Loan
Party or any of its Subsidiaries sends to its stockholders, and copies of all
regular, periodic and special reports, and all registration statements, that
any Loan Party or any of its Subsidiaries files with the Securities and
Exchange Commission or any governmental authority that may be substituted
therefor, or with any national securities exchange.


 


(h)           Creditor Reports.  (i) Promptly after the furnishing
thereof, copies of any statement or report furnished to any holder of Senior
Notes, and (ii) promptly after the furnishing thereof, copies of any
default notice furnished to any holder of Debt securities in the aggregate
outstanding in excess of $25,000,000 of any Loan Party or of any of its
Subsidiaries pursuant to the terms of any indenture, loan or credit or similar
agreement and not otherwise required to be furnished to the Lender Parties
pursuant to any other clause of this Section 5.03.


 


(i)            Agreement Notices.  Promptly upon receipt thereof, copies of all
notices, requests and other documents received by any Loan Party or any of its
Subsidiaries under or pursuant to any Related Document or instrument,
indenture, loan or credit or similar agreement regarding or related to any
breach or default by any party thereto or any other event that could materially
impair the value of the interests or the rights of any Loan Party or otherwise
have a Material Adverse Effect and copies of any amendment, modification or
waiver of any provision of any Related Document or instrument, indenture, loan
or credit or similar agreement and, from time to time upon request by the
Paying Agent, such information and reports regarding the Related Documents and
such instruments, indentures and loan and credit and similar agreements as the
Paying Agent may reasonably request.


 


71

















 


(j)            Revenue Agent Reports.  Within 10 days after receipt, copies of all
Revenue Agent Reports (Internal Revenue Service Form 886), or other
written proposals of the Internal Revenue Service, that propose, determine or
otherwise set forth positive adjustments to the Federal income tax liability of
the affiliated group (within the meaning of Section 1504(a)(1) of the
Internal Revenue Code) of which the Borrower is a member aggregating
$25,000,000 or more.


 


(k)           ERISA.  ERISA Events and ERISA Reports.  (A) Promptly and in any event within 10
days after any Loan Party or any ERISA Affiliate knows or has reason to know
that any ERISA Event has occurred, a statement of the Chief Financial Officer
of the Borrower describing such ERISA Event and the action, if any, that such
Loan Party or such ERISA Affiliate has taken and proposes to take with respect
thereto and (B) on the date any records, documents or other information
must be furnished to the PBGC with respect to any Plan pursuant to Section 4010
of ERISA, a copy of such records, documents and information.


 


(i)            Plan Terminations.  Promptly and in any event within two Business
Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies of
each notice from the PBGC stating its intention to terminate any Plan or to
have a trustee appointed to administer any Plan.


 


(ii)           Plan Annual Reports.  Promptly and in any event within 30 days
after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500
Series) with respect to each Plan.


 


(iii)          Multiemployer Plan Notices.  Promptly and in any event within five
Business Days after receipt thereof by any Loan Party or any ERISA Affiliate
from the sponsor of a Multiemployer Plan, copies of each notice concerning (A) the
imposition of Withdrawal Liability by any such Multiemployer Plan, (B) the
reorganization or termination, within the meaning of Title IV of ERISA, of any
such Multiemployer Plan or (C) the amount of liability incurred, or that
may be incurred, by such Loan Party or any ERISA Affiliate in connection with
any event described in clause (A) or (B).


 


(l)            Environmental Conditions.  Promptly after the assertion or occurrence
thereof, notice of any Environmental Action against or of any noncompliance by
any Loan Party or any of its Subsidiaries with any Environmental Law or
Environmental Permit that could reasonably be expected to have a Material
Adverse Effect.


 


(m)          Insurance.  As soon as available and in any event within
30 days after the end of each Fiscal Year, a report summarizing the insurance
coverage (specifying type, amount and carrier) in effect for each Loan Party
and its Subsidiaries and containing such additional information as any Agent,
or any Lender Party through the Paying Agent, may reasonably specify.


 


(n)           Other Information.  Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of


 


72

















 


any Loan Party or any of its Subsidiaries as any Agent or the Joint
Lead Arrangers, or any Lender Party through the Paying Agent, may from time to
time reasonably request.


 


Section 5.04.          Financial Covenants.  So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will:


 


(a)           Total Debt to Consolidated EBITDA Ratio.  Maintain at all times a Total
Debt/Consolidated EBITDA Ratio of not more than 5.00 : 1.00.


 


(b)           Interest Coverage Ratio.  Maintain at all times an Interest Coverage
Ratio of not less than 2.00 : 1.00.


 


ARTICLE
VI


 


EVENTS OF
DEFAULT


 


Section 6.01.          Events of Default.  If any of the following events (“Events of Default”) shall
occur and be continuing:


 


(a)           (i) the Borrower shall fail to pay any
principal of any Advance when the same shall become due and payable or (ii) the
Borrower shall fail to pay any interest on any Advance, or any Loan Party shall
fail to make any other payment under any Loan Document, in each case under this
clause (ii) within two Business Days after the same becomes due and
payable; or


 


(b)           any representation or warranty made by any Loan
Party (or any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made; or


 


(c)           the Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 2.14, 5.01(e), (f), (i),
(j), (m) or (p), 5.02, 5.03 or 5.04; provided that
the Borrower shall have a cure period of three Business Days for any failure to
perform or observe the covenant contained in Section 5.02(p); or


 


(d)           any Loan Party shall fail to perform or observe any
other term, covenant or agreement contained in any Loan Document on its part to
be performed or observed if such failure shall remain unremedied for 10 days
after the earlier of the date on which (i) a Responsible Officer becomes
aware of such failure or (ii) written notice thereof shall have been given
to the Borrower by any Agent or any Lender Party; or


 


(e)           any Loan Party, any of its Subsidiaries or any
Excluded Subsidiary to the extent its Obligations are guaranteed by a Loan
Party shall fail to pay any principal of, premium or interest on or any other
amount payable in respect of any Debt of such Loan Party, such Subsidiary or
such Excluded Subsidiary (as the case may be) that is outstanding in a
principal amount (or, in the case of any Hedge Agreement, an Agreement Value)
of at least $5,000,000 either individually or in the aggregate (but


 


73

















 


excluding Debt outstanding hereunder), when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to such
Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Debt or otherwise to cause, or to permit
the holder thereof to cause, such Debt to mature; or any such Debt shall be
declared to be due and payable or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the stated maturity thereof; or


 


(f)            any Loan Party or any of its Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against any Loan Party or any of its Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it
(but not instituted by it) that is being diligently contested by it in good
faith, either such proceeding shall remain undismissed or unstayed for a period
of 30 days or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or any of its
Subsidiaries shall take any corporate action to authorize any of the actions
set forth above in this subsection (f); or


 


(g)           any judgments or orders, either individually or in
the aggregate, for the payment of money in excess of $5,000,000 shall be
rendered against any Loan Party or any of its Subsidiaries and shall remain
unpaid and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any period
of 10 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or


 


(h)           any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiaries that could be reasonably
likely to have a Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or


 


(i)            any provision of any Loan Document after delivery
thereof pursuant to Section 3.01 or 5.01(j) shall for any reason
cease to be valid and binding on or


 


74

















 


enforceable against any Loan Party party to it, or any such Loan Party
shall so state in writing; or


 


(j)            any Collateral Document or financing statement after
delivery thereof pursuant to Section 3.01 or 5.01(j) shall for any
reason (other than pursuant to the terms thereof) cease to create a valid and
perfected first priority lien on and security interest in the Collateral
purported to be covered thereby; or


 


(k)           a Change of Control shall occur; or


 


(l)            any ERISA Event shall have occurred with respect to
a Plan and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any and all
other Plans with respect to which an ERISA Event shall have occurred and then
exist (or the liability of the Loan Parties and the ERISA Affiliates related to
such ERISA Event) exceeds $3,000,000; or


 


(m)          any Loan Party or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined
as of the date of such notification), exceeds $3,000,000 or requires payments
exceeding $500,000 per annum; or


 


(n)           any Loan Party or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan
is in reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Loan Parties and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such Multiemployer
Plans for the plan years of such Multiemployer Plans immediately preceding the
plan year in which such reorganization or termination occurs by an amount
exceeding $3,000,000;


 


then, and in any such event, the Paying Agent (i) shall
at the request, or may with the consent, of the Required Lenders, by notice to
the Borrower, declare the Commitments of each Lender Party and the obligation
of each Lender Party to make Advances (other than Letter of Credit Advances by
an Issuing Bank or a Revolving Credit Lender pursuant to Section 2.03(c) and
Swing Line Advances by a Revolving Credit Lender pursuant to Section 2.02(b))
and of the Issuing Banks to issue Letters of Credit to be terminated, whereupon
the same shall forthwith terminate, and (ii) shall at the request, or may
with the consent, of the Required Lenders, (A) by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under
this Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Notes, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower, (B) by
notice to each party required under the terms of any agreement in support of
which a Standby Letter of Credit is issued, request that all Obligations under
such agreement be declared to be due and payable and (C) by notice to any
Issuing Bank,


 


75

















 


direct such Issuing Bank to deliver a Default
Termination Notice to the beneficiary of each Standby Letter of Credit issued
by it, and such Issuing Bank shall deliver such Default Termination Notices; provided,
however, that in the event of an actual or deemed entry of an order for
relief with respect to the Borrower under the Federal Bankruptcy Code, (x) the
Commitments of each Lender Party and the obligation of each Lender Party to
make Advances (other than Letter of Credit Advances by an Issuing Bank or a
Revolving Credit Lender pursuant to Section 2.03(c) and Swing Line
Advances by a Revolving Credit Lender pursuant to Section 2.02(b)) and of
the Issuing Banks to issue Letters of Credit shall automatically be terminated
and (y) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.


 


Section 6.02.          Actions in Respect of the Letters of
Credit upon Default.  If any Event of
Default shall have occurred and be continuing, the Paying Agent may, or shall
at the request of the Required Lenders, irrespective of whether it is taking
any of the actions described in Section 6.01 or otherwise, make demand
upon the Borrower to, and forthwith upon such demand the Borrower will, pay to
the Collateral Agent on behalf of the Lender Parties in same day funds at the
Collateral Agent’s office designated in such demand, for deposit in the L/C
Cash Collateral Account, an amount equal to the aggregate Available Amount of
all Letters of Credit then outstanding. 
If at any time the Paying Agent or the Collateral Agent determines that
any funds held in the L/C Cash Collateral Account are subject to any right or
claim of any Person other than the Agents and the Lender Parties or that the
total amount of such funds is less than the aggregate Available Amount of all
Letters of Credit, the Borrower will, forthwith upon demand by the Paying Agent
or the Collateral Agent, pay to the Collateral Agent, as additional funds to be
deposited and held in the L/C Cash Collateral Account, an amount equal to the
excess of (a) such aggregate Available Amount over (b) the total
amount of funds, if any, then held in the L/C Cash Collateral Account that the
Paying Agent or the Collateral Agent, as the case may be, determines to be free
and clear of any such right and claim. 
Upon the drawing of any Letter of Credit for which funds are on deposit
in the L/C Cash Collateral Account, such funds shall be applied to reimburse
the Issuing Banks or Revolving Credit Lenders, as applicable, to the extent
permitted by applicable law.


 


ARTICLE
VII


 


THE
AGENTS, ETC.


 


Section 7.01.          Authorization and Action.  Each Lender Party (in its capacities as a
Lender, the Swing Line Bank (if applicable), an Issuing Bank (if applicable)
and on behalf of itself and its Affiliates as potential Hedge Banks) hereby
appoints and authorizes the Joint Lead Arrangers and each Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement and the other Loan Documents as are delegated to the Joint Lead
Arrangers and such Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto.  As to any matters not expressly provided for
by the Loan Documents (including, without limitation, enforcement or collection
of the Notes), no Agent nor the Joint Lead Arrangers shall be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such


 


76

















 


instructions shall be
binding upon all Lender Parties and all holders of Notes; provided, however, that no Agent nor the
Joint Lead Arrangers shall be required to take any action that exposes such
Agent nor the Joint Lead Arrangers to personal liability or that is contrary to
this Agreement or applicable law.  Each
Agent agrees to give to each Lender Party prompt notice of each notice given to
it by the Borrower pursuant to the terms of this Agreement.


 


Section 7.02.          Reliance, Etc.  Neither the Joint Lead Arrangers nor any
Agent nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct. 
Without limitation of the generality of the foregoing, the Joint Lead
Arrangers and each Agent:  (a) may
treat the payee of any Note as the holder thereof until, in the case of the
Paying Agent, the Paying Agent receives and accepts an Assignment and
Assumption entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, or, in the case of any other
Agent or the Joint Lead Arrangers, such Agent or the Joint Lead Arrangers has
received notice from the Paying Agent that it has received and accepted such
Assignment and Assumption, in each case as provided in Section 8.07; (b) may
consult with legal counsel (including counsel for any Loan Party), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (c) makes no warranty
or representation to any Lender Party and shall not be responsible to any
Lender Party for any statements, warranties or representations (whether written
or oral) made in or in connection with the Loan Documents; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Loan Document on the part of
any Loan Party or to inspect the property (including the books and records) of
any Loan Party; (e) shall not be responsible to any Lender Party for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, any Loan
Document or any other instrument or document furnished pursuant thereto; and (f) shall
incur no liability under or in respect of any Loan Document by acting upon any
notice, consent, certificate or other instrument or writing (which may be by
telegram, telecopy or telex) believed by it to be genuine and signed or sent by
the proper party or parties.


 


Section 7.03.          Bank of America, N.A., National City Bank,
Wells Fargo Bank, National Association and Affiliates.  With respect to its Commitments, the Advances
made by it and the Notes issued to it, each of Bank of America, N.A., National
City Bank and Wells Fargo Bank, National Association shall have the same rights
and powers under the Loan Documents as any other Lender Party and may exercise
the same as though it were not an Agent; and the term “Lender
Party” or “Lender Parties”
shall, unless otherwise expressly indicated, include Bank of America, N.A.,
National City Bank and Wells Fargo Bank, National Association in their
respective individual capacities.  Bank
of America, N.A., National City Bank and Wells Fargo Bank, National
Association  and their respective
affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any of its Subsidiaries and any
Person that may do business with or own securities of any Loan Party or any
such Subsidiary, all as if Bank of America, N.A., National City Bank and Wells
Fargo Bank, National Association were not Agents and without any duty to
account therefor to the Lender Parties.


 


77

















 


Section 7.04.          Lender Party Credit Decision.  Each Lender Party acknowledges that it has, independently
and without reliance upon any Agent, the Joint Lead Arrangers or any other
Lender Party and based on the financial statements referred to in Section 4.01
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.  Each Lender Party also acknowledges that it
will, independently and without reliance upon any Agent, the Joint Lead
Arrangers or any other Lender Party and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement.


 


Section 7.05.          Indemnification.


 


(a)           Each Lender
Party severally agrees to indemnify each Lead Arranger and each Agent (to the
extent not promptly reimbursed by the Borrower) from and against such Lender
Party’s ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against such Agent in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by such Agent under the Loan Documents (collectively, the “Indemnified Costs”); provided,
however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent’s or such
Lead Arranger’s gross negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction with respect to
such Agent or the Joint Lead Arrangers, as the case may be.  Without limitation of the foregoing, each
Lender Party agrees to reimburse the Joint Lead Arrangers and each Agent
promptly upon demand for its ratable share of any costs and expenses
(including, without limitation, fees and expenses of counsel) payable by the
Borrower under Section 8.04, to the extent that such Lead Arranger or such
Agent is not promptly reimbursed for such costs and expenses by the
Borrower.  In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by any Lender Party or any other Person.


 


(b)           Each Lender
Party severally agrees to indemnify each Issuing Bank (to the extent not
promptly reimbursed by the Borrower) from and against such Lender Party’s
ratable share (determined as provided below) of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against such Issuing Bank in any way relating to
or arising out of the Loan Documents or any action taken or omitted by such
Issuing Bank under the Loan Documents; provided, however, that no Lender Party
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Issuing Bank’s gross negligence or willful misconduct as
found in a final, non-appealable judgment by a court of competent
jurisdiction.  Without limitation of the
foregoing, each Lender Party agrees to reimburse such Issuing Bank promptly
upon demand for its ratable share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrower under Section 8.04,
to the extent that such Issuing Bank is not promptly reimbursed for such costs
and expenses by the Borrower.


 


78
















 


(c)           For purposes of
this Section 7.05, the Lender Parties’ respective ratable shares of any
amount shall be determined, at any time, according to the sum of (i) the
aggregate principal amount of the Advances outstanding at such time and owing
to the respective Lender Parties, (ii) their respective Pro Rata Shares of
the aggregate Available Amount of all Letters of Credit outstanding at such
time and (iii) their respective Unused Revolving Credit Commitments at
such time; provided that the aggregate principal amount of Swing Line Advances
owing to the Swing Line Bank and of Letter of Credit Advances owing to such
Issuing Bank shall be considered to be owed to the Revolving Credit Lenders
ratably in accordance with their respective Revolving Credit Commitments.  The failure of any Lender Party to reimburse
any Agent or any Issuing Bank, as the case may be, promptly upon demand for its
ratable share of any amount required to be paid by the Lender Parties to such
Agent or such Issuing Bank, as the case may be, as provided herein shall not
relieve any other Lender Party of its obligation hereunder to reimburse such
Agent or such Issuing Bank, as the case may be, for its ratable share of such
amount, but no Lender Party shall be responsible for the failure of any other
Lender Party to reimburse such Agent or such Issuing Bank, as the case may be,
for such other Lender Party’s ratable share of such amount.  Without prejudice to the survival of any
other agreement of any Lender Party hereunder, the agreement and obligations of
each Lender Party contained in this Section 7.05 shall survive the payment
in full of principal, interest and all other amounts payable hereunder and
under the other Loan Documents.


 


Section 7.06.          Successor
Agents.  Any Agent may resign at any time by giving
written notice thereof to the Lender Parties and the Borrower and may be
removed at any time with or without cause by the Required Lenders.  Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent.  If no successor Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent’s giving of notice of resignation or
the Required Lenders’ removal of the retiring Agent, then the retiring Agent
may, on behalf of the Lender Parties, appoint a successor Agent, which shall be
a commercial bank organized under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $250,000,000.  Upon the acceptance of any appointment as
Agent hereunder by a successor Agent and, in the case of a successor Collateral
Agent, upon the execution and filing or recording of such financing statements,
or amendments thereto, and such other instruments or notices, as may be
necessary or desirable, or as the Required Lenders may request, in order to
continue the perfection of the Liens granted or purported to be granted by the
Collateral Documents, such successor Agent shall succeed to and become vested
with all the rights, powers, discretion, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations under the Loan Documents.  If
within 45 days after written notice is given of the retiring Agent’s
resignation or removal under this Section 7.06 no successor Agent shall
have been appointed and shall have accepted such appointment, then on such 45th
day (a) the retiring Agent’s resignation or removal shall become
effective, (b) the retiring Agent shall thereupon be discharged from its
duties and obligations under the Loan Documents (except in the case of any
collateral security held by any Agent on behalf of the Secured Parties under
any of the Loan Documents, the retiring Agent shall continue to hold such
collateral security until such time as a successor Agent is appointed) and (c) the
Required Lenders shall thereafter perform all duties of the retiring Agent
under the Loan Documents until such time, if any, as the Required Lenders
appoint a successor Agent as provided above. 
After any retiring Agent’s resignation or removal hereunder as Agent
shall have become effective, the provisions of this Article VII shall


 


79

















 


inure to its benefit as
to any actions taken or omitted to be taken by it while it was Agent under this
Agreement.


 


Section 7.07.          The
Joint Lead Arrangers, the Syndication Agent and the Documentation Agent. 
It is understood and agreed by all parties hereto that neither the Joint
Lead Arrangers, nor the Syndication Agent, nor the Documentation Agent shall
have any duties or responsibilities under this Agreement (except, as to the
Joint Lead Arrangers, for certain approval rights expressly provided for
herein), and shall have no liability for any actions taken or not taken in
connection with this Agreement or the other Transaction Documents.


 


ARTICLE
VIII


 


MISCELLANEOUS


 


Section 8.01.          Amendments,
Etc.  No amendment or waiver of any provision of
this Agreement or the Notes or any other Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be effective unless
the same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that (a) no
amendment, waiver or consent shall, unless in writing and signed by all of the
Lenders (other than any Lender Party that is, at such time, a Defaulting
Lender), do any of the following at any time: 
(i) decrease the percentage of (x) the Commitments, (y) the
aggregate unpaid principal amount of the Advances or (z) the aggregate
Available Amount of outstanding Letters of Credit that, in each case, shall be
required for the Lenders or any of them to take any action hereunder, (ii) reduce
or limit the obligations of any Guarantor under Section 1 of the Guaranty
issued by it or, except in connection with a permitted asset sale, release such
Guarantor or otherwise limit such Guarantor’s liability with respect to the
Obligations owing to the Agents and the Lender Parties, in each case if such
reduction, release or limitation is in respect of all or substantially all of
the value of the Guaranties, (iii) release all or substantially all of the
Collateral in any transaction or series of related transactions, (iv) amend
Section 2.13 or this Section 8.01 and (b) no amendment, waiver
or consent shall, unless in writing and signed by each Lender (other than any
Lender that is, at such time, a Defaulting Lender) that has a Commitment under
the Revolving Credit Facility if such Lender is directly affected by such
amendment, waiver or consent, (i) increase the Commitments of such Lender,
(ii) reduce the principal of, or interest on, the Notes held by such
Lender or any fees or other amounts payable hereunder to such Lender, (iii) postpone
any date fixed for any scheduled payment of principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable hereunder to
such Lender, (iv) change the order of application of any prepayment set
forth in Section 2.06 in any manner that materially affects such Lender; provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Swing Line Bank or
an Issuing Bank, as the case may be, in addition to the Lenders required above
to take such action, affect the rights or obligations of the Swing Line Bank or
of such Issuing Bank, as the case may be, under this Agreement; and provided further that no amendment, waiver
or consent shall, unless in writing and signed by an Agent in addition to the
Lenders required above to take such action, affect the rights or duties of such
Agent under this Agreement or the other Loan Documents.


 


80

















 


Section 8.02.          Notices,
Etc.  (a)  All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered, if to the Borrower, at its address at 6714
Pointe Inverness Way, Fort Wayne, Indiana 46804, Attention:  Theresa E. Wagler (facsimile 260-969-3587); if
to any Initial Lender Party, at its Domestic Lending Office specified opposite
its name on Schedule I hereto; if to any other Lender Party, at its
Domestic Lending Office specified in the Assignment and Assumption pursuant to
which it became a Lender Party; if to the Collateral Agent, at its address at
629 Euclid Avenue, Locator 01-3028, Cleveland, OH 44114, Attention: Brigitte
McLin (facsimile 216-222-0192); and if to the Paying Agent, at its address at
629 Euclid Avenue, Locator 01-3028, Cleveland, OH 44114, Attention: Candace
Marsky (facsimile 216-222-0012) and with respect to notices and/or deliveries
pursuant to Section 5.03 with a copy to 110 West Berry Street, Suite 800,
Fort Wayne, IN 46802, Attention: David McNeely (facsimile 260-461-6238); or, as
to the Borrower or the Paying Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Paying Agent.  All such notices and other communications
shall, when mailed, telegraphed, telecopied or telexed, be effective when
deposited in the mails, delivered to the telegraph company, transmitted by
telecopier or confirmed by telex answerback, respectively, except that notices
and communications to any Agent pursuant to Article II, III or VII
shall not be effective until received by such Agent.  Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or
the Notes or of any Exhibit hereto to be executed and delivered hereunder
shall be effective as delivery of an original executed counterpart thereof.


 


(b)           Notices and
other communications to the Lender Parties hereunder may be delivered or
furnished by electronic communications pursuant to procedures approved by the
Paying Agent; provided that the
foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Paying Agent and the applicable Lender.  The Paying Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.


 


Section 8.03.          No
Waiver; Remedies.  No failure on the part of any Lender Party or
any Agent to exercise, and no delay in exercising, any right hereunder or under
any Note or any other Loan Document shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right.  The remedies provided in the Loan Documents
are cumulative and not exclusive of any remedies provided by law.


 


Section 8.04.          Costs
and Expenses.  (a)  The Borrower agrees to pay on
demand (i) all costs and expenses of the Joint Lead Arrangers and, after
the Initial Extension of Credit, and except as otherwise provided in this
Agreement, also each Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of the Loan Documents
(including, without limitation, (A) all due diligence, collateral review,
syndication, transportation, computer, duplication, appraisal, audit,
insurance, consultant, search, filing and recording fees and expenses and (B) the
reasonable fees and expenses of counsel for the Joint Lead Arrangers and, after
the Initial Extension of Credit, also each Agent with respect thereto,


 


81

















 


including the reasonable fees
and expenses of Shearman & Sterling LLP with respect to advising the
Joint Lead Arrangers or such Agent as to its rights and responsibilities, or
the perfection, protection or preservation of rights or interests, under the
Loan Documents, with respect to negotiations with any Loan Party or with other
creditors of any Loan Party or any of its Subsidiaries arising out of any
Default or any events or circumstances that may give rise to a Default and with
respect to presenting claims in or otherwise participating in or monitoring any
bankruptcy, insolvency or other similar proceeding involving creditors’ rights
generally and any proceeding ancillary thereto, it being understood and agreed
that with respect to the payment of legal fees and expenses, unless and until
the circumstances set forth in clause (ii) below shall occur, the
Borrower shall only be responsible for the fees and expenses of Shearman &
Sterling LLP and any local counsel selected by it in connection with any and
all of the foregoing), and (ii) all costs and expenses of each of the
Joint Lead Arrangers, each Agent and each Lender Party in connection with the
enforcement of and/or the protection of its rights under the Loan Documents and
Advances made and Letters of Credit issued hereunder, whether in any action,
suit or litigation, or any bankruptcy, insolvency or other similar proceeding
affecting creditors’ rights generally, or any workout, restructuring or
negotiations in respect of the Loan Documents, such Advances or such Letters of
Credit (including, without limitation, the reasonable fees and expenses of
counsel for each of the Joint Lead Arrangers, the Administrative Agents and
each Lender Party with respect thereto).


 


(b)           The Borrower
agrees to indemnify, defend and save and hold harmless each of the Joint Lead
Arrangers, each Agent, each Lender Party and each of their Affiliates and their
respective partners, officers, directors, employees, agents and advisors (each,
an “Indemnified Party”)
from and against, and shall pay on demand, any and all claims, damages,
settlement costs, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel (including the allocated
cost of internal counsel)) that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection
with or by reason of (including, without limitation, in connection with any
actual or prospective claim, investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Facilities, the
actual or proposed use of the proceeds of the Advances or the Letters of
Credit, the Transaction Documents, the performance by the parties hereto of
their respective obligations hereunder or thereunder or any of the transactions
contemplated thereby or (ii) the actual or alleged presence or release of
Hazardous Materials on any property owned or operated by any Loan Party or any
of its Subsidiaries or any Environmental Action relating in any way to any Loan
Party or any of its Subsidiaries, except to the extent such claim, damage,
loss, liability or expense is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party’s
gross negligence or willful misconduct.  In
the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 8.04(b) applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is
brought by any Loan Party, its directors, shareholders or creditors or an
Indemnified Party, whether or not any Indemnified Party is otherwise a party
thereto and whether or not the Transaction is consummated, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN
WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF
THE INDEMNIFIED PARTY.  The
Borrower also agrees not to assert, and hereby waives, any claim against any
Lead Arranger, Agent, any Lender Party or any of their Affiliates, or any of
their respective partners, officers, directors, employees, agents and


 


82

















 


advisors,
on any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Facilities, the actual or
proposed use of the proceeds of the Advances or the Letters of Credit, the
Transaction Documents or any of the transactions contemplated by the
Transaction Documents.  No Indemnified
Party shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby.


 


(c)           If any payment
of principal of, or Conversion of, any Eurodollar Rate Advance is made by the
Borrower to or for the account of a Lender Party other than on the last day of
the Interest Period for such Advance, as a result of a payment or Conversion
pursuant to Section 2.06, 2.09(b)(i) or 2.10(d), acceleration of the
maturity of the Notes pursuant to Section 6.01 or for any other reason, or
by an Eligible Assignee to a Lender Party other than on the last day of the
Interest Period for such Advance upon an assignment of rights and obligations
under this Agreement pursuant to Section 8.07 as a result of a demand by
the Borrower pursuant to Section 8.07(a), or if the Borrower fails to make
any payment or prepayment of an Advance for which a notice of prepayment has
been given or that is otherwise required to be made, whether pursuant to Section 2.04,
2.06 or 6.01 or otherwise, the Borrower shall, upon demand by such Lender Party
(with a copy of such demand to the Paying Agent), pay to the Paying Agent for
the account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may incur as a
result of such payment or Conversion or such failure to pay or prepay, as the
case may be, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender Party to fund or
maintain such Advance.


 


(d)           If any Loan Party
fails to pay when due any costs, expenses or other amounts payable by it under
any Loan Document, including, without limitation, fees and expenses of counsel
and indemnities, such amount may be paid on behalf of such Loan Party by the
Paying Agent or any Lender Party, in its sole discretion.


 


(e)           Without
prejudice to the survival of any other agreement of any Loan Party hereunder or
under any other Loan Document, the agreements and obligations of the Borrower
contained in Sections 2.10 and 2.12 and this Section 8.04 shall
survive the payment in full of principal, interest and all other amounts
payable hereunder and under any of the other Loan Documents.


 


Section 8.05.          Right
of Set-off.  Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the
Paying Agent to declare the Notes due and payable pursuant to the provisions of
Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and otherwise apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Agent, such Lender
Party or such Affiliate to or for the credit or the account of the Borrower
against any and all of the Obligations of the Borrower now or hereafter
existing under


 


83

















 


the Loan Documents,
irrespective of whether such Agent or such Lender Party shall have made any
demand under this Agreement or such Note or Notes and although such Obligations
may be unmatured.  Each Agent and each Lender
Party agrees promptly to notify the Borrower after any such set-off and
application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application.  The rights of each Agent and each Lender
Party and their respective Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Agent, such Lender Party and their respective Affiliates may
have.


 


Section 8.06.          Binding
Effect.  This Agreement shall become effective when it
shall have been executed by the Borrower and each Agent and the Paying Agent
shall have been notified by each Initial Lender Party that such Initial Lender
Party has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrower, each Agent and each Lender Party and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Lender Parties.


 


Section 8.07.          Assignments
and Participations.


 


(a)           Each Lender
may, and (following a demand by such Lender pursuant to Section 2.10 or
2.12) upon at least five Business Days’ notice to such Lender and the Paying
Agent, will assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment or Commitments, the Advances owing to it and the
Note or Notes held by it); provided,
however, that (i) each such assignment shall be of a uniform, and not a
varying, percentage of all rights and obligations under and in respect of one
or more Facilities, (ii) except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender, an Affiliate of any
Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s
rights and obligations under this Agreement, the aggregate amount of the
Commitments being assigned to such Eligible Assignee pursuant to such
assignment (determined as of the date of the Assignment and Assumption with
respect to such assignment) shall in no event be less than $1,000,000 (or such
lesser amount as shall be approved by the Paying Agent and, so long as no
Default shall have occurred and be continuing at the time of effectiveness of
such assignment, the Borrower), (iii) each such assignment shall be to an
Eligible Assignee, and (iv) the parties to each such assignment shall
execute and deliver to the Paying Agent, for its acceptance (other than as to
assignments to then existing Lenders and/or their Affiliates) and recording in
the Register, an Assignment and Assumption, together with any Note or Notes
subject to such assignment and together with a processing and recordation fee
in the amount of $3,500; provided, however, that the processing
and recordation fee set forth in sub-clause (iv) above shall not be
payable (A) with respect to an assignment by any Lender Party to an
Affiliate or an Approved Fund of such Lender Party, or (B) with respect to
an assignment (x) which is both by and to an existing Lender Party or (y) with
a stated effective date occurring prior to the 90th day after the Effective
Date hereof.


 


(b)           Upon such
execution, delivery, acceptance and recording, from and after the effective
date specified in such Assignment and Assumption, (i) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it


 


84

















 


pursuant
to such Assignment and Assumption, have the rights and obligations of a Lender
or an Issuing Bank, as the case may be, hereunder and (ii) the Lender or
an Issuing Bank assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Assumption, relinquish its rights (other than its rights under
Sections 2.10, 2.12 and 8.04 to the extent any claim thereunder relates to
an event arising prior to such assignment) and be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the remaining portion of an assigning Lender’s or an Issuing Bank’s
rights and obligations under this Agreement, such Lender or such Issuing Bank shall
cease to be a party hereto).


 


(c)           By executing
and delivering an Assignment and Assumption, each Lender Party assignor
thereunder and each assignee thereunder confirm to and agree with each other
and the other parties thereto and hereto as follows:  (i) other than as provided in such
Assignment and Assumption, such assigning Lender Party makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any Loan Document
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, any Loan
Document or any other instrument or document furnished pursuant thereto; (ii) such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under any
Loan Document or any other instrument or document furnished pursuant thereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Assumption; (iv) such
assignee will, independently and without reliance upon any Agent, such
assigning Lender Party or any other Lender Party and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Loan Documents as are
delegated to such Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender or an Issuing Bank, as the case may be.


 


(d)           The Paying
Agent shall maintain at its address referred to in Section 8.02 a copy of
each Assignment and Assumption delivered to and accepted by it and a register
for the recordation of the names and addresses of the Lender Parties and the
Commitment under each Facility of, and principal amount of the Advances owing
under each Facility to, each Lender Party from time to time (the “Register”).  The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agents and the Lender Parties may treat each Person whose name is
recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement.  The Register shall be available
for inspection by the Borrower or any Agent or any Lender Party at any
reasonable time and from time to time upon reasonable prior notice.


 


85

















 


(e)           Upon its
receipt of an Assignment and Assumption executed by an assigning Lender Party
and an assignee, together with any Note or Notes subject to such assignment,
the Paying Agent shall, if such Assignment and Assumption has been completed
and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Assumption, (ii) record the information contained therein
in the Register and (iii) give prompt notice thereof to the Borrower and
each other Agent.  In the case of any
assignment by a Lender, within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the
Paying Agent in exchange for the surrendered Note or Notes a new Note to the
order of such Eligible Assignee in an amount equal to the Commitment assumed by
it under each Facility pursuant to such Assignment and Assumption and, if any
assigning Lender has retained a Commitment hereunder under such Facility, a new
Note to the order of such assigning Lender in an amount equal to the Commitment
retained by it hereunder.  Such new Note
or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Assumption and shall otherwise be in
substantially the form of Exhibit A hereto.


 


(f)            Each Issuing
Bank may assign to an Eligible Assignee all or a portion of its rights and
obligations under the undrawn portion of its Letter of Credit Commitment at any
time; provided, however, that
each such assignment shall be to an Eligible Assignee and the parties to each
such assignment shall execute and deliver to the Paying Agent, for its
acceptance and recording in the Register, an Assignment and Assumption.


 


(g)           Each Lender
Party may sell participations to one or more Persons (other than any Loan Party
or any of its Affiliates) in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitments, the Advances owing to it and the Note or Notes (if
any) held by it); provided, however, that (i) such Lender Party’s obligations
under this Agreement (including, without limitation, its Commitments) shall
remain unchanged, (ii) such Lender Party shall remain solely responsible
to the other parties hereto for the performance of such obligations, (iii) such
Lender Party shall remain the holder of any such Note for all purposes of this
Agreement, (iv) the Borrower, the Agents and the other Lender Parties
shall continue to deal solely and directly with such Lender Party in connection
with such Lender Party’s rights and obligations under this Agreement and (v) no
participant under any such participation shall have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to
any departure by any Loan Party therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or release
all or substantially all of the Collateral.


 


(h)           Any Lender
Party may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 8.07, disclose to the
assignee or participant or proposed assignee or participant any information
relating to the Borrower furnished to such Lender Party by or on behalf of the
Borrower; provided, however, that, prior to any such disclosure, the assignee
or participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information received by it from such Lender
Party.


 


86

















 


(i)            Notwithstanding
any other provision set forth in this Agreement, any Lender Party may at any
time create a security interest in all or any portion of its rights under this
Agreement (including, without limitation, the Advances owing to it and the Note
or Notes held by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System.


 


Section 8.08.          Execution
in Counterparts.  This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be effective as
delivery of an original executed counterpart of this Agreement.


 


Section 8.09.          No
Liability of the Issuing Banks.  The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit.  Neither the Agents, the Lenders nor any
Issuing Bank nor any of their respective officers or directors shall be liable
or responsible for:  (a) the use
that may be made of any Letter of Credit or any acts or omissions of any
beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by such Issuing Bank against
presentation of documents that do not comply with the terms of a Letter of
Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; (d) any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit (including any document
required to make a drawing thereunder), or any error in interpretation of
technical terms therein; or (e) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against such Issuing Bank, and such Issuing Bank
shall be liable to the Borrower, to the extent of any direct, but not
consequential, damages suffered by the Borrower that the Borrower proves were
caused by (i) such Issuing Bank’s willful misconduct or gross negligence
as determined in a final, non-appealable judgment by a court of competent
jurisdiction in determining whether documents presented under any Letter of
Credit comply with the terms of the Letter of Credit or (ii) such Issuing
Bank’s willful failure to make lawful payment under a Letter of Credit after
the presentation to it of a draft and certificates strictly complying with the
terms and conditions of the Letter of Credit. 
In furtherance of the foregoing and without limiting the generality
thereof, the parties agree that, with respect to documents presented which
appear on their face to be in substantial compliance with the terms of a Letter
of Credit, such Issuing Bank may, in its sole discretion, either accept and
make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.


 


Section 8.10.          Confidentiality. 
Each Agent and each Lender Party shall hold all information supplied by
the Borrower or any of its Subsidiaries that is marked confidential (the “Confidential Information”)
confidential in accordance with its customary practices for handling
confidential information, provided
that, in any event, disclosure may be made without


 


87

















 


the consent of the
Borrower, (a) to such Agent’s or such Lender Party’s Affiliates and their
officers, directors, employees, agents and advisors and to actual or
prospective Eligible Assignees and participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation or
judicial process, (c) as requested or required by any state, Federal or
foreign authority or examiner regulating such Lender Party or any of its
Affiliates, (d) to any rating agency when required by it, provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality
of any Confidential Information relating to the Loan Parties received by it
from such Lender Party, (e) on a confidential basis to swap counterparties
in connection with hedging transactions entered into by a Lender Party with
respect to a Loan Party or any of obligations of a Loan Party and (f) as
may be reasonably necessary in connection with the enforcement of the rights
and remedies of the Lender Parties under the Loan Documents.


 


Section 8.11.          Release
of Collateral.  Upon the sale, lease, transfer or other
disposition of any item of Collateral of any Loan Party (including, without
limitation, as a result of the sale, in accordance with the terms of the Loan
Documents, of the Loan Party that owns such Collateral) in accordance with the
terms of the Loan Documents, the Collateral Agent will, and the Lender Parties
hereby authorize the Collateral Agent to, all at the Borrower’s expense,
execute and deliver to such Loan Party such documents as such Loan Party may
reasonably request to evidence the release of such item of Collateral from the
assignment and security interest granted under the Collateral Documents in
accordance with the terms of the Loan Documents.


 


Section 8.12.          Jurisdiction,
Etc.  (a)  Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York
State court or, to the fullest extent permitted by law, in such Federal
court.  The Borrower hereby agrees that
service of process in any such action or proceeding brought in any such New
York state court or in such federal court may be made upon CT Corporation
System at its offices at 111 Eighth Avenue, 13th Floor, New York, New York 10011 (the “Process Agent”) and
the Borrower hereby irrevocably appoints the Process Agent its authorized agent
to accept such service of process, and agrees that the failure of the Process
Agent to give any notice of any such service shall not impair or affect the
validity of such service or of any judgment rendered in any action or
proceeding based thereon.  The Borrower
hereby further irrevocably consents to the service of process in any action or
proceeding in such courts by the mailing thereof by any parties hereto by
registered or certified mail, postage prepaid, to the Borrower at its address
specified pursuant to Section 8.02. 
Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.  Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.


 


88

















 


(b)           Each of the
parties hereto irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to which it is a
party in any New York State or Federal court. 
Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.


 


Section 8.13.          Governing
Law.  Each Loan Document (other than the Letters of
Credit, to the extent specified below and except as otherwise expressly set
forth in a Loan Document) will each be deemed to be a contract made under and
governed by the laws of the State of New York (including for such purpose
Sections 5-1407 and 5-1402 of the General Obligations Law of the State of
New York).  Each Letter of Credit shall
be governed by, and construed in accordance with, the laws or rules designated
in such Letter of Credit or the related Letter of Credit Agreement, or if no
laws or rules are designated, the International Standby Practices (ISP98 —
International Chamber of Commerce Publication Number 590 (the “ISP  Rules”)) and, as to matters not
governed by the ISP Rules, the internal laws of the State of New York.  The Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter
thereof and supersede any prior agreements, written or oral, with respect
thereto.


 


Section 8.14.          Reallocation
and Assignment of Existing Facility.  The credit
extensions and commitments made by the Existing Lenders and outstanding
pursuant to the Existing Credit Agreement and not refinanced in connection with
the Refinancing, shall be assigned without recourse and re-allocated among the
Lenders so that, and credit extensions and commitments shall be made by the
Lenders pursuant to this Agreement so that, from and after the Effective Date,
the respective commitments and credit extensions of the Lenders shall be in
accordance with Schedule I. 
Credit extensions made by Existing Lenders and not so assigned shall,
effective as of the Effective Date, be evidenced and governed by this Agreement
and the Loan Documents.


 


Section 8.15.          Effect
of this Agreement.  This Agreement amends and restates the
Existing Credit Agreement in its entirety and is entitled to the benefit of all
existing Loan Documents.  Any reference
in any other Loan Document to the “Credit Agreement,”
“thereunder,” “therein,” “thereof” or words of like import
referring to the Existing Credit Agreement shall mean and refer to this
Agreement.  Any reference in any other
Loan Document to the “Obligations” or any similar term including or referencing
obligations under the Existing Credit Agreement shall include and reference the
Obligations as defined in this Agreement. 
All Obligations under the Existing Credit Agreement and the other Loan
Documents shall continue to be outstanding except as expressly modified by this
Agreement and shall be governed in all respects by this Agreement and the other
Loan Documents, it being agreed and understood by the parties hereto that this Agreement
does not constitute a novation, satisfaction, payment or reborrowing of any
Obligation under the Existing Credit Agreement or any other Loan Document
except as expressly modified by this Agreement, nor, except as expressly
provided herein, does it operate as a waiver of any right, power or remedy of
any Lender under any Loan Document.  The
security interests granted pursuant to any Loan Documents shall, as modified
hereby, continue in full force and effect, and are hereby affirmed, with
respect to this Agreement


 


89

















 


and the Obligations as
defined herein.  In the event of a
conflict between the terms and provisions of this Agreement and the terms and
provisions of any other Loan Document, the terms and provisions of this
Agreement shall govern.


 


Section 8.16.          No
Advisory or Fiduciary Responsibility.  In connection
with all aspects of each transaction contemplated hereby (including in
connection with any amendment, waiver or other modification hereof or of any
other Loan Document), the Borrower acknowledges and agrees that: (i) (A) the arranging
and other services regarding this Agreement severally provided by the
Administrative Agents, the Joint Lead Arrangers and the Lenders are arm’s-length
commercial transactions between the Borrower and its Affiliates, on the one
hand, and the Administrative Agents, the Joint Lead Arrangers and the Lenders
(severally), on the other hand, (B) the Borrower has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (C) the Borrower is capable of evaluating, and
understands and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents; (ii) (A) the
Administrative Agents, the Joint Lead Arrangers and the Lenders each is and has
been acting solely as a principal and, except as expressly agreed in writing by
the relevant parties, has not been, is not, and will not be acting as an
advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any
other Person and (B) neither the Administrative Agents, nor the Joint Lead
Arrangers nor any Lender has any obligation to the Borrower or any of its
Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; and (iii) the
Administrative Agents, the Joint Lead Arrangers and the Lenders and their
respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower and its Affiliates, and neither the Administrative Agents nor the Joint Lead Arrangers nor any Lender has
any obligation to disclose any of such interests to the Borrower or its
Affiliates.  To the fullest extent
permitted by law, the Borrower
hereby waives and releases any claims that it may have against any of the
Administrative Agents, the Joint Lead
Arrangers or any Lender with respect to any breach or alleged breach of
agency or fiduciary duty in connection with any aspect of any transaction
contemplated hereby.


 


Section 8.17.          Patriot
Act Notice.  Each Lender hereby notifies each Loan Party
that, pursuant to the requirements of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Pub. L. 107-56 (the “Patriot Act”), it is required to obtain, verify and record
information that identifies each Loan Party, which information includes names
and addresses and other information that will allow it to identify each Loan
Party in accordance with the Patriot Act.


 


Section 8.18.        Waiver of Jury Trial. 
Each of the Borrower, the Agents and the Lender Parties irrevocably
waives all right to trial by jury in any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or relating to
any of the Loan Documents, the Advances, the Letters of Credit or the actions
of any Agent or any Lender Party in the negotiation, administration,
performance or enforcement thereof.


 


90






 












 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.


 


	
  

  	
  STEEL DYNAMICS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  BANC OF AMERICA SECURITIES LLC,

  
	
   

  	
  as a Joint Lead Arranger

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Timothy Munte

  
	
   

  	
   

  	
  Name: Timothy Munte

  
	
   

  	
   

  	
  Title: Principal

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
  as Documentation Agent and Syndication Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ David G. McCauley

  
	
   

  	
   

  	
  Name: David G. McCauley

  
	
   

  	
   

  	
  Title: Principal

  
	
   

  	
   

  	
   

  
	
   

  	
  NATIONAL CITY BANK,

  
	
   

  	
  as a Joint Lead Arranger

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ David G. McNeely

  
	
   

  	
   

  	
  Name: David G. McNeely

  
	
   

  	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  NATIONAL CITY BANK,

  
	
   

  	
  as Administrative Agent, Syndication Agent and

  Swing Line Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ David G. McNeely

  
	
   

  	
   

  	
  Name: David G. McNeely

  
	
   

  	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  NATIONAL CITY BANK,

  
	
   

  	
  as Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ David G. McNeely

  
	
   

  	
   

  	
  Name: David G. McNeely

  
	
   

  	
   

  	
  Title: Senior Vice President

  



 

















 


	
  

  	
  WELLS FARGO BANK,
  NATIONAL

  ASSOCIATION,

  as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Paul A. O’Mara

  
	
   

  	
   

  	
  Name: Paul A. O’Mara

  
	
   

  	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  GENERAL ELECTRIC
  CAPITAL CORPORATION,

  
	
   

  	
  as Documentation Agent
  and as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Matthew N. McAlpine

  
	
   

  	
   

  	
  Name: Matthew N. McAlpine

  
	
   

  	
   

  	
  Title: Its Duly Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  BMO Capital Markets
  Financing, Inc.,

  
	
   

  	
  as Documentation Agent
  and as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Thad D. Rusche

  
	
   

  	
   

  	
  Name: Thad D. Rusche

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
  FIFTH THIRD BANK,

  
	
   

  	
  as Documentation Agent
  and as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ David O’Neal

  
	
   

  	
   

  	
  Name: David O’Neal

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


Initial Issuing Bank


 


	
  

  	
  NATIONAL CITY BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ David G. McNeely

  
	
   

  	
   

  	
  Title: Senior Vice President

  



 

















 


Swing Line Bank


 


	
  

  	
  NATIONAL CITY BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ David G. McNeely

  
	
   

  	
   

  	
  Title: Senior Vice President

  



 

















 


Lender


 


	
  

  	
  ABN AMRO Bank, N.V.,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Kris A. Grosshans

  
	
   

  	
   

  	
  Name: Kris A. Grosshans

  
	
   

  	
   

  	
  Title: Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Ece Bennett

  
	
   

  	
   

  	
  Name: Ece Bennett

  
	
   

  	
   

  	
  Title: Director

  



 

















 


Lender


 


	
  

  	
  THE NORTHERN TRUST COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Jared T. Hall

  
	
   

  	
   

  	
  Name: Jared T. Hall

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


Lender


 


	
  

  	
  WELLS FARGO BANK, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Paul A. O’Mara

  
	
   

  	
   

  	
  Name: Paul A. O’Mara

  
	
   

  	
   

  	
  Title: Senior Vice President

  



 

















 


Lender


 


	
  

  	
  PNC BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Louis K. McLinden

  
	
   

  	
   

  	
  Name: Louis K. McLinden

  
	
   

  	
   

  	
  Title: Managing Director

  



 

















 


Lender


 


	
  

  	
  GOLDMAN SACHS CREDIT PARTNERS L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Mark Walton

  
	
   

  	
   

  	
  Name: Mark Walton

  
	
   

  	
   

  	
  Title: Authorized Signatory

  



 

















 


Lender


 


	
  

  	
  J.P. MORGAN CHASE BANK, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Linda Meyer

  
	
   

  	
   

  	
  Name: Linda Meyer

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


Lender


 


	
  

  	
  By

  	
  /s/ Daniel Twenge

  
	
   

  	
   

  	
  Name:

  	
  Daniel Twenge

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
  Morgan Stanley Bank

  



 

















 


Lender


 


	
  

  	
  CITIBANK, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Peter Dillon

  
	
   

  	
   

  	
  Name: Peter Dillon

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


Schedule A to the

Credit Agreement


 


EXISTING LETTERS OF CREDIT


 


1.                                       Irrevocable Standby Letter of Credit
issued March 8, 2002 in the amount of $1,500,000.00 by Harris N.A. for the
benefit of Northeastern Rural Electric Member Corporation, originally
identified as Number SPL90007608, as amended October 20, 2003 and
thereafter known as Irrevocable Standby Letter of Credit No. HACH19881OS,
as further amended March 22, 2004, March 1, 2005, March 8, 2006
and March 7, 2007 to extend expiration through March 11, 2008, and as
amended September 26, 2005 to increase the amount to $3,000,000.


 


2.                                       Irrevocable Standby Letter of Credit
issued March 22, 2004 in the amount of $1,000,000.00 by Harris N.A. for
the benefit of Northeastern Rural Electric Member Corporation, identified as
Number HACH69008OS, as further amended March 11, 2005, March 8, 2006
and March 7, 2007 to extend expiration through March 11, 2008.


 

















 


SCHEDULE I


 


COMMITMENTS AND APPLICABLE LENDING OFFICES


 


	
  Name of Initial

  Lender

  	
   

  	
  Revolving

  Credit

  Commitment

  	
   

  	
  Letter of

  Credit

  Commitment

  	
   

  	
  Domestic Lending

  Office

  	
   

  	
  Eurodollar

  Lending Office

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  90,000,000

  	
   

  	
   

  	
   

  	
  On file with the Paying Agent

  	
   

  	
  On file with the Paying Agent

  	
   

  
	
  National City Bank

  	
   

  	
  $

  	
  90,000,000

  	
   

  	
  $

  	
  100,000,000

  	
   

  	
  On file with the Paying Agent

  	
   

  	
  On file with the Paying Agent

  	
   

  
	
  General Electric Capital Corporation

  	
   

  	
  $

  	
  100,000,000

  	
   

  	
   

  	
   

  	
  On file with the Paying Agent

  	
   

  	
  On file with the Paying Agent

  	
   

  
	
  BMO Capital Markets

  	
   

  	
  $

  	
  75,000,000

  	
   

  	
   

  	
   

  	
  On file with the Paying Agent

  	
   

  	
  On file with the Paying Agent

  	
   

  
	
  Fifth Third Bank (Central Indiana)

  	
   

  	
  $

  	
  75,000,000

  	
   

  	
   

  	
   

  	
  On file with the Paying Agent

  	
   

  	
  On file with the Paying Agent

  	
   

  
	
  Wells Fargo Bank, N.A.

  	
   

  	
  $

  	
  75,000,000

  	
   

  	
   

  	
   

  	
  On file with the Paying Agent

  	
   

  	
  On file with the Paying Agent

  	
   

  
	
  PNC Bank, National Association

  	
   

  	
  $

  	
  45,000,000

  	
   

  	
   

  	
   

  	
  On file with the Paying Agent

  	
   

  	
  On file with the Paying Agent

  	
   

  
	
  Morgan Stanley Senior Funding, Inc.

  	
   

  	
  $

  	
  45,000,000

  	
   

  	
   

  	
   

  	
  On file with the Paying Agent

  	
   

  	
  On file with the Paying Agent

  	
   

  
	
  ABN Amro

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
   

  	
   

  	
  On file with the Paying Agent

  	
   

  	
  On file with the Paying Agent

  	
   

  
	
  Goldman Sachs Credit Partners L.P.

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
   

  	
   

  	
  On file with the Paying Agent

  	
   

  	
  On file with the Paying Agent

  	
   

  
	
  JPMorgan Chase Bank, N.A.

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
   

  	
   

  	
  On file with the Paying Agent

  	
   

  	
  On file with the Paying Agent

  	
   

  
	
  The Northern Trust Company

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
   

  	
   

  	
  On file with the Paying Agent

  	
   

  	
  On file with the Paying Agent

  	
   

  
	
  Citibank, N.A.

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
   

  	
   

  	
  On file with the Paying Agent

  	
   

  	
  On file with the Paying Agent

  	
   

  
	
  Total

  	
   

  	
  $

  	
  750,000,000

  	
   

  	
  $

  	
  100,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  



 
















 


Schedule II


To
the Credit Agreement


 


SUBSIDIARY GUARANTORS


 


SDI Investment Company


103 Foulk Road, Suite 200


Wilmington, DE  19803


 


New
Millennium Building Systems, LLC


6115
County Road 42


Butler,
IN 46721


 


Steel
Dynamics Sales North America, Inc.


6714
Pointe Inverness Way, Suite 200


Fort
Wayne, IN 46804


 


Roanoke
Electric Steel Corporation


6714
Pointe Inverness Way, Suite 200


Fort
Wayne, IN 46804


 


Steel
Holdings, Inc.


6714
Pointe Inverness Way, Suite 200


Fort
Wayne, IN 46804


 


Steel
Dynamics Ferrous Resources, LLC


6714
Pointe Inverness Way, Suite 200


Fort
Wayne, IN 46804


 


Shredded
Products, LLC


700
Commerce Road


Rocky
Mount, VA  24151


 

















 


John
W. Hancock, Jr., LLC


2535
Duiguids Lane


Salem,
VA  24153


 


New
Millennium Buildings Systems, Inc.


PO
Box 671


Florence,
SC  29503-0671


 


SOCAR
of Ohio, Inc.


PO
Box 216


Continental,
OH  45831


 


RESCO
Steel Products Corporation


PO
Box 13948


Roanoke,
VA  24038


 


Roanoke
Technical Treatment & Services, Inc.


PO
Box 13948


Roanoke,
VA  24038


 


Steel
of West Virginia, Inc.


PO
Box 2547


Huntington,
WV  25726-2547


 


SWVA, Inc.


PO
Box 2547


Huntington,
WV  25726-2547


 


Marshall
Steel, Inc.


PO
Box 2547


Huntington,
WV  25726-2547


 


Steel
Ventures, Inc.


PO
Box 13948


Roanoke,
VA  24038


 


Shredded
Products II, LLC


6714
Pointe Inverness Way, Suite 200


Fort
Wayne, IN 46804


 
















 


Schedule 4.01(a)


To the Credit Agreement


 


SCHEDULE 4.01(a) TO THE CREDIT AGREEMENT


 


	
  Loan
  Party

  	
   

  	
  Principal Place of Business

  	
   

  	
  Taxpayer Identification

  Number

  	
   

  	
  Jurisdiction of

  Organization

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Dynamics, Inc.

  	
   

  	
  6714
  Pointe Inverness Way, Suite 200

  Fort
  Wayne, Allen County, IN 46804

  	
   

  	
  35-1929476

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4500
  County Road 59 Butler, DeKalb County, IN 46721

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2601
  County Road 700 East Columbia City, Whitley County, IN 46725

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  800
  N. County Road 225E Pittsboro, IN 46167

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4500
  County Road 59 Butler, DeKalb County, IN 46721

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  5134
  Loop Road Jeffersonville, IN 47130

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SDI
  Investment Company

  	
   

  	
  103
  Foulk Road

  Wilmington,
  DE 19803

  	
   

  	
  51-0397408

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New
  Millennium Building Systems, LLC

  	
   

  	
  6115
  County Road 42

  Butler,
  IN 46721

  	
   

  	
  35-2083989

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Dynamics Sales North America, Inc.

  	
   

  	
  6714
  Pointe Inverness Way, Suite 200

  Fort
  Wayne, Allen County, IN 46804

  	
   

  	
  32-0042039

  	
   

  	
  Indiana

  



 

















 


	
  Roanoke
  Electric Steel Corporation

  	
   

  	
  102
  Westside Blvd. NM

  Roanoke,
  VA 24017

  	
   

  	
  20-3663442

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Holdings, Inc.

  	
   

  	
  6714
  Pointe Inverness Way, Suite 200

  Fort
  Wayne, Allen County, IN 46804

  	
   

  	
  20-3663551

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Dynamics Ferrous Resources, LLC

  	
   

  	
  6714
  Pointe Inverness Way, Suite 200

  Fort
  Wayne, Allen County, IN 46804

  	
   

  	
  20-3663686

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Shredded
  Products, LLC

  	
   

  	
  700
  Commerce Road

  Rocky
  Mount, VA 24151

  	
   

  	
  54-0891585

  	
   

  	
  Virginia

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  John
  W. Hancock, Jr., LLC

  	
   

  	
  2535
  Duiguids Lane

  Salem,
  VA 24153

  	
   

  	
  54-0460919

  	
   

  	
  Virginia

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New
  Millennium Building Systems, Inc.

  	
   

  	
  2527
  E. National Cemetery Road

  Florence,
  SC 29506

  	
   

  	
  57-0477521

  	
   

  	
  South Carolina

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SOCAR
  of Ohio, Inc.

  	
   

  	
  21739
  St. Rt. 109

  Continental,
  OH 45831

  	
   

  	
  34-1097158

  	
   

  	
  Ohio

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RESCO
  Steel Products Corporation

  	
   

  	
  6714
  Pointe Inverness Way, Suite 200

  Fort
  Wayne, Allen County, IN 46804

  	
   

  	
  54-1394232

  	
   

  	
  Virginia

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke
  Technical Treatment & Services, Inc.

  	
   

  	
  6714
  Pointe Inverness Way, Suite 200

  Fort
  Wayne, Allen County, IN 46804

  	
   

  	
  54-1529955

  	
   

  	
  Virginia

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  of West Virginia, Inc.

  	
   

  	
  17th Street & 2nd Avenue

  Huntington,
  WV 25726

  	
   

  	
  55-0684304

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SWVA, Inc.

  	
   

  	
  17th Street & 2nd Avenue

  Huntington,
  WV 25726

  	
   

  	
  55-0621605

  	
   

  	
  Delaware

  



 

















 


	
  Marshall
  Steel, Inc.

  	
   

  	
  1555
  Harbor Avenue

  Memphis,
  TN 38113

  	
   

  	
  62-1527726

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Ventures, Inc.

  	
   

  	
  6714
  Pointe Inverness Way, Suite 200

  Fort
  Wayne, Allen County, IN 46804

  	
   

  	
  55-0740037

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Shredded
  Products II, LLC

  	
   

  	
  110
  Parma R Rd.

  Johnson
  City, TN   37604

  	
   

  	
  20-8714353

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  808
  Lynn Avenue

  Elizabethton,
  TN   37643

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule 4.01(b)


To the Credit Agreement


 


SUBSIDIARIES OF LOAN PARTY


STEEL DYNAMICS, INC.


 


	
  Entity

  	
   

  	
  Jurisdiction of

  Incorporation or

  Organization

  	
   

  	
  Owner of

  Equity Interests

  	
   

  	
  No.

  Shares/Equity

  Units

  Authorized

  	
   

  	
  No. Outstanding

  	
   

  	
  Percentage

  Owned

  	
   

  	
  Shares

  Covered by

  Options,

  Warrants,

  etc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SDI
  Investment Company

  	
   

  	
  Delaware

  	
   

  	
  Steel
  Dynamics, Inc.

  	
   

  	
  1000

  	
   

  	
  100

  	
   

  	
  100%

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New
  Millennium Building Systems, LLC

  	
   

  	
  Indiana

  	
   

  	
  Steel
  Dynamics, Inc.

  	
   

  	
  1,000,000

  	
   

  	
  1,000,000

  	
   

  	
  100%

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Dynamics Sales North America, Inc.

  	
   

  	
  Indiana

  	
   

  	
  Steel
  Dynamics, Inc.

  	
   

  	
  1000

  	
   

  	
  100

  	
   

  	
  100%

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke
  Electric Steel Corporation

  	
   

  	
  Indiana

  	
   

  	
  Steel
  Dynamics, Inc.

  	
   

  	
  1000

  	
   

  	
  100

  	
   

  	
  100%

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Holdings, Inc.

  	
   

  	
  Indiana

  	
   

  	
  Steel
  Dynamics, Inc.

  	
   

  	
  1000

  	
   

  	
  100

  	
   

  	
  100%

  	
   

  	
  None

  



 

















 


	
  Steel
  Dynamics Ferrous Resources, LLC

  	
   

  	
  Indiana

  	
   

  	
  Steel
  Holdings, Inc.

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  100%

  	
   

  	
  N/A

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Shredded
  Products, LLC

  	
   

  	
  Virginia

  	
   

  	
  Roanoke
  Electric Steel Corporation

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  100%

  	
   

  	
  N/A

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  John
  W. Hancock, Jr., LLC

  	
   

  	
  Virginia

  	
   

  	
  Roanoke
  Electric Steel Corporation

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  100%

  	
   

  	
  N/A

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New
  Millennium Building Systems, Inc.

  	
   

  	
  South Carolina

  	
   

  	
  Roanoke
  Electric Steel Corporation

  	
   

  	
  200,000

  	
   

  	
  50,700

  	
   

  	
  100%

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SOCAR
  of Ohio, Inc.

  	
   

  	
  Ohio

  	
   

  	
  New
  Millennium Building Systems, Inc.

  	
   

  	
  500

  	
   

  	
  500

  	
   

  	
  100%

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RESCO
  Steel Products Corporation

  	
   

  	
  Virginia

  	
   

  	
  Roanoke
  Electric Steel Corporation

  	
   

  	
  1000

  	
   

  	
  1000

  	
   

  	
  100%

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke
  Technical Treatment & Services, Inc.

  	
   

  	
  Virginia

  	
   

  	
  Roanoke
  Electric Steel Corporation

  	
   

  	
  1000

  	
   

  	
  1000

  	
   

  	
  100%

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  of West Virginia, Inc.

  	
   

  	
  Delaware

  	
   

  	
  Roanoke
  Electric Steel Corporation

  	
   

  	
  1000

  	
   

  	
  100

  	
   

  	
  100%

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SWVA, Inc.

  	
   

  	
  Delaware

  	
   

  	
  Steel
  of West Virginia, Inc.

  	
   

  	
  200

  	
   

  	
  200

  	
   

  	
  100%

  	
   

  	
  None

  



 

















 


	
  Marshall
  Steel, Inc.

  	
   

  	
  Delaware

  	
   

  	
  Steel
  of West Virginia, Inc.

  	
   

  	
  1000

  	
   

  	
  1000

  	
   

  	
  100%

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Ventures, Inc.

  	
   

  	
  Delaware

  	
   

  	
  Steel
  of West Virginia, Inc.

  	
   

  	
  1000

  	
   

  	
  1000

  	
   

  	
  100%

  	
   

  	
  None

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Shredded
  Products II, LLC

  	
   

  	
  Indiana

  	
   

  	
  Steel
  Dynamics, Inc.

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  100%

  	
   

  	
  N/A

  



 

















 


Schedule 4.01(d)


To the Credit Agreement


 


AUTHORIZATIONS, APPROVALS, ACTIONS, NOTICES AND FILINGS


 


None.


 

















 


Schedule 4.01(f)


To the Credit Agreement


 


DISCLOSED LITIGATION


 


None.


 

















 


Schedule 4.01(o)


To the Credit Agreement


 


PLANS, MULTIEMPLOYER PLANS AND WELFARE PLANS


(Applicable to Steel Dynamics, Inc. and all
wholly owned subsidiaries)


 


1.                                       Profit Sharing and Retirement Savings Plan.  (#001) 
Steel Dynamics, Inc. sponsors a Profit Sharing and Retirement
Savings Plan (a “qualified plan” for federal income tax purposes) for eligible
employees.  With respect to retirement
savings, employees may contribute on a pre-tax basis or on an after-tax basis a
percentage of their eligible compensation; an employer matching contribution
may be made subject to a minimum matching contribution of 5% of the employee’s
pre-tax or after-tax contribution, not to exceed 50% of the employee’s pre-tax
or after-tax contribution; the profit sharing contribution is funded annually
with an amount calculated by applying a variable percentage to a pool of funds
equivalent to 7% of the company’s pre-tax profits.


 


2.                                       Health and Dental Plan.  (#502) 
Steel Dynamics, Inc. offers a health and dental insurance plan to
its eligible employees.  The plan is
self-funded, but includes reinsurance for claims exceeding $150,000.


 


3.                                       Long-term Disability Plan.  (#502) 
Steel Dynamics, Inc. offers a long-term disability insurance
benefit to eligible employees.  The
insurance becomes effective after 90 days an employee’s disability, and pays a
percentage of the employee’s regular salary.


 


4.                                       Cafeteria Plan. 
(#501)  Steel Dynamics, Inc.
offers a cafeteria plan for all eligible employees.  This plan permits employees to have pre-tax dollars
withheld from their paychecks for payment of medical and other expenses.  This plan does not involve any contribution
of funds by the company.


 


5.                                       Group Term Insurance Plan.  (#504) 
Steel Dynamics, Inc. offers a group life insurance plan to all eligible
employees.  The insurance provides a
benefit equal to an employee’s salary, not to exceed $600,000, upon the
employee’s death.


 


6.                                       Group Accidental Death and Dismemberment Plan.  (#505) 
Steel Dynamics, Inc. offers a group accidental death and dismemberment
insurance plan to all eligible employees.


 


7.                                       Educational Assistance Plan.  (#506)  Steel Dynamics, Inc. offers an education
assistance plan to all eligible employees.


 


8.                                       Incentive Stock Option Plan.  Steel Dynamics, Inc. offers an Incentive
Stock Option Plan to all full-time employees of the company and its
wholly-owned subsidiaries.


 

















 


9.                                       Employee
Stock Purchase Plan.  Steel
Dynamics, Inc. offers the opportunity to purchase common stock of Steel
Dynamics, Inc. to all eligible employees through payroll deductions at
fair market value.


 

















 


Schedule 4.01(p)


To the Credit Agreement


 


ENVIRONMENTAL DISCLOSURE


 


Part I


 


None.


 


Part II


 


None.


 


Part III


 


None.


 
















 


Schedule 4.01(q)


To the Credit Agreement


 


OPEN YEARS


 


Part I


 


The
years 1999 through 2005 are Open Years.


 


Part II


 


Steel
Dynamics, Inc. & Subsidiaries was audited by the Internal Revenue
Service for the years 1999 through 2001; proposed deficiencies in the amount of
$400,867 (before interest and penalties) has been approved by the Appeals
Division of the IRS and has been forwarded to the Joint Committee for final
approval.


 


Steel
Dynamics, Inc. has filed an appeal in the Indiana Tax Court against the
State of Indiana due to their denial of refund of sales and use tax claims
filed by Steel Dynamics, Inc. and its Subsidiaries for periods between
2000 and 2003.


 


The
Indiana Department of Revenue is auditing Steel Dynamics, Inc. &
Subsidiaries income tax returns for the years 2000 through 2005.  Information has been provided by Steel
Dynamics, Inc. pursuant to requests by the State but there have been no
assessments or deficiencies issued at this time.


 


The
Minnesota Department of Revenue is reviewing Steel Dynamics, Inc. &
Subsidiaries for income tax liabilities for the years 2000 through 2005.  Information has been provided by Steel
Dynamics, Inc. pursuant to requests by the State but there have been no
assessments or deficiencies issued at this time.


 

















 


Schedule 4.01(s)


To The Credit Agreement


 


EXISTING DEBT SCHEDULE


(OTHER THAN SURVIVING DEBT)


 


Steel Dynamics, Inc.


 


1.                                       The debt owing
under the existing 2005 Credit Agreement in the amount of $150,000,000.


 

















 


Schedule 4.01(t)


To the Credit Agreement


 


SURVIVING DEBT SCHEDULE


 


Steel Dynamics, Inc. (“SDI”)


 


1.                                       SDI entered
into a loan agreement, security agreement and financing statement dated as of November 1,
1998 with Whitley County, Indiana under the terms of which Whitley County
loaned SDI $10 million, representing the proceeds of Whitley County’s Solid
Waste and Sewage Disposal Revenue Bonds (the “1998 Whitley County Bonds”) to
finance certain solid waste and sewage disposal facilities constituting part of
our Whitley County plant.  The final
maturity date of the 1998 Whitley County Bonds is November 1, 2018, and
they are secured by certain machinery and equipment at SDI’s structural
mini-mill in Whitley County, Indiana, including approximately 13 overhead
cranes and 2 rollshop lathes.  The unpaid
principal balance on the 1998 Whitley County Bonds at March 31, 2007 is
$8,770,000.


 


2.                                       SDI entered
into a Taxpayer Agreement dated as of January 1, 1999 between the Whitley
County Redevelopment Commission and SDI under the terms of which SDI has agreed
to pay “additional rentals” in connection with an equipment sublease dated as
of January 1, 1999 by and between the Whitley County Redevelopment
Commission as sublessor and Steel Dynamics, Inc. as sublessee, including “tax
incremental shortfall” which is defined as the difference, if any, between the
tax increment collected and deposited with the bond trustee for the Whitley
County Holding Corporation Economic Development Lease Rental Taxable Bonds of
1999, Series A in the original principal amount of $13,080,000 (the “1999
TIF Bonds”) and the corresponding principal and interest due on the 1999 TIF
Bonds, provided such shortfall is attributable to a change in the civil taxing
unit’s tax rate occurring as a result of changes to existing statutes and
regulations.


 


3.                                       Revolving
Promissory Note in favor of SDI Investment Company in the amount of $54,225,000
at March 31, 2007 with a maturity of December 31, 2007.


 


4.                                      Obligation in
favor of the Wabash Valley Power Association, Inc., relating to
transmission facilities.  The debt, in
the amount of approximately $8,599,094 at March   31, 2007, arises from the cost to construct
the power transmission line and facilities to the Whitley County mill.
 Since SDI is the only beneficial user of the lines, SDI is paying for
them over a ten year period (20 year amortization with a balloon at the end of
ten years), but will not take title to the lines and facilities.


 


5.             $500,000,000 of the Company’s 6 3⁄4 %
Senior Notes due 2015.


 


6.             $37,500,000 of the Company’s 4%
Convertible Subordinated Notes due 2012.


 

















 


Roanoke
Electric Steel Corporation


 


1.               Capital leases in the amount
of $159,787 at March 31, 2007.


 


Steel
Dynamics Sales North America, Inc.


 


None.


 


SDI
Investment Company


 


None.


 


New
Millennium Building Systems, LLC


 


None.


 


Steel
Holdings, Inc.


 


None.


 


Steel
Dynamics Ferrous Resources, LLC


 


None.


 


Shredded
Products, LLC


 


None.


 


John W.
Hancock, Jr., LLC


 


None.


 


New
Millennium Building Systems, Inc.


 


None.


 

















 


SOCAR
of Ohio, Inc.


 


None.


 


RESCO
Steel Products Corporation


 


None.


 


Roanoke
Technical Treatment & Services, Inc.


 


None.


 


Steel
of West Virginia, Inc.


 


None.


 


SWVA, Inc.


 


None.


 


Marshall
Steel, Inc.


 


None.


 


Steel
Ventures, Inc.


 


None.


 


Shredded
Products II, LLC


 


None.


 

















 


Schedule 4.01(u)


To the Credit Agreement


 


LIENS — STEEL DYNAMICS, INC.


 


	
  LIENHOLDER

  	
   

  	
  AMOUNTS SECURED

  	
   

  	
  SUBJECT PROPERTY

  
	
  Indiana
  Michigan Power Company

  One Summit Square

  P.O. Box 60

  Fort Wane, IN 46801

  	
   

  	
   

  	
   

  	
  All
  right, title, interest, claims and demands of the debtor, in, to and under a
  contract for the supply of a substation with static var system and power
  distribution equipment between Debtor and GE Power Delivery Systems,
  Schenectady, New York for the construction of a 340 kilovolt-34.5 kilovolt
  substation and related facilities in DeKalb County, Indiana and all supplements
  and amendments thereto

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NMHG
  Financial Services Inc.

  44 Old Ridgebury Road

  Danbury, CT 06810

  	
   

  	
   

  	
   

  	
  Leased
  Equipment [lease]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Industrial
  Services of America, Inc. P.O. Box 32428

  Louisville, KY 40232

  	
   

  	
   

  	
   

  	
  17
  Containers/Self-dumping Hoppers

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Marlin
  Leasing Corp.

  300 Fellowship Road

  Mount Laurel, NJ 08054

  	
   

  	
   

  	
   

  	
  Leased
  equipment/(23) AF2 [lease]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VFS
  Leasing Co.

  P.O. Box 26131

  Greensboro, NC 27402

  	
   

  	
   

  	
   

  	
  2007
  Volvo L220E [lease]

  



 
















 


LIENS – JOHN W. HANCOCK JR., LLC


 


	
  LIENHOLDER

  	
   

  	
  AMOUNTS SECURED

  	
   

  	
  SUBJECT PROPERTY

  	
   

  
	
  Amano Business Credit

  2081 SE Ocean Blvd. Suite

  2A

  Stuart, FL 34996

  	
   

  	
   

  	
   

  	
  1 Kip 6054 STF System with
  Printer and Scanner

  	
   

  



 


LIENS – STEEL OF WEST VIRGINIA, INC.


 


	
  LIENHOLDER

  	
   

  	
  AMOUNTS SECURED

  	
   

  	
  SUBJECT PROPERTY

  	
   

  
	
  P.C. Campana, Inc.

  1374 East 28th Street

  Lorain, OH 44055

  	
   

  	
   

  	
   

  	
  One (1) two-path wire
  feeder

  	
   

  



 


LIENS — SOCAR OF OHIO, INC.


 


	
  LIENHOLDER

  	
   

  	
  AMOUNTS SECURED

  	
   

  	
  SUBJECT PROPERTY

  	
   

  
	
  Dell Financial Services
  L.P.

  12234 N. IH-35, Bldg. B

  Austin, TX 78753

  	
   

  	
   

  	
   

  	
  Computer equipment and
  peripherals

  	
   

  



 


LIENS — SWVA, INC.


 


	
  LIENHOLDER

  	
   

  	
  AMOUNTS SECURED

  	
   

  	
  SUBJECT PROPERTY

  	
   

  
	
  Toyota Motor Credit
  Corporation

  P.O. Box 3457

  Torrance, CA 90510



  2nd Secured Party:

  Jefferds Corporation

  PO Box 757

  St. Albans, WV 25177

  	
   

  	
   

  	
   

  	
  Two (2) Forklift
  Trucks [lease]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Toyota Motor Credit
  Corporation

  P.O. Box 3457

  Torrance, CA 90510

  	
   

  	
   

  	
   

  	
  One (1) used 1990
  Marklift Model 62C Boomlift

  	
   

  



 

















 


	
  Toyota Motor Credit
  Corporation

  P.O. Box 3457

  Torrance, CA 90510

  	
   

  	
   

  	
   

  	
  One (1) Model 7FDU35
  Forklift

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Intech Funding Corp.

  201 East Huntington Drive Suite

  201

  Monrovia, CA 91016

  	
   

  	
   

  	
   

  	
  One (1) Leadwell CNC
  Turning Center Model LTC-30CPL

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Toyota Motor Credit
  Corporation

  P.O. Box 3457

  Torrance, CA 90510

  	
   

  	
   

  	
   

  	
  One (1) 2004 Forklift

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Toyota Motor Credit
  Corporation

  P.O. Box 3457

  Torrance, CA 90510

  	
   

  	
   

  	
   

  	
  One (1) 2004 Forklift
  Truck

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Toyota Motor Credit
  Corporation

  P.O. Box 3457

  Torrance, CA 90510

  	
   

  	
   

  	
   

  	
  Two (2) Forklift
  Trucks

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Toyota Motor Credit
  Corporation

  P.O. Box 3457

  Torrance, CA 90510

  	
   

  	
   

  	
   

  	
  Two (2) Forklift
  Trucks

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Toyota Motor Credit
  Corporation

  P.O. Box 3457

  Torrance, CA 90510

  	
   

  	
   

  	
   

  	
  One (1) Forklift
  Truck

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Toyota Motor Credit
  Corporation

  P.O. Box 3457

  Torrance, CA 90510

  	
   

  	
   

  	
   

  	
  One (1) 2005 Forklift

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Toyota Motor Credit
  Corporation

  P.O. Box 3457

  Torrance, CA 90510

  	
   

  	
   

  	
   

  	
  One (1) Forklift

  	
   

  



 


LIENS – STEEL DYNAMICS SALES NORTH AMERICA, INC.


 


NONE.


 


LIENS – SDI INVESTMENT COMPANY


 


NONE.


 

















 


LIENS – NEW MILLENNIUM BUILDING SYSTEMS, LLC


 


NONE.


 


LIENS – ROANOKE ELECTRIC STEEL CORPORATION


 


NONE.


 


LIENS – STEEL HOLDINGS, INC.


 


NONE.


 


LIENS – STEEL DYNAMICS FERROUS RESOURCES, LLC


 


NONE.


 


LIENS – SHREDDED PRODUCTS, LLC


 


NONE.


 


LIENS – NEW MILLENNIUM BUILDINGS SYSTEMS, INC.


 


NONE.


 


LIENS – RESCO STEEL PRODUCTS CORPORATION


 


NONE.


 

















 


LIENS – ROANOKE TECHNICAL TREATMENT & SERVICES, INC.


 


NONE.


 


LIENS – MARSHALL STEEL, INC.


 


NONE.


 


LIENS – STEEL VENTURES, INC.


 


NONE.


 


LIENS – SHREDDED PRODUCTS II, LLC


 


NONE.


 

















 


Schedule 4.01(v)


To the Credit Agreement


 


INVESTMENTS


 


A.                                    Of Loan Party Steel Dynamics, Inc.


 


1.                                            Steel
Dynamics, Inc. owns a 100% interest in the stock of SDI Investment
Company, a Delaware corporation.


 


2.                                            Steel
Dynamics, Inc. owns a 50% membership interest in Paragon Steel
Enterprises, LLC, an Indiana limited liability company.


 


3.                                            Steel
Dynamics, Inc. owns a 100% membership interest in New Millennium Building
Systems, LLC, an Indiana limited liability company.


 


4.                                            Steel
Dynamics, Inc. owns a 100% membership interest in Dynamic Aviation, LLC,
an Indiana limited liability company.


 


5.                                            Steel
Dynamics, Inc. owns a 100% interest in the stock of Steel Dynamics Sales
North America, Inc., an Indiana corporation.


 


6.                                            Steel
Dynamics, Inc. owns a 100% interest in the stock of STLD
Holdings, Inc., an Indiana corporation.


 


7.                                            Steel
Dynamics, Inc. owns a 100% membership interest in Shredded Products II,
LLC, an Indiana limited liability company.


 


8.                                            Steel
Dynamics, Inc. owns a 100% interest in the stock of Roanoke Electric Steel
Corporation, an Indiana corporation.


 


9.                                            Steel Dynamics, Inc.
owns a 100% interest in the stock of Steel Holdings, Inc., an Indiana
corporation.


 


B.                                    Of Loan
Party Roanoke Electric Steel Corporation


 


1.                                            Roanoke
Electric Steel Corporation owns a 100% interest in the stock of Roanoke
Technical Treatment & Services, Inc., a Virginia corporation.


 


2.                                            Roanoke
Electric Steel Corporation owns a 100% membership interest in Shredded
Products, LLC, a Virginia limited liability company.


 

















 


3.                                            Roanoke Electric Steel Corporation owns a 100%
interest in the stock of Steel of West Virginia, Inc., a Delaware
corporation.


 


4.                                            Roanoke Electric Steel Corporation owns a 100%
membership interest in John W. Hancock, Jr., LLC, a Virginia limited
liability company.


 


5.                                            Roanoke Electric Steel Corporation owns a 100%
interest in the stock of RESCO Steel Products Corporation, a Virginia
corporation.


 


6.                                            Roanoke Electric Steel Corporation owns a 100%
interest in the stock of New Millennium Building Systems, Inc., a South
Carolina corporation.


 


C.                                    Of Loan Party New Millennium Buildings Systems, Inc.


 


1.                                            New Millennium Buildings Systems, Inc. owns a
100% interest in the stock of SOCAR of Ohio, Inc., an Ohio corporation.


 


D.                                   Of Loan Party Steel of West Virginia, Inc.


 


1.                                            Steel of West Virginia, Inc. owns a 100%
interest in the stock of Steel Ventures, Inc., a Delaware corporation.


 


2.                                            Steel of West Virginia, Inc. owns a 100%
interest in the stock of SWVA, Inc., a Delaware corporation.


 


3.                                            Steel of West Virginia, Inc. owns a 100%
interest in the stock of Marshall Steel, Inc., a Delaware corporation.


 


E.                                     Of Loan Parties Steel Holdings, Inc.


 


1.                                     Steel Holdings, Inc. owns a 100% membership
interest in Steel Dynamics Ferrous Resources, LLC, an Indiana limited liability
company.


 

















 


Schedule 4.01(w)


To the Credit Agreement


 


INTELLECTUAL PROPERTY


 


PATENTS, TRADEMARKS AND TRADE NAMES,


COPYRIGHTS AND LICENSES


 


	
  Grantor

  	
   

  	
  Patents

  	
   

  	
  Country

  	
   

  	
  Patent

  No.

  	
   

  	
  Applic. No.

  	
   

  	
  Filing Date

  	
   

  	
  Issue Date

  	
   

  	
  Expiration

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Dynamics,

  Inc. (as successor

  to Iron Dynamics,

  Inc.)

  	
   

  	
  Mixed Bed Iron Reduction
  Process

  	
   

  	
  U.S.

  	
   

  	
  5,972,066

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  10/26/99

  	
   

  	
  4/22/2017

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Dynamics,

  Inc. (as successor

  to Iron Dynamics,

  Inc.)

  	
   

  	
  Method for Upgrading Iron
  Ore Utilizing Multiple Magnetic Separators

  	
   

  	
  U.S.

  	
   

  	
  5,961,055

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  10/5/99

  	
   

  	
  11/6/2017

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Dynamics,

  Inc.(as successor

  to Iron Dynamics,

  Inc.)

  	
   

  	
  Method for Upgrading Iron
  Ore Utilizing Multiple Magnetic Separators

  	
   

  	
  Canada

  	
   

  	
   

  	
   

  	
  2309611

  	
   

  	
  11/5/98

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Dynamics,

  Inc. (as successor

  to Iron Dynamics,

  Inc.)

  	
   

  	
  Mixed Bed Iron Reduction
  Process

  	
   

  	
  South Africa

  	
   

  	
  98/8503

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  6/30/99 (To be abandoned)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Dynamics,

  Inc. (as successor

  to Iron Dynamics,

  Inc.)

  	
   

  	
  Mixed Bed Iron Reduction
  Process

  	
   

  	
  Japan

  	
   

  	
   

  	
   

  	
  546188/98

  	
   

  	
  4/22/98 (Abandonment date
  4/22/06)

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


	
  Grantor

  	
   

  	
  Trademarks and

  Trade Names

  	
   

  	
  Country

  	
   

  	
  Mark

  	
   

  	
  Reg. No.

  	
   

  	
  Applic. No.

  	
   

  	
  Filing Date

  	
   

  	
  Issue Date

  	
   

  
	
  SDI Investment

  Company

  	
   

  	
  SDI. and design*

  	
   

  	
  U.S.

  	
   

  	
   

  	
   

  	
  2,155,255

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  5/5/98

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SDI Investment

  Company

  	
   

  	
  STEEL DYNAMICS,

  INC. and design

  	
   

  	
  U.S.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  76\105,281

  	
   

  	
  8/8/00

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SDI Investment

  Company

  	
   

  	
  STEEL DYNAMICS

  and design

  	
   

  	
  U.S.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  76\105,275

  	
   

  	
  8/8/00

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SDI Investment

  Company

  	
   

  	
  SDI and design

  	
   

  	
  U.S.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  76\105,282

  	
   

  	
  8/8/00

  	
   

  	
   

  	
   

  



 






*Licensed
to Steel Dynamics, Inc. pursuant to a License and Royalty Agreement dated February 7,
2000.


 
















EXHIBIT A


 


FORM OF


REVOLVING CREDIT NOTE


 


	
  $               

  	
   

  	
  Dated:
                  ,       

  



 


FOR VALUE RECEIVED, the undersigned, STEEL DYNAMICS,
INC., an Indiana corporation (the “Borrower”), HEREBY UNCONDITIONALLY PROMISES
TO PAY to                                       
or its registered assigns (the “Lender”) for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below) the aggregate
principal amount of the Revolving Credit Advances, the Letter of Credit
Advances and the Swing Line Advances (each as defined below) owing to the
Lender by the Borrower pursuant to the Amended and Restated Credit Agreement
dated as of June 19, 2007 (as amended, amended and restated, supplemented
or otherwise modified from time to time, the “Credit Agreement”; terms defined
therein, unless otherwise defined herein, being used herein as therein defined)
among the Borrower, the Lender and certain other lender parties party thereto,
National City Bank (“National City”),
as Collateral Agent, National
City Bank and Wells Fargo Bank, National Association, as Co-Administrative
Agents for the Lender and such other lender parties, Bank of America, N.A. and
National City, as Syndication Agent and Banc of America Securities LLC and
National City, as Joint Lead Arrangers on the Termination Date.


 


The Borrower promises to pay to             
or its registered assigns interest on the unpaid principal amount of each
Revolving Credit Advance, Letter of Credit Advance and Swing Line Advance from
the date of such Revolving Credit Advance, Letter of Credit Advance or Swing
Line Advance, as the case may be, until such principal amount is paid in full
(as well after as before judgment), at such interest rates, and payable at such
times, as are specified in the Credit Agreement.


 


Both principal and interest are payable in lawful
money of the United States of America to National City Bank, in its capacity as
Paying Agent under the Credit Agreement, at 629 Euclid Avenue, Locator 01-3028,
Cleveland, Ohio 44114, in same day funds without set-off or counterclaim.  The Lender is hereby authorized to record
each Revolving Credit Advance, Letter of Credit Advance and Swing Line Advance
owing to the Lender by the Borrower and the maturity thereof, and all payments
made on account of principal thereof, on the grid attached hereto, which is
part of this Promissory Note; provided,
however, that the failure of the Lender to make any such recordation or
endorsement shall not affect the Obligations of the Borrower under this
Promissory Note.


 


This Promissory Note is one of the Notes referred to
in, and is entitled to the benefits of, the Credit Agreement.  The Credit Agreement, among other things, (i) provides
for the making of advances (variously, the “Revolving Credit Advances”, the “Letter of Credit Advances”
or the “Swing Line
Advances”) by the Lender to or for the benefit of the Borrower
from time to time in an aggregate amount not to exceed at any time outstanding
the U.S. dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Revolving Credit Advance, Letter of Credit Advance and
Swing Line Advance being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon


 

















 


the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.  The obligations of the Borrower under this
Promissory Note and the other Loan Documents, and the obligations of the other
Loan Parties under the Loan Documents, are secured by the Collateral and
guaranteed by the Guaranties as provided in the Loan Documents.


 


This Promissory Note shall be governed by, and
construed in accordance with, the laws of the State of New York.


 


	
  

  	
  STEEL DYNAMICS, INC.

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


2
















 


ADVANCES AND PAYMENTS OF PRINCIPAL


 


	
  Date

  	
   

  	
  Amount of Advance

  	
   

  	
  Interest Period

  (If Applicable)

  	
   

  	
  Amount of Principal

  Paid 

  or Prepaid

  	
   

  	
  Unpaid Principal

  Balance

  	
   

  	
  Notation 

  Made By

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


EXHIBIT B


 


FORM OF


NOTICE OF BORROWING


CONFIRM THAT SAME NOTICE


 





 


Daily Activity Notice


 


	
  Date:

  	
  [                       ]

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  To:

  	
  Agent Services

  	
   

  	
  Candace Marsky

  	
  216-222-2888 phone

  
	
   

  	
   

  	
   

  	
  Candace.Marsky@nationalcity.com

  	
  216-222-0012 fax

  
	
   

  	
   

  	
   

  	
  Sonya.Townsell@nationalcity.com

  	
   

  
	
   

  	
   

  	
   

  	
  Sheri.Hoff@nationalcity.com

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  From:

  	
  Steel Dynamics, Inc.

  	
  Contact

  	
  phone

  
	
   

  	
   

  	
   

  	
  email

  	
  fax

  



 


Please check
appropriate box:


	
  o  REVOLVER BASE RATE

  	
  Notice Deadline: 12:00 Noon (Same Day)

  



 


	
  Beginning
  Balance:

  	
   

  	
  $

  	
  —

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ADVANCE

  	
   

  	
  $

  	
  —

  	
   

  	
  Credit DDA #

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PAYDOWN

  	
   

  	
  $

  	
  —

  	
   

  	
  Debit DDA #

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ending
  Balance:

  	
   

  	
  $

  	
  —

  	
   

  	
   

  



 


	
  o  REVOLVER LIBOR RATE

  	
  Notice Deadline: 12:00 Noon (3 Days Prior)

  



 


	
  Effective Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New Funds Borrowing:

  	
   

  	
  $

  	
  —

  	
   

  	
  Credit DDA#

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Convert
  From Prime:

  	
   

  	
  $

  	
  —

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Duration
  of Contract:

  	
   

  	
     o 1 Month  o 2 Months   o 3 Months   o 6 Months

  
	
   

  	
   

  	
  Confirmation of Rate Setting wil be faxed

  



 


	
  o  SWING LINE MONEY MARKET RATE

  	
  Notice Deadline: 2:00 PM (Same Day)

  



 


	
  Beginning Balance:

  	
   

  	
  $

  	
  —

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ADVANCE

  	
   

  	
  $

  	
  —

  	
   

  	
  Credit DDA #

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PAYDOWN

  	
   

  	
  $

  	
  —

  	
   

  	
  Debit DDA #

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ending
  Balance:

  	
   

  	
  $

  	
  —

  	
   

  	
   

  



 






 












 


EXHIBIT C


 


FORM OF

ASSIGNMENT AND ASSUMPTION


 


This Assignment and Assumption (the “Assignment and Assumption”)
is dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the “Assignor”)
and [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified
below  (as amended, the “Credit
Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.


 


For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Paying Agent as contemplated below (i) all of the Assignor’s rights
and obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective
facilities identified below (including without limitation any letters of
credit, guarantees, and swingline loans included in such facilities) and (ii) to
the extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of the Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered
pursuant thereto or the loan transactions governed thereby or in any way based
on or related to any of the foregoing, including, but not limited to, contract
claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned
pursuant to clause (i) above (the rights and obligations sold and assigned
pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the “Assigned Interest”).  Such sale and assignment is without recourse
to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.


 


	
  1.

  	
  Assignor:

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Assignee:

  	
   

  
	
   

  	
   

  	
  [and is an
  Affiliate/Approved Fund of [identify Lender](1)]

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Borrower(s):

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Administrative Agents:

  	
                                              ,
  as the Administrative Agents under the Credit Agreement

  



 






(1) Select as applicable.


 

















 


	
  5.

  	
  Credit Agreement:

  	
  [The [amount] Credit Agreement dated as of
                 
  among [name of Borrower(s)], the Lenders
  parties thereto, [name of Administrative
  Agents], as Administrative Agents, and the other agents parties
  thereto]

  



 


2

















 


6.             Assigned Interest:


 


	
  Facility Assigned(2)

  	
   

  	
  Aggregate Amount of

  Commitment/Loans for

  all Lenders*

  	
   

  	
  Amount of

  Commitment/Loans

  Assigned*

  	
   

  	
  Percentage Assigned of

  Commitment/Loans(3)

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  %

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  %

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  %

  	
   

  



 


[7.            Trade Date:                                                              ](4)


 


Effective Date:                             
       , 20      
[TO BE INSERTED BY ADMINISTRATIVE AGENTS AND WHICH SHALL BE THE EFFECTIVE DATE
OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


The terms set forth in this Assignment and Assumption are hereby agreed
to:


 


	
  

  	
  ASSIGNOR

  
	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 






(2)         Fill in the appropriate
terminology for the types of facilities under the Credit Agreement that are
being assigned under this Assignment (e.g. “Revolving
Credit Commitment,” “Term Loan Commitment,”
etc.)


 


*                Amount to be
adjusted by the counterparties to take into account any payments or prepayments
made between the Trade Date and the Effective Date.


 


(3)         Set forth, to at least 10
decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.


 


(4)         To be completed if the Assignor and the Assignee
intend that the minimum assignment amount is to be determined as of the Trade
Date.


 


3

















 


	
  [Consented to
  and](5) Accepted:

  	
   

  
	
   

  	
   

  
	
  [NAME OF ADMINISTRATIVE
  AGENTS], as Administrative Agents

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  [Consented to:](6)

  	
   

  
	
   

  	
   

  
	
  [NAME OF RELEVANT
  PARTY]

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 






(5)         To be added only if the
consent of the Administrative Agents is required by the terms of the Credit
Agreement.


 


(6)         To be added only if the
consent of the Borrower and/or other parties (e.g. Swingline Lender, L/C
Issuer) is required by the terms of the Credit Agreement.


 


4

















 


Effective Date (if other than date of acceptance by Administrative
Agents):


 


(7)                       
     ,


 


	
  

  	
  Assignors

  
	
   

  	
   

  
	
   

  	
                                                     ,
  as Assignor

  
	
   

  	
  [Type
  or print legal name of Assignor]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:
                    
       ,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
                                                     ,
  as Assignor

  
	
   

  	
  [Type
  or print legal name of Assignor]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:
                    
       ,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
                                                     ,
  as Assignor

  
	
   

  	
  [Type
  or print legal name of Assignor]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:
                    
       ,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
                                                     ,
  as Assignor

  
	
   

  	
  [Type
  or print legal name of Assignor]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  
	
   

  	
   

  	
  Title:

  



 






(7)                                 This date should be no earlier than five
Business Days after the delivery of this Assignment and Assumption to the
Administrative Agents.


 


5

















 


	
  

  	
  Dated:                   
       ,

  
	
   

  	
   

  
	
   

  	
                                                     ,
  as Assignor

  
	
   

  	
  [Type
  or print legal name of Assignor]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:
                    
       ,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Assignees

  
	
   

  	
   

  
	
   

  	
                                                     ,
  as Assignee

  
	
   

  	
  [Type
  or print legal name of Assignee]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:
                    
       ,

  
	
   

  	
   

  
	
   

  	
  Domestic Lending
  Office:

  
	
   

  	
   

  
	
   

  	
  Eurodollar Lending
  Office:

  
	
   

  	
   

  
	
   

  	
                                                     ,
  as Assignee

  
	
   

  	
  [Type
  or print legal name of Assignee]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:
                    
       ,

  
	
   

  	
   

  
	
   

  	
  Domestic Lending
  Office:

  
	
   

  	
   

  
	
   

  	
  Eurodollar Lending
  Office:

  
	
   

  	
   

  
	
   

  	
                                                     ,
  as Assignee

  
	
   

  	
  [Type
  or print legal name of Assignee]

  



 


6

















 


	
  

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:
                    
       ,

  
	
   

  	
   

  
	
   

  	
  Domestic Lending
  Office:

  
	
   

  	
   

  
	
   

  	
  Eurodollar Lending
  Office:

  
	
   

  	
   

  
	
   

  	
                                                     ,
  as Assignee

  
	
   

  	
  [Type
  or print legal name of Assignee]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:
                    
       ,

  
	
   

  	
   

  
	
   

  	
  Domestic Lending
  Office:

  
	
   

  	
   

  
	
   

  	
  Eurodollar Lending
  Office:

  
	
   

  	
   

  
	
   

  	
                                                     ,
  as Assignee

  
	
   

  	
  [Type
  or print legal name of Assignee]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Dated:
                    
       ,

  
	
   

  	
   

  
	
   

  	
  Domestic Lending
  Office:

  
	
   

  	
   

  
	
   

  	
  Eurodollar Lending
  Office:

  



 


Accepted (8)[and
Approved] this


 


day of                        ,


 


[                                                                    ],


 






(8)                                  Required if the Assignee is an Eligible
Assignee except by reason of clause (b) of the definition of “Eligible Assignee”.


 


7

















 


	
  as Administrative Agents

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  (9) [Approved this
          day

  	
   

  
	
   

  	
   

  
	
  of
                            ,

  	
   

  
	
  STEEL DYNAMICS, INC.

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title:]

  	
   

  



 






(9)                                  See footnote 2 and also only required so
long as no Default or Event of Default has occurred and is continuing.


 


8
















 


EXHIBIT D


 


EXECUTION COPY


 


 


AMENDED AND
RESTATED SECURITY AGREEMENT


 


 


Dated June 19,
2007


 


From


 


The Grantors
referred to herein


 


as Grantors


 


to


 


NATIONAL CITY BANK


 


as Collateral
Agent


 





















 


T A B L E  O F  C
O N T E N T S


 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 1.

  	
   

  	
  Grant of Security

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.

  	
   

  	
  Security for Obligations

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.

  	
   

  	
  Grantors Remain Liable

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.

  	
   

  	
  Delivery and Control of
  Security Collateral

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.

  	
   

  	
  Maintaining the Account
  Collateral

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 6.

  	
   

  	
  Investing of Amounts in the
  L/C Cash Collateral Account

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 7.

  	
   

  	
  Release of Amounts

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 8.

  	
   

  	
  Maintaining Electronic
  Chattel Paper, Transferable Records and Letter-of-Credit Rights

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 9.

  	
   

  	
  Representations and Warranties

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 10.

  	
   

  	
  Further Assurances

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 11.

  	
   

  	
  As to Inventory

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 12.

  	
   

  	
  Insurance

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 13.

  	
   

  	
  Post-Closing Changes;
  Bailees; Collections on Assigned Agreements, Receivables and Related
  Contracts

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 14.

  	
   

  	
  Voting Rights; Dividends;
  Etc.

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 15.

  	
   

  	
  As to Letter-of-Credit Rights

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 16.

  	
   

  	
  Transfers and Other Liens;
  Additional Shares

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 17.

  	
   

  	
  Collateral Agent Appointed
  Attorney-in-Fact

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 18.

  	
   

  	
  Collateral Agent
  May Perform

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 19.

  	
   

  	
  The Collateral Agent’s Duties

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 20.

  	
   

  	
  Remedies

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 21.

  	
   

  	
  Indemnity and Expenses

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 22.

  	
   

  	
  Amendments; Waivers;
  Collateral Agent Actions; Additional Grantors; Etc.

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 23.

  	
   

  	
  Notices; Etc.

  	
   

  	
  21

  



 


ii





















 


	
  Section 24.

  	
   

  	
  Continuing Security Interest;
  Assignments under the Credit Agreement

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 25.

  	
   

  	
  Release; Termination

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 26.

  	
   

  	
  Security Interest Absolute

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 27.

  	
   

  	
  Execution in Counterparts

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 28.

  	
   

  	
  The Mortgages

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 29.

  	
   

  	
  Effect of this Agreement

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 30.

  	
   

  	
  Governing Law

  	
   

  	
  24

  



 


Schedules


 


	
  Schedule I

  	
  –

  	
  Location, Chief
  Executive Office, Place Where Agreements Are Maintained, Type Of
  Organization, Jurisdiction Of Organization And Organizational Identification
  Number

  
	
  Schedule II

  	
  –

  	
  Pledged Equity
  and Pledged Debt

  
	
  Schedule III

  	
  –

  	
  Locations of
  Inventory

  
	
  Schedule IV

  	
  –

  	
  Changes in Name,
  Location, Etc.

  
	
  Schedule V

  	
  –

  	
  Trade Names

  
	
  Schedule
  1(c)(iii)

  	
  –

  	
  Excluded Equity
  Interests

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  –

  	
  Form of
  Security Agreement Supplement

  



 


iii





















 


AMENDED AND
RESTATED SECURITY AGREEMENT


 


THIS AMENDED AND
RESTATED SECURITY AGREEMENT dated June 19, 2007 made by STEEL DYNAMICS,
INC., an Indiana corporation (the “Borrower”), the other Persons listed on the
signature pages hereof and the Additional Grantors (as defined in Section 22)
(the Borrower, the Persons so listed and the Additional Grantors being,
collectively, the “Grantors”),
to NATIONAL CITY BANK, as collateral agent (together with any successor
collateral agent appointed pursuant to Article VII of the Credit Agreement
(as hereinafter defined), in such capacity, the “Collateral Agent”) for the Secured
Parties (as defined in the Credit Agreement).


 


PRELIMINARY
STATEMENTS.


 


(1)                                  The
Borrower has entered into an Amended and Restated Credit Agreement dated as of June 19,
2007 (said Agreement, as it may hereafter be amended, amended and restated,
supplemented or otherwise modified from time to time, being the “Credit Agreement”)
with the Lender Parties, the Agents and the Joint Lead Arrangers (each as
defined therein).


 


(2)                                  In
connection with the Credit Agreement, the Grantors and the other parties hereto
desire to amend and restate in its entirety that certain Security Agreement
dated as of September 7, 2005 (the “Existing Security
Agreement”) by and among the Borrower, the Collateral Agent and
the other parties listed on the signature pages thereof and in the
supplements thereto delivered prior to the date hereof.


 


(3)                                  The
Grantors and the other parties hereto are entering into this Agreement in order
to amend and restate in its entirety the Existing Security Agreement and to
grant to the Collateral Agent for the ratable benefit of the Secured Parties a
security interest in the Collateral (as hereinafter defined).


 


(4)                                  Each
Grantor is the owner of the shares of stock or other Equity Interests (the “Initial Pledged Equity”)
set forth opposite such Grantor’s name on and as otherwise described in Part I
of Schedule II hereto and issued by the Persons named therein and of the
indebtedness (the “Initial
Pledged Debt”) set forth opposite such Grantor’s name on and as
otherwise described in Part II of Schedule II hereto and issued by
the obligors named therein.


 


(5)                                  To
the extent not opened in connection with the Existing Security Agreement, upon
the request of the Collateral Agent, the Borrower will open an l/c collateral
deposit account (the “L/C
Cash Collateral Account”), in the name of the Collateral Agent
and under the sole control and dominion of the Collateral Agent and subject to
the terms of this Agreement; it being understood that all references herein to
the L/C Cash Collateral Account shall be deemed to refer to all “L/C Cash
Collateral Accounts” opened in connection with the Existing Security Agreement.


 


(6)                                  It
is a condition precedent to the making of Advances and the issuance of Letters
of Credit by the Lender Parties under the Credit Agreement, the entry into
Secured Hedge Agreements by the Hedge Banks from time to time and the entry
into Secured Cash Management


 





















 


Agreements by the
Lenders Parties or their Affiliates from time to time that the Grantors shall
have granted the assignment and security interest and made the pledge and
assignment contemplated by this Agreement.


 


(7)                                  Each
Grantor will derive substantial direct and indirect benefit from the
transactions contemplated by the Loan Documents.


 


(8)                                  Terms
defined in the Credit Agreement and not otherwise defined in this Agreement are
used in this Agreement as defined in the Credit Agreement.  Further, unless otherwise defined in this
Agreement or in the Credit Agreement, terms defined in Article 8 or 9 of
the UCC (as defined below) and/or in the Federal Book Entry Regulations (as
defined below) are used in this Agreement as such terms are defined in such Article 8
or 9 and/or the Federal Book Entry Regulations. 
“UCC”
means the Uniform Commercial Code as in effect, from time to time, in the State
of New York; provided that, if
perfection or the effect of perfection or non-perfection or the priority of any
security interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of New York, “UCC” means the
Uniform Commercial Code as in effect from time to time in such other
jurisdiction for purposes of the provisions hereof relating to such perfection,
effect of perfection or non-perfection or priority.  The term “Federal Book Entry Regulations” means (a) the
federal regulations contained in Subpart B (“Treasury/Reserve
Automated Debt Entry System (TRADES)”) governing book-entry
securities consisting of U.S. Treasury bonds, notes and bills and Subpart D (“Additional Provisions”)
of 31 C.F.R. Part 357, 31 C.F.R. § 357.2, § 357.10 through
§ 357.14 and § 357.41 through § 357.44 and (b) to the
extent substantially identical to the federal regulations referred to in clause
(a) above (as in effect from time to time), the federal regulations
governing other book-entry securities.


 


NOW, THEREFORE, in
order to induce the Lender Parties to make Advances and issue Letters of Credit
under the Credit Agreement, to induce the Hedge Banks to enter into Secured
Hedge Agreements from time to time and to induce the Lender Parties and their
Affiliates to enter into Secured Cash Management Agreements from time to time,
each Grantor hereby agrees with the Collateral Agent, for the ratable benefit
of the Secured Parties, to amend and restate the Existing Security Agreement,
and the Existing Security Agreement is hereby amended and restated, in its
entirety as follows:


 


Section 1.                                            Grant of Security.  Each Grantor hereby pledges to the Collateral
Agent, for the ratable benefit of the Secured Parties, and hereby grants to the
Collateral Agent, for the ratable benefit of the Secured Parties, a security
interest in such Grantor’s right, title and interest in and to the following,
in each case, as to each type of property described below, whether now owned or
(except as otherwise provided in Section 1(a)) hereafter acquired by such
Grantor, wherever located, and whether now or hereafter existing or arising
(collectively, the “Collateral”):


 


(a)                                  all inventory in all of its
forms, including, without limitation, (i) all raw materials, work in
process, finished goods and materials used or consumed in the manufacture,
production, preparation or shipping thereof, (ii) goods in which such
Grantor has an interest in mass or a joint or other interest or right of any
kind (including, without limitation, goods in which such Grantor has an
interest or right as consignee) and (iii) goods that are returned to or
repossessed or stopped in transit by such Grantor, and all accessions thereto
and products thereof and documents therefor, and all software


 


2





















 


related thereto, including, without
limitation, software that is embedded in and is part of the inventory (any and
all such property being the “Inventory”);


 


(b)                                 all accounts (including, without
limitation, health-care-insurance receivables), chattel paper (including,
without limitation, tangible chattel paper and electronic chattel paper),
instruments (including, without limitation, promissory notes), deposit
accounts, letter-of-credit rights, general intangibles (including, without
limitation, payment intangibles) and other obligations of any kind, whether or
not arising out of or in connection with the sale or lease of goods or the rendering
of services and whether or not earned by performance, and all rights now or
hereafter existing in and to all supporting obligations and in and to all
security agreements, mortgages, Liens, leases, letters of credit and other
contracts securing or otherwise relating to the foregoing property (any and all
of such accounts, chattel paper, instruments, deposit accounts,
letter-of-credit rights, general intangibles and other obligations, to the
extent not referred to in clause (c) or (d) below, being the “Receivables”, and any and all
such supporting obligations, security agreements, mortgages, Liens, leases,
letters of credit and other contracts being the “Related Contracts”);


 


(c)                                  the following (the “Security Collateral”):


 


(i)                                     with
the exception of those items listed on Schedule 1(c)(iii) hereto, the
Initial Pledged Equity and the certificates, if any, representing the Initial
Pledged Equity, and all dividends, distributions, return of capital, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
Initial Pledged Equity and all subscription warrants, rights or options issued
thereon or with respect thereto;


 


(ii)                                  the
Initial Pledged Debt and the instruments, if any, evidencing the Initial
Pledged Debt, and all interest, cash, instruments and other property from time
to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Initial Pledged Debt;


 


(iii)                               all
additional shares of stock and other Equity Interests of or in any issuer of
the Initial Pledged Equity, any Subsidiary, or any successor entity from time
to time acquired by such Grantor in any manner (such shares and other Equity
Interests, together with the Initial Pledged Equity, being the “Pledged Equity”), and
the certificates, if any, representing such additional shares or other Equity
Interests, and all dividends, distributions, return of capital, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
shares or other Equity Interests and all subscription warrants, rights or
options issued thereon or with respect thereto; and


 


(iv)                              all
additional indebtedness from time to time owed to such Grantor (such
indebtedness, together with the Initial Pledged Debt, being the “Pledged Debt”) and
the instruments, if any, evidencing such indebtedness, and


 


3





















 


all interest,
cash, instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
indebtedness;


 


(d)                                 the following (collectively, the
“Account Collateral”):


 


(i)                                     the
L/C Cash Collateral Account and all funds and financial assets from time to
time credited thereto (including, without limitation, all Cash Equivalents),
all interest, dividends, distributions, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect of
or in exchange for any or all of such funds and financial assets, and all
certificates and instruments, if any, from time to time representing or
evidencing the L/C Cash Collateral Account;


 


(ii)                                  all
promissory notes, certificates of deposit, deposit accounts, checks and other
instruments from time to time delivered to or otherwise possessed by the
Collateral Agent for or on behalf of such Grantor, including, without
limitation, those delivered or possessed in substitution for or in addition to
any or all of the then existing Account Collateral; and


 


(iii)                               all
interest, dividends, distributions, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the then existing Account Collateral.


 


(e)                                  all books and records
(including, without limitation, customer lists, credit files, computer
programs, software, printouts and other computer materials and records) of such
Grantor pertaining to any of the Collateral; and


 


(f)                                    all proceeds of, collateral for,
and supporting obligations relating to, any and all of the Collateral
(including, without limitation, proceeds, collateral and supporting obligations
that constitute property of the types described in clauses (a) through
(e) of this Section 1 and this clause (f)) and, to the extent
not otherwise included, all (A) payments under insurance (whether or not
the Collateral Agent is the loss payee thereof), or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with respect to
any of the foregoing Collateral and (B) cash.


 


Section 2.                                            Security
for Obligations.  This Agreement
secures, in the case of each Grantor, the payment of all Obligations of such
Grantor now or hereafter existing under the Loan Documents, whether direct or
indirect, absolute or contingent, and whether for principal, reimbursement
obligations, interest, fees, premiums, penalties, indemnifications, contract
causes of action, costs, expenses or otherwise (all such Obligations being the “Secured Obligations”).


 


Section 3.                                            Grantors
Remain Liable.  Anything herein to
the contrary notwithstanding, (a) each Grantor shall remain liable under
the contracts and agreements included in such Grantor’s Collateral to the
extent set forth therein to perform all of its duties and obligations
thereunder to the same extent as if this Agreement had not been executed, (b) the
exercise by the Collateral Agent of any of the rights hereunder shall not
release any Grantor from any of its duties or obligations under the contracts
and agreements included in the Collateral and


 


4





















 


(c) no Secured Party shall have any obligation or liability under
the contracts and agreements included in the Collateral by reason of this
Agreement or any other Loan Document, nor shall any Secured Party be obligated
to perform any of the obligations or duties of any Grantor thereunder or to
take any action to collect or enforce any claim for payment assigned hereunder.


 


Section 4.                                            Delivery
and Control of Security Collateral.  (a)  All
certificates or instruments representing or evidencing Security Collateral
shall be delivered to and held by or on behalf of the Collateral Agent pursuant
hereto and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in blank,
all in form and substance satisfactory to the Collateral Agent, and no
certificates shall be issued with respect to any entity which has Pledged
Equity hereunder unless such certificates are duly pledged immediately to the
Collateral Agent hereunder.  The
Collateral Agent shall have the right, at any time in its discretion and
without notice to any Grantor, to transfer to or to register in the name of the
Collateral Agent or any of its nominees any or all of the Security Collateral,
subject only to the revocable rights specified in Section 14(a).  In addition, the Collateral Agent shall have
the right at any time to exchange certificates or instruments representing or
evidencing Security Collateral for certificates or instruments of smaller or
larger denominations.  Also, the
Collateral Agent shall have the right at any time to convert Security
Collateral consisting of financial assets credited to the Securities Accounts
to Security Collateral consisting of financial assets held directly by the
Collateral Agent, and to convert Security Collateral consisting of financial
assets held directly by the Collateral Agent to Security Collateral consisting
of financial assets credited to the Securities Accounts.


 


(b)                                 With respect to any Security
Collateral in which any Grantor has any right, title or interest and that
constitutes an uncertificated security, such Grantor will cause the issuer
thereof either (i) to register the Collateral Agent as the registered
owner of such security or (ii) to agree in an authenticated record with
such Grantor and the Collateral Agent that such issuer will comply with
instructions with respect to such security originated by the Collateral Agent
without further consent of such Grantor, such authenticated record to be in
form and substance satisfactory to the Collateral Agent.


 


(c)                                  With respect to any Security
Collateral in which any Grantor has any right, title or interest and that
constitutes a security entitlement in which the Collateral Agent is not the
entitlement holder, such Grantor will cause the securities intermediary with
respect to such security entitlement either (i) to identify in its records
the Collateral Agent as the entitlement holder of such security entitlement
against such securities intermediary or (ii) to agree in an authenticated
record with such Grantor and the Collateral Agent that such securities
intermediary will comply with entitlement orders (that is, notifications
communicated to such securities intermediary directing transfer or redemption
of the financial asset to which such Grantor has a security entitlement)
originated by the Collateral Agent without further consent of such Grantor,
such authenticated record to be in form and substance satisfactory to the
Collateral Agent.


 


(d)                                 No Grantor will change or add
any securities intermediary that maintains any securities account in which any
of the Collateral is credited or carried, or change or add any such securities
account, in each case without first complying with the above provisions of this
Section 4 in order to perfect the security interest granted hereunder in
such Collateral.


 


5





















 


Section 5.                                            Maintaining the Account
Collateral.  So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding, any Secured Hedge Agreement or Secured
Cash Management Agreement shall be in effect or any Lender Party shall have any
Commitment:


 


(a)                                  Each Grantor will maintain all
Account Collateral only with the Collateral Agent or with a bank (the “Pledged Account
Bank”) that
have agreed, in a record authenticated by the Grantor, the Collateral Agent and
the Pledged Account Bank, to (i) comply with instructions originated by
the Collateral Agent directing the disposition of funds in the Account
Collateral without the further consent of the Grantor and (ii) waive or
subordinate in favor of the Collateral Agent all claims of the Pledged Account
Bank (including, without limitation, claims by way of a security interest, lien
or right of setoff or right of recoupment) to the Account Collateral, which
authenticated record shall be in form and substance satisfactory to the
Collateral Agent and shall provide that the Account Collateral is under the
sole dominion and control of the Collateral Agent.


 


(b)                                 Each Grantor agrees to terminate
any or all Account Collateral and account control agreements upon request by
the Collateral Agent.


 


(c)                                  Except to the extent set forth
in an applicable account control agreement, if any, the Collateral Agent shall
have sole right to direct the disposition of funds with respect to the L/C Cash
Collateral Account and it shall be a term and condition of the L/C Cash
Collateral Account, subject solely to any term to the contrary set forth in an
account control agreement, if any, that no amount (including, without
limitation, interest on Cash Equivalents credited thereto) will be paid or
released to or for the account of, or withdrawn by or for the account of, the
Borrower or any other Person from the L/C Cash Collateral Account.


 


(d)                                 The Collateral Agent may, at any
time and without notice to, or consent from, the Grantor, transfer, or direct
the transfer of, funds from the Account Collateral to satisfy the Grantor’s
obligations under the Loan Documents if an Event of Default shall have occurred
and be continuing.


 


Section 6.                                            Investing
of Amounts in the L/C Cash Collateral Account.  The Collateral Agent will, subject to the
provisions of Sections 5, 7 and 20, from time to time (a) invest, or
direct the applicable Pledged Account Bank to invest, amounts received with
respect to the L/C Cash Collateral Account in such Cash Equivalents credited to
(A) the L/C Cash Collateral Account as the Borrower may select or (B) in
the case of Cash Equivalents consisting of Securities Collateral, a securities
account in which the Collateral Agent is the securities intermediary, and (b) invest
interest paid on the Cash Equivalents referred to in clause (a) above,
and reinvest other proceeds of any such Cash Equivalents that may mature or be
sold, in each case in such Cash Equivalents credited in the same manner.  Interest and proceeds that are not invested
or reinvested in Cash Equivalents as provided above shall be deposited and held
in the L/C Cash Collateral Account.  In
addition, the Collateral Agent shall have the right at any time to exchange, or
direct the applicable Pledged Account Bank to exchange, such Cash Equivalents
for similar Cash Equivalents of smaller or larger determinations, or for other
Cash Equivalents, credited to the L/C Cash Collateral Account.


 


Section 7.                                            Release
of Amounts.  So long as no Default
shall have occurred and be continuing, the


 


6





















 


Collateral Agent will pay and release, or direct the applicable Pledged
Account Bank to pay and release, to the Borrower or at its order or, at the
request of the Borrower, to the Paying Agent to be applied to the Obligations
of the Borrower under the Loan Documents, in the case of the L/C Cash
Collateral Account, such amount, if any, as is then on deposit in the L/C Cash
Collateral Account to the extent permitted to be released under the terms of
the Credit Agreement.


 


Section 8.                                            Maintaining
Electronic Chattel Paper, Transferable Records and Letter-of-Credit Rights.  So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding, any Secured Hedge Agreement or Secured
Cash Management Agreement shall be in effect or any Lender Party shall have any
Commitment:


 


(a)                                  Each Grantor will maintain all (i) electronic
chattel paper so that the Collateral Agent has control of the electronic
chattel paper in the manner specified in Section 9-105 of the UCC and (ii) all
transferable records so that the Collateral Agent has control of the
transferable records in the manner specified in Section 16 of the Uniform
Electronic Transactions Act, as in effect in the jurisdiction governing such
transferable record (“UETA” ).


 


(b)                                 Each Grantor will maintain all
letter-of-credit rights assigned to the Collateral Agent so that the Collateral
Agent has control of the letter-of-credit rights in the manner specified in Section 9-107
of the UCC.


 


Section 9.                                            Representations
and Warranties.  Each Grantor
represents and warrants as follows:


 


(a)                                  Such Grantor’s exact legal name,
as defined in Section 9-503(a) of the UCC, is correctly set forth in
Schedule I hereto.  Such Grantor is
located (within the meaning of Section 9-307 of the UCC) and has its chief
executive office, and the office in which it maintains the original copies
of each Assigned Agreement and Related Contract to which such Grantor is a
party and all originals of all chattel paper that evidence Receivables of such
Grantor, in the state or jurisdiction set forth in Schedule I hereto.  The information set forth in Schedule I
hereto with respect to such Grantor is true and accurate in all respects.  Such Grantor has not previously changed its
name, location, chief executive office, place where it maintains its
agreements, type of organization, jurisdiction of organization or
organizational identification number from those set forth in Schedule I hereto
except as disclosed in Schedule IV hereto.


 


(b)                                 All of the Inventory of such
Grantor is located at the places specified therefor in Schedule III
hereto, as such Schedule III may be amended from time to time pursuant to Section 11(a).  Such Grantor has not previously changed the
location of its Inventory except as set forth in Schedule IV hereto.  All Security Collateral consisting of
certificated securities and instruments have been delivered to the Collateral
Agent.  Original copies of all originals
of all chattel paper that evidence Receivables have been delivered to the
Collateral Agent, in each case to the extent that delivery thereof to the
Collateral Agent is required under Section 4.  None of the Receivables or Agreement
Collateral is evidenced by a promissory note or other instrument that has not
been delivered to the Collateral Agent.


 


7
















 


(c)           Such
Grantor is the legal and beneficial owner of the Collateral of such Grantor
free and clear of any Lien, claim, option or right of others, except for the
security interest created under this Agreement or permitted under the Credit
Agreement.  No effective financing
statement or other instrument similar in effect covering all or any part of
such Collateral or listing such Grantor or any trade name of such Grantor as
debtor is on file in any recording office, except such as may have been filed
in favor of the Collateral Agent relating to the Loan Documents or as otherwise
permitted under the Credit Agreement. 
Such Grantor has only the trade names listed on Schedule V hereto.


 


(d)           Such
Grantor has exclusive possession and control of the Inventory other than
Inventory stored at any leased premises or warehouse for which a landlord’s or
warehouseman’s agreement, in form and substance satisfactory to the Collateral
Agent, is in effect and which leased premises or warehouse is so indicated by
an asterisk on Schedule III hereto, as such Schedule III may be
amended from time to time pursuant to Section 11(a).  In the case of Inventory located on leased
premises or in warehouses, no lessor or warehouseman of any premises or
warehouse upon or in which such Inventory is located has (i) issued any
warehouse receipt or other receipt in the nature of a warehouse receipt in
respect of any Inventory, (ii) issued any document for any of such Grantor’s
Inventory, (iii) received notification of any secured party’s interest
(other than the security interest granted hereunder) in such Grantor’s
Inventory or (iv) any Lien, claim or charge (based on contract, statute or
otherwise) on such Inventory.


 


(e)           The
Pledged Equity pledged by such Grantor hereunder has been duly authorized and
validly issued and is fully paid and non-assessable.  Such Grantor has notified each such issuer of
Pledged Equity that such Pledged Equity is subject to the security interest
granted hereunder, and if such Grantor is an issuer of Pledged Equity, such
Grantor confirms that it has received notice of such security interest.  The Pledged Debt pledged by such Grantor
hereunder has been duly authorized, authenticated or issued and delivered, is
the legal, valid and binding obligation of the issuers thereof, is evidenced by
one or more promissory notes (which notes have been delivered to the Collateral
Agent) and is not in default.


 


(f)            The
Initial Pledged Equity pledged by such Grantor constitutes the percentage of
the issued and outstanding shares of stock or Equity Interests of the issuers
thereof indicated on Schedule II hereto. 
The Initial Pledged Debt constitutes all of the outstanding indebtedness
owed to such Grantor by the issuers thereof and is outstanding in the principal
amount indicated on Schedule II hereto.


 


(g)           All
of the investment property owned by such Grantor is listed on Schedule II
hereto.


 


(h)           All
filings and other actions (including, without limitation, actions necessary to
obtain control of Collateral as provided in Sections 9-104, 9-105, 9-106 and
9-107 of the UCC and Section 16 of UETA) necessary to perfect the security
interest in the Collateral of such Grantor created under this Agreement have
been duly made or taken and are in full force and effect, and this Agreement
creates in favor of the Collateral Agent for the benefit of the Secured Parties
a valid and, together with such 


 


8

















 


filings
and other actions, perfected first priority security interest in the Collateral
of such Grantor, securing the payment of the Secured Obligations.


 


(i)            No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party is
required for (i) the grant by such Grantor of the assignment, pledge and
security interest granted hereunder or for the execution, delivery or
performance of this Agreement by such Grantor, (ii) the perfection or
maintenance of the assignment, pledge and security interest created hereunder
(including the first priority nature of such assignment, pledge or security
interest), except for the filing of financing and continuation statements under
the UCC, which financing statements have been duly filed and are in full force
and effect, and the actions described in Section 4 with respect to
Security Collateral, which actions have been taken and are in full force and
effect, or (iii) the exercise by the Collateral Agent of its voting or
other rights provided for in this Agreement or the remedies in respect of the
Collateral pursuant to this Agreement, except as may be required in connection
with the disposition of any portion of the Security Collateral by laws
affecting the offering and sale of securities generally.


 


(j)            The
Inventory that has been produced or distributed by such Grantor has been
produced in compliance with all requirements of applicable law, including,
without limitation, the Fair Labor Standards Act.


 


Section 10.             Further Assurances.  (a) 
Each Grantor agrees that from time to time, at the expense of such Grantor,
such Grantor will promptly execute and deliver, or otherwise authenticate, all
further instruments and documents, and take all further action that may be
necessary or desirable, or that the Collateral Agent may request, in order to
perfect and protect any pledge or security interest granted or purported to be
granted by such Grantor hereunder or to enable the Collateral Agent to exercise
and enforce its rights and remedies hereunder with respect to any Collateral of
such Grantor.  Without limiting the
generality of the foregoing, each Grantor will promptly with respect to
Collateral of such Grantor:  (i) mark
conspicuously each document included in Inventory, each chattel paper included
in Receivables, each Related Contract and, at the request of the Collateral
Agent, each of its records pertaining to such Collateral with a legend, in form
and substance satisfactory to the Collateral Agent, indicating that such
document, chattel paper, Related Contract or Collateral is subject to the security
interest granted hereby; (ii) if any such Collateral shall be evidenced by
a promissory note or other instrument or chattel paper, deliver and pledge to
the Collateral Agent hereunder such note or instrument or chattel paper duly
indorsed and accompanied by duly executed instruments of transfer or
assignment, all in form and substance satisfactory to the Collateral Agent;
(iii) execute or authenticate and file such financing or continuation
statements, or amendments thereto, and such other instruments or notices, as
may be necessary or desirable, or as the Collateral Agent may request, in order
to perfect and preserve the security interest granted or purported to be
granted by such Grantor hereunder; (iv) deliver and pledge to the Collateral
Agent for benefit of the Secured Parties certificates representing Security
Collateral that constitutes certificated securities, accompanied by undated
stock or bond powers executed in blank; (v) take all action necessary to
ensure that the Collateral Agent has control of Collateral consisting of
deposit accounts, electronic chattel paper, investment property,
letter-of-credit rights and transferable records as provided in Sections 9-104,
9-105, 9-106 and 9-107 of the  


 


9

















 


UCC and in Section 16 of UETA; (vi) at the request of the
Collateral Agent, take all action to ensure that the Collateral Agent’s
security interest is noted on any certificate of ownership related to any
Collateral evidenced by a certificate of ownership; and (vii) deliver to
the Collateral Agent evidence that all other action that the Collateral Agent
may deem reasonably necessary or desirable in order to perfect and protect the
security interest created by such Grantor under this Agreement has been taken.


 


(b)           Each Grantor hereby authorizes the Collateral Agent to file
one or more financing or continuation statements, and amendments thereto,
including, without limitation, one or more financing statements indicating that
such financing statements cover all assets or all personal property (or words
of similar effect) of such Grantor, in each case without the signature of such
Grantor, and regardless of whether any particular asset described in such
financing statements falls within the scope of the UCC or the granting clause
of this Agreement.  A photocopy or other
reproduction of this Agreement or any financing statement covering the
Collateral or any part thereof shall be sufficient as a financing statement
where permitted by law.  Each Grantor
ratifies its authorization for the Collateral Agent to have filed such
financing statements, continuation statements or amendments filed prior to the
date hereof.


 


(c)           Each Grantor will furnish to the Collateral Agent from time
to time statements and schedules further identifying and describing the
Collateral of such Grantor and such other reports in connection with such
Collateral as the Collateral Agent may reasonably request, all in reasonable
detail.


 


(d)           The Borrower will furnish to the Collateral Agent, on or
prior to the fifth anniversary of the date hereof (but not more than six months
prior thereto), an opinion of counsel, from outside counsel reasonably
satisfactory to the Collateral Agent, to the effect that all financing or
continuation statements have been filed, and all other action has been taken
(including, without limitation, action necessary to (i) give the
Collateral Agent control over the Collateral as provided in Sections 9-104,
9-105, 9-106 and 9-107 of the UCC and Section 16 of UETA and (ii) 
cause the security interest in any Collateral evidenced by a certificate of
ownership to be noted on such certificate of ownership) to perfect continuously
from the date hereof the security interest granted hereunder.


 


Section 11.             As to Inventory.  (a)  Each Grantor will
keep the Inventory of such Grantor (other than Inventory sold in the ordinary
course of business) at the places therefor specified in Section 9(b) or,
upon 30 days’ prior written notice to the Collateral Agent, at such other
places designated by the Grantor in such notice.  Upon the giving of such notice, Schedule III
shall be automatically amended to add any new locations specified in the
notice.


 


(b)           Each Grantor will pay promptly when due all property and
other taxes, assessments and governmental charges or levies imposed upon, and
all claims (including, without limitation, claims for labor, materials and
supplies) against, the Inventory of such Grantor, except to the extent payment
thereof is not required by Section 5.01(b) of the Credit
Agreement.  In producing its Inventory,
each Grantor will comply with all requirements of applicable law, including,
without limitation, the Fair Labor Standards Act.


 


10

















 


Section 12.             Insurance.  (a)  Each Grantor will, at its own
expense, maintain insurance with respect to the Inventory of such Grantor in
such amounts, against such risks, in such form and with such insurers, as shall
be satisfactory to the Collateral Agent from time to time.  Each policy of each Grantor for liability
insurance shall provide for all losses to be paid on behalf of the Collateral
Agent and such Grantor as their interests may appear, and each policy for
property damage insurance shall provide for all losses (except for losses of
less than $1,000,000 per occurrence) to be paid directly to the Collateral
Agent.  Each such policy shall in
addition (i) name such Grantor and the Collateral Agent as insured parties
thereunder (without any representation or warranty by or obligation upon the
Collateral Agent) as their interests may appear, (ii) contain the
agreement by the insurer that any loss thereunder shall be payable to the
Collateral Agent notwithstanding any action, inaction or breach of
representation or warranty by such Grantor, (iii) provide that there shall
be no recourse against the Collateral Agent for payment of premiums or other
amounts with respect thereto and (iv) provide that at least 10 days’ prior
written notice of cancellation or of lapse shall be given to the Collateral
Agent by the insurer.  Each Grantor will,
if so requested by the Collateral Agent, deliver to the Collateral Agent
original or duplicate policies of such insurance and, as often as the
Collateral Agent may reasonably request, a report of a reputable insurance
broker with respect to such insurance. 
Further, each Grantor will, at the request of the Collateral Agent, duly
execute and deliver instruments of assignment of such insurance policies to
comply with the requirements of Section 11 and cause the insurers to
acknowledge notice of such assignment.


 


(b)           Reimbursement under any liability insurance maintained by
any Grantor pursuant to this Section 12 may be paid directly to the Person
who shall have incurred liability covered by such insurance.  In case of any loss involving damage to
Inventory when subsection (c) of this Section 12 is not applicable,
the applicable Grantor will make or cause to be made the necessary repairs to
or replacements of such Inventory, and any proceeds of insurance properly
received by or released to such Grantor shall be used by such Grantor, except
as otherwise required hereunder or by the Credit Agreement, to pay or as
reimbursement for the costs of such repairs or replacements.


 


(c)           So long as no Default shall have occurred and be continuing,
all insurance payments received by the Collateral Agent in connection with any
loss, damage or destruction of any Inventory will be released by the Collateral
Agent to the applicable Grantor for the repair, replacement or restoration
thereof, subject to such terms and conditions with respect to the release
thereof as the Collateral Agent may reasonably require.  To the extent that (i) the amount of any
such insurance payments exceeds the cost of any such repair, replacement or
restoration, or (ii) such insurance payments are not otherwise required by
the applicable Grantor to complete any such repair, replacement or restoration
required hereunder, the Collateral Agent will not be required to release the
amount thereof to such Grantor and may hold or continue to hold such amount in
the Collateral Account as additional security for the Secured Obligations of
such Grantor (except that the Collateral Agent will direct the applicable
Pledged Account Bank to release to such Grantor any such amount if and to the
extent that any prepayment of Obligations is required under the Credit
Agreement in connection with the receipt of such amount and such prepayment has
been made).  Upon the occurrence and
during the continuance of any Default or the actual or constructive total loss
(in excess of $1,000,000 per occurrence) of any Inventory, all insurance
payments in respect of such Inventory shall be paid to the Collateral Agent and
shall, in the Collateral Agent’s sole discretion, (i) be released to the
applicable Grantor to be applied as 


 


11

















 


set forth in the first sentence of this
subsection (c) or (ii) be held as additional Collateral hereunder or
applied as specified in Section 20(b).


 


Section 13.             Post-Closing Changes; Bailees; Collections on Assigned Agreements,
Receivables and Related Contracts.  (a)  No
Grantor will change its name, type of organization, jurisdiction of
organization, organizational identification number or location from those set forth
in Section 9(a) of this Agreement without first giving at least 30
days’ prior written notice to the Collateral Agent and taking all action
required by the Collateral Agent for the purpose of perfecting or protecting
the security interest granted by this Agreement.  No Grantor will change the location of the
Inventory or the place where it keeps the originals of the Related Contracts to which such Grantor is a
party and all originals of all chattel paper that evidence Receivables of such
Grantor from the locations therefor specified in Sections 9 (a) and 9(b) without
first giving the Collateral Agent 30 days’ prior written notice of such
change.  No Grantor will become bound by
a security agreement authenticated by another Person (determined as provided in
Section 9-203(d) of the UCC) without giving the Collateral Agent 30
days’ prior written notice thereof and taking all action required by the
Collateral Agent to ensure that the perfection and first priority nature of the
Collateral Agent’s security interest in the Collateral will be maintained.  Each Grantor will hold and preserve its
records relating to the Collateral, including, without limitation, the Related
Contracts, and will permit representatives of the Collateral Agent at any time
during normal business hours to inspect and make abstracts from such records
and other documents.  If the Grantor does
not have an organizational identification number and later obtains one, it will
forthwith notify the Collateral Agent of such organizational identification
number.


 


(b)           If any Collateral of any Grantor is at any time in the
possession or control of a warehouseman, bailee or agent, or if the Collateral
Agent so requests such Grantor will (i) notify such warehouseman, bailee
or agent of the security interest created hereunder, (ii) instruct such
warehouseman, bailee or agent to hold all such Collateral solely for the
Collateral Agent’s account subject only to the Collateral Agent’s instructions
(which shall permit such Collateral to be removed by such Grantor in the
ordinary course of business until the Collateral Agent notifies such
warehouseman, bailee or agent that an Event of Default has occurred and is
continuing), (iii) use commercially reasonable efforts, to cause such
warehouseman, bailee or agent to authenticate a record acknowledging that it
holds possession of such Collateral for the Collateral Agent’s benefit and
shall act solely on the instructions of the Collateral Agent without the
further consent of the Grantor or any other Person, and (iv) make such
authenticated record available to the Collateral Agent.


 


(c)           Except as otherwise provided in this subsection (c), each
Grantor will continue to collect, at its own expense, all amounts due or to
become due such Grantor under the Receivables and Related Contracts.  In connection with such collections, such
Grantor may take (and, at the Collateral Agent’s direction, will take) such
action as such Grantor or the Collateral Agent may deem necessary or advisable
to enforce collection of the Receivables and Related Contracts; provided,
however, that the Collateral Agent shall have the right at any
time, upon the occurrence and during the continuance of a Default and upon
written notice to such Grantor of its intention to do so, to notify the
Obligors under any Receivables and Related Contracts of the assignment of such
Receivables and Related Contracts to the Collateral Agent and to direct such
Obligors to make payment of all amounts due or to become due to such Grantor
thereunder 


 


12

















 


directly to the Collateral Agent and,
upon such notification and at the expense of such Grantor, to enforce
collection of any such Receivables and Related Contracts, to adjust, settle or
compromise the amount or payment thereof, in the same manner and to the same
extent as such Grantor might have done, and to otherwise exercise all rights
with respect to such Receivables and Related Contracts, including, without
limitation, those set forth set forth in Section 9-607 of the UCC.  After receipt by any Grantor of the notice
from the Collateral Agent referred to in the proviso to the preceding sentence,
(i) all amounts and proceeds (including, without limitation, instruments)
received by such Grantor in respect of the Receivables and Related Contracts of
such Grantor shall be received in trust for the benefit of the Collateral Agent
hereunder, shall be segregated from other funds of such Grantor and shall be
forthwith paid over to the Collateral Agent in the same form as so received (with
any necessary indorsement) and either (A) released to such Grantor on the
terms set forth in Section 7 so long as no Default shall have occurred and
be continuing or (B) if any Default shall have occurred and be continuing,
applied as provided in Section 20(b) and (ii) such Grantor will
not adjust, settle or compromise the amount or payment of any Receivable or
amount due on any Related Contract, release wholly or partly any Obligor
thereof, or allow any credit or discount thereon.  No Grantor will permit or consent to the
subordination of its right to payment under any of the Receivables and Related
Contracts to any other indebtedness or obligations of the Obligor thereof.


 


Section 14.             Voting Rights; Dividends; Etc.  (a)  So
long as no Default shall have occurred and be continuing:


 


(i)            Each Grantor shall be
entitled to exercise any and all voting and other consensual rights pertaining
to the Security Collateral of such Grantor or any part thereof for any purpose
other than originate Entitlement Orders (as defined in any Securities Account
Control Agreement) with respect to the Securities Accounts or the Commodity
Accounts; provided,  however, that such Grantor will
not exercise or refrain from exercising any such right if such action would
have a material adverse effect on the value of the Security Collateral or any
part thereof.


 


(ii)           Each Grantor shall be
entitled to receive and retain any and all dividends, interest and other
distributions paid in respect of the Security Collateral of such Grantor if and
to the extent that the payment thereof is not otherwise prohibited by the terms
of the Loan Documents; provided, however, that any and all


 


(A)          dividends, interest and
other distributions paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise distributed in
respect of, or in exchange for, any Security Collateral,


 


(B)           dividends and other
distributions paid or payable in cash in respect of any Security Collateral in
connection with a partial or total liquidation or dissolution or in connection
with a reduction of capital, capital surplus or paid-in-surplus and


 


13

















 


(C)           cash paid, payable or
otherwise distributed in respect of principal of, or in redemption of, or in
exchange for, any Security Collateral


 


shall be, and shall be
forthwith delivered to the Collateral Agent to hold as, Security Collateral and
shall, if received by such Grantor, be received in trust for the benefit of the
Collateral Agent, be segregated from the other property or funds of such
Grantor and be forthwith delivered to the Collateral Agent as Security
Collateral in the same form as so received (with any necessary indorsement).


 


(iii)          The Collateral Agent will
execute and deliver (or cause to be executed and delivered) to each Grantor all
such proxies and other instruments as such Grantor may reasonably request for
the purpose of enabling such Grantor to exercise the voting and other rights
that it is entitled to exercise pursuant to paragraph (i) above and
to receive the dividends or interest payments that it is authorized to receive
and retain pursuant to paragraph (ii) above.


 


(b)           Upon the occurrence and during the continuance of a Default:


 


(i)            All rights of each Grantor (x) to
exercise or refrain from exercising the voting and other consensual rights that
it would otherwise be entitled to exercise pursuant to Section 14(a)(i) shall,
upon notice to such Grantor by the Collateral Agent, cease and (y) to
receive the dividends, interest and other distributions that it would otherwise
be authorized to receive and retain pursuant to Section 14(a)(ii) shall
automatically cease, and all such rights shall thereupon become vested in the
Collateral Agent, which shall thereupon have the sole right to exercise or
refrain from exercising such voting and other consensual rights and to receive
and hold as Security Collateral such dividends, interest and other
distributions.


 


(ii)           All dividends, interest and
other distributions that are received by any Grantor contrary to the provisions
of paragraph (i) of this Section 14(b) shall be received in
trust for the benefit of the Collateral Agent, shall be segregated from other
funds of such Grantor and shall be forthwith paid over to the Collateral Agent
as Security Collateral in the same form as so received (with any necessary
indorsement).


 


(iii)          The Collateral Agent shall
be authorized to send to each Securities Intermediary or Commodity Intermediary
as defined in and under any Security Control Agreement a Notice of Exclusive
Control as defined in and under such Security Control Agreement.


 


Section 15.             As to Letter-of-Credit Rights.  (a) 
Each Grantor, by granting a security interest in its Receivables consisting of
letter-of-credit rights to the Collateral Agent, intends to (and hereby does)
assign to the Collateral Agent its rights (including its contingent rights) to
the proceeds of all Related Contracts consisting of letters of credit of which
it is or hereafter becomes a beneficiary. 
Each Grantor will promptly use its commercially reasonable efforts to
cause the issuer of each letter of credit and each nominated person (if any)
with respect 


 


14

















 


thereto to consent to such assignment of the proceeds thereof and deliver
written evidence of such consent to the Collateral Agent.


 


(b)           Upon the occurrence of a Default, each Grantor will,
promptly upon request by the Collateral Agent, (i) notify (and such
Grantor hereby authorizes the Collateral Agent to notify) the issuer and each
nominated person with respect to each of the Related Contracts consisting of
letters of credit that the proceeds thereof have been assigned to the
Collateral Agent hereunder and any payments due or to become due in respect thereof
are to be made directly to the Collateral Agent or its designee and (ii) arrange
for the Collateral Agent to become the transferee beneficiary of letter of
credit.


 


Section 16.             Transfers and Other Liens; Additional Shares.  (a) 
Each Grantor agrees that it will not (i) sell, assign or otherwise dispose
of, or grant any option with respect to, any of the Collateral, other than
sales, assignments and other dispositions of Collateral, and options relating
to Collateral, permitted under the terms of the Credit Agreement, or (ii) create
or suffer to exist any Lien upon or with respect to any of the Collateral of
such Grantor except for the pledge, assignment and security interest created
under this Agreement and Liens permitted under the Credit Agreement.


 


(b)           Each Grantor agrees that it will (i) cause each issuer
of the Pledged Equity pledged by such Grantor not to issue any stock or other
Equity Interests or other securities in addition to or in substitution for the
Pledged Equity issued by such issuer, except to such Grantor, and (ii) pledge
hereunder, immediately upon its acquisition (directly or indirectly) thereof,
any and all additional shares of stock or other Equity Interests or other
securities of each Subsidiary, including each issuer of the Pledged Equity.


 


Section 17.             Collateral Agent Appointed Attorney-in-Fact. 
Each Grantor hereby irrevocably appoints the Collateral Agent such
Grantor’s attorney-in-fact, with full authority in the place and stead of such
Grantor and in the name of such Grantor or otherwise, from time to time in the
Collateral Agent’s discretion, to take any action and to execute any instrument
that the Collateral Agent may deem necessary or advisable to accomplish the
purposes of this Agreement, including, without limitation:


 


(a)           to
obtain and adjust insurance required to be paid to the Collateral Agent
pursuant to Section 12,


 


(b)           to
ask for, demand, collect, sue for, recover, compromise, receive and give
acquittance and receipts for moneys due and to become due under or in respect
of any of the Collateral,


 


(c)           to
receive, indorse and collect any drafts or other instruments, documents and
chattel paper, in connection with clause (a) or (b) above, and


 


(d)           to
file any claims or take any action or institute any proceedings that the
Collateral Agent may deem necessary or desirable for the collection of any of
the Collateral or otherwise to enforce compliance with the terms and conditions
of any Assigned Agreement or the rights of the Collateral Agent with respect to
any of the Collateral.


 


15
















 


Section 18.                                      Collateral Agent May Perform. 
If any Grantor fails to perform any agreement contained herein, the
Collateral Agent may, but without any obligation to do so and without notice,
itself perform, or cause performance of, such agreement, and the expenses of
the Collateral Agent incurred in connection therewith shall be payable by such
Grantor under Section 21.


 


Section 19.                                      The Collateral Agent’s Duties.  (a) 
The powers conferred on the Collateral Agent hereunder are solely to protect
the Secured Parties’ interest in the Collateral and shall not impose any duty
upon it to exercise any such powers. 
Except for the safe custody of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Collateral Agent
shall have no duty as to any Collateral, as to ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Collateral, whether or not any Secured Party has or is
deemed to have knowledge of such matters, or as to the taking of any necessary
steps to preserve rights against any parties or any other rights pertaining to
any Collateral.  The Collateral Agent
shall be deemed to have exercised reasonable care in the custody and
preservation of any Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which it accords its own property.


 


(b)                                 Anything
contained herein to the contrary notwithstanding, the Collateral Agent may from
time to time, when the Collateral Agent deems it to be necessary, appoint one
or more subagents (each a “Subagent”)
for the Collateral Agent hereunder with respect to all or any part of the
Collateral.  In the event that the
Collateral Agent so appoints any Subagent with respect to any Collateral, (i) the
assignment and pledge of such Collateral and the security interest granted in
such Collateral by each Grantor hereunder shall be deemed for purposes of this
Security Agreement to have been made to such Subagent, in addition to the Collateral
Agent, for the ratable benefit of the Secured Parties, as security for the
Secured Obligations of such Grantor, (ii) such Subagent shall
automatically be vested, in addition to the Collateral Agent, with all rights,
powers, privileges, interests and remedies of the Collateral Agent hereunder
with respect to such Collateral, and (iii) the term “Collateral Agent,”
when used herein in relation to any rights, powers, privileges, interests and
remedies of the Collateral Agent with respect to such Collateral, shall include
such Subagent; provided, however, that no such Subagent shall be
authorized to take any action with respect to any such Collateral unless and
except to the extent expressly authorized in writing by the Collateral Agent.


 


(c)                                  The
provisions of Article VII of the Credit Agreement shall inure to the
benefit of the Collateral Agent in respect of this Agreement and shall be
binding upon the parties hereto in such respect.


 


Section 20.                                      Remedies.  If any Event
of Default shall have occurred and be continuing:


 


(a)                                  The
Collateral Agent may exercise in respect of the Collateral, in addition to
other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party upon default under the UCC (whether
or not the UCC applies to the affected Collateral) and also may:  (i) require each Grantor to, and each
Grantor hereby agrees that it will at its expense and upon request of the
Collateral Agent forthwith, assemble all or part of the Collateral as directed
by the Collateral Agent 


 


16

















 


and make it
available to the Collateral Agent at a place and time to be designated by the
Collateral Agent that is reasonably convenient to both parties; (ii) without
notice except as specified below, sell the Collateral or any part thereof in
one or more parcels at public or private sale, at any of the Collateral Agent’s
offices or elsewhere, for cash, on credit or for future delivery, and upon such
other terms as the Collateral Agent may deem commercially reasonable; (iii) occupy
any premises owned or leased by any of the Grantors where the Collateral or any
part thereof is assembled or located for a reasonable period in order to
effectuate its rights and remedies hereunder or under law, without obligation
to such Grantor in respect of such occupation; and (iv) exercise any and
all rights and remedies of any of the Grantors under or in connection with the
Collateral, or otherwise in respect of the Collateral, including, without
limitation, (A) any and all rights of such Grantor to demand or otherwise
require payment of any amount under, or performance of any provision of, the
Assigned Agreements, the Receivables, the Related Contracts and the other
Collateral, (B) withdraw, or cause or direct the withdrawal, of all funds
with respect to the Account Collateral and (C) exercise all other rights
and remedies with respect to the Assigned Agreements, the Receivables, the
Related Contracts and the other Collateral, including, without limitation,
those set forth in Section 9-607 of the UCC.  Each Grantor agrees that, to the extent
notice of sale shall be required by law, at least ten days’ notice to such
Grantor of the time and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification.  The Collateral Agent shall not be obligated
to make any sale of Collateral regardless of notice of sale having been given.  The Collateral Agent may adjourn any public
or private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned.


 


(b)                                 Any
cash held by or on behalf of the Collateral Agent and all cash proceeds received
by or on behalf of the Collateral Agent in respect of any sale of, collection
from, or other realization upon all or any part of the Collateral may, in the
discretion of the Collateral Agent, be held by the Collateral Agent as
collateral for, and/or then or at any time thereafter applied (after payment of
any amounts payable to the Collateral Agent pursuant to Section 21) in
whole or in part by the Collateral Agent for the ratable benefit of the Secured
Parties against, all or any part of the Secured Obligations, in the following
manner:


 


(i)                                     first, paid to the Agents for any amounts then
owing to the Agents pursuant to Section 8.04 of the Credit Agreement or
otherwise under the Loan Documents, ratably in accordance with such respective
amounts then owing to the Agents; and


 


(ii)                                  second, ratably (A) paid to the Lender
Parties, the Hedge Banks and the Lender Parties and their Affiliates that have
entered into Secured Cash Management Agreements, respectively, for any amounts
then owing to them, in their capacities as such, under the Loan Documents
ratably in accordance with such respective amounts then owing to such Lender
Parties, the Hedge Banks and such Lender Parties and their Affiliates that have
entered into Secured Cash Management Agreements, provided that, for purposes of this Section 20,
the 


 


17

















 


amount owing to any such Hedge Bank pursuant to any
Secured Hedge Agreement to which it is a party (other than any amount therefore
accrued and unpaid) shall be deemed to be equal to the Agreement Value therefor
and (B) deposited as Collateral in the L/C Cash Collateral Account up to
an amount equal to 100% of the aggregate Available Amount of all outstanding
Letters of Credit, provided
that in the event that any such Letter of Credit is drawn, the Collateral Agent
shall pay to the Issuing Bank that issued such Letter of Credit the amount held
in the L/C Cash Collateral Account in respect of such Letter of Credit, provided  further that, to the extent that any such Letter of Credit
shall expire or terminate undrawn and as a result thereof the amount of the
Collateral in the L/C Cash Collateral Account shall exceed 100% of the
aggregate Available Amount of all then outstanding Letters of Credit, such
excess amount of such Collateral shall be applied in accordance with the
remaining order of priority set out in this Section 20(b).


 


Any
surplus of such cash or cash proceeds held by or on the behalf of the Collateral Agent and remaining after
payment in full of all the Secured Obligations shall be paid over to the
applicable Grantor or to whomsoever may be lawfully entitled to receive such
surplus.


 


(c)                                  All
payments received by any Grantor under or in connection with any Assigned
Agreement or otherwise in respect of the Collateral shall be received in trust
for the benefit of the Collateral Agent, shall be segregated from other funds
of such Grantor and shall be forthwith paid over to the Collateral Agent in the
same form as so received (with any necessary indorsement).


 


(d)                                 The
Collateral Agent may, without notice to any Grantor except as required by law
and at any time or from time to time, charge, set-off and otherwise apply all
or any part of the Secured Obligations against any funds held with respect to
the Account Collateral or in any other deposit account.


 


(e)                                  If
the Collateral Agent shall determine to exercise its right to sell all or any
of the Security Collateral of any Grantor pursuant to this Section 20,
each Grantor agrees that, upon request of the Collateral Agent, such Grantor
will, at its own expense:


 


(i)                                     execute and deliver, and cause each
issuer of such Security Collateral contemplated to be sold and the directors
and officers thereof to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts and things, as may be
necessary or, in the opinion of the Collateral Agent, advisable to register
such Security Collateral under the provisions of the Securities Act of 1933 (as
amended from time to time, the “Securities Act”), to cause the registration statement
relating thereto to become effective and to remain effective for such period as
prospectuses are required by law to be furnished and to make all amendments and
supplements thereto and to the related prospectus that, in the opinion of the
Collateral Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the 


 


18

















 


rules and regulations of the Securities and
Exchange Commission applicable thereto;


 


(ii)                                  use its best efforts to qualify the
Security Collateral under the state securities or “Blue Sky” laws and to obtain
all necessary governmental approvals for the sale of such Security Collateral,
as requested by the Collateral Agent;


 


(iii)                               cause each such issuer of such Security
Collateral to make available to its security holders, as soon as practicable,
an earnings statement that will satisfy the provisions of Section 11(a) of
the Securities Act;


 


(iv)                              provide the Collateral Agent with such
other information and projections as may be necessary or, in the opinion of the
Collateral Agent, advisable to enable the Collateral Agent to effect the sale
of such Security Collateral; and


 


(v)                                 do or cause to be done all such other acts
and things as may be necessary to make such sale of such Security Collateral or
any part thereof valid and binding and in compliance with applicable law.


 


Notwithstanding the
foregoing, the Collateral Agent is authorized, in connection with any such sale,
if it deems it advisable to do so, (A) to restrict the prospective bidders
on or purchasers of any of the Security Collateral to a limited number of
sophisticated investors who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
sale of any of such Security Collateral, (B) to cause to be placed on
certificates for any or all of the Security Collateral or on any other
securities pledged hereunder a legend to the effect that such security has not
been registered under the Securities Act and may not be disposed of in
violation of the provisions of the Securities Act, and (C) to impose such
other limitations or conditions in connection with any such sale as the
Collateral Agent deems necessary or advisable in order to comply with the
Securities Act or any other law.  The
parties acknowledge and agree that only under very unusual circumstances, if
ever, would the Collateral Agent be required to register the Security
Collateral under the Securities Act in order to effect a commercially
reasonable sale.


 


(f)                                    The
Collateral Agent is authorized, in connection with any sale of the Security
Collateral pursuant to this Section 20, to deliver or otherwise disclose
to any prospective purchaser of the Security Collateral:  (i) any registration statement or
prospectus, and all supplements and amendments thereto, prepared pursuant to
subsection (e)(i) above; (ii) any information and projections
provided to it pursuant to subsection (e)(iv) above; and (iii) any
other information in its possession relating to such Security Collateral.


 


(g)                                 Each
Grantor acknowledges the impossibility of ascertaining the amount of damages
that would be suffered by the Secured Parties by reason of the failure by such
Grantor to perform any of the covenants contained in subsection (e) above
and, 


 


19

















 


consequently,
agrees that, if such Grantor shall fail to perform any of such covenants, it
will pay, as liquidated damages and not as a penalty, an amount equal to the
value of the Security Collateral on the date the Collateral Agent shall demand
compliance with subsection (e) above.


 


Section 21.                                      Indemnity and Expenses.  (a) 
Each Grantor agrees to indemnify, defend and save and hold harmless each
Secured Party and each of their Affiliates and their respective officers,
directors, employees, agents and advisors (each, an “Indemnified Party”) from and against, and
shall pay on demand, any and all claims, damages, settlement costs, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel (including the allocated cost of internal counsel)) that
may be incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or resulting from this Agreement
(including, without limitation, enforcement of this Agreement), except to the
extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party’s gross negligence or willful misconduct.


 


(b)                                 Each
Grantor will upon demand pay to the Collateral Agent the amount of any and all
reasonable expenses, including, without limitation, the reasonable fees and
expenses of its counsel (including Shearman & Sterling LLP) and of any
experts and agents, that the Collateral Agent may incur in connection with (i) the
administration of this Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from or other realization upon, any of
the Collateral of such Grantor, (iii) the exercise or enforcement of any
of the rights of the Collateral Agent or the other Secured Parties hereunder or
(iv) the failure by such Grantor to perform or observe any of the
provisions hereof.


 


Section 22.                                      Amendments; Waivers; Collateral Agent Actions;
Additional Grantors; Etc.  (a)  No amendment or
waiver of any provision of this Agreement, and no consent to any departure by
any Grantor herefrom, shall in any event be effective unless the same shall be
in writing and signed by the Collateral Agent, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.  No failure on the part
of the Collateral Agent or any other Secured Party to exercise, and no delay in
exercising any right hereunder, shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right.  The Collateral Agent shall take instructions
from the Required Lenders as to all matters (or from all Lenders in the
circumstances specified in clause (a)(iii) of the proviso to Section 8.01 of the Credit
Agreement).


 


(b)                                 Upon
the execution and delivery, or authentication, by any Person of a security
agreement supplement in substantially the form of Exhibit A hereto (each a
“Security Agreement Supplement”), (i) such
Person shall be referred to as an “Additional
Grantor” and shall be and become a Grantor
hereunder, and each reference in this Agreement and the other Loan Documents to
“Grantor” shall also mean and be a reference to such Additional Grantor, and
each reference in this Agreement and the other Loan Documents to “Collateral”
shall also mean and be a reference to the Collateral of such Additional
Grantor, and (ii) the supplemental schedules I through V attached to each
Security Agreement Supplement shall be incorporated into and become a part of
and supplement Schedules I through V, respectively, hereto, and the 


 


20

















 


Collateral Agent may attach such supplemental schedules to
such Schedules; and each reference to such Schedules shall mean and be a
reference to such Schedules as supplemented pursuant to each Security Agreement
Supplement.


 


Section 23.                                      Notices; Etc.  All notices
and other communications provided for hereunder shall be either (a) in
writing (including telegraphic, telecopier or telex communication) and mailed,
telegraphed, telecopied, telexed or otherwise delivered (i.e. “pdf” or “tif”)
or (b) by electronic mail (if electronic mail addresses are designated as
provided below) confirmed immediately in writing, in the case of the Borrower
or the Collateral Agent, addressed to it at its address specified in the Credit
Agreement and, in the case of each Grantor other than the Borrower, addressed
to it at its address set forth opposite such Grantor’s name on the signature pages hereto
or on the signature page to the Security Agreement Supplement pursuant to
which it became a party hereto; or, as to any party, at such other address as
shall be designated by such party in a written notice to the other
parties.  All such notices and other
communications shall, when mailed, telegraphed, telecopied, telexed, sent by
electronic mail or otherwise (i.e. “pdf” or “tif”), be effective when deposited
in the mails, delivered to the telegraph company, telecopied, confirmed by
telex answerback, sent by electronic mail and confirmed in writing, or
otherwise delivered (or confirmed by a signed receipt), respectively, addressed
as aforesaid; except that notices and other communications to the Collateral
Agent shall not be effective until received by the Collateral Agent.  Delivery by telecopier, facsimile or other
electronic transmission (i.e. “pdf” or “tif”) of an executed counterpart of any
amendment or waiver of any provision of this Agreement or of any Security
Agreement Supplement or Schedule hereto shall be effective as delivery of an
original executed counterpart thereof.


 


Section 24.                                      Continuing Security Interest; Assignments under the
Credit Agreement.  This Agreement shall create a continuing
security interest in the Collateral and shall (a) remain in full force and
effect until the latest of (i) the payment in full in cash of the Secured
Obligations, (ii) the Termination Date and (iii) the termination or
expiration of all Letters of Credit, Secured Cash Management Agreements and all
Secured Hedge Agreements, (b) be binding upon each Grantor, its successors
and assigns and (c) inure, together with the rights and remedies of the
Collateral Agent hereunder, to the benefit of the Secured Parties and their
respective successors, transferees and assigns. 
Without limiting the generality of the foregoing clause (c), any
Lender Party may assign or otherwise transfer all or any portion of its rights
and obligations under the Credit Agreement (including, without limitation, all
or any portion of its Commitments, the Advances owing to it and the Note or
Notes, if any, held by it) to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to
such Lender Party herein or otherwise, in each case as provided in Section 8.07
of the Credit Agreement.


 


Section 25.                                      Release; Termination.  (a) 
Upon any sale, lease, transfer or other disposition of any item of Collateral
of any Grantor in accordance with the terms of the Loan Documents (other than
sales of Inventory in the ordinary course of business), the Collateral Agent
will, at such Grantor’s expense, execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence the release of
such item of Collateral from the assignment and security interest granted hereby;
provided, however, that (i) at the time of such
request and such release no Default shall have occurred and be continuing, (ii) such
Grantor shall have delivered to the Collateral Agent, at least ten Business
Days prior to the date of the 


 


21

















 


proposed release, a written request for release describing the item of
Collateral and the terms of the sale, lease, transfer or other disposition in
reasonable detail, including, without limitation, the price thereof and any
expenses in connection therewith, together with a form of release for execution
by the Collateral Agent and a certificate of such Grantor to the effect that
the transaction is in compliance with the Loan Documents and as to such other
matters as the Collateral Agent may request and (iii) the proceeds of any
such sale, lease, transfer or other disposition required to be applied, or any
payment to be made in connection therewith, in accordance with Section 2.06
of the Credit Agreement shall, to the extent so required, be paid or made to,
or in accordance with the instructions of, the Collateral Agent when and as
required under Section 2.06 of the Credit Agreement.  Each Grantor acknowledges and agrees that the
Collateral Agent shall be entitled to conclusively rely on a certification by
the Borrower with respect to the items set forth in sub-clauses (i) through
(iii) above.


 


(b)                                 Upon
the latest of (i) the payment in full in cash of the Secured Obligations, (ii) the
Termination Date and (iii) the termination or expiration of all Letters of
Credit, Secured Cash Management Agreements and all Secured Hedge Agreements,
the pledge and security interest granted hereby shall terminate and all rights
to the Collateral shall revert to the applicable Grantor.  Upon any such termination, the Collateral
Agent will, at the applicable Grantor’s expense, execute and deliver to such
Grantor such documents as such Grantor shall reasonably request to evidence
such termination.


 


Section 26.                                      Security Interest Absolute.  All rights of the Collateral Agent and the
other Secured Parties and the pledge, assignment and security interest
hereunder, and all obligations of each Grantor hereunder, shall be irrevocable,
absolute and unconditional irrespective of, and each Grantor hereby irrevocably
waives (to the maximum extent permitted by applicable law) any defenses it may
now have or may hereafter acquire in any way relating to, any or all of the
following:


 


(a)                                  any
lack of validity or enforceability of any Loan Document or any other agreement
or instrument relating thereto;


 


(b)                                 any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Secured Obligations or any other Obligations of any other Loan
Party under or in respect of the Loan Documents or any other amendment or
waiver of or any consent to any departure from any Loan Document, including,
without limitation, any increase in the Secured Obligations resulting from the
extension of additional credit to any Loan Party or any of its Subsidiaries or
otherwise;


 


(c)                                  any
taking, exchange, release or non-perfection of any Collateral or any other
collateral, or any taking, release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations;


 


(d)                                 any
manner of application of any Collateral or any other collateral, or proceeds
thereof, to all or any of the Secured Obligations, or any manner of sale or
other disposition of any Collateral or any other collateral for all or any of
the Secured Obligations or any other Obligations of any other Loan Party under
or in respect of the Loan Documents or any other assets of any Loan Party or
any of its Subsidiaries;


 


22

















 


(e)                                  any
change, restructuring or termination of the corporate structure or existence of
any Loan Party or any of its Subsidiaries;


 


(f)                                    any
failure of any Secured Party to disclose to any Loan Party any information
relating to the business, condition (financial or otherwise), operations,
performance, assets, nature of assets, liabilities or prospects of any other
Loan Party now or hereafter known to such Secured Party (each Grantor waiving
any duty on the part of the Secured Parties to disclose such information);


 


(g)                                 the
failure of any other Person to execute this Agreement or any other Collateral
Document, guaranty or agreement or the release or reduction of liability of any
Grantor or other grantor or surety with respect to the Secured Obligations;


 


(h)                                 any
other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by any Secured Party that
might otherwise constitute a defense available to, or a discharge of, such
Grantor or any other Grantor or a third party grantor of a security interest;
or


 


(i)                                     (i) any
defense arising by reason of any claim or defense based upon an election of
remedies by any Secured Party that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Grantor or other rights of such
Grantor to proceed against any of the other Loan Parties, any other guarantor
or any other Person or any Collateral and (ii) any defense based on any
right of set-off or counterclaim against or in respect of the Obligations of
such Grantor hereunder.


 


Section 27.                                      Execution in Counterparts. 
This Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.  Delivery of an executed counterpart of a
signature page to this Agreement by telecopier, facsimile or other
electronic transmission (i.e. “pdf” or “tif”) shall be effective as delivery of
an original executed counterpart of this Agreement.


 


Section 28.                                      The Mortgages.  In the event
that any of the Collateral hereunder is also subject to a valid and enforceable
Lien under the terms of any Mortgage and the terms of such Mortgage are inconsistent
with the terms of this Agreement, then with respect to such Collateral, the
terms of such Mortgage shall be controlling in the case of fixtures and real
estate leases, letting and licenses of, and contracts and agreements relating
to the lease of, real property, and the terms of this Agreement shall be
controlling in the case of all other Collateral.


 


Section 29.                                      Effect of this Agreement. 
This Agreement amends and restates the Existing Security Agreement in
its entirety and is entitled to the benefit of all existing Loan
Documents.  Any reference in any other
Loan Document to the “Security Agreement,” “thereunder,” “therein,” “thereof”
or words of like import referring to the Existing Security Agreement shall mean
and refer to this Agreement.  Any reference
in any other Loan Document to the “Secured Obligations” or any similar term
including or referencing obligations under the Existing Security Agreement
shall include and reference the Secured Obligations as defined in 


 


23

















 


this Agreement.  All Secured
Obligations under the Existing Security Agreement and the other Loan Documents
shall continue to be outstanding except as expressly modified by this Agreement
and shall be governed in all respects by this Agreement and the other Loan
Documents, it being agreed and understood by the parties hereto that this
Agreement does not constitute a novation or satisfaction of any Secured
Obligation under the Existing Security Agreement or any other Loan Document except
as expressly modified by this Agreement, nor, except as expressly provided
herein, does it operate as a waiver of any right, power or remedy of any Lender
under any Loan Document.


 


Section 30.                                      Governing Law.  This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York.


 


[Remainder
of this page intentionally left blank]


 


24
















 


IN
WITNESS WHEREOF, each Grantor has caused this Agreement to be duly executed and
delivered by its officer thereunto duly authorized as of the date first above
written.


 


	
   

  	
   

  	
  STEEL DYNAMICS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
   

  	
  Title: Theresa E. Wagler, Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  SDI INVESTMENT COMPANY

  
	
  103 Foulk Road, Suite 200

  	
   

  	
   

  	
   

  
	
  Wilmington, DE 19803

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
   

  	
  Title: Theresa E. Wagler, President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  NEW MILLENNIUM BUILDING SYSTEMS, LLC

  
	
  6115 County Road 42

  	
   

  	
   

  
	
  Butler, Indiana 46721

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: Steel Dynamics, Inc., its sole member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
   

  	
  Title: Theresa E. Wagler, Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  STEEL DYNAMICS SALES NORTH AMERICA, INC.

  
	
  6714 Pointe Inverness Way, Suite 200

  	
   

  	
   

  
	
  Fort Wayne, Indiana 46804

  	
   

  	
   

  	
   

  
	
  Attention: Gary Heasley

  	
   

  	
  By

  	
  /s/ Richard P. Teets, Jr.

  
	
  Facsimile: (260) 969-3592

  	
   

  	
   

  	
  Title: Richard P.
  Teets, Jr., Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  ROANOKE ELECTRIC STEEL CORPORATION

  
	
  6714 Pointe Inverness Way, Suite 200

  	
   

  	
   

  
	
  Fort Wayne, Indiana 46804

  	
   

  	
   

  	
   

  
	
  Attention: Gary Heasley

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
  Facsimile: (260) 969-3592

  	
   

  	
  Name:  Theresa
  E. Wagler

  
	
   

  	
   

  	
  Title:    Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  STEEL HOLDINGS, INC.

  
	
  6714 Pointe Inverness Way, Suite 200

  	
   

  	
   

  	
   

  
	
  Fort Wayne, Indiana 46804

  	
   

  	
  By

  	
  /s/ Richard P. Teets, Jr.

  
	
  Attention: Gary Heasley

  	
   

  	
  Name: Richard P. Teets, Jr.

  
	
  Facsimile: (260) 969-3592

  	
   

  	
  Title:   Assistant
  Secretary

  



 

















 


	
  Address for Notices:

  	
   

  	
  STEEL DYNAMICS FERROUS RESOURCES, LLC

  
	
  6714 Pointe Inverness Way, Suite 200

  	
   

  	
   

  
	
  Fort Wayne, Indiana 46804

  	
   

  	
   

  
	
  Attention: Gary Heasley

  	
   

  	
  By: Steel Holdings, Inc., its sole member

  
	
  Facsimile: (260) 969-3592

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Richard P. Teets, Jr.

  
	
   

  	
   

  	
  Name: Richard P. Teets, Jr.

  
	
   

  	
   

  	
  Title:   Assistant
  Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  SHREDDED PRODUCTS, LLC

  
	
  700 Commerce Road

  	
   

  	
   

  
	
  Rocky Mount, VA 24151

  	
   

  	
  By: Roanoke Electric Steel Company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name:  Theresa
  E. Wagler

  
	
   

  	
   

  	
  Title:    Vice
  President

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  JOHN W. HANCOCK, JR., LLC

  
	
  2535 Duiguids Lane

  	
   

  	
   

  	
   

  
	
  Salem, VA 24153

  	
   

  	
  By:

  	
  Roanoke Electric Steel Corporation, its

  
	
   

  	
   

  	
  sole
  member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name:  Theresa
  E. Wagler

  
	
   

  	
   

  	
  Title:    Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  NEW MILLENIUM BUILDINGS SYSTEMS, INC.

  
	
  P.O. Box 671

  	
   

  	
   

  
	
  Florence, SC 29503-0671

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title:   Vice
  President

  
	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  SOCAR OF OHIO, INC.

  
	
  P.O. Box 216

  	
   

  	
   

  	
   

  
	
  Continental, OH 45831

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title:   Vice
  President

  



 

















 


	
  Address for Notices:

  	
   

  	
  RESCO STEEL PRODUCTS CORPORATION

  
	
  P.O. Box 13948

  	
   

  	
   

  
	
  Roanoke, VA 24038

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title:   Vice
  President

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  ROANOKE TECHNICAL
  TREATMENT &
  SERVICES, INC.

  
	
  P.O. Box 13948

  	
   

  	
   

  
	
  Roanoke, VA 24038

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title:   Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  STEEL OF WEST VIRGINIA,
  INC.

  
	
  P.O. Box 2547

  	
   

  	
   

  
	
  Huntington, WV 25726-2547

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title:   Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  SWVA, INC.

  
	
  P.O. Box 2547

  	
   

  	
   

  
	
  Huntington, WV 25726-2547

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title:   Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  MARSHALL STEEL, INC.

  
	
  P.O. Box 2547

  	
   

  	
   

  
	
  Huntington, WV 25726-2547

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title:   Vice
  President

  



 

















 


	
  Address for Notices:

  	
   

  	
  STEEL VENTURES, INC.

  
	
  P.O. Box 13948

  	
   

  	
   

  
	
  Roanoke, VA 24038

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title:   Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  SHREDDED PRODUCTS II, LLC

  
	
  6714 Pointe Inverness Way, Suite 200

  	
   

  	
   

  
	
  Fort Wayne, IN 46804

  	
   

  	
  By: Steel Dynamics, Inc.

  
	
  Attention: Gary Heasley

  	
   

  	
   

  
	
  Facsimile: (260) 969-3592

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name: Theresa E. Wagler

  
	
   

  	
   

  	
  Title:   Vice
  President

  



 

















 


	
   

  	
   

  	
  NATIONAL CITY BANK,

  
	
   

  	
   

  	
  as
  Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ David G. McNeely

  
	
   

  	
   

  	
   

  	
  Name: David G. McNeely

  
	
   

  	
   

  	
   

  	
  Title:   Senior Vice President

  



 

















 


Exhibit A
to the

Amended and Restated Security Agreement


 


FORM OF SECURITY AGREEMENT SUPPLEMENT


 


[Date of Security
Agreement Supplement]


 


[National
City Bank],

as the Collateral Agent for the

Secured Parties referred to in the

Credit Agreement referred to below


 


[                                              ]

[                                              ]

Attn: 
[                              ]


 


Steel Dynamics, Inc.


 


Ladies and Gentlemen:


 


Reference
is made to (i) the Amended and Restated Credit Agreement dated as of June 19,
2007 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the “Credit
Agreement”), among Steel Dynamics, Inc., an Indiana
corporation, as the Borrower, the Lender Parties party thereto, [National City
Bank], as collateral agent (together with any successor collateral agent
appointed pursuant to Article VII of the Credit Agreement, in such
capacity, the “Collateral
Agent”) and paying agent for the Lender Parties, and (ii) the
Amended and Restated Security Agreement dated June 19, 2007 (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
“Security Agreement”)
made by the Grantors from time to time party thereto in favor of the Collateral
Agent for the Secured Parties.  Terms
defined in the Credit Agreement or the Security Agreement and not otherwise
defined herein are used herein as defined in the Credit Agreement or the Security
Agreement.


 


SECTION 1. 
Grant of Security.  The
undersigned hereby pledges to the Collateral Agent, for the ratable benefit of
the Secured Parties, and hereby grants to the Collateral Agent, for the ratable
benefit of the Secured Parties, a security interest in, all of its right, title
and interest in and to all of the Collateral of the undersigned, whether now
owned or hereafter acquired by the undersigned, wherever located and whether
now or hereafter existing or arising, including, without limitation, the
property and assets of the undersigned set forth on the attached supplemental
schedules to the Schedules to the Security Agreement.


 


SECTION 2. 
Security for Obligations. 
The pledge and grant of a security interest in, the Collateral by the
undersigned under this Security Agreement Supplement and the Security Agreement
secures the payment of all Obligations of the undersigned now or hereafter
existing under or in respect of the Loan Documents, whether direct or indirect,
absolute or contingent, 


 

















 


and whether for principal, reimbursement obligations,
interest, premiums, penalties, fees, indemnifications, contract causes of
action, costs, expenses or otherwise.


 


SECTION 3. 
Supplements to Security Agreement Schedules.  The undersigned has attached hereto
supplemental Schedules I through V to Schedules I through V, respectively,
to the Security Agreement, and the undersigned hereby certifies, as of the date
first above written, that such supplemental schedules have been prepared by the
undersigned in substantially the form of the equivalent Schedules to the
Security Agreement and are complete and correct.


 


SECTION 4. 
Representations and Warranties. 
The undersigned hereby makes each representation and warranty set forth
in Section 9 of the Security Agreement (as supplemented by the attached
supplemental schedules) to the same extent as each other Grantor.


 


SECTION 5. 
Obligations Under the Security Agreement.  The undersigned hereby agrees, as of the date
first above written, to be bound as a Grantor by all of the terms and
provisions of the Security Agreement to the same extent as each of the other
Grantors.  The undersigned further
agrees, as of the date first above written, that each reference in the Security
Agreement to an “Additional Grantor” or a “Grantor” shall also mean and be a
reference to the undersigned.


 


SECTION 6. 
Governing Law.  This
Security Agreement Supplement shall be governed by, and construed in accordance
with, the laws of the State of New York.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF ADDITIONAL GRANTOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for notices:

  
	
   

  	
                                            

  
	
   

  	
                                            

  
	
   

  	
                                            

  



 
















 


SCHEDULE I TO THE SECURITY AGREEMENT


 


	
  Grantor

  	
   

  	
  Location

  	
   

  	
  Chief
  Executive Office

  	
   

  	
  Place
  Where

  Agreements are

  Maintained

  	
   

  	
  Type of

  Organization

  	
   

  	
  Jurisdiction
  of

  Organization

  	
   

  	
  Organizational

  Identification

  No.

  
	
  Steel
  Dynamics, Inc.

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

   

  4500 County Road 59

  Butler, IN 46721

   

  4500 County Road 59

  Butler, IN 46721

   

  800 N. County Road 225E

  Pittsboro, IN 46167

   

  2601 County Road 700
  East

  Columbia City, IN 46725

   

  5134 Loop Road

  Jeffersonville, IN 47130

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  Chief Executive Office

  	
   

  	
  Corporation

  	
   

  	
  Indiana

  	
   

  	
  1994061014

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SDI Investment Company

  	
   

  	
  103 Foulk Road,
  Suite 200

  Wilmington, DE 19803

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200 Fort Wayne, IN

  46804

  	
   

  	
  Chief Executive Office

  	
   

  	
  Corporation

  	
   

  	
  Delaware

  	
   

  	
  3172276

  



 

















 


	
  Grantor

  	
   

  	
  Location

  	
   

  	
  Chief
  Executive Office

  	
   

  	
  Place
  Where

  Agreements are

  Maintained

  	
   

  	
  Type of

  Organization

  	
   

  	
  Jurisdiction
  of

  Organization

  	
   

  	
  Organizational

  Identification

  No.

  
	
  New Millennium Building
  Systems, LLC

  	
   

  	
  6115 County Road 42

  Butler, IN 46721

   

  1992 NW Bascom Norris

  Drive

  Lake City, FL 32055

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200 Fort Wayne, IN

  46804

  	
   

  	
  Chief Executive Office

  	
   

  	
  Limited Liability
  Company

  	
   

  	
  Indiana

  	
   

  	
  1999070050

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Dynamics Sales
  North America, Inc.

  	
   

  	
  6714 Pointe Inverness
  Way, Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  Chief Executive Office

  	
   

  	
  Corporation

  	
   

  	
  Indiana

  	
   

  	
  2002110700134

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel
  Corporation

  	
   

  	
  102 Westside Blvd. NM

  Roanoke, VA 24017

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  102 Westside

  Blvd. NM

  Roanoke, VA 24017

  	
   

  	
  Corporation

  	
   

  	
  Indiana

  	
   

  	
  2005093000465

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Holdings, Inc.

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  Chief Executive Office

  	
   

  	
  Corporation

  	
   

  	
  Indiana

  	
   

  	
  2005093000467

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Dynamics Ferrous
  Resources, LLC

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  Chief Executive Office

  	
   

  	
  Limited Liability
  Company

  	
   

  	
  Indiana

  	
   

  	
  2005093000459

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Shredded Products, LLC

  	
   

  	
  700 Commerce Road

  Rocky Mount, VA 24151

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  700 Commerce Road

  Rocky Mount, VA 24151

  	
   

  	
  Limited Liability
  Company

  	
   

  	
  Virginia

  	
   

  	
  S208538

  



 


ii

















 


	
  Grantor

  	
   

  	
  Location

  	
   

  	
  Chief
  Executive Office

  	
   

  	
  Place
  Where

  Agreements are

  Maintained

  	
   

  	
  Type of

  Organization

  	
   

  	
  Jurisdiction
  of

  Organization

  	
   

  	
  Organizational

  Identification

  No.

  
	
  John W.
  Hancock, Jr., LLC

  	
   

  	
  2535 Duiguids Lane

  Salem, VA 24153

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  2535 Duiguids

  Lane

  Salem, VA 24153

  	
   

  	
  Limited Liability
  Company

  	
   

  	
  Virginia

  	
   

  	
  S182856-7

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New Millennium Building
  Systems, Inc.

  	
   

  	
  2527 E. National
  Cemetery

  Road

  Florence, SC 29506

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  2527 E. National

  Cemetery Road

  Florence, SC

  29506

  	
   

  	
  Corporation

  	
   

  	
  South Carolina

  	
   

  	
  South Carolina does not
  provide organizational numbers

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SOCAR of Ohio, Inc.

  	
   

  	
  21739 State Rt. 109

  Continental, OH 45831

  	
   

  	
  2527 E. National
  Cemetery

  Road

  Florence, SC 29506

  	
   

  	
  21739 State Rt.

  109

  Continental, OH 45831

  	
   

  	
  Corporation

  	
   

  	
  Ohio

  	
   

  	
  411550

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RESCO Steel Products
  Corporation

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  6714 Pointe

  Inverness Way, Suite 200 Fort Wayne, IN 46804

  	
   

  	
  Corporation

  	
   

  	
  Virginia

  	
   

  	
  0295522

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Technical
  Treatment & Services, Inc.

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  Chief Executive Office

  	
   

  	
  Corporation

  	
   

  	
  Virginia

  	
   

  	
  0350093

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel of West
  Virginia, Inc.

  	
   

  	
  17th Street & 2nd Avenue

  Huntington, WV 25726

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  17th Street & 2nd

  Avenue

  Huntington, WV

  25726

  	
   

  	
  Corporation

  	
   

  	
  Delaware

  	
   

  	
  2108202

  



 


iii

















 


	
  Grantor

  	
   

  	
  Location

  	
   

  	
  Chief
  Executive Office

  	
   

  	
  Place
  Where

  Agreements are

  Maintained

  	
   

  	
  Type of

  Organization

  	
   

  	
  Jurisdiction
  of

  Organization

  	
   

  	
  Organizational

  Identification

  No.

  
	
  SWVA, Inc.

  	
   

  	
  17th Street & 2nd Avenue

  Huntington, WV 25726

  	
   

  	
  17th Street & 2nd Avenue

  Huntington, WV 25726

  	
   

  	
  17th Street & 2nd

  Avenue

  Huntington, WV

  25726

  	
   

  	
  Corporation

  	
   

  	
  Delaware

  	
   

  	
  2124496

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Marshall
  Steel, Inc.

  	
   

  	
  1555 Harbor Avenue

  Memphis, TN 38113

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  1555 Harbor

  Avenue

  Memphis, TN 38113

  	
   

  	
  Corporation

  	
   

  	
  Delaware

  	
   

  	
  2330307

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Ventures, Inc.

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  PO Box 13948

  Roanoke, VA 24038

  	
   

  	
  Corporation

  	
   

  	
  Delaware

  	
   

  	
  2446169

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Shredded Products II,
  LLC

  	
   

  	
  110 Parma R. Road

  Johnson City, TN 37604

   

  808 Lynn Avenue

  Elizabethton, TN 37643

  	
   

  	
  6714 Pointe Inverness
  Way,

  Suite 200

  Fort Wayne, IN 46804

  	
   

  	
  110 Parma R. Road

  Johnson City, TN 37604

   

  808 Lynn Avenue

  Elizabethton, TN 37643

  	
   

  	
  Limited Liability
  Company

  	
   

  	
  Indiana

  	
   

  	
  2007032900541

  



 


iv

















 


Schedule II to the 2007


Security Agreement


 


PLEDGED EQUITY AND PLEDGED DEBT


 


Part I


 


	
  Grantor

  	
   

  	
  Issuer

  	
   

  	
  Class of

  Equity

  Interest

  	
   

  	
  Par

  Value

  	
   

  	
  Certificate

  No(s)

  	
   

  	
  Number of

  Share/Units

  	
   

  	
  Percentage of

  Outstanding

  Shares

  
	
  Steel
  Dynamics, Inc.

  	
   

  	
  SDI Investment Company

  	
   

  	
  Common

  	
   

  	
  None

  	
   

  	
  1

  	
   

  	
  1000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Dynamics, Inc.

  	
   

  	
  New Millennium Building
  Systems, LLC

  	
   

  	
  Voting

   

   

  Non-voting

  	
   

  	
  N/A

   

   

  N/A

  	
   

  	
  N/A

   

   

  N/A

  	
   

  	
  930,000

   

   

  70,000

  	
   

  	
  100%

   

   

  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Dynamics, Inc.

  	
   

  	
  Steel Dynamics Sales
  North America, Inc.

  	
   

  	
  Common

  	
   

  	
  None

  	
   

  	
  1

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Dynamics, Inc.

  	
   

  	
  Roanoke Electric Steel
  Corporation

  	
   

  	
  Common

  	
   

  	
  $0.01

  	
   

  	
  1

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Dynamics, Inc.

  	
   

  	
  Steel
  Holdings, Inc.

  	
   

  	
  Common

  	
   

  	
  None

  	
   

  	
  1

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Holdings, Inc.

  	
   

  	
  Steel Dynamics Ferrous
  Resources, LLC

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  100% Membership
  Interest

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel
  Corporation

  	
   

  	
  Shredded Products, LLC

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  100% Membership
  Interest

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel
  Corporation

  	
   

  	
  John W.
  Hancock, Jr., LLC

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  100% Membership
  Interest

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel
  Corporation

  	
   

  	
  New Millennium Building
  Systems, Inc.

  	
   

  	
  Common

  	
   

  	
  $1

  	
   

  	
  38

  	
   

  	
  50,700

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New Millennium Building
  Systems, Inc.

  	
   

  	
  SOCAR of
  Ohio, Inc.

  	
   

  	
  Common

  	
   

  	
  None

  	
   

  	
  1

  	
   

  	
  500

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel
  Corporation

  	
   

  	
  RESCO Steel Products
  Corporation

  	
   

  	
  Common

  	
   

  	
  None

  	
   

  	
  1

  	
   

  	
  1,000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel
  Corporation

  	
   

  	
  Roanoke Technical
  Treatment & Services, Inc.

  	
   

  	
  Common

  	
   

  	
  None

  	
   

  	
  1

  	
   

  	
  1,000

  	
   

  	
  100%

  



 

















 


	
  Roanoke Electric Steel
  Corporation

  	
   

  	
  Steel of West
  Virginia, Inc.

  	
   

  	
  Common

  	
   

  	
  $0.01

  	
   

  	
  1

  	
   

  	
  100

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel of West
  Virginia, Inc.

  	
   

  	
  SWVA, Inc.

  	
   

  	
  Common

  	
   

  	
  $0.01

  	
   

  	
  1

  	
   

  	
  200

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel of West
  Virginia, Inc.

  	
   

  	
  Marshall
  Steel, Inc.

  	
   

  	
  Common

  	
   

  	
  $0.01

  	
   

  	
  1

  	
   

  	
  1000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel of West
  Virginia, Inc.

  	
   

  	
  Steel
  Ventures, Inc.

  	
   

  	
  Common

  	
   

  	
  $0.01

  	
   

  	
  1

  	
   

  	
  1000

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Dynamics, Inc.

  	
   

  	
  Shredded Products II,
  LLC

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  100% Membership
  Interest

  	
   

  	
  100%

  



 


Part II


 


	
  Grantor

  	
   

  	
  Debt Issuer

  	
   

  	
  Description of 

  Debt

  	
   

  	
  Debt

  Certificate

  No(s)

  	
   

  	
  Final

  Maturity

  	
   

  	
  Outstanding

  Principal

  Amount

  	
   

  
	
  SDI Investment Company

  	
   

  	
  Steel Dynamics, Inc.

  	
   

  	
  Revolving Promissory Note

  	
   

  	
   

  	
   

  	
  12/31/07

  	
   

  	
  $

  	
  30,372,631.06

  	
   

  
													



 

















 


SCHEDULE III TO THE SECURITY AGREEMENT


 


	
  Grantor

  	
   

  	
  Location of Inventory

  
	
  Steel
  Dynamics, Inc.

  (Corporate Offices)



  (Flat
  Roll Mill)

   

   

  (Structural
  Mill)

   

   

  (Jeffersonville
  Processing Facility)

   

  (Bar
  Mill)

  	
   

  	
  Not
  Applicable

   

   

  4500
  County Road 59

  Butler, DeKalb County, IN 46721

   

  2601
  County Road 700 East

  Columbia City, Whitley County, IN 46725

   

  5134
  Loop Road Jeffersonville, IN 47130

   

  800
  N. County Road 225E

  Pittsboro, IN 46167

  
	
   

  	
   

  	
   

  
	
  SDI
  Investment Company

  	
   

  	
  Not
  Applicable

  
	
   

  	
   

  	
   

  
	
  New
  Millennium Building Systems, LLC

  	
   

  	
  6115
  County Road 42

  Butler, IN 46721

   

  1992
  NW Bascom Norris Drive

  Lake City, Columbia County, FL 32055

  
	
   

  	
   

  	
   

  
	
  Steel
  Dynamics Sales North America, Inc.

  	
   

  	
  Not
  Applicable

  
	
   

  	
   

  	
   

  
	
  Roanoke
  Electric Steel Corporation

  	
   

  	
  102
  Westside Blvd. NM

  Roanoke, VA 24017

  
	
   

  	
   

  	
   

  
	
  Steel
  Holdings, Inc.

  	
   

  	
  Not
  Applicable

  
	
   

  	
   

  	
   

  
	
  Steel
  Dynamics Ferrous Resources, LLC

  	
   

  	
  Not
  Applicable

  
	
   

  	
   

  	
   

  
	
  Shredded
  Products, LLC

  	
   

  	
  700
  Commerce Road

  Rocky Mount, VA 24151

  
	
   

  	
   

  	
   

  
	
  John
  W. Hancock, Jr., LLC

  	
   

  	
  2527
  Duiguids Lane

  Salem, VA 24153

  
	
   

  	
   

  	
   

  
	
  New
  Millennium Building Systems, Inc.

  	
   

  	
  2573
  E. National Cemetery Road

  Florence, SC 29506

  
	
   

  	
   

  	
   

  
	
  SOCAR
  of Ohio, Inc.

  	
   

  	
  21739
  State Rt. 109

  Continental, OH 45831

  
	
   

  	
   

  	
   

  
	
  RESCO
  Steel Products Corporation

  	
   

  	
  Not
  Applicable

  
	
   

  	
   

  	
   

  
	
  Roanoke
  Technical Treatment & Services, Inc.

  	
   

  	
  Not
  Applicable

  
	
   

  	
   

  	
   

  
	
  Steel
  of West Virginia, Inc.

  	
   

  	
  17th Street & 2nd Avenue

  Huntington, WV 25726

  
	
   

  	
   

  	
   

  
	
  SWVA, Inc.

  	
   

  	
  17th Street & 2nd Avenue

  Huntington, WV 25726

  



 

















 


	
  Marshall
  Steel, Inc.

  	
   

  	
  1555
  Harbor Avenue

  Memphis, TN 38113

  
	
   

  	
   

  	
   

  
	
  Steel
  Ventures, Inc.

  	
   

  	
  Not
  Applicable

  
	
   

  	
   

  	
   

  
	
  Shredded
  Products II, LLC

  	
   

  	
  110
  Parma R. Road

  Johnson City, TN 37604

   

  808
  Lynn Avenue

  Elizabethton, TN 37643

  



 

















 


Schedule IV
to the

Security Agreement


 


CHANGES IN
NAME, LOCATION, ETC.


 


Changes in the Grantor’s Name
(including new Grantor with a new name and names associated with all
predecessors in interest of the Grantor)


 


Steel Dynamics, Inc. —  No change


 


SDI Investment Company  —  No
change


 


New Millennium Building Systems, LLC  —  No
change


 


Steel Dynamics Sales North America, Inc.  —  No
change


 


Roanoke Electric Steel Corporation  — 
Organized as RS Acquisition Corporation, an Indiana corporation; RS
Acquisition Corporation survived a merger with 
Roanoke Electric Steel Corporation, a Virginia corporation having a
corporate identification number of 0071643-1, and thereafter changed its name
to Roanoke Electric Steel Corporation.


 


Steel Holdings, Inc. — No change.


 


Steel Dynamics Ferrous Resources, LLC  —  No
change.


 


Shredded Products, LLC  — 
Organized as Shredded Products Corp., a Virginia corporation having a
corporate identification number of 0131158-8; converted to a Virginia limited
liability company as of December 31, 2006.


 


John W. Hancock, Jr., LLC  — 
Organized as John W. Hancock, Jr., Inc., a Virginia
corporation having a corporate identification number of 0052426-4; survivor of
merger with Roanoke Steel Joists, Inc. in 1975; converted to a Virginia
limited liability company as of March 22, 2006.


 


New Millennium Building Systems, Inc.  — 
Organized as Socar, Inc., a South Carolina corporation (no
corporate identification number);  name
changed in 2006.


 


Socar of Ohio, Inc.  —  No
change.


 


RESCO Steel Products Corporation  —  No
Change.


 


Roanoke Technical Treatment & Services, Inc.  —  No
change.


 


Steel of West Virginia, Inc.  — 
Organized as Charter Steel, Inc.; changed name to Steel of West
Virginia, Inc. in 1987; survivor of merger with SWVA Acquisition, Inc.
in 1998.


 


SWVA, Inc. 
—  Organized as Steel of West
Virginia, Inc.; changed name to SWVA, Inc. in 1987; survivor of
merger with Steel of West Virginia, Inc. in 1998.


 


Marshall Steel, Inc.  — 
Organized as MS (Tennessee), Inc.; changed name to Marshall Steel, Inc.
in 1993.


 


Steel Ventures, Inc.  —  No
Change.


 


Shredded Products II, LLC  —  No
change.


 


Changes in the Grantor’s Location


 


There has been no change in any Grantor’s location
with the exception of the addition of new facilities as they have been
established and the change in location of Steel Dynamics, Inc.’s chief
executive office as noted below.  As a
result of mergers between Steel Dynamics, Inc. and two of its wholly owned


 

















 


subsidiaries, Schedule I reflects locations for
Steel Dynamics, Inc. in Butler, Indiana and Pittsboro, Indiana that were
previously identified with, respectively, Iron Dynamics, Inc. and Dynamic
Bar Products, LLC.


 


Changes in the Grantor’s Chief
Executive Office


 


Grantor Steel Dynamics, Inc. moved its chief
executive office from 4500 County Road 59, Butler, IN  46721 to 7030 Pointe Inverness Way, Suite 310,
Fort Wayne, IN  46804 in November of
1998.


 


Grantor Steel Dynamics, Inc. moved its chief
executive office from 7030 Pointe Inverness Way, Suite 310, Fort Wayne,
IN  46804 to 6714 Pointe Inverness Way, Suite 200,
Fort Wayne, IN  46804 in December of
2000.


 


Grantor
Roanoke Electric Steel Corporation’s chief executive office
was previously located at 102 Westside Blvd. NW, Roanoke, VA  24017.


 


Grantor John W. Hancock, Jr., LLC’s chief executive
office was previously located at 102 Westside Blvd. NW, Roanoke, VA  24017.


 


Grantor New Millennium Building Systems, Inc.’s chief executive
office was previously located at 102 Westside Blvd. NW, Roanoke, VA  24017.


 


Grantor Socar of Ohio, Inc.’s chief executive
office was previously located at 102 Westside Blvd. NW, Roanoke, VA  24017.


 


Grantor Steel Of West Virginia, Inc.’s chief executive
office was previously located at 102 Westside Blvd. NW, Roanoke, VA  24017.


 


Grantor Steel Ventures, Inc.’s chief executive
office was previously located at 102 Westside Blvd. NW, Roanoke, VA  24017.


 


Grantor SWVA, Inc.’s chief executive office was
previously located at 102 Westside Blvd. NW, Roanoke, VA  24017.


 


Grantor Marshall Steel, Inc.’s chief executive
office was previously located at 102 Westside Blvd. NW, Roanoke, VA  24017.


 


Grantor Shredded Products Corp.’s chief executive
office was previously located at 102 Westside Blvd. NW, Roanoke, VA  24017.


 


Changes in the Location of
Inventory


 


There has been no change in the location of any
Grantor’s inventory with the exception of the addition of new facilities as
they have been established and the relocation of the chief executive office as
noted above.


 


Changes in the Place Where
Agreements are Maintained


 


See change in location of chief executive office as
noted above.


 


Changes in the Type of Organization


 


There has been no change in the type of organization
for any Grantor except as noted above.


 


Changes in the Jurisdiction of
Organization


 


There has been no change in the jurisdiction of
organization for any Grantor.


 


Changes in the Organizational
Identification Number


 


There has been no change in the organizational
identification number for any Grantor except as noted above.


 

















 


SCHEDULE V TO THE SECURITY AGREEMENT


 


Trade Names


 


Steel
Dynamics, Inc. has registered as a trade name:


 


                                SDI


 


Roanoke
Electric Steel Corporation has registered as a trade name:


 


Steel
Dynamics Roanoke Bar Division


 


John
W. Hancock, Jr., LLC has registered as a trade name:


 


                New Millennium Building Systems
Salem Division


 


Socar
of Ohio, Inc. has registered as a trade name:


 


                New Millennium Building Systems
Continental Division


 


Shredded
Products II, LLC has registered as trade names:


 


                Elizabethton Herb &
Metal


 


                Johnson City Iron &
Metal


 

















 


Schedule 1(c)(iii) to the


Security Agreement


 


EXCLUDED
EQUITY INTERESTS


 


None.


 
















 


EXHIBIT E


 


EXECUTION COPY


 


AMENDED AND RESTATED SUBSIDIARY GUARANTY


 


Dated as of June 19, 2007


 


From


 


THE GUARANTORS NAMED HEREIN


 


and


 


THE ADDITIONAL GUARANTORS REFERRED TO HEREIN


 


as Guarantors


 


in favor of


 


THE SECURED PARTIES REFERRED TO IN

THE CREDIT AGREEMENT REFERRED TO HEREIN


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 1.  
  Guaranty; Limitation of Liability

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 2.  
  Guaranty Absolute

  	
   

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 3.  
  Waivers and Acknowledgments

  	
   

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 4.  
  Subrogation

  	
   

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 5.  
  Payments Free and Clear of Taxes, Etc.

  	
   

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 6.  
  Representations and Warranties

  	
   

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 7.  
  Covenants

  	
   

  	
  7

  
	
   

  	
   

  	
   

  
	
  Section 8.   Amendments, Guaranty Supplements, Etc.

  	
   

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 9.  
  Notices, Etc.

  	
   

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 10.  
  No Waiver; Remedies

  	
   

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 11.  
  Right of Set-off

  	
   

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 12.  
  Indemnification

  	
   

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 13.  
  Subordination

  	
   

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 14.  
  Continuing Guaranty; Assignments under the Credit Agreement

  	
   

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 15.  
  Execution in Counterparts

  	
   

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 16.  
  Effect of this Guaranty

  	
   

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 17.  
  Governing Law; Jurisdiction; Waiver of Jury Trial, Etc

  	
   

  	
  11

  
	
   

  	
   

  	
   

  
	
  Exhibit A — Form of Subsidiary Guaranty
  Supplement

  	
   

  	
   

  



 

















 


AMENDED AND RESTATED SUBSIDIARY GUARANTY


 


THIS
AMENDED AND RESTATED SUBSIDIARY GUARANTY dated as of June 19, 2007 (this “Guaranty”) made by the Persons
listed on the signature pages hereof under the caption “Subsidiary
Guarantors” and the Additional Guarantors (as defined in Section 8(b))
(such Persons so listed and the Additional Guarantors being, collectively, the “Guarantors” and,
individually, each a “Guarantor”)
in favor of the Secured Parties (as defined in the Credit Agreement referred to
below).


 


PRELIMINARY
STATEMENTS.


 


1.  Steel Dynamics, Inc., an Indiana
corporation (the “Borrower”),
is party to an Amended and Restated Credit Agreement dated as of June 19,
2007 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the “Credit
Agreement”; the capitalized terms defined therein and not otherwise
defined herein being used herein as therein defined) with certain Lender
Parties party thereto, National City Bank (“National
City”), as collateral agent (in such capacity, the “Collateral Agent”)
and as paying agent (in such capacity, the “Paying
Agent”), and National City and Wells Fargo Bank, National
Association, as co-administrative agents (the “Administrative Agents”), Bank of
America, N.A. (“Bank of America”), General
Electric Capital Corporation, Fifth Third Bank and Harris N.A., as Documentation
Agents, Bank of America and National City, as Syndication Agents, and Banc of
America Securities LLC and National City, as Joint Lead Arrangers.  Each Guarantor will derive substantial direct and
indirect benefits from the transactions contemplated by the Credit
Agreement.  It is a condition precedent
to the making of Advances and the issuance of Letters of Credit by the Lender
Parties under the Credit Agreement, the entry by the Hedge Banks into Secured
Hedge Agreements from time to time and the entry by the Lender Parties and
their Affiliates into Secured Cash Management Agreements from time to time that
each Guarantor shall have executed and delivered this Guaranty.


 


2.  In connection with the foregoing, and in
order to induce the Lender Parties to make Advances and to issue Letters of
Credit under the Credit Agreement, the Hedge Banks to enter into the Secured
Hedge Agreements from time to time, and the Lender Parties and their affiliates
to enter into Secured Cash Management Agreements from time to time, the parties
hereto desire to amend and restate, in its entirety, that certain subsidiary
guaranty entered into September 7, 2005 (the “Existing
Subsidiary Guaranty”) by and among the Persons listed on the
signature pages thereto and in the supplements thereto delivered prior to
the date hereof.


 


NOW, THEREFORE, the each Guarantor, jointly and
severally with each other Guarantor, hereby agrees to amend and restate the
Existing Subsidiary Guaranty, and the Existing Subsidiary Guaranty is hereby
amended and restated, in its entirety as follows:


 


Section 1.  Guaranty; Limitation of
Liability.  (a)  Each Guarantor
hereby absolutely, unconditionally and irrevocably guarantees the punctual
payment when due, whether at scheduled maturity or on any date of a required
prepayment or by acceleration, demand or otherwise (or which would have become
due but for the operation of any automatic stay in any provision of the
bankruptcy code), of all Obligations of each other Loan Party now or hereafter
existing under or in respect of the Loan Documents (including, without
limitation, any


 

















 


extensions, modifications, substitutions, amendments or renewals of any
or all of the foregoing Obligations), whether direct or indirect, absolute or
contingent, and whether for principal, interest, premiums, fees, indemnities,
contract causes of action, costs, expenses or otherwise (such Obligations being
the “Guaranteed Obligations”),
and agrees to pay any and all expenses (including, without limitation, fees and
expenses of counsel) incurred by the Paying Agent or any other Secured Party in
enforcing any rights under this Guaranty or any other Loan Document.  Without limiting the generality of the
foregoing, each Guarantor’s liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party to any Secured Party under or in respect of the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other Loan
Party.


 


(a)           Each Guarantor, and by its acceptance
of this Guaranty, the Paying Agent and each other Secured Party, hereby
confirms that it is the intention of all such Persons that this Guaranty and
the Obligations of each Guarantor hereunder not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law (as hereinafter defined),
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar foreign, federal or state law to the extent applicable to this
Guaranty and the Obligations of each Guarantor hereunder.  To effectuate the foregoing intention, the
Paying Agent, the other Secured Parties and the Guarantors hereby irrevocably
agree that the Obligations of each Guarantor under this Guaranty at any time
shall be limited to the maximum amount as will result in the Obligations of
such Guarantor under this Guaranty not constituting a fraudulent transfer or
conveyance.  For purposes hereof, “Bankruptcy Law”
means any proceeding of the type referred to in Section 6.01(f) of
the Credit Agreement or Title 11, U.S. Code, or any similar foreign, federal or
state law for the relief of debtors.


 


(b)           Each Guarantor hereby unconditionally
and irrevocably agrees that in the event any payment shall be required to be
made to any Secured Party under this Guaranty or any other guaranty, such
Guarantor will contribute, to the maximum extent permitted by law, such amounts
to each other Guarantor and each other guarantor so as to maximize the aggregate
amount paid to the Secured Parties under or in respect of the Loan Documents.


 


Section 2.  Guaranty Absolute.  Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Secured Party with respect thereto.  The
Obligations of each Guarantor under or in respect of this Guaranty are independent
of the Guaranteed Obligations or any other Obligations of any other Loan Party
under or in respect of the Loan Documents, and a separate action or actions may
be brought and prosecuted against each Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against the Borrower or any other
Loan Party or whether the Borrower or any other Loan Party is joined in any
such action or actions.  The liability of
each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and each Guarantor hereby irrevocably waives any defenses it
may now have or hereafter acquire in any way relating to, any or all of the
following:


 


(a)           any
lack of validity or enforceability of any Loan Document or any agreement or
instrument relating thereto;


 


2

















 


(b)           any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Guaranteed Obligations or any other Obligations of any other Loan
Party under or in respect of the Loan Documents, or any other amendment or
waiver of or any consent to departure from any Loan Document, including,
without limitation, any increase in the Guaranteed Obligations resulting from
the extension of additional credit to any Loan Party or any of its Subsidiaries
or otherwise;


 


(c)           any
taking, exchange, release or non-perfection of any Collateral or any other
collateral, or any taking, release or amendment or waiver of, or consent to
departure from, any other guaranty, for all or any of the Guaranteed
Obligations;


 


(d)           any
manner of application of Collateral or any other collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of sale or
other disposition of any Collateral or any other collateral for all or any of
the Guaranteed Obligations or any other Obligations of any Loan Party under the
Loan Documents or any other assets of any Loan Party or any of its
Subsidiaries;


 


(e)           any
change, restructuring or termination of the corporate structure or existence of
any Loan Party or any of its Subsidiaries;


 


(f)            any
failure of any Secured Party to disclose to any Loan Party any information
relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Loan Party now or hereafter
known to such Secured Party (each Guarantor waiving any duty on the part of the
Secured Parties to disclose such information);


 


(g)           the
failure of any other Person to execute or deliver this Guaranty, any Guaranty
Supplement (as hereinafter defined) or any other guaranty or agreement or the
release or reduction of liability of any Guarantor or other guarantor or surety
with respect to the Guaranteed Obligations; or


 


(h)           any
other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by any Secured Party that
might otherwise constitute a defense available to, or a discharge of, any Loan
Party or any other guarantor or surety.


 


This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Secured Party or any other
Person upon the insolvency, bankruptcy or reorganization of the Borrower or any
other Loan Party or otherwise, all as though such payment had been due but not
made at such time.


 


Section 3.  Waivers and
Acknowledgments.  (a)  Each
Guarantor hereby unconditionally and irrevocably waives promptness, diligence,
notice of acceptance, presentment, demand for performance, notice of
nonperformance, default, acceleration, protest or dishonor and any other notice
with respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that any Secured Party protect, secure, perfect or insure any Lien 


 


3

















 


or any property subject thereto or exhaust any right or take any action
against any Loan Party or any other Person or any Collateral.


 


(a)           Each Guarantor hereby unconditionally
and irrevocably waives any right to revoke this Guaranty and acknowledges that
this Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.


 


(b)           Each Guarantor hereby unconditionally
and irrevocably waives (i) any defense arising by reason of any claim or
defense based upon an election of remedies by any Secured Party that in any
manner impairs, reduces, releases or otherwise adversely affects the
subrogation, reimbursement, exoneration, contribution or indemnification rights
of such Guarantor or other rights of such Guarantor to proceed against any of
the other Loan Parties, any other guarantor or any other Person or any
Collateral and (ii) any defense based on any right of set-off or
counterclaim against or in respect of the Obligations of such Guarantor
hereunder.


 


(c)           Each Guarantor acknowledges that the
Collateral Agent may, without notice to or demand upon such Guarantor and
without affecting the liability of such Guarantor under this Guaranty,
foreclose under any mortgage by nonjudicial sale, and each Guarantor hereby
waives any defense to the recovery by the Collateral Agent and the other
Secured Parties against such Guarantor of any deficiency after such nonjudicial
sale and any defense or benefits that may be afforded by applicable law.


 


(d)           Each Guarantor hereby unconditionally
and irrevocably waives any duty on the part of any Secured Party to disclose to
such Guarantor any matter, fact or thing relating to the business, condition
(financial or otherwise), operations, performance, properties or prospects of
any other Loan Party or any of its Subsidiaries now or hereafter known by such
Secured Party.


 


(e)           Each Guarantor acknowledges that it
will receive substantial direct and indirect benefits from the financing
arrangements contemplated by the Loan Documents and that the waivers set forth
in Section 2 and this Section 3 are knowingly made in contemplation
of such benefits.


 


Section 4.  Subrogation.  Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower, any other Loan Party or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor’s Obligations under or in respect of this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Secured Party against the Borrower,
any other Loan Party or any other insider guarantor or any Collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Borrower, any other Loan Party or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash, all Letters of Credit, Secured
Cash Management Agreements and all Secured Hedge Agreements shall have expired
or 


 


4

















 


been terminated and the Commitments shall have expired or been
terminated.  If any amount shall be paid
to any Guarantor in violation of the immediately preceding sentence at any time
prior to the latest of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (b) the
Termination Date and (c) the latest date of expiration or termination of
all Letters of Credit, Secured Cash Management Agreements and all Secured Hedge
Agreements, such amount shall be received and held in trust for the benefit of
the Secured Parties, shall be segregated from other property and funds of such
Guarantor and shall forthwith be paid or delivered to the Paying Agent in the same
form as so received (with any necessary endorsement or assignment) to be
credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Loan Documents, or to be held as Collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter
arising.  If (i) any Guarantor shall
make payment to any Secured Party of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall have been paid in full in cash, (iii) the
Termination Date shall have occurred and (iv) all Letters of Credit,
Secured Cash Management Agreements and all Secured Hedge Agreements shall have
expired or been terminated, the Secured Parties will, at such Guarantor’s
request and expense, execute and deliver to such Guarantor appropriate
documents, without recourse and without representation or warranty, necessary
to evidence the transfer by subrogation to such Guarantor of an interest in the
Guaranteed Obligations resulting from such payment made by such Guarantor
pursuant to this Guaranty.


 


Section 5.  Payments
Free and Clear of Taxes, Etc. 
(a)  Any and all payments made by
any Guarantor to or for the account of any Secured Party under or in respect of
this Guaranty or any other Loan Document shall be made, in accordance with
Section 2.12 of the Credit Agreement, free and clear of and without deduction
for any and all present or future Taxes. 
If any Guarantor shall be required by law to deduct any Taxes from or in
respect of any sum payable under or in respect of this Guaranty or any other
Loan Document to any Secured Party, (i) the sum payable by such Guarantor shall
be increased as may be necessary so that after such Guarantor and the Paying
Agent have made all required deductions (including deductions applicable to
additional sums payable under this Section 5), such Secured Party receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) such Guarantor shall make all such deductions and (iii) such
Guarantor shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.


 


(a)           In addition, each Guarantor agrees to
pay any present or future Other Taxes that arise from any payment made by or on
behalf of such Guarantor under or in respect of this Guaranty or any other Loan
Document or from the execution, delivery or registration of, performance under,
or otherwise with respect to, this Guaranty and the other Loan Documents.


 


(b)           Each Guarantor will indemnify each
Secured Party for and hold it harmless against the full amount of Taxes and
Other Taxes, and for the full amount of taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 5, imposed on or paid
by such Secured Party and any liability (including penalties, additions to tax,
interest and expenses) arising therefrom or with respect thereto.  This indemnification shall be made within 30
days from the date such Secured Party makes written demand therefor.


 


5

















 


(c)           Within 30 days after the date of any
payment of Taxes by or on behalf of any Guarantor, such Guarantor shall furnish
to the Paying Agent, at its address referred to in Section 9, the original
or a certified copy of a receipt evidencing such payment, to the extent such a
receipt is issued therefor or other written proof of payment thereof that is
reasonable satisfactory to the Paying Agent. 
In the case of any payment hereunder by or on behalf of any Guarantor
through an account or branch outside the United States or by or on behalf of
such Guarantor by a payor that is not a United States person, if such Guarantor
determines that no Taxes are payable in respect thereof, such Guarantor shall
furnish, or shall cause such payor to furnish, to the Paying Agent, at such
address, an opinion of counsel acceptable to the Paying Agent stating that such
payment is exempt from Taxes.  For
purposes of subsections (d) and (e) of this Section 5, the
terms “United
States” and “United States person” shall have the meanings specified in Section 7701 of
the Internal Revenue Code.


 


(d)           Each Secured Party organized under
the laws of a jurisdiction outside the United States shall, on or prior to the
date of its execution and delivery of the Credit Agreement in the case of each
Initial Lender or Initial Issuing Bank, as the case may be, and on or prior to
the date of the Assignment and Acceptance, Secured Cash Management Agreement or
Secured Hedge Agreement pursuant to which it becomes a Secured Party in the
case of each other Secured Party, and from time to time thereafter as
reasonably requested in writing by any Guarantor (but only so long thereafter
as such Secured Party remains lawfully able to do so), provide the Paying Agent
and the Borrower as agent for such Guarantor with two original Internal Revenue
Service Form W-8ECI (or successor form), as appropriate, or (in the case
of a Secured Party that is claiming a reduced rate of United States withholding
tax because of a tax treaty or has certified in writing to the Paying Agent
that it is not (i) a “bank” as defined in Section 881(c)(3)(A) of
the Internal Revenue Code), (ii) is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of
the Borrower or (iii) a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Internal
Revenue Code), Internal Revenue Service Form W-8BEN or any successor or
other form prescribed by the Internal Revenue Service, certifying that such
Secured Party is exempt from or entitled to a reduced rate of United States
withholding tax on payments under the Credit Agreement or the Notes or, in the
case of a Secured Party that has certified that it is not a “bank” as described
above, certifying that such Secured Party is a foreign corporation,
partnership, estate or trust.  If the
forms provided by a Secured Party at the time such Secured Party first becomes
a party to the Credit Agreement or the applicable Secured Cash Management
Agreement or the applicable Secured Hedge Agreement indicate a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Secured Party
provides the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from
Taxes for periods governed by such forms; provided, however,
that if, in the case of a Secured Party becoming a party to the Credit
Agreement, at the date of the Assignment and Acceptance pursuant to which a
Secured Party becomes a party to the Credit Agreement, the Secured Party
assignor was entitled to payments under subsection (a) of this Section 5
in respect of United States withholding tax with respect to interest paid at
such date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Secured Party assignee on such date.  If any form or document referred to in this
subsection (e) and requested by any Guarantor pursuant to this
subsection (e) requires the 


 


6

















 


disclosure of information, other than
information necessary to compute the tax payable and information required on
the date hereof by Internal Revenue Service Forms W-8BEN or W-8ECI or the
related certificate described above, that the applicable Secured Party
reasonably considers to be confidential, such Secured Party shall give notice
thereof to the applicable Guarantor and shall not be obligated to include in
such form or document such confidential information.


 


(e)           For any period with respect to which
a Secured Party has failed to provide any Guarantor with the appropriate form,
certificate or other document described in subsection (e) above (other
than if such failure is due to a change in law, or in the interpretation
or application thereof, occurring after the date on which a form, certificate
or other document originally was required to be provided or if such form,
certificate or other document otherwise is not required under subsection (e) above),
such Secured Party shall not be entitled to indemnification under
subsection (a) or (c) of this Section 5 with respect to
Taxes imposed by the United States by reason of such failure; provided,
however, that should a Secured Party become subject to Taxes
because of its failure to deliver a form, certificate or other document
required hereunder, such Guarantor shall take such steps as such Secured Party
shall reasonably request to assist such Secured Party to recover such Taxes.


 


(f)            Any Secured Party claiming any
additional amounts payable pursuant to this Section 5 agrees to use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Applicable Lending
Office if the making of such a change would avoid the need for, or reduce the
amount of, any such additional amounts that may thereafter accrue and would
not, in the reasonable judgment of such Secured Party, be otherwise
disadvantageous to such Secured Party.


 


Section 6.  Representations
and Warranties.  Each Guarantor
hereby makes each representation and warranty made in the Loan Documents by the
Borrower with respect to such Guarantor and each Guarantor hereby further
represents and warrants as follows:


 


(a)           There
are no conditions precedent to the effectiveness of this Guaranty that have not
been satisfied or waived.


 


(b)           Such
Guarantor has, independently and without reliance upon any Secured Party and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Guaranty and each other
Loan Document to which it is or is to be a party, and such Guarantor has
established adequate means of obtaining from each other Loan Party on a
continuing basis information pertaining to, and is now and on a continuing
basis will be completely familiar with, the business, condition (financial or
otherwise), operations, performance, properties and prospects of such other
Loan Party.


 


Section 7.  Covenants.  Each Guarantor covenants and agrees that, so
long as any part of the Guaranteed Obligations shall remain unpaid, any Letter
of Credit shall be outstanding, any Lender Party shall have any Commitment or
any Secured Hedge Agreement or Secured Cash Management Agreement shall be in
effect, such Guarantor will perform and observe, and cause each of its
Subsidiaries to perform and observe, all of the terms, covenants and agreements
set 


 


7

















 


forth in the Loan Documents on its or their part to be performed or
observed or that the Borrower has agreed to cause such Guarantor or such
Subsidiaries to perform or observe.


 


Section 8.  Amendments,
Guaranty Supplements, Etc.  (a)  No amendment or waiver of any provision of
this Guaranty and no consent to any departure by any Guarantor therefrom shall
in any event be effective unless the same shall be in writing and signed by the
Administrative Agents and the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all of the Lender Parties (other than any Lender
Party that is, at such time, a Defaulting Lender), except as otherwise
expressly set forth in Section 8.01 of the Credit Agreement, reduce or limit
the obligations of any Guarantor hereunder, release any Guarantor hereunder or
otherwise limit any Guarantor’s liability with respect to the Obligations owing
to the Secured Parties under or in respect of the Loan Documents.


 


(a)           Upon the execution and delivery by
any Person of a guaranty supplement in substantially the form of Exhibit A
hereto (each, a “Guaranty
Supplement”), (i) such
Person shall be referred to as an “Additional Guarantor”
and shall become and be a Guarantor hereunder, and each reference in this
Guaranty to a “Guarantor” shall also mean and be a reference to such Additional
Guarantor, and each reference in any other Loan Document to a “Subsidiary Guarantor” shall also mean and be a reference to such Additional
Guarantor, and (ii) each reference herein to “this Guaranty”,
“hereunder”, “hereof” or words of like import referring to this Guaranty, and
each reference in any other Loan Document to the “Subsidiary Guaranty”, “thereunder”, “thereof” or words of like import referring to this Guaranty, shall
mean and be a reference to this Guaranty as supplemented by such Guaranty
Supplement.


 


Section 9.  Notices,
Etc.  All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered to it, if to any Guarantor, addressed to it in
care of the Borrower at the Borrower’s address specified pursuant to Section
8.02 of the Credit Agreement, if to any Agent or any Lender Party, at its
address specified pursuant to Section 8.02 of the Credit Agreement, if to any
Hedge Bank, at its address specified in the Secured Hedge Agreement to which it
is a party, if to any Lender Party or an Affiliate of a Lender Party that is
party to a Secured Cash Management Agreement, at its address specified in the
Secured Cash Management Agreement to which it is a party or, as to any party,
at such other address as shall be designated by such party in a written notice
to each other party.  All such notices
and other communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively.  Delivery by telecopier,
facsimile or other electronic transmission (i.e. “pdf” or “tif”) of an executed
counterpart of a signature page to any amendment or waiver of any provision of
this Guaranty or of any Guaranty Supplement to be executed and delivered
hereunder shall be effective as delivery of an original executed counterpart
thereof.


 


Section 10.  No
Waiver; Remedies.  No failure on the
part of any Secured Party to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise 


 


8

















 


thereof or the exercise of any other right.  The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.


 


Section 11.  Right
of Set-off.  Upon (a) the occurrence
and during the continuance of any Event of Default and (b) the making of the
request or the granting of the consent specified by Section 6.01 of the Credit
Agreement to authorize the Paying Agent to declare the Notes due and payable
pursuant to the provisions of said Section 6.01, each Agent and each Lender
Party and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Agent,
such Lender Party or such Affiliate to or for the credit or the account of any
Guarantor against any and all of the Obligations of such Guarantor now or
hereafter existing under the Loan Documents, irrespective of whether such Agent
or such Lender Party shall have made any demand under this Guaranty or any
other Loan Document and although such Obligations may be unmatured.  Each Agent and each Lender Party agrees
promptly to notify such Guarantor after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. 
The rights of each Agent and each Lender Party and their respective Affiliates
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Agent, such Lender Party
and their respective Affiliates may have.


 


Section 12.  Indemnification.  (a) 
Without limitation on any other Obligations of any Guarantor or remedies
of the Secured Parties under this Guaranty, each Guarantor shall, to the
fullest extent permitted by law, indemnify, defend and save and hold harmless
each Secured Party and each of their Affiliates and their respective officers,
directors, employees, agents and advisors (each, an “Indemnified
Party”) from and against, and shall pay on demand, any and all
claims, damages, settlement costs, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel (including
allocated cost of internal counsel)) that may be incurred by or asserted or
awarded against any Indemnified Party in connection with or as a result of any
failure of any Guaranteed Obligations to be the legal, valid and binding
obligations of any Loan Party enforceable against such Loan Party in accordance
with their terms.


 


(a)           Each Guarantor hereby also agrees
that none of the Indemnified Parties shall have any liability (whether direct
or indirect, in contract, tort or otherwise) to any of the Guarantors or any of
their respective Affiliates or any of their respective officers, directors,
employees, agents and advisors, and each Guarantor hereby agrees not to assert
any claim against any Indemnified Party on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or
otherwise relating to the Facilities, the actual or proposed use of the
proceeds of the Advances or the Letters of Credit, the Transaction Documents or
any of the transactions contemplated by the Transaction Documents.


 


(b)           Without prejudice to the survival of
any of the other agreements of any Guarantor under this Guaranty or any of the
other Loan Documents, the agreements and obligations of each Guarantor
contained in Section 1(a) (with respect to enforcement expenses), the
last sentence of Section 2, Section 5 and this Section 12 shall
survive the payment in full of the Guaranteed Obligations and all of the other
amounts payable under this Guaranty.


 


9
















 


Section 13.  Subordination.  Each Guarantor hereby subordinates any and
all debts, liabilities and other Obligations owed to such Guarantor by each
other Loan Party (the “Subordinated
Obligations”) to the Guaranteed Obligations to the extent and in
the manner hereinafter set forth in this Section 13:


 


(a)           Prohibited
Payments, Etc.  Except during the
continuance of a Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), each
Guarantor may receive regularly scheduled payments from any other Loan Party on
account of the Subordinated Obligations. 
After the occurrence and during the continuance of any Default
(including the commencement and continuation of any proceeding under any Bankruptcy
Law relating to any other Loan Party), however, unless the Joint Lead Arrangers
otherwise agree, no Guarantor shall demand, accept or take any action to
collect any payment on account of the Subordinated Obligations.


 


(b)           Prior
Payment of Guaranteed Obligations. 
In any proceeding under any Bankruptcy Law relating to any other Loan
Party, each Guarantor agrees that the Secured Parties shall be entitled to
receive payment in full in cash of all Guaranteed Obligations (including all
interest and expenses accruing after the commencement of a proceeding under any
Bankruptcy Law, whether or not constituting an allowed claim in such proceeding
(“Post Petition
Interest”)) before
such Guarantor receives payment of any Subordinated Obligations.


 


(c)           Turn-Over.  After the occurrence and during the
continuance of any Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), each
Guarantor shall, if the Paying Agent so requests, collect, enforce and receive
payments on account of the Subordinated Obligations as trustee for the Secured
Parties and deliver such payments to the Paying Agent on account of the
Guaranteed Obligations (including all Post Petition Interest), together with
any necessary endorsements or other instruments of transfer, but without
reducing or affecting in any manner the liability of such Guarantor under the
other provisions of this Guaranty.


 


(d)           Paying
Agent Authorization.  After the
occurrence and during the continuance of any Default (including the
commencement and continuation of any proceeding under any Bankruptcy Law
relating to any other Loan Party), the Paying Agent is authorized and empowered
(but without any obligation to so do), in its discretion, (i) in the name
of each Guarantor, to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and to apply any amounts received thereon to the
Guaranteed Obligations (including any and all Post Petition Interest), and (ii) to
require each Guarantor (A) to collect and enforce, and to submit claims in
respect of, Subordinated Obligations and (B) to pay any amounts received
on such obligations to the Paying Agent for application to the Guaranteed
Obligations (including any and all Post Petition Interest).


 


Section 14.  Continuing Guaranty;
Assignments under the Credit Agreement. 
This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the latest


 


10

















 


of (i) the payment in full in
cash of the Guaranteed Obligations and all other amounts payable under this
Guaranty, (ii) the Termination Date and (iii) the latest date of
expiration or termination of all Letters of Credit, all Secured Cash Management
Agreements and all Secured Hedge Agreements, (b) be binding upon the
Guarantor, its successors and assigns and (c) inure to the benefit of and
be enforceable by the Secured Parties and their successors, transferees and
assigns.  Without limiting the generality
of clause (c) of the immediately preceding sentence, any Secured
Party may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitments, the Advances owing to it and the Note or Notes
held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Secured Party
herein or otherwise, in each case as and to the extent provided in Section 8.07
of the Credit Agreement.  No Guarantor
shall have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Secured Parties.


 


Section 15.  Execution in
Counterparts.  This Guaranty and each
amendment, waiver and consent with respect hereto may be executed in any number
of counterparts and by different parties thereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a
signature page to this Guaranty by telecopier, facsimile or other
electronic transmission (i.e. “pdf” or “tif”) shall be effective as delivery of
an original executed counterpart of this Guaranty.


 


Section 16.  Effect of this Guaranty.  This Guaranty amends and restates the
Existing Subsidiary Guaranty in its entirety and is entitled to the benefit of
all existing Loan Documents.  Any
reference in any other Loan Document to the “Subsidiary Guaranty,” “thereunder,”
“therein,” “thereof” or words of like import referring to the Existing
Subsidiary Guaranty shall mean and refer to this Guaranty.  Any reference in any other Loan Document to
the “Guaranteed Obligations” or any similar term including or referencing
obligations under the Existing Subsidiary Guaranty shall include and reference
the Guaranteed Obligations as defined in this Guaranty.  All Guaranteed Obligations under the Existing
Subsidiary Guaranty and the other Loan Documents shall continue to be
outstanding except as expressly modified by this Guaranty and shall be governed
in all respects by this Guaranty and the other Loan Documents, it being agreed
and understood by the parties hereto that this Guaranty does not constitute a novation
or satisfaction of any Guaranteed Obligation under the Existing Subsidiary
Guaranty or any other Loan Document except as expressly modified by this
Guaranty, nor, except as expressly provided herein, does it operate as a waiver
of any right, power or remedy of any Lender under any Loan Document.


 


Section 17.  Governing Law;
Jurisdiction; Waiver of Jury Trial, Etc.


 


(a)           This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of New York.


 


(b)           Each Guarantor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United
States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Guaranty or any of the other Loan


 


11

















 


Documents to which it is or is
to be a party, or for recognition or enforcement of any judgment, and each
Guarantor hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any
such New York State court or, to the extent permitted by law, in such federal
court.  Each Guarantor hereby agrees that
service of process in any such action or proceeding brought in any such New
York state court or in such federal court may be made upon CT Corporation
System at its offices at 111 Eighth Avenue, 13th Floor, New York, New York 10011 (the “Process Agent”)
and each Guarantor hereby irrevocably appoints the Process Agent its authorized
agent to accept such service of process, and agrees that the failure of the
Process Agent to give any notice of any such service shall not impair or affect
the validity of such service or of any judgment rendered in any action or
proceeding based thereon.  Each Guarantor
hereby further irrevocably consents to the service of process in any action or
proceeding in such courts by the mailing thereof by any parties hereto by registered
or certified mail, postage prepaid, to such Guarantor at its address specified
pursuant to Section 9.  Each
Guarantor agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.  Nothing in this Guaranty or any other Loan
Document shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Guaranty or any other Loan Document in
the courts of any jurisdiction.


 


(b)           Each Guarantor irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Guaranty or
any of the other Loan Documents to which it is or is to be a party in any
New York State or federal court. 
Each Guarantor hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such suit, action or proceeding in any such court.


 


(c)           EACH GUARANTOR HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
ANY OF THE LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY SECURED PARTY IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.


 


12

















 


IN
WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed
and delivered by its officer thereunto duly authorized as of the date first
above written.


 


	
   

  	
   

  	
  SUBSIDIARY GUARANTORS

  
	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  SDI INVESTMENT COMPANY

  
	
  103 Foulk Road, Suite 200

  	
   

  	
   

  
	
  Wilmington, DE 19803

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
   

  	
  Title: Theresa E. Wagler, President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  NEW MILLENNIUM BUILDING

  
	
  6115 County Road 42

  	
   

  	
  SYSTEMS, LLC

  
	
  Butler, Indiana 46721

  	
   

  	
   

  
	
   

  	
   

  	
  By: Steel Dynamics, Inc., its sole member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
   

  	
  Title: Theresa E. Wagler, Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  STEEL DYNAMICS SALES NORTH

  
	
  6714 Pointe Inverness Way, Suite 200

  	
   

  	
  AMERICA, INC.

  
	
  Fort Wayne, Indiana 46804

  	
   

  	
   

  
	
  Attention: Gary Heasley

  	
   

  	
  By

  	
  /s/ Richard P. Teets, Jr.

  
	
  Facsimile: (260) 969-3592

  	
   

  	
   

  	
  Title: Richard P.
  Teets, Jr., Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  ROANOKE ELECTRIC STEEL

  
	
  6714 Pointe Inverness Way, Suite 200

  	
   

  	
  CORPORATION

  
	
  Fort Wayne, Indiana 46804

  	
   

  	
   

  
	
  Attention: Gary Heasley

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
  Facsimile: (260) 969-3592

  	
   

  	
  Name:

  	
  Theresa E. Wagler

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  STEEL HOLDINGS, INC.

  
	
  6714 Pointe Inverness Way, Suite 200

  	
   

  	
   

  
	
  Fort Wayne, Indiana 46804

  	
   

  	
  By

  	
  /s/ Richard P. Teets, Jr.

  
	
  Attention: Gary Heasley

  	
   

  	
  Name: 

  	
  Richard P. Teets, Jr.

  
	
  Facsimile: (260) 969-3592

  	
   

  	
  Title:

  	
  Assistant Secretary

  
						



 

















 


	
  Address for Notices:

  	
   

  	
  STEEL DYNAMICS FERROUS

  
	
  6714 Pointe Inverness Way, Suite 200

  	
   

  	
  RESOURCES, LLC

  
	
  Fort Wayne, Indiana 46804

  	
   

  	
   

  
	
  Attention: Gary Heasley

  	
   

  	
  By: Steel Holdings, Inc., its sole member

  
	
  Facsimile: (260) 969-3592

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Richard P. Teets, Jr.

  
	
   

  	
   

  	
  Name:

  	
  Richard P. Teets, Jr.

  
	
   

  	
   

  	
  Title:

  	
  Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  SHREDDED PRODUCTS, LLC

  	
   

  
	
  700 Commerce Road

  	
   

  	
   

  	
   

  
	
  Rocky Mount, VA 24151

  	
   

  	
  By: Roanoke Electric Steel Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name:

  	
  Theresa E. Wagler

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  JOHN W. HANCOCK, JR., LLC

  
	
  2535 Duiguids Lane

  	
   

  	
   

  
	
  Salem, VA 24153

  	
   

  	
  By: Roanoke Electric Steel Corporation, its sole
  member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name: 

  	
  Theresa E. Wagler

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  NEW MILLENIUM BUILDINGS

  
	
  P.O. Box 671

  	
   

  	
  SYSTEMS, INC.

  
	
  Florence, SC 29503-0671

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name:

  	
  Theresa E. Wagler

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  SOCAR OF OHIO, INC.

  
	
  P.O. Box 216

  	
   

  	
   

  
	
  Continental, OH 45831

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name:

  	
  Theresa E. Wagler

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
										



 

















 


	
  Address for Notices:

  	
   

  	
  RESCO STEEL PRODUCTS

  
	
  P.O. Box 13948

  	
   

  	
  CORPORATION

  
	
  Roanoke, VA 24038

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name:

  	
  Theresa E. Wagler

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  ROANOKE TECHNICAL
  TREATMENT

  
	
  P.O. Box 13948

  	
   

  	
  & SERVICES, INC.

  
	
  Roanoke, VA 24038

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name:

  	
  Theresa E. Wagler

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  STEEL OF WEST VIRGINIA,
  INC.

  
	
  P.O. Box 2547

  	
   

  	
   

  
	
  Huntington, WV 25726-2547

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name:

  	
  Theresa E. Wagler

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  SWVA, INC.

  
	
  P.O. Box 2547

  	
   

  	
   

  
	
  Huntington, WV 25726-2547

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name:

  	
  Theresa E. Wagler

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  MARSHALL STEEL, INC.

  
	
  P.O. Box 2547

  	
   

  	
   

  
	
  Huntington, WV 25726-2547

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name:

  	
  Theresa E. Wagler

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  STEEL VENTURES, INC.

  
	
  P.O. Box 13948

  	
   

  	
   

  
	
  Roanoke, VA 24038

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name:

  	
  Theresa E. Wagler

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
  SHREDDED PRODUCTS II, LLC

  
	
  6714 Pointe Inverness Way,
  Suite 200

  	
   

  	
   

  
	
  Fort Wayne, IN 46804

  	
   

  	
  By: Steel
  Dynamics, Inc.

  
	
  Attention: Gary Heasley

  	
   

  	
   

  
	
  Facsimile: (260) 969-3592

  	
   

  	
  By

  	
  /s/ Theresa E. Wagler

  
	
   

  	
   

  	
  Name:

  	
  Theresa E. Wagler

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
						



 


2
















 


Exhibit A

To The Amended and


Restated
Subsidiary Guaranty


 


FORM OF SUBSIDIARY GUARANTY SUPPLEMENT


 


                  ,     


 


National City Bank,

as Administrative Agent and Paying Agent under the

Amended and Restated Credit Agreement referred to below


 


[                          ]


 


[                          ]


 


Attention: 
[                          ]


 


Amended and
Restated Credit Agreement dated as of June 19, 2007


(the “Credit Agreement”) among Steel
Dynamics, Inc., an Indiana corporation (the “Borrower”)
the Lender Parties party thereto, National City Bank (“National
City”), as Collateral Agent and Paying Agent, National City and
Wells Fargo Bank, National Association, as co-Administrative Agents, Bank of
America, N.A. (“Bank of America”), General
Electric Capital Corporation,

Fifth Third Bank and Harris N.A., as Documentation Agents,


Bank of America
and National City, as Syndication Agents, and


Banc of America
Securities LLC and National City, as Joint Lead Arrangers.


 


Ladies and Gentlemen:


 


Reference
is made to the above-captioned Credit Agreement and to the Subsidiary Guaranty
referred to therein (such Subsidiary Guaranty, as in effect on the date hereof
and as it may hereafter be amended, supplemented or otherwise modified from
time to time, together with this Guaranty Supplement, being the “Subsidiary Guaranty”).  The capitalized terms defined in the
Subsidiary Guaranty or in the Credit Agreement and not otherwise defined herein
are used herein as therein defined.


 


Section 1. 
Guaranty; Limitation of Liability.  (a)  The undersigned hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all Obligations of each other Loan Party
now or hereafter existing under or in respect of the Loan Documents (including,
without limitation, any extensions, modifications, substitutions, amendments or
renewals of any or all of the foregoing Obligations), whether direct or indirect,
absolute or contingent, and whether for principal, interest, premium, fees,
indemnities, contract causes of action, costs, expenses or otherwise (such
Obligations being the “Guaranteed
Obligations”), and agrees to pay any and all expenses (including,
without limitation, fees and expenses of counsel) incurred by the Paying Agent
or any other Secured Party in enforcing any rights under this Guaranty
Supplement, the Subsidiary Guaranty or any other Loan Document.  Without limiting the generality of the
foregoing, the undersigned’s


 

















 


liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by any other Loan Party to any Secured
Party under or in respect of the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Loan Party.


 


(b)           The
undersigned, and by its acceptance of this Guaranty Supplement, the Paying
Agent and each other Secured Party, hereby confirms that it is the intention of
all such Persons that this Guaranty Supplement, the Subsidiary Guaranty and the
Obligations of the undersigned hereunder and thereunder not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
foreign, federal or state law to the extent applicable to this Guaranty
Supplement, the Subsidiary Guaranty and the Obligations of the undersigned hereunder
and thereunder.  To effectuate the
foregoing intention, the Paying Agent, the other Secured Parties and the
undersigned hereby irrevocably agree that the Obligations of the undersigned
under this Guaranty Supplement and the Subsidiary Guaranty at any time shall be
limited to the maximum amount as will result in the Obligations of the
undersigned under this Guaranty Supplement and the Subsidiary Guaranty not
constituting a fraudulent transfer or conveyance.


 


(c)           The
undersigned hereby unconditionally and irrevocably agrees that in the event any
payment shall be required to be made to any Secured Party under this Guaranty
Supplement, the Subsidiary Guaranty or any other guaranty, the undersigned will
contribute, to the maximum extent permitted by applicable law, such amounts to
each other Guarantor and each other guarantor so as to maximize the aggregate
amount paid to the Secured Parties under or in respect of the Loan Documents.


 


Section 2. 
Obligations Under the Guaranty. 
The undersigned hereby agrees, as of the date first above written, to be
bound as a Guarantor by all of the terms and conditions of the Subsidiary
Guaranty to the same extent as each of the other Guarantors thereunder.  The undersigned further agrees, as of the
date first above written, that each reference in the Subsidiary Guaranty to an “Additional Guarantor”
or a “Guarantor” shall
also mean and be a reference to the undersigned, and each reference in any
other Loan Document to a “Subsidiary
Guarantor” or a “Loan
Party” shall also mean and be a reference to the undersigned.


 


Section 3. 
Representations and Warranties. 
The undersigned hereby makes each representation and warranty set forth
in Section 6 of the Subsidiary Guaranty to the same extent as each other
Guarantor.


 


Section 4. 
Delivery by Telecopier. 
Delivery of an executed counterpart of a signature page to this
Guaranty Supplement by telecopier, facsimile or other electronic transmission
(i.e. “pdf” or “tif”) shall be effective as delivery of an original executed
counterpart of this Guaranty Supplement.


 


Section 5. 
Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.  (a)  This Guaranty
Supplement shall be governed by, and construed in accordance with, the laws of
the State of New York.


 


2

















 


(b)           The
undersigned hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
any federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Guaranty Supplement, the Subsidiary Guaranty
or any of the other Loan Documents to which it is or is to be a party, or for
recognition or enforcement of any judgment, and the undersigned hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court.  The undersigned hereby agrees that service of
process in any such action or proceeding brought in any such New York state
court or in such federal court may be made upon CT Corporation System at its
offices at 111 Eighth Avenue, 13th Floor,
New York, New York 10011 (the “Process Agent”) and the undersigned hereby irrevocably
appoints the Process Agent its authorized agent to accept such service of
process, and agrees that the failure of the Process Agent to give any notice of
any such service shall not impair or affect the validity of such service or of
any judgment rendered in any action or proceeding based thereon.  The undersigned hereby further irrevocably
consents to the service of process in any action or proceeding in such courts
by the mailing thereof by any parties hereto by registered or certified mail,
postage prepaid, to the undersigned at its address specified pursuant to Section 9
of the Subsidiary Guaranty.  The
undersigned agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.  Nothing in this Guaranty Supplement or the
Subsidiary Guaranty or any other Loan Document shall affect any right that any
party may otherwise have to bring any action or proceeding relating to this
Guaranty Supplement, the Subsidiary Guaranty or any of the other Loan Documents
to which it is or is to be a party in the courts of any other jurisdiction.


 


(c)           The
undersigned irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Guaranty Supplement, the Subsidiary Guaranty or any of the
other Loan Documents to which it is or is to be a party in any New York
State or federal court.  The undersigned
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such suit, action or proceeding
in any such court.


 


3

















 


(d)           THE UNDERSIGNED HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
ANY OF THE LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF ANY SECURED PARTY IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.


 


 


	
   

  	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [NAME OF ADDITIONAL GUARANTOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


4
















 


EXHIBIT F


 


SOLVENCY CERTIFICATE


 


June 19, 2007


 


Reference
is made to the Amended and Restated Credit Agreement dated as of the date
hereof (the “Credit Agreement”)
by and among Steel Dynamics, Inc., an Indiana corporation (the “Borrower”), the banks, financial
institutions and other lenders listed on the signature pages thereof as
the Initial Lenders, National City Bank (“National
City”) as the Initial Issuing Bank, the Swing Line Bank,
the Collateral Agent, and National City and Wells Fargo Bank, National
Association, as co-administrative agents, Bank of America, N.A. (“Bank of America”), General
Electric Capital Corporation, Fifth Third Bank and BMO Capital Markets
Financing, Inc., as Documentation Agents, Bank of America and National
City, as Syndication Agents, and Banc of America Securities LLC and National
City, as Joint Lead Arrangers.  Terms
defined in the Credit Agreement and not otherwise defined herein have, as used
herein, the respective meanings provided for therein.


 


The
undersigned hereby certifies, on behalf of [Entity Name], in his/her capacity
as Chief Financial Officer [or Responsible Officer] of [Entity], and not in
his/her individual capacity, as follows:


 


1.  I have reviewed the terms and conditions set
forth in the Credit Agreement and the definitions and provisions relating
thereof, together with each of the Loan Documents, and, in my opinion, have
made, or have caused to be made under my supervision, such examination or
investigation as is necessary to enable me to express an informed opinion as to
the matters referred to herein.


 


2.  Based upon my review and examination
described in the foregoing paragraph, I certify that as of the date hereof,
before and after giving effect to the Transaction and the transactions
contemplated in each of the Loan Documents, [Entity] and its Subsidiaries,
taken as a whole, are Solvent.


 


[Remainder of the page intentionally left blank.]


 

















 


The
foregoing certifications are made and delivered as of the date first above
written.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


(First Lien Solvency Certificate)


 
















 


EXHIBIT
G1


 





 


June 19, 2007


 


To the Initial Lenders party to the Amended and Restated Credit
Agreement referred to below, Banc of America Securities LLC and National City
Bank as Joint Lead Arrangers, National City Bank and Wells Fargo Bank, as Co-Administrative
Agents, and National City Bank as Collateral Agent for such Initial Lenders


 


Re:               $750 Million Senior Secured Credit
Facilities for Steel Dynamics, Inc.


 


Ladies and Gentlemen:


 


We have acted as counsel to Steel Dynamics, Inc.,
an Indiana corporation (the “Borrower”), and the subsidiaries of the Borrower named
on Schedule I hereto (each, a “Subsidiary” and, collectively, the “Subsidiaries”; the
Borrower and the Subsidiaries being referred to herein collectively as the “Loan Parties”) in
connection with the preparation, execution and delivery of, and the initial
Borrowing under, the Amended and Restated Credit Agreement, dated as of June 19,
2007 (the “Credit
Agreement”), among the Borrower and each of you.  This opinion is furnished to you pursuant to Section 3.01(a)(xiv)
of the Credit Agreement.  Unless
otherwise defined herein, terms defined in the Credit Agreement are used herein
as therein defined.


 


In that connection, we have examined a counterpart of
each of the following documents:


 


(a)                   the
Credit Agreement;


 


(b)                  the
Notes delivered to the Initial Lenders on the date hereof;


 


(c)                   the
Amended and Restated Subsidiary Guaranty;


 


(d)                  the
Amended and Restated Security Agreement;


 


(e)                   the
certificate or articles of incorporation or organization (as applicable) and
by-laws or operating agreement of each Loan Party, in each case as amended
through the date hereof (with respect to each Loan Party the “Authorization Documents”);


 


(f)                     unfiled
copies of financing statements (the “Financing Statements”)
under (i) the Uniform Commercial Code as in effect in (i) the State
of Indiana (the “Indiana
UCC”), (ii) the State of Ohio
(the “Ohio UCC”), (iii) the State of Delaware (the


 

















 


“Delaware UCC”),
(iv) the State of Virginia (the “Virginia UCC”) and (v) the State of
South Carolina (the “South
Carolina UCC”), naming the Loan Parties as debtors and the
Collateral Agent as secured party, which Financing Statements we understand
will be filed with respect to those Loan Parties listed on Schedule II
hereto in the office listed opposite each such Loan Party’s name (each such
office, the “Filing
Office”); and


 


(g)                  the
other documents furnished by each Loan Party pursuant to Section 3.01 of
the Credit Agreement.


 


The documents described in the foregoing clauses (a) through (d) above
are collectively referred to herein as the “Loan Documents.”


 


In addition, we have examined originals or copies of
such other corporate records of the Loan Parties, certificates of public
officials and of officers of the Loan Parties and agreements, instruments and
other documents as we have deemed necessary as a basis for the opinions
expressed below.  As to certain matters
of fact material to the opinions expressed herein, we have relied on the
representations made in the Credit Agreement and the other Loan Documents and
certificates of public officials and officers of the Loan Parties.  We have not independently established the
facts so relied on.


 


In our examination of the documents referred to above,
we have assumed and relied upon the following:


 


(i)                      the due execution and delivery of each of
the documents referred to above by all parties thereto other than the Loan
Parties;


 


(ii)                   all certificates of public officials, all
representations and warranties of the Loan Parties and all other certificates,
statements, representations, documents, records and papers with respect to
factual matters are accurate, complete, true and correct; and


 


(iii)                the Loan Parties have, or have the power to transfer,
rights (to the extent necessary to grant a security interest) in the Collateral
existing on the date hereof and will have, or will have the power to transfer,
rights (to such extent) in property which becomes Collateral after the date
hereof.


 


Based upon the foregoing and upon such other
investigation as we have deemed necessary and subject to the qualifications set
forth below, we are of the opinion that:


 


1.                          The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Indiana.  Each Subsidiary is a corporation or limited
liability company duly incorporated or organized (as the case may be), validly
existing and


 


2

















 


in
good standing under the laws of the State set forth opposite such Subsidiary in
Schedule I hereto.


 


2.                          Each Loan Party (a) has the power and authority to
execute, deliver and perform its respective obligations under, each Loan
Document to which it is a party, (b) has taken all action necessary to
authorize the execution and delivery of each Loan Document to which it is a
party, and the performance by each Loan Party of its respective obligations
thereunder, and (c) has duly executed and delivered each Loan Document to
which it is a party.


 


3.                          The execution and delivery by each Loan Party of each Loan
Document to which it is a party do not, and the performance by each Loan Party
of its obligations thereunder will not, (a) result in a violation of such
Loan Party’s certificate or articles of incorporation or organization (as
applicable) or by-laws or operating agreement, (b) result in a violation
of any United States Federal, Indiana, Ohio or Delaware law, rule or
regulation (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System) or any order, writ, judgment,
injunction, decree, determination or award known to us, or (c) breach or
result in a default under, or result in the acceleration of (or entitle any
party to accelerate) the maturity of any obligation of any Loan Party under, or
result in or require the creation of any lien upon or security interest in any
property of any Loan Party pursuant to the terms of, any agreement or
instrument known to us.


 


4.                          No authorization or approval or other action by, and no
notice to or filing with, any United States Federal, Indiana, Ohio or Delaware
governmental authority or regulatory body, or any third party that is party to
any agreement known to us, is required for the due execution, delivery or
performance by any Loan Party of any Loan Document to which it is a party,
except the filings or other actions referred to in paragraph 7 below.


 


5.                          While we express no opinion as to the enforceability of the
choice of law provisions in the Loan Documents, if a court in the State of
Indiana or a Federal court sitting in the State of Indiana were to hold that
the Loan Documents are governed by, and are to be construed in accordance with
the laws of the State of Indiana, each Loan Document would be, under the laws
of the State of Indiana, the legal, valid and binding obligation of each Loan
Party that is a party thereto, enforceable against such Loan Party in
accordance with its terms.


 


6.                          To the best of our knowledge, there is no action, suit,
investigation, litigation or proceeding against any Loan Party pending or threatened
before any court, governmental agency or arbitrator that challenges the
legality, validity or enforceability of any Loan Document.


 


7.                          The Collateral Agent for the benefit of the Secured Parties
will have, upon the filing in the applicable Filing Office of the Financing
Statements, a perfected security interest in that portion of the Collateral
described in the Amended and Restated Security


 


3

















 


Agreement
(the “Article 9
Collateral”) in which a
security interest is perfected by filing a financing statement under the
Indiana UCC, the Ohio UCC, the Delaware UCC, the Virginia UCC or the South
Carolina UCC, as applicable (the “Filing Collateral”).


 


8.                          All of the Pledged Equity are owned of record by the Loan Parties
as shown in Schedule III hereto, and have been duly authorized and
validly issued and are fully paid and nonassessable.


 


9.                          No Loan Party is an “investment company” within the meaning
of and subject to regulation under the Investment Company Act of 1940, as
amended.


 


Our opinions expressed above are subject to the following
qualifications:


 


(a)                   For
purposes of our opinions in paragraphs 1, 2 and 3 above with respect to
Subsidiaries, John W. Hancock, Jr., LLC, RESCO Steel Products Corporation,
Roanoke Technical Treatment & Services, Inc. and New Millennium
Building Systems, Inc., we
have relied exclusively upon the Authorization Documents and such opinions are
not intended to provide any conclusions or assurances beyond that conveyed by
the Authorization Documents.


 


(b)                  Our
opinions in paragraph 5 above are subject to the effect of any applicable
bankruptcy, insolvency (including, without limitation, all laws relating to
preferences and fraudulent transfers), reorganization, moratorium or similar
laws affecting creditors’ rights generally.


 


(c)                   For
purposes of our opinion in paragraph 7 above as it pertains to Subsidiaries,
John W. Hancock, Jr., LLC and New Millennium Building Systems, Inc.,
we have reviewed the provisions of Article 9 of the Uniform Commercial
Code as adopted in the States of Virginia and South Carolina, respectively,
with respect to the perfection of security interests in Article 9
Collateral, and said opinion is based solely upon such review and is not intended to provide any conclusions or
assurances beyond what is set
forth in the provisions of Article 9 of the Uniform Commercial Code as
adopted in said States.


 


(d)                  Our
opinions herein are also subject to the effect of general principles of equity,
including without limitation concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a proceeding in
equity or at law).


 


(e)                   The
enforceability of the waiver by any Loan Party of its immunity from
jurisdiction of any court or from
legal process with respect to itself or its property, as set forth in Section 8.12
of the Credit Agreement or Section 17 of the Amended and Restated Subsidiary
Guaranty, is subject to the limitations imposed by the United States Foreign
Sovereign Immunities Act of 1976.


 


4

















 


(f)                     Our
opinions expressed above are limited to the laws of the States of Indiana and
Ohio, the General Corporation Law of the State of Delaware, the Delaware UCC
and the Federal law of the United States, and except as outlined in
subparagraph (c) above, we do not express any opinion herein concerning
any other law.


 


(g)                  Further,
our opinion in paragraph 7 above is limited to Article 9 of the Indiana
UCC, the Ohio UCC, the Delaware UCC, the Virginia UCC and the South Carolina
UCC, and therefore that opinion does not address (i) laws other than Article 9
of the Indiana UCC, the Ohio UCC, the Delaware UCC, the Virginia UCC and the
South Carolina UCC, (ii) collateral of a type not subject to Article 9
of the Indiana UCC, the Ohio UCC, the Delaware UCC, the Virginia UCC and the
South Carolina UCC, and (iii) what law governs perfection of the security
interests granted in the collateral covered by this opinion letter.


 


(f)                     The phrase “known to us” means the current actual
knowledge of the lawyers who are participating in drafting this opinion letter
and in handling the transaction described herein, but does not include, except
as specifically provided hereafter, constructive knowledge or inquiry
knowledge.  The phrase “known to us” also
confirms that the lawyer drafting this opinion letter (i) has made a
reasonable examination of his or her files and (ii) has made a reasonable
inquiry of other members of the lawyer=s law firm if the lawyer drafting this
opinion had a reasonable belief that other lawyers in the law firm may have
knowledge relating to facts relevant to this opinion.


 


A copy of this opinion letter may be delivered by any
of you to any Person that becomes a Lender Party in accordance with the provisions
of the Credit Agreement.  Any such Lender
Party may rely on the opinions expressed above as if this opinion letter were
addressed and delivered to such Lender Party on the date hereof.


 


This opinion letter should be interpreted in
accordance with the Legal Opinion Principles of the Committee on Legal
Opinions of the Section of Business Law, American Bar Association, 53
Business Lawyer 831 (1998).


 


This opinion letter is rendered to you in connection
with the transactions contemplated by the Loan Documents.  This opinion letter may not be relied upon by
you or any future Lender Party for any other purpose, or relied upon by any
other Person, without our prior written consent.


 


 


	
  Very truly yours,

  	
   

  
	
   

  	
   

  
	
  /s/ Barrett & McNagny LLP

  	
   

  



 


5

















 


Schedule I


 


Subsidiaries


 


	
  Name

  	
   

  	
  State of

  Organization

  
	
   

  	
   

  	
   

  
	
  SDI Investment Company

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  New Millennium Building Systems, LLC

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  
	
  Steel Dynamics Sales North America, Inc.

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel
  Corporation

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  
	
  Steel
  Holdings, Inc.

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  
	
  Steel Dynamics Ferrous
  Resources, LLC

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  
	
  Shredded Products, LLC

  	
   

  	
  Virginia

  
	
   

  	
   

  	
   

  
	
  John W.
  Hancock, Jr., LLC

  	
   

  	
  Virginia

  
	
   

  	
   

  	
   

  
	
  New Millennium Building
  Systems, Inc.

  	
   

  	
  South Carolina

  
	
   

  	
   

  	
   

  
	
  SOCAR of
  Ohio, Inc.

  	
   

  	
  Ohio

  
	
   

  	
   

  	
   

  
	
  RESCO Steel Products
  Corporation

  	
   

  	
  Virginia

  
	
   

  	
   

  	
   

  
	
  Roanoke Technical
  Treatment & Services, Inc.

  	
   

  	
  Virginia

  
	
   

  	
   

  	
   

  
	
  Steel of West
  Virginia, Inc.

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  SWVA, Inc.

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Marshall
  Steel, Inc.

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Steel
  Ventures, Inc.

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Shredded Products II,
  LLC

  	
   

  	
  Indiana

  



 

















 


Schedule II


 


Loan Parties and Filing Office


 


	
  Loan Party

  	
   

  	
  Filing Office

  
	
   

  	
   

  	
   

  
	
  Steel Dynamics, Inc.

  	
   

  	
  Indiana Sec. of
  State

  
	
   

  	
   

  	
   

  
	
  SDI Investment Company

  	
   

  	
  Delaware Sec. of
  State

  
	
   

  	
   

  	
   

  
	
  New Millennium Building Systems, LLC

  	
   

  	
  Indiana Sec. of
  State

  
	
   

  	
   

  	
   

  
	
  Steel Dynamics Sales North America, Inc.

  	
   

  	
  Indiana Sec. of
  State

  
	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel
  Corporation

  	
   

  	
  Indiana Sec. of
  State

  
	
   

  	
   

  	
   

  
	
  Steel
  Holdings, Inc.

  	
   

  	
  Indiana Sec. of
  State

  
	
   

  	
   

  	
   

  
	
  Steel Dynamics Ferrous
  Resources, LLC

  	
   

  	
  Indiana Sec. of
  State

  
	
   

  	
   

  	
   

  
	
  SOCAR of
  Ohio, Inc.

  	
   

  	
  Ohio Sec. of
  State

  
	
   

  	
   

  	
   

  
	
  Steel of West
  Virginia, Inc.

  	
   

  	
  Delaware Sec. of
  State

  
	
   

  	
   

  	
   

  
	
  SWVA, Inc.

  	
   

  	
  Delaware Sec. of
  State

  
	
   

  	
   

  	
   

  
	
  Marshall
  Steel, Inc.

  	
   

  	
  Delaware Sec. of
  State

  
	
   

  	
   

  	
   

  
	
  Steel
  Ventures, Inc.

  	
   

  	
  Delaware Sec. of
  State

  
	
   

  	
   

  	
   

  
	
  New Millennium Building Systems, Inc.

  	
   

  	
  South Carolina
  Sec. of State

  
	
   

  	
   

  	
   

  
	
  John W. Hancock, Jr., LLC

  	
   

  	
  Virginia State
  Corporation Commission

  
	
   

  	
   

  	
   

  
	
  Shredded Products, LLC

  	
   

  	
  Virginia State
  Corporation Commission

  
	
   

  	
   

  	
   

  
	
  RESCO Steel Products Corporation

  	
   

  	
  Virginia State
  Corporation Commission

  
	
   

  	
   

  	
   

  
	
  Roanoke Technical Treatment & Services, Inc.

  	
   

  	
  Virginia State
  Corporation Commission

  
	
   

  	
   

  	
   

  
	
  Shredded Products II,
  LLC

  	
   

  	
  Indiana Sec. of
  State

  



 

















 


Schedule III


 


Pledged Equity


 


	
  Loan Party

  	
   

  	
  Issuer of Pledged

  Equity

  	
   

  	
  Class of Pledged

  Equity Interest

  	
   

  	
  Percentage of

  Outstanding

  Shares

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Dynamics, Inc.

  	
   

  	
  SDI Investment Company

  	
   

  	
  Common

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Dynamics, Inc.

  	
   

  	
  New Millennium Building Systems, LLC

  	
   

  	
  Voting

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Non-voting

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Dynamics, Inc.

  	
   

  	
  Steel Dynamics Sales North America, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Dynamics, Inc.

  	
   

  	
  Roanoke Electric Steel Corporation

  	
   

  	
  Common

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Dynamics, Inc.

  	
   

  	
  Steel Holdings, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Holdings, Inc.

  	
   

  	
  Steel Dynamics Ferrous Resources, LLC

  	
   

  	
  N/A

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric
  Steel Corporation

  	
   

  	
  Shredded Products, LLC

  	
   

  	
  N/A

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric
  Steel Corporation

  	
   

  	
  John W. Hancock, Jr., LLC

  	
   

  	
  N/A

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric
  Steel Corporation

  	
   

  	
  New Millennium Building Systems, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New Millennium
  Building Systems, Inc.

  	
   

  	
  SOCAR of Ohio, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric
  Steel Corporation

  	
   

  	
  RESCO Steel Products Corporation

  	
   

  	
  Common

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric
  Steel Corporation

  	
   

  	
  Roanoke Technical Treatment & Services, Inc

  	
  .

  	
  Common

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric
  Steel Corporation

  	
   

  	
  Steel of West Virginia, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel of West
  Virginia, Inc.

  	
   

  	
  SWVA, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel of West
  Virginia, Inc.

  	
   

  	
  Marshall Steel, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  	
   

  



 

















 


	
  Steel of West
  Virginia, Inc.

  	
   

  	
  Steel
  Ventures, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel
  Dynamics, Inc.

  	
   

  	
  Shredded
  Products II, LLC

  	
   

  	
  N/A

  	
   

  	
  100%

  	
   

  



 
















 


EXHIBIT G2


 





June 19, 2007


 


To the Initial Lenders party to the Amended and Restated Credit
Agreement referred to below, Banc of America Securities LLC and National City
Bank as Joint Lead Arrangers, National City Bank and Wells Fargo Bank, as
Co-Administrative Agents, and National City Bank as Collateral Agent for such
Initial Lenders


 


Re:               $750 Million Senior Secured Credit
Facilities for Steel Dynamics, Inc.


 


Ladies and Gentlemen:


 


We are rendering this opinion as special New
York counsel to Steel Dynamics, Inc., an Indiana corporation (the “Borrower”), and the
subsidiaries of the Borrower named on Schedule I hereto (each, a “Subsidiary” and,
collectively, the “Subsidiaries”;
the Borrower and the Subsidiaries being referred to herein collectively as the “Loan Parties”) in
connection with the Amended and Restated Credit Agreement, dated as of June 19,
2007 (the “Credit
Agreement”), among the Borrower and each of you.  This opinion is furnished to you pursuant to Section 3.01(a)(xiv)
of the Credit Agreement.  Unless
otherwise defined herein, terms defined in the Credit Agreement are used herein
as therein defined.


 


We call your attention to the fact that we have not acted as counsel to
any of the Loan Parties in connection with the negotiation or preparation of
the Loan Agreement or any of the other agreements referred to therein or the
consummation of the transactions contemplated thereby.  For purposes of our opinions herein, we have
reviewed (in addition to the agreements referred to in paragraph 5 below) only
the following documents (and we have not reviewed any other agreements or other
documents referred to in any of the following), each dated as of the date
hereof:


 


(a)                   the
Credit Agreement;


 


(b)                  the
form of the Notes delivered to the Initial Lenders on the date hereof;


 


(c)                   the
Amended and Restated Subsidiary Guaranty (the “Guaranty”);
and


 


(d)                  the
Amended and Restated Security Agreement (the “Security
Agreement”).


 


(The documents described in the foregoing clauses (a) through (d) above
are collectively referred to herein as the “Loan Documents.”)  We have also examined such questions of law
as we have considered necessary and appropriate for the purposes of this
opinion, and as to questions of fact material to our opinions, we have relied
without investigation upon the certificates of officers of 


 

















 


the Company.  As used in this
letter, the “New York UCC” shall mean the
Uniform Commercial Code as now in effect in the State of New York.


 


We are opining herein as to the effect on the subject transaction only
of the federal laws of the United States and the internal laws of the State of
New York.


 


We are rendering the opinions expressed in this letter on the
assumptions that:


 


(a)                                  each party to any of
the Loan Documents (including the Loan Parties) is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
expressed to be organized, and has corporate or other organizational power and
authority to engage in its business and enter into and complete the transactions
contemplated by the Loan Documents,


 


(b)                                 the execution,
delivery and performance by each party to any of the Loan Documents (including
the Loan Parties) to which it is a party, including the incurrence, guarantee,
collateralization and repayment of indebtedness thereunder, (i) are within
such party’s corporate or other organizational powers, (ii) have been duly
authorized by all necessary corporate or other organizational action of such
party, (iii) do not contravene or conflict with the articles or certificate
of incorporation, charter, limited liability company agreement, limited
partnership agreement, by-laws, director, member, partner or shareholder action
or other governing documents or actions of such party, (iv) do not
contravene or conflict with any term or provision of any agreement or other
contractual obligation by which such party or any of its property is bound
(except for those agreements specifically identified in paragraph 5 below) or
any court or agency decree or order binding on such party or its property, (v) will
not result in or require the creation or imposition of any security interest or
lien (other than a security interest or lien in favor of the Collateral Agent)
on any of such party’s property pursuant to any agreement or other contractual
obligation (except for those agreements specifically identified in paragraph 5
below), (vi) do not violate or contravene any law or regulation applicable
to any such party by reason of the nature of the business conducted by it or
its affiliates or any other applicable law or regulation other than those in
respect of which we render our opinions set forth in paragraph 2(i) below,
and (vii) do not require any consent or approval of, authorization by, or
notice to or registration, declaration or filing with, any governmental
authority, except (A) filings and other measures to create or perfect
security interests granted to the Collateral Agent and (B) those in
respect of which we render our opinion set forth in paragraph 2(ii) below,


 


(c)                                  each of the Loan
Documents (i) has been duly executed and delivered by each party
identified therein as a signatory thereto (including the Loan Parties) and (ii) constitutes
the legally valid and binding obligation of each party thereto other than the
Loan Parties, enforceable against each such party in accordance with its terms
(subject to the same exceptions to enforceability as are set forth at the end
of this letter),


 


2

















 


(d)                                 each
Loan Party granting a security interest pursuant to the Security Agreement has
rights in the collateral identified therein as to which it is granting such
security interest, and the Collateral Agent is taking its security interest
(for the benefit of the Secured Parties) pursuant to the Security Agreement for
value given,


 


(e)                                  the
equity interests listed on Schedule II hereto are “securities”, within the
meaning of Section 8-103 of the New York UCC.


 


We note that certain of the foregoing matters are addressed in the
opinion of Barrett & McNagny, LLP of Fort Wayne, Indiana, which is
being separately provided to you as of the date hereof. We express no opinion
with respect to any of those matters.


 


Subject to the foregoing and the other matters set forth herein, it is
our opinion that, as of the date hereof:


 


1.                                       Each of the Loan
Documents constitutes a legally valid and binding obligation of each Loan Party
that is a party thereto, enforceable against each such Loan Party in accordance
with its terms.


 


2.                                       The execution,
delivery and performance by any Loan Party of any Loan Document in which it is
identified as a signatory party thereto, do not and will not: (i) violate
any federal or New York State statute, rule or regulation applicable to
each Loan Party (including, without limitation, Regulations T, U or X of the
Board of Governors of the Federal Reserve System, assuming each Loan Party
complies with the provisions of the Loan Documents relating to the use of
proceeds), or (ii) require any consents, approvals, or authorizations to
be obtained by any Loan Party, or any registrations, declarations or filings to
be made by any Loan Party, under any federal or New York State statute, rule or
regulation applicable to any Loan Party, except filings and recordings required
in order to perfect or otherwise protect the security interests under the Loan
Documents.


 


3.                                       The provisions
of the Security Agreement are sufficient to create a valid security interest in
favor of the Collateral Agent for the ratable benefit of the Secured Parties
(as defined therein) in that portion of the collateral described in Section 1
of the Security Agreement.


 


4.                                       Upon delivery in the State of New York to,
and continued possession in the State of New York by, the Collateral
Agent (on behalf of the Secured Parties) of the certificates representing the
equity interests listed on Schedule II hereto, with undated stock powers duly
endorsed in blank, the security interest in favor of the Collateral Agent (for
the benefit of the Secured Parties) in such equity interests will be perfected.


 


5.                                       The execution
and delivery by the Borrower of the Loan Documents do not, and if the Borrower
were now to perform its obligations under the Loan Documents such performance
would not, result in a breach of, a default under, or the acceleration of (or
entitle any party to accelerate) the maturity of any obligation of the Borrower
under, or result in or require the creation of any lien upon or security
interest in any property of the Borrower pursuant to the 


 


3

















 


terms of,  (a) that certain Indenture dated as of December 23,
2002, between the Borrower and Fifth Third Bank, Indiana, as Trustee,
respecting the Borrower’s issuance of its 4% Convertible Subordinated Notes Due
2012, and (b) that certain Indenture dated as of April 3, 2007,
between the Borrower, the initial subsidiary guarantors and The Bank of New
York Trust Company, N.A., respecting the Borrower’s issuance of its 6 and 3/4%
Senior Notes Due 2015; provided, that we express no opinion as to violations of
any financial limitation, test or covenant contained in either of the foregoing
agreements.


 


Our opinions set forth above are further
subject to the following additional qualifications:


 


(a)                                  Our
opinions are subject to the effects of bankruptcy, insolvency, reorganization,
arrangement, moratorium, fraudulent transfer, statutes of limitation, or other
similar laws and judicial decisions affecting the rights of creditors
generally, and are further subject to the effect of general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, estoppel, election of remedies and other similar
doctrines affecting the enforcement of agreements generally (regardless of
whether enforcement is considered in a proceeding of law or in equity).  In addition, the availability of specific
performance, injunctive relief, the appointment of a receiver or other
equitable remedies is subject to the discretion of the tribunal before which
any proceeding therefor may be brought.


 


(b)                                 Our opinions are
further subject to other laws and judicial decisions affecting the rights of
creditors and secured creditors generally, including, without limitation, the
following:


 


(i)                                     We
express no opinion as to the enforceability of provisions of the Loan Documents
to the extent they contain:


 


(A)                              grants
of powers of attorney,


 


(B)                                cumulative
remedies to the extent such cumulative remedies purport to compensate, or would
have the effect of compensating, the party entitled to the benefits thereof in
an amount in excess of the actual loss suffered by such party,


 


(C)                                obligations
of the Borrower Parties to pay any prepayment premium, early termination fee or
other form of liquidated damages, to the extent that the payment of such premium,
fee or damages is construed as unreasonable in relation to actual damages or
disproportionate to actual damages suffered by the party to which such amounts
are paid as a result of such prepayment or termination or is otherwise not
qualified as liquidated damages,


 


(D)                               terms
purporting to establish evidentiary standards, or


 


(E)                                 terms
to the effect that provisions in the Loan Documents may not be waived or
modified except in writing, which may not be enforceable under certain
circumstances;


 


4

















 


(ii)           The granting of a
security interest in collateral under the Security Agreement, or the transfer
of rights in such security interest or collateral may, in some instances,
require or be conditioned upon receipt of consent of third parties, but such
requirements or conditions may not be effective as to assignments of or
security interests in certain types of collateral, including accounts, chattel
paper, payment intangibles, promissory notes, leasehold or landlord’s residual
interests, and letter-of-credit rights, as provided in Sections 9-404 through
9-409 of the New York UCC;


 


(iii)          Restrictions in the Loan
Documents on the voluntary or involuntary transfer of a person’s rights in such
person’s assets may be limited as provided in Section 9-401 of the New
York UCC;


 


(iv)                              The
rights of a secured party to enforce a security interest in proceeds may be
limited under certain circumstances described in the New York UCC, and a
security interest will continue in collateral after its sale, lease, license,
exchange or other disposition only to the extent provided in the New York UCC;


 


(v)                                 The
rights of debtors, guarantors and other secured parties identified directly or
by reference in Section 9-602 of the New York UCC may not be varied or
waived, except as provided in Section 9-624 of the New York UCC; and


 


(vi)                              Notwithstanding
any language of the Loan Documents to the contrary, the Collateral Agent, on
behalf of the Secured Parties, may be limited to recovery of only reasonable
expenses, including, without limitation, reasonable attorneys’ fees and legal
expenses, with respect to the retaking, holding, preparing for sale, selling,
pledging, hypothecating or otherwise transferring collateral.


 


(c)                                  Our opinions above,
insofar as they relate to the enforceability of indemnification provisions set
forth in the Loan Documents, are subject to laws and judicial decisions
rendering unenforceable indemnification contrary to federal and state
securities laws and environmental laws and the public policies underlying such
laws, and laws limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party for, liability for
its own action or inaction, to the extent the action involves gross negligence,
recklessness, willful misconduct or unlawful conduct.


 


(d)                                 We express no opinion
concerning the Borrower’s rights in or title to any real or personal property,
the creation or validity of any security interest, pledge, lien, or other
similar interest in any real property or (except as expressly provided in
paragraph 3 above) any personal property, the perfection of any security
interest, pledge, lien, or other similar interest in any real property or
(except as expressly provided in paragraph 4 above) any personal property, or
the priority of any security interest, pledge, lien, or other similar interest
in any real or personal property.


 


(e)                                  We express no opinion
as to the creation, perfection or priority of any security interest in (or
other lien on) any collateral, including, without limitation, any collateral
consisting 


 


5

















 


of interests or claims in or under policies
of insurance, rights represented by judgments and rights of set-off, to the extent
that, pursuant to Section 9-109 of the New York UCC, the New York UCC does
not apply thereto.


 


(f)                                    To the extent that
any collateral relates to or purports to include any commercial tort claims, we
call your attention to the provisions of Sections 9-108(e)(1) and 9-204 of
the UCC.


 


(g)                                 We express no opinion
as to the validity, binding effect or enforceability of any provision of the
Loan Documents related to choice of law, forum selection or submission to
jurisdiction (including, without limitation, any express or implied waiver of
any objection to venue in any court or of any objection that a court is an
inconvenient forum) to the extent that the validity, binding effect or
enforceability of any such provision is to be determined by any court other than
a court of the State of New York.  We
express no opinion as to whether any federal court would have subject matter
jurisdiction over any proceeding relating to any of the Loan Documents.


 


(h)                                 We express no opinion
as to compliance or the effect of noncompliance by any Lender with any state or
federal laws or regulations applicable thereto in connection with the
transactions described in the Loan Documents.


 


(i)                                     Our opinion in
paragraph 1 above as to the Subsidiaries is subject to the defenses available
to a guarantor or surety under applicable law, but the waivers of such defenses
set forth in the Guaranty are enforceable, subject to our other qualifications
herein.


 


(j)                                     In the case of
accounts receivable that are due from the United States of America or any state
thereof or any department of the United States of America or any state thereof,
the right to collect upon such accounts receivable may be limited by the
Assignment of Claims Act, 31 U.S.C.A. Sec. 3727 (1989), and any applicable
state law relating to the assignment of claims against such state.


 


(k)                                  We express no opinion
as to the enforceability of any provision contained in the Loan Documents
allowing a Lender to set off and apply any Loan Party’s deposits with such
Lender against any Loan Party’s obligations to the Lenders without prior notice
having been given to such Loan Party.  We
express no opinion as to the enforceability of any provision in the Loan
Documents allowing any loan participant to set off and apply any Loan Party’s
deposits with such participant against any Loan Party’s obligations to the
Lenders.


 


This letter is furnished only to you and is solely for your benefit in
connection with the transactions covered hereby.  This letter may not be relied upon by you for
any other purpose, or furnished to (except as required by applicable law),
assigned to, quoted to or relied upon by any other person, firm or entity for
any purpose, without our prior written consent, which may be granted or
withheld in our discretion.  At your
request, we hereby consent to reliance hereon by any future assignee of your
interest in the loans under the Credit Agreement pursuant to an assignment that
is made and consented to in accordance with the express provisions of Section 


 


6

















 


8.07 of the Credit Agreement, on the condition and understanding that (i) this
letter speaks only as of the date hereof, (ii) we have no responsibility
or obligation to update this letter, to consider its applicability or
correctness to other than its addressee(s), or to take into account changes in
law, facts or any other developments of which we may later become aware, and (iii) any
such reliance by a future assignee must be actual and reasonable under the
circumstances existing at the time of assignment, including any changes in law,
facts or any other development known or reasonably knowable by the assignee at
such time.


 


This letter is rendered solely as of the date hereof, and we expressly
disclaim any obligation to update our opinions herein based upon any changes in
facts or laws or other developments which may occur or come to our attention
subsequent to the date hereof.


 


	
   

  	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Greenberg Traurig, LLP

  



 


7

















 


Schedule
I


 


Subsidiaries


 


	
  Name

  	
   

  	
  State of

  Organization

  
	
   

  	
   

  	
   

  
	
  SDI Investment Company

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  New Millennium Building
  Systems, LLC

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  
	
  Steel Dynamics Sales North
  America, Inc.

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel Corporation

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  
	
  Steel Holdings, Inc.

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  
	
  Steel Dynamics Ferrous Resources, LLC

  	
   

  	
  Indiana

  
	
   

  	
   

  	
   

  
	
  Shredded Products, LLC

  	
   

  	
  Virginia

  
	
   

  	
   

  	
   

  
	
  John W. Hancock, Jr., LLC

  	
   

  	
  Virginia

  
	
   

  	
   

  	
   

  
	
  New Millennium Building Systems, Inc.

  	
   

  	
  South Carolina

  
	
   

  	
   

  	
   

  
	
  SOCAR of Ohio, Inc.

  	
   

  	
  Ohio

  
	
   

  	
   

  	
   

  
	
  RESCO Steel Products Corporation

  	
   

  	
  Virginia

  
	
   

  	
   

  	
   

  
	
  Roanoke Technical Treatment & Services, Inc.

  	
   

  	
  Virginia

  
	
   

  	
   

  	
   

  
	
  Steel of West Virginia, Inc.

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  SWVA, Inc.

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Marshall Steel, Inc.

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Steel Ventures, Inc.

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Shredded Products II, LLC

  	
   

  	
  Indiana

  



 


8

















 


Schedule
II


 


Pledged
Equity


 


	
  Loan Party

  	
   

  	
  Issuer of Pledged Equity

  	
   

  	
  Class

  	
   

  	
  % of

  Outstanding

  Shares

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Dynamics, Inc.

  	
   

  	
  SDI Investment Company

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Dynamics, Inc.

  	
   

  	
  New Millennium Building Systems, LLC

  	
   

  	
  Voting

  	
   

  	
  100% 

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Non-voting

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Dynamics, Inc.

  	
   

  	
  Steel Dynamics Sales North America, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Dynamics, Inc.

  	
   

  	
  Roanoke Electric Steel Corporation

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Dynamics, Inc.

  	
   

  	
  Steel Holdings, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Holdings, Inc.

  	
   

  	
  Steel Dynamics Ferrous Resources, LLC

  	
   

  	
  N/A

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel Corporation

  	
   

  	
  Shredded Products, LLC

  	
   

  	
  N/A

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel Corporation

  	
   

  	
  John W. Hancock, Jr., LLC

  	
   

  	
  N/A

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel Corporation

  	
   

  	
  New Millennium Building Systems, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New Millennium Building Systems, Inc.

  	
   

  	
  SOCAR of Ohio, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel Corporation

  	
   

  	
  RESCO Steel Products Corporation

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel Corporation

  	
   

  	
  Roanoke Technical Treatment & Services, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel Corporation

  	
   

  	
  Steel of West Virginia, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel of West Virginia, Inc.

  	
   

  	
  SWVA, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel Corporation

  	
   

  	
  Marshall Steel, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Roanoke Electric Steel Corporation

  	
   

  	
  Steel Ventures, Inc.

  	
   

  	
  Common

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steel Dynamics, Inc.

  	
   

  	
  Shredded Products II, LLC

  	
   

  	
  N/A

  	
   

  	
  100%

  



 


9