Filed by Bowne Pure Compliance





EXHIBIT 10.1




AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT




Among




BANK OF AMERICA, N.A.,




as Agent,




various financial institutions party hereto from time to time,




as Lenders,




SL INDUSTRIES, INC.,




as the Parent Borrower




And




SL DELAWARE, INC.

SL DELAWARE HOLDINGS, INC.

MTE CORPORATION

RFL ELECTRONICS INC.

SL MONTEVIDEO TECHNOLOGY, INC.

CEDAR CORPORATION

TEAL ELECTRONICS CORPORATION

MEX HOLDINGS LLC

SL POWER ELECTRONICS CORPORATION

SLGC HOLDINGS, INC.

SLW HOLDINGS, INC.

SL AUBURN, INC.

SL SURFACE TECHNOLOGIES, INC.




as the Subsidiary Borrowers




Dated October 23, 2008



 


 









 





TABLE OF CONTENTS




	 	 	 	 
	 	 	Page
	 
	ARTICLE 1 THE REVOLVING, LOAN FACILITY
	 	 	1
	Section 1.1 Commitment to Lend
	 	 	1
	Section 1.2 Manner of Borrowing
	 	 	2
	Section 1.3 Disbursements
	 	 	2
	Section 1.4 Letters of Credit and Letter of Credit Fees
	 	 	2
	Section 1.5 Swing Line Loans
	 	 	5
	Section 1.6 Increase in Revolving Credit Facility
	 	 	8
	ARTICLE 2 PAYMENTS AND PREPAYMENTS
	 	 	9
	Section 2.1 Reductions In Commitment
	 	 	9
	Section 2.2 Optional Prepayments of Loans
	 	 	9
	Section 2.3 Repayment of Loans In Connection with Reductions of Commitment
	 	 	10
	ARTICLE 3 INTEREST AND FEES
	 	 	10
	Section 3.1 Interest
	 	 	10
	Section 3.2 Election of Interest Rate
	 	 	10
	Section 3.3 Interest Upon Default
	 	 	11
	Section 3.4 Fees
	 	 	12
	Section 3.5 Computation of Interest and Related Fees
	 	 	12
	Section 3.6 Determination of Dollar Equivalent
	 	 	12
	ARTICLE 4 GENERAL MATTERS CONCERNING LOANS SECTION
	 	 	13
	Section 4.1 Manner of Tendering Payments by Borrowers
	 	 	13
	Section 4.2 The Notes
	 	 	13
	Section 4.3 Loan Account
	 	 	14
	Section 4.4 Additional Provisions Concerning Certain Loans
	 	 	14
	Section 4.5 Taxes
	 	 	17
	Section 4.6 Payment Generally; Agent’s Clawback
	 	 	18
	Section 4.7 Sharing of Payments by Lenders
	 	 	20
	ARTICLE 5 CONDITIONS PRECEDENT
	 	 	21
	Section 5.1 Conditions Precedent to Initial Loan
	 	 	21
	Section 5.2 Payment of Fees and Costs
	 	 	23
	Section 5.3 Conditions Precedent to Each Loan
	 	 	23
	Section 5.4 Method of Satisfying Certain Conditions
	 	 	23






 


 









 





	 	 	 	 
	 	 	Page
	 
	ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF BORROWERS
	 	 	24
	Section 6.1 Organization and Qualification
	 	 	24
	Section 6.2 Capitalization and Ownership of Subsidiary Borrowers
	 	 	24
	Section 6.3 Authorization and Execution
	 	 	24
	Section 6.4 Enforceability; Consents
	 	 	25
	Section 6.5 Security Interests in Collateral
	 	 	25
	Section 6.6 Real Property of Borrowers
	 	 	25
	Section 6.7 Absence of Conflict with other Agreements; Etc
	 	 	25
	Section 6.8 Business
	 	 	25
	Section 6.9 Condition of Assets
	 	 	26
	Section 6.10 Use of Proceeds
	 	 	26
	Section 6.11 Litigation
	 	 	26
	Section 6.12 Indebtedness
	 	 	26
	Section 6.13 Financial Statements
	 	 	26
	Section 6.14 Fiscal Year
	 	 	26
	Section 6.15 Title to Assets
	 	 	27
	Section 6.16 Patents, Trademarks, Licenses and Franchises
	 	 	27
	Section 6.17 Compliance with Law
	 	 	27
	Section 6.18 Compliance with ERISA
	 	 	27
	Section 6.19 Compliance with Regulations U and X
	 	 	29
	Section 6.20 Investment Company Act
	 	 	29
	Section 6.21 [Intentionally Omitted]
	 	 	29
	Section 6.22 Absence of Default
	 	 	29
	Section 6.23 Agreements with Affiliates
	 	 	29
	Section 6.24 No Burdensome Agreements; Material Agreements
	 	 	29
	Section 6.25 Solvency
	 	 	29
	Section 6.26 Taxes
	 	 	30
	Section 6.27 Environmental Compliance
	 	 	30
	Section 6.28 Labor Disputes and Acts of God
	 	 	31
	ARTICLE 7 FINANCIAL COVENANTS
	 	 	31
	Section 7.1 Financial Covenants
	 	 	31
	Section 7.2 Calculations
	 	 	32






 


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	 	 	Page
	 
	ARTICLE 8 COVENANTS CONCERNING REPORTING REQUIREMENTS
	 	 	32
	Section 8.1 Financial Statements
	 	 	32
	Section 8.2 Officer’s Compliance Certificates
	 	 	33
	Section 8.3 Auditors Reports
	 	 	33
	Section 8.4 Notice of Default
	 	 	33
	Section 8.5 Notice Concerning Representations and Warranties
	 	 	34
	Section 8.6 Notice of Litigation
	 	 	34
	Section 8.7 SEC Disclosure
	 	 	34
	Section 8.8 Conditions Affecting Collateral
	 	 	34
	Section 8.9 ERISA Notices
	 	 	34
	Section 8.10 Environmental Matters
	 	 	35
	Section 8.11 Miscellaneous
	 	 	35
	Section 8.12 Authorization of Third Parties to Deliver Information
	 	 	35
	ARTICLE 9 BUSINESS COVENANTS
	 	 	36
	Section 9.1 Indebtedness
	 	 	36
	Section 9.2 Liens
	 	 	36
	Section 9.3 Investments and Acquisitions
	 	 	38
	Section 9.4 Restricted Payments
	 	 	39
	Section 9.5 Affiliate Transactions
	 	 	40
	Section 9.6 Disposition of Assets
	 	 	40
	Section 9.7 Liquidation or Merger
	 	 	41
	Section 9.8 Change in Organizational Documents
	 	 	41
	Section 9.9 Issuance of Equity
	 	 	41
	Section 9.10 Environmental Violations
	 	 	41
	Section 9.11 Preservation of Existence, Etc
	 	 	42
	Section 9.12 Permitted Businesses
	 	 	42
	Section 9.13 Compliance with Law
	 	 	42
	Section 9.14 Payment of Taxes and Claims
	 	 	42
	Section 9.15 Tax Consolidation
	 	 	42
	Section 9.16 Maintenance of Properties
	 	 	43
	Section 9.17 Insurance
	 	 	43
	Section 9.18 Compliance with ERISA
	 	 	44
	Section 9.19 Maintenance of Records; Fiscal Year
	 	 	45






 


- iii -









 





	 	 	 	 
	 	 	Page
	 
	Section 9.20 Inspections and Field Examinations
	 	 	45
	Section 9.21 Exchange of Notes
	 	 	45
	Section 9.22 Compliance with Federal Reserve Regulations
	 	 	45
	Section 9.23 Limitations on Certain Restrictive Provisions
	 	 	46
	Section 9.24 Corporate Separateness
	 	 	46
	Section 9.25 Deposit and Securities Accounts
	 	 	46
	Section 9.26 Collateral; Lockbox
	 	 	46
	Section 9.27 Joinder of Subsidiaries
	 	 	47
	Section 9.28 Further Assurances
	 	 	48
	ARTICLE 10 DEFAULT
	 	 	49
	Section 10.1 Events of Default
	 	 	49
	Section 10.2 Remedies
	 	 	51
	Section 10.3 Cash Collateral
	 	 	52
	Section 10.4 Application of Funds
	 	 	52
	ARTICLE 11 DEFINITIONS
	 	 	53
	Section 11.1 Defined Terms
	 	 	53
	Section 11.2 Accounting Terms
	 	 	76
	Section 11.3 Other Definitional Provisions
	 	 	76
	ARTICLE 12 AGENT
	 	 	76
	Section 12.1 Authority
	 	 	76
	Section 12.2 Expenses
	 	 	77
	Section 12.3 Action by Agent
	 	 	77
	Section 12.4 Exculpatory Provisions
	 	 	77
	Section 12.5 Investigation by Lenders
	 	 	78
	Section 12.6 Notice of Events of Default
	 	 	78
	Section 12.7 Resignation; Termination
	 	 	78
	Section 12.8 Sharing
	 	 	79
	Section 12.9 Other Relationships
	 	 	79
	ARTICLE 13 MISCELLANEOUS
	 	 	79
	Section 13.1 Notices
	 	 	79
	Section 13.2 Duration; Survival
	 	 	80
	Section 13.3 Borrower Representative
	 	 	80
	Section 13.4 No Implied Waiver; Rights Cumulative
	 	 	80






 


- iv -









 





	 	 	 	 
	 	 	Page
	 
	Section 13.5 Amendments, etc
	 	 	80
	Section 13.6 Successors and Assigns
	 	 	82
	Section 13.7 Descriptive Headings
	 	 	85
	Section 13.8 Governing Law
	 	 	85
	Section 13.9 Payments Due on Non-Business Days
	 	 	85
	Section 13.10 Counterparts
	 	 	85
	Section 13.11 Maximum Lawful Interest Rate
	 	 	86
	Section 13.12 Set-off of Bank Accounts
	 	 	86
	Section 13.13 Severability
	 	 	86
	Section 13.14 Payment and Reimbursement of Costs and Expenses; Indemnification
	 	 	87
	Section 13.15 Consent to Jurisdiction
	 	 	88
	Section 13.16 Termination
	 	 	88
	Section 13.17 Waiver of Right to Jury Trial
	 	 	88
	Section 13.18 Confidentiality
	 	 	89
	Section 13.19 USA Patriot Act
	 	 	89
	Section 13.20 Conversion of Currencies
	 	 	89
	Section 13.21 Amendment and Restatement
	 	 	90






 


- v -









 





	 	 	 	 	 
	SCHEDULES
	 	 	 	 
	 
	 	 	 	 
	A Commitments and Applicable Percentages
	 	 	 	 
	6.1 Organization and Qualification
	 	 	 	 
	6.2 Capitalization and Ownership of Subsidiary Borrowers
	 	 	 	 
	6.6 Real Property
	 	 	 	 
	6.11 Litigation
	 	 	 	 
	6.16 Intellectual Property
	 	 	 	 
	6.18 ERISA
	 	 	 	 
	6.23 Agreements with Affiliates
	 	 	 	 
	6.24 Material Agreements
	 	 	 	 
	6.27 Environmental
	 	 	 	 
	9.1 Indebtedness
	 	 	 	 
	9.2 Liens; Foreign Subsidiary Intellectual Property
	 	 	 	 
	 
	 	 	 	 
	EXHIBITS
	 	 	 	 
	 
	 	 	 	 
	A Form of Notes
	 	 	 	 
	B Form of Request for Advance
	 	 	 	 
	C Form of Conversion Notice
	 	 	 	 
	D Form of Compliance Certificate
	 	 	 	 
	E Form of Assignment and Assumption
	 	 	 	 
	F Form of Joinder Agreement
	 	 	 	 






 


- vi -









 







AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT




This Amended and Restated Revolving Credit Agreement (this “Agreement”), made October
23, 2008, by and among SL INDUSTRIES, INC., a New Jersey corporation (“Parent Borrower”),
the Subsidiaries of the Parent Borrower listed on the signature pages to this Agreement (together
with such other Subsidiaries which join this Agreement pursuant to Section 9.27 hereof, each a
“Subsidiary Borrower” and collectively, the “Subsidiary Borrowers” and together with
the Parent Borrower, each a “Borrower” and collectively, the “Borrowers”), BANK OF
AMERICA, N.A., a national banking association (the “Bank”), individually, as Agent, Issuer
and a Lender, and the other financial institutions listed on the signature pages to this Agreement.
The Bank and the financial institutions listed on the signature pages to this Agreement, and any
other financial institutions which may become parties to this Agreement from time to time, are
sometimes collectively, referred to as the “Lenders” and individually as a
“Lender”. The Bank, when acting in its capacity as administrative agent or collateral
agent for the Lenders, the Issuer and the other Secured Parties, or any successor or assign that
assumes such position pursuant to the terms of this Agreement, is hereinafter sometimes referred to
as the “Agent”.



RECITALS:




WHEREAS, the Borrowers desire that the Lenders amend and restate the Revolving Credit
Agreement, dated August 3, 2005, among the Agent, the Borrowers and Lenders, as amended through the
date hereof (the “Existing Agreement”), to provide for an increase in the facility size
and certain other changes; and



WHEREAS, the Borrowers desire to borrow, and the Lenders are willing to extend credit from
time to time on a revolving credit basis until the Revolving Credit Termination Date (as defined
below), an aggregate principal amount not to exceed Sixty Million Dollars ($60,000,000) outstanding
at any time. The loans and credit are to be secured by the assets of the Parent Borrower and the
assets and stock of the Subsidiary Borrowers. Certain terms used herein are defined in Article 11
below.



NOW THEREFORE, the Borrowers, jointly and severally, and Agent and the Lenders, severally but
not jointly, intending to be legally bound, agree as follows:



ARTICLE 1




THE REVOLVING, LOAN FACILITY




Section 1.1 Commitment to Lend. The Lenders severally agree, upon the terms and
conditions set forth below, from time to time until the Revolving Credit Termination Date, to make
Revolving Credit Loans to the Borrowers in such amounts as the Borrowers may request, subject to
the limitation that: (a) at no time shall Revolving Credit Outstandings exceed the amount of the
Commitment; and (b) the amount and Percentage of the Commitment which each Lender is obligated to
lend shall not exceed at any time the amount or Percentages set forth opposite the name of such
Lender on Schedule A hereto (as supplemented and amended by giving effect to any assignment
made in accordance with this Agreement). Revolving Credit
Loans may be requested in any Approved Currency, however, the amount of any Loan shall be the
Dollar Equivalent of ($500,000) or an integral multiple of ($100,000) in excess thereof. Within
such limitations and subject to the terms and conditions set forth below, the Borrowers may borrow,
prepay and reborrow, from time to time, on a revolving basis. The Lenders shall have no obligation
to make any Revolving Credit Loans at any time that a Default exists.


 


 









 





Section 1.2 Manner of Borrowing.



(a) To request a Revolving Credit Loan, the Borrowers shall, prior to, 12:00 noon at least (i)
one (1) Business Day prior to the desired date of a Base Rate Loan, (ii) three (3) Business Days
prior to the desired date for a LIBOR Loan to be made in Dollars, or (iii) four (4) Business Days
prior to the desired date for a LIBOR Loan to be made in an Alternative Currency, (a) deliver to
the Agent a Request for Advance or (b) give the Agent telephonic notice of the information
specified in any Request for Advance followed immediately by delivery of such a Request for
Advance, provided, however, that the Borrowers failure to confirm any telephonic
notice with a Request for Advance shall not invalidate any notice so given if acted upon by the
Agent. Any notice given to the Agent pursuant to this Section shall be given prior to 11:00 a.m.
on the requisite Business Day and shall be irrevocable once given.



(b) The Agent in turn shall give prompt written or telephonic (promptly confirmed in writing)
notice to each Lender of its pro rata share of the borrowing, the interest rate option selected and
the scheduled date of the funding. After receipt of such notice, each Lender shall make such
arrangements as are necessary to assure that its share of the funding shall be immediately
available (in the requested Approved Currency) to the Agent no later than 1:30 p.m., on the date on
which the funding is to occur.



Section 1.3 Disbursements. Prior to 2:00 p.m. on the date of a Revolving Credit Loan,
the Agent shall, subject to the satisfaction of the conditions set forth in Article 7 below,
disburse the funds to the Borrowers (a) by wire transfer pursuant to the Borrowers instructions, or
(b) in the absence of such instructions, by crediting the account of the Parent Borrower maintained
with the Agent.



Section 1.4 Letters of Credit and Letter of Credit Fees.



(a) Letter of Credit. On the terms and subject to the conditions set forth herein,
the Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 1.4,
prior to the Revolving Credit Termination Date, to issue standby or, documentary Letters of Credit,
in any Approved Currency, so long as:



(i) Issuer shall have received a Notice of LC Credit Event at least two (2) Business Days
before the relevant date of issuance;



(ii) After giving effect to such issuance (A) the aggregate Letter of Credit Liabilities under
all Letters of Credit do not exceed the Letter of Credit Sublimit and (B) the Revolving Credit
Outstandings, do not exceed the amount of the Commitment;



(iii) no order, judgment or decree of any Governmental Authority or arbitrator shall by its
terms purport to enjoin or restrain the Issuer from issuing such
Letter of Credit, no Law applicable to the Issuer or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction over the Issuer shall
prohibit, or request that the Issuer refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the Issuer is not otherwise
compensated hereunder) not in effect on the date hereof, or shall impose upon the Issuer any
unreimbursed loss, cost or expense which was not applicable on the date hereof and which the Issuer
in good faith deems material to it;


 


- 2 -









 





(iv) the issuance of such Letter of Credit would not violate one or more policies of the
Issuer applicable to letters of credit generally except as otherwise agreed by the Agent and the
Issuer;



(v) such Letter of Credit is not in an initial stated amount less than $100,000;



(vi) such Letter of Credit does not contain any provisions for automatic reinstatement of the
stated amount after any drawing thereunder; and



(vii) no default of any Lender’s obligations to fund any amounts under this Agreement exists
nor is any Lender at such time a defaulting Lender hereunder, unless the Issuer has entered into
satisfactory arrangements with the Borrowers or such Lender to eliminate the Issuer’s risk with
respect to such Lender.



(b) Letter of Credit Fee. Borrowers shall pay to the Agent, for the account of the
Lenders, a letter of credit fee (the “Letter of Credit Fee”) with respect to the Letter of
Credit Liabilities for each Letter of Credit, computed for each day from the date of issuance of
such Letter of Credit to the date that is the last day a drawing is available under such Letter of
Credit, at a rate per annum equal to the Applicable Margin then applicable to LIBOR Loans. Such
fee shall be payable in arrears on the first Business Day of each fiscal quarter prior to the
Revolving Credit Termination Date and on such date. In addition, the Issuer shall receive a
fronting fee equal to 0.125% of the face amount of each outstanding Letter of Credit (“Fronting
Fee”), payable upon issuance. The Borrowers shall also pay to the Issuer all of the Issuer’s
standard fees and charges for the opening, amendment, modification, presentation or cancellation of
a Letter of Credit, and otherwise in respect of a Letter of Credit, and shall execute all of the
Issuer’s standard agreements in connection with the issuance of the Letter of Credit.



(c) Reimbursement Obligations of Borrowers. If Issuer shall make a payment pursuant
to a Letter of Credit, the Borrowers shall promptly reimburse Issuer, following notice from Issuer
to Borrowers of the amount of such payment, for the amount of such payment and, to the extent that
so doing would not cause the Revolving Credit Outstandings to exceed the amount of the Commitment,
and there is no outstanding Default, Borrowers shall be deemed to have requested a Revolving Credit
Loan, the proceeds of which will be used to satisfy such Reimbursement Obligations. To the extent
that such Reimbursement Obligations are not so satisfied, the Borrowers shall pay interest, on
demand, on all amounts so paid by Issuer for each day until Borrowers reimburse Issuer therefor at
a rate per annum equal to the sum of two percent (2%) plus the interest rate applicable to Base
Rate Loans for such day. The obligations
of the Borrowers to the Issuer, the Agent and the Lenders in respect of Letters of Credit
shall be guaranteed pursuant to the Loan Documents and shall be secured by the Collateral.


 


- 3 -









 





(d) Objections Absolute. The obligations of Borrowers under this Section 1.4 shall be
absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the
terms of this Agreement, under all circumstances whatsoever, including the following:



(i) any lack of validity or enforceability of, or any amendment or waiver of or any consent to
departure from, any Letter of Credit or any related document;



(ii) the existence of any claim, set-off, defense or other right which Borrowers may have at
any time against the beneficiary of any Letter of Credit, the Issuer, the Agent, or any Lender
(including any claim for improper payment), or any other Person, whether in connection with any
Loan Document or any unrelated transaction, provided, that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;



(iii) any statement or any other document presented under any 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 whatsoever; or



(iv) to the extent permitted under applicable law, any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing.



(e) Deposit Obligations of Borrowers. In the event any Letters of Credit are
outstanding at the time that Borrowers prepay, or are required to repay, the Obligations or the
Commitment is terminated, Borrowers shall (i) Cash Collateralize all Letter of Credit Liabilities,
in an amount equal to one hundred and two percent (102%) of the aggregate outstanding Letter of
Credit Liabilities, to be available to Issuer to reimburse payments of drafts drawn under such
Letters of Credit and pay any fees and expenses related thereto, and (ii) prepay the fee payable
under Section 1.4(b) with respect to such Letters of Credit for the full remaining terms of such
Letters of Credit. Upon termination of any such Letter of Credit, the unearned portion of such
prepaid fee attributable to such Letter of Credit shall be refunded to Borrowers, together with the
deposit described in the preceding clause (i) to the extent not previously applied by Issuer in the
manner described herein.



(f) Participation by Lenders.



(i) Effective immediately upon the issuance of each Letter of Credit and without further
action on the part of the Issuer, the Issuer shall be deemed to have granted to each Lender, and
each Lender shall be deemed to have irrevocably purchased and received from the Issuer, without
recourse or warranty, an undivided interest and participation in such Letter of Credit to the
extent of each Lender’s Percentage of the Commitment. Further, each Lender acknowledges and agrees
that it shall be absolutely liable, to the extent of its Percentage of the Commitment, to fund on
demand or reimburse the Issuer on demand for the amount of each draft paid by the Issuer under each
Letter of Credit to the extent that such amount is not immediately reimbursed by the Borrowers.


 


- 4 -









 





(ii) In furtherance of the provisions of the preceding paragraph (a) the Issuer shall notify
the Agent promptly upon receipt of notice of an intended draw under a Letter of Credit. The Agent
shall give written, telecopied or telegraphic notice to each of the other Lenders of its pro rata
share of such draw and the scheduled date thereof. After receipt of such notice, and whether or
not an Event of Default or Default then exists, each Lender shall make available to the Agent such
Lender’s share of such draw in immediately available funds (in Dollars) to the Agent no later than
noon, on the date specified in the Agent’s notice. The failure of the Issuer or the Agent to give
timely notice pursuant to this Subsection 1.4(f) shall not affect the right of the Issuer to
reimbursement from the Lenders. Any amount paid by Agent and Lenders pursuant to a draw made under
a Letter of Credit shall constitute a Revolving Credit Loan and shall be repaid pursuant to the
provisions respecting Revolving Credit Loans, provided that if an Event of Default or
Default exists at the time of a draw, the Borrowers shall immediately reimburse the amount of such
draw to the Agent for the benefit of the Lenders.



(g) Standard of Conduct. The Issuer shall be entitled to administer each Letter of
Credit in the ordinary course of business and in accordance with its usual practices, modified from
time to time as it deems appropriate under the circumstances, and shall be entitled to use its
discretion in taking or refraining from taking any action in connection herewith as if it were the
sole party involved. Any action taken or omitted to be taken by the Issuer under or in connection
with any Letter of Credit shall not create for the Issuer any resulting liability to any other
Lender. The Issuer shall be entitled to rely, and shall be fully protected in relying upon, any
Letter of Credit, draft, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or other document
believed by it to be genuine and correct and believed by it to have been signed, sent or made by
the proper Person or Persons and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Issuer and the Agent.



Section 1.5 Swing Line Loans.



(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section
1.5, to make loans in Dollars (each such loan, a “Swing Line Loan”) to the Borrowers from time to
time on any Business Day in an aggregate amount not to exceed at any time outstanding the amount of
the Swing Line Sublimit; provided, however, that after giving effect to any Swing Line Loan, (i)
the Revolving Credit Outstandings shall not exceed the Revolving Credit Facility at such time, and
(ii) the aggregate outstanding amount of the Revolving Credit Loans of any Lender at such time,
plus such Lender’s Percentage of the outstanding amount of all Letter of Credit Liabilities at such
time, plus such Lender’s Percentage of the outstanding amount of all Swing Line Loans at such time
shall not exceed such Lender’s Commitment, and provided further that the Borrowers shall not use
the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the
foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow
under this Section 1.5, prepay under Section 2.2, and reborrow under this Section 1.5. Each Swing
Line Loan shall be a Base Rate Loan which shall mature on the earlier of (A) the fifteenth day
after such Loan was made and (B) the Revolving Credit Termination Date. Immediately upon the
making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing
Line Loan in
an amount equal to the product of such Lender’s Percentage times the amount of such Swing Line
Loan.


 


- 5 -









 





(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon a Borrower’s
irrevocable notice to the Swing Line Lender and the Agent, which may be given by telephone. Each
such notice must be received by the Swing Line Lender and the Agent not later than 1:00 p.m. on the
requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum
of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such
telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Agent of
a written Swing Line Loan Notice, appropriately completed and signed by an officer of a Borrower.
Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing
Line Lender will confirm with the Agent (by telephone or in writing) that the Agent has also
received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Agent (by
telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice
(by telephone or in writing) from the Agent (including at the request of any Lender) prior to 2:00
p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to
make such Swing Line Loan as a result of the limitations set forth in the first proviso to the
first sentence of Section 1.5(a), or (B) that one or more of the applicable conditions specified in
Article 5 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line
Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the requesting Borrower at its office
by crediting the account of the requesting Borrower on the books of the Swing Line Lender in
immediately available funds.



(c) Refinancing of Swing Line Loans.



(i) The Swing Line Lender at any time in its sole and absolute discretion may request, on
behalf of the requesting Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a Base Rate Loan in an amount equal to such Lender’s
Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in
writing (which written request shall be deemed to be a Request for Advance for purposes hereof) and
in accordance with the requirements of Section 1.2, without regard to the minimum and multiples
specified therein for the principal amount of Base Rate Loans, but subject to the unutilized
portion of the Revolving Credit Facility and the conditions set forth in Section 5.3. The Swing
Line Lender shall furnish the requesting Borrower with a copy of the applicable Request for Advance
promptly after delivering such notice to the Agent. Each Lender shall make an amount equal to its
Percentage of the amount specified in such Request for Advance available to the Agent in
immediately available funds for the account of the Swing Line Lender at the Agent’s Office not
later than 1:00 p.m. on the day specified in such Request for Advance, whereupon, subject to
Section 1.5(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base
Rate Loan to the requesting Borrower in such amount. The Agent shall remit the funds so received
to the Swing Line Lender.



(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit
Loan in accordance with Section 1.5(c)(i), the request for Base Rate Loans submitted by the Swing
Line Lender as set forth herein shall be deemed to be a
request by the Swing Line Lender that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender’s payment to the Agent for the account of the Swing Line
Lender pursuant to Section 1.5(c)(i) shall be deemed payment in respect of such participation.


 


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(iii) If any Lender fails to make available to the Agent for the account of the Swing Line
Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this
Section 1.5(c) by the time specified in Section 1.5(c)(i), the Swing Line Lender shall be entitled
to recover from such Lender (acting through the Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking
industry rules on interbank compensation, plus any administrative, processing or similar fees
customarily charged by the Swing Line Lender in connection with the foregoing. If such Lender pays
such amount (with interest and fees as aforesaid), the amount so paid shall constitute such
Lender’s Revolving Credit Loan included in the relevant Revolving Credit Loan or funded
participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line
Lender submitted to any Lender (through the Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.



(iv) Each Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 1.5(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line
Lender, any Borrower or any other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided, however, that each Lender’s obligation to make Revolving Credit
Loans pursuant to this Section 1.5(c) is subject to the conditions set forth in Section 5.3. No
such funding of risk participations shall relieve or otherwise impair the obligation of the
Borrowers to repay Swing Line Loans, together with interest as provided herein.



(d) Repayment of Participations.



(i) At any time after any Lender has purchased and funded a risk participation in a Swing Line
Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing
Line Lender will distribute to such Lender its Percentage thereof in the same funds as those
received by the Swing Line Lender.



(ii) If any payment received by the Swing Line Lender in respect of principal or interest on
any Swing Line Loan is required to be returned by the Swing Line Lender (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the
Swing Line Lender its Percentage thereof on demand of the Agent, plus interest thereon from the
date of such demand to the date such amount is returned, at a rate per annum equal to the Federal
Funds Rate. The Agent will make such
demand upon the request of the Swing Line Lender. The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination of this Agreement.


 


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(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing a Borrower for interest on the Swing Line Loans. Until each Lender funds
its Base Rate Loan or risk participation pursuant to this Section 1.5 to refinance such Lender’s
Percentage of any Swing Line Loan, interest in respect of such Percentage shall be solely for the
account of the Swing Line Lender.



(f) Payments Directly to Swing Line Lender. The Borrowers shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.



Section 1.6 Increase in Revolving Credit Facility.



(a) Request for Increase. Provided there exists no Default or Event of Default, upon
notice to the Agent (which shall promptly notify the Lenders), the Borrowers may from time to time,
request an increase in the Revolving Credit Facility by an amount (for all such requests) not
exceeding $50,000,000; provided that any such request for an increase shall be in a minimum amount
of (i) $5,000,000, or an integral multiple thereof, and (ii) the Parent Borrower may make a maximum
of three such requests. At the time of sending such notice, the Parent Borrower (in consultation
with the Agent) shall specify the time period within which each Lender is requested to respond
(which shall in no event be less than ten (10) Business Days from the date of delivery of such
notice to the Lenders).



(b) Lenders Election to Increase. Each Lender shall notify the Agent within such time
period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal
to, greater than, or less than its Percentage of such requested increase. Any Lender not
responding within such time period shall be deemed to have declined to increase its Commitment.



(c) Notification by Agent; Additional Lenders. The Agent shall notify the Parent
Borrower and each Lender of the Lenders’ responses to each request made hereunder. To achieve the
full amount of a requested increase, and subject to the approval of the Agent, the Issuer and the
Swing Line Lender (which approvals shall not be unreasonably withheld), the Parent Borrower may
also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form
and substance reasonably satisfactory to the Parent Borrower and the Agent and its counsel.



(d) Effective Date and Allocations. If the Revolving Credit Facility is increased in
accordance with this Section, the Agent and the Parent Borrower shall determine the effective date
(the “Revolving Credit Increase Effective Date”) and the final allocation of such increase. The
Agent shall promptly notify the Parent Borrower and the Lenders of the final allocation of such
increase and the Revolving Credit Increase Effective Date.


 


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(e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Parent Borrower shall deliver to the 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 Borrowers, certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article 6 and the other Loan Documents are true and
correct on and as 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 1.6, the
representations and warranties contained in Section 6.13 shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 8.1, and (B)
no Default exists. The Borrowers shall prepay any Revolving Credit Loans outstanding on the
Revolving Credit Increase Effective Date (and pay any additional amounts required pursuant to
Section 4.4) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with
any revised Applicable Revolving Credit Percentages arising from any nonratable increase in the
Commitments under this Section.



ARTICLE 2




PAYMENTS AND PREPAYMENTS




Section 2.1 Reductions In Commitment. The Borrowers may, at any time and from time to
time, upon one (1) Business Day’s prior irrevocable written notice to the Agent, reduce (on a pro
rata basis among the Lenders) or terminate the Commitment without premium or penalty,
provided, however, that each partial reduction shall be in an amount equal to Five
Million Dollars ($5,000,000) or an integral multiple of One Million Dollars ($1,000,000) in excess
thereof and provided further, that the Commitment shall not be reduced or
terminated at any time that would require the prepayment of a LIBOR Loan on a day, other than the
last day of the relevant Interest Period, unless the reduction notice is accompanied by the
breakage payments referred to, in Section 4.4 below. Once so reduced, the Commitment shall not be
increased and once so terminated, the Commitment shall not be reinstated.



Section 2.2 Optional Prepayments of Loans.



(a) Subject to the provisions of paragraph (c) below, the Borrowers may, at any time and from
time to time, without penalty, prepay any or all Base Rate Loans.



(b) Subject to the provisions of paragraph (c) below, the Borrowers may, at any time and from
time to time, prepay any or all LIBOR Loans upon giving three (3) Business Days irrevocable notice
to the Agent, but if any such payment shall be made on a day other than the last day of the
applicable Interest Period, such payment shall be accompanied by the breakage payments referred to
in Section 4.4 below.



(c) The foregoing prepayment rights are subject to the following: (i) any prepayment of less
than all the outstanding Loans shall be in an amount equal to Fifty Thousand Dollars ($50,000) or
an integral multiple of Ten Thousand Dollars ($10,000) in excess thereof; (ii) no prepayment may be
made in an amount that would cause the amount of any outstanding LIBOR Loan to be less than One
Hundred Thousand Dollars ($100,000); and (iii)
any prepayment in full of all outstanding Loans shall be accompanied by the payment of all
Obligations accrued or payable as of the date of such prepayment.


 


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Section 2.3 Repayment of Loans In Connection with Reductions of Commitment. On or
before the effective date of any reduction in the Commitment (whether scheduled, mandatory,
voluntary or otherwise), the Borrowers shall Cash Collateralize all Letter of Credit Liabilities,
so as to reduce the Revolving Credit Outstandings to the Commitment, giving effect to the amount of
the Commitment as so reduced, provided, however, any prepayment of a LIBOR Loan on
a day that is not the last day of the, relevant Interest Period shall be accompanied by the amounts
provided for in Section 4.4 below.



ARTICLE 3




INTEREST AND FEES




Section 3.1 Interest. Subject to the provisions of Sections 3.2 and 4.4 below and to
the conditions set forth in this Section, the Loans shall bear interest at the Borrowers option, as
follows:



(a) Base Rate Loans. The interest rate on each Base Rate Loan shall equal the sum of
the Base Rate plus the Applicable Margin for Base Rate Loans, as in effect from time to time.
Changes in the rate of interest resulting from changes in the Base Rate shall take place
immediately without notice or demand of any kind. Interest on Base Rate Loans is payable in
arrears on the first day of each month and on the maturity of such Loans, whether by acceleration
or otherwise.



(b) LIBOR Loans. During any period that a Loan is a LIBOR Loan, Borrowers shall pay
interest on such Loan at a rate equal to the LIBOR Rate for the applicable Interest Period plus the
Applicable Margin for LIBOR Loans, as in effect from time to time. Interest on LIBOR Loans shall
be payable in arrears on the last day of the applicable Interest Period relating to such Loan,
provided that if the Interest Period is longer than 30 days, interest shall be payable 30
days after the relevant Loan is made and on each 30 day anniversary thereof, if applicable, and on
the last day of the Interest Period. All payments are due on or prior to the Revolving Credit
Termination Date.



Section 3.2 Election of Interest Rate. Subject to the provisions of Section 4.4
below, the Borrowers may elect the interest rate applicable to each Revolving Credit Loan as
follows:



(a) Rate in Absence of Election. Unless otherwise elected by the Borrowers, each
Revolving Credit Loan shall bear interest at the Base Rate plus the Applicable Margin.



(b) Election of LIBOR Loans. The Borrowers may elect to request an advance hereunder
as a LIBOR Loan by so specifying the amount and the desired Interest Period on the Request for
Advance delivered pursuant to Section 1.2 above.


 


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(c) Conversion to Different Type of Loan. All or any part of the principal amount of
Revolving Credit Loans of any Type may, on any Business Day, be converted into any other Type or
Types of Revolving Credit Loans, except that (i) a LIBOR Loan may be converted only on the last day
of the applicable Interest Period therefor and (ii) a Base Rate Loan may be converted into a LIBOR
Loan only on a Business Day for LIBOR Loans.



(d) Notice of Election to Convert. The Borrowers shall give the Agent notice (which
shall be irrevocable) of each conversion of a Base Rate Loan into a LIBOR Loan and each conversion
of a LIBOR Loan at the end of the relevant Interest Period into another LIBOR Loan, no later than
11:00 a.m. three (3) Business Days prior to the requested date of such conversion. Each notice of
conversion shall be (i) in writing in substantially the form of Exhibit C attached hereto
or (ii) by telephone specifying the information set forth in Exhibit C attached hereto,
followed immediately by delivery of such notice, provided, however, that the
Borrowers failure to confirm any telephonic notice in writing shall not invalidate any telephonic
notice if acted upon by the Agent.



(e) Presumption In Absence of Election to Convert. Base Rate Loans shall continue as
Base Rate Loans unless and until such Revolving Credit Loans are converted into Revolving Credit
Loans of another Type pursuant to the preceding paragraph (d). LIBOR Loans of any Type shall
continue as Revolving Credit Loans of such Type until the end of the then current Interest Period
therefor, at which time they shall be automatically converted into Base Rate Loans unless the
Borrowers shall have given the Agent notice in accordance with the preceding paragraph (d).



(f) Limitations on Election of LIBOR Loans. The Borrowers may not elect to borrow,
continue or convert a Revolving Credit Loan to a LIBOR Loan if such election would (i) require the
Agent to administer concurrently more than six (6) Types of Revolving Credit Loans, or (ii) require
the Borrowers to make any scheduled or required payment of principal prior to the last day of the
Interest Period or Interest Periods selected as a result of a reduction of the Available
Commitment, a mandatory repayment or otherwise hereunder.



Section 3.3 Interest Upon Default. Anything in this Agreement to the contrary
notwithstanding, upon the occurrence of an Event of Default (whether or not the Lenders have
accelerated payment of the Notes), or after maturity or judgment has been rendered on the Notes,
the Borrowers, right to select interest rate options shall cease and the unpaid principal of the
Loans shall, at the option of the Agent, bear interest at the Base Rate plus the Applicable Margin
plus two percent (2%) (the “Default Rate”). Such interest shall be payable on the earlier
of (i) demand or (ii) the next Payment Date. Interest at the Default Rate shall continue to accrue
(both before and after judgment) until the earlier of (i) the waiver or cure of the applicable
Event of Default or (ii) the payment in full of the Obligations. Furthermore, at the election of
Agent or Majority Lenders during any period in which any Event of Default is continuing (x) as the
Interest Periods for LIBOR Loans then in effect expire, such Loans shall be converted into Base
Rate Loans and (y) the LIBOR election shall not be available to Borrowers.


 


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Section 3.4 Fees.



(a) Commitment Fee. The Borrowers shall pay to the Agent for the account of the
Lenders a commitment fee, such fee to be payable in arrears on every third Payment Date (i.e. the
last Business Day of each March, June, September and December) and on the Revolving Credit
Termination Date, and equal to the product of the Commitment Fee Margin times the average daily
unused portion of the Commitment during the period commencing on the date following the preceding
commitment fee payment date (or, if none, on the date hereof) and ending on such commitment fee
payment date.



(b) Other Fees. The Borrowers shall pay the Agent, the Issuer and/or the Lenders such
other fees as the Borrowers have otherwise agreed to pay in writing, whether in the Fee Letter or
otherwise.



(c) Letter of Credit and Fronting Fees. The Borrowers shall pay to the Agent for the
account of the Issuer and/or the Lenders, as applicable, such the Letter of Credit Fees and
Fronting Fees as are described in Section 1.4.



Section 3.5 Computation of Interest and Related Fees. All interest and fees under
each Loan Document shall be calculated on the basis of a 360-day year for the actual number of days
elapsed (or 365 or 366 days, as the case may be, as to interest on any Base Rate Loan). The date
of funding of a Base Rate Loan and the first day of an Interest Period with respect to a LIBOR Loan
shall be included in the calculation of interest. The date of payment of a Base Rate Loan and the
last day of an Interest Period with respect to a LIBOR Loan shall be excluded from the calculation
of interest. If a Loan is repaid on the same day that it is made, one (1) day’s interest shall be
charged.



Section 3.6 Determination of Dollar Equivalent.



(a) No later than 1:00 P.M. on each Calculation Date with respect to any Alternative Currency
Letter of Credit or Loan denominated in Alternative Currencies, the Agent shall determine the
Dollar Equivalent as of such Calculation Date with respect to such Alternative Currency Letter of
Credit and Loans denominated in Alternative Currencies. The Dollar Equivalent so determined shall
become effective on the relevant Calculation Date (a “Reset Date”), shall remain effective
until the next succeeding Reset Date, except as otherwise provided, and shall for all purposes of
this Agreement be the Dollar Equivalent employed in converting any amounts between Dollars and
Alternative Currencies.



(b) The Agent shall promptly notify the Parent Borrower of each determination pursuant to this
Section 3.6.



(c) In additional to the determination set forth above, and in no way expanding the Approved
Currencies available to the Borrowers, any amount specified in this Agreement or any of the other
Loan Documents to be in Dollars shall also, as may be required, include the equivalent of such
amount in any currency other than Dollars, such equivalent amount thereof in the applicable
currency to be determined by the Agent at such time on the basis of the Spot Rate (as defined
below) for the purchase of such currency with Dollars. For purposes of this Section 3.6,
the “Spot Rate” for a currency means the rate determined by the
Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the
purchase by such Person of such currency with another currency through its principal foreign
exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date
of such determination; provided that the Agent may obtain such spot rate from another
financial institution designated by the Agent if the Person acting in such capacity does not have
as of the date of determination a spot buying rate for any such currency.


 


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ARTICLE 4




GENERAL MATTERS CONCERNING LOANS SECTION




Section 4.1 Manner of Tendering Payments by Borrowers.



(a) Time of Payments. Each payment (including any prepayment) by the Borrowers on
account of the principal of, or interest on, the Loans, commitment fees and any other amount owed
to the Agent on behalf of the Lenders under any Loan Document shall be made not later than 1:00
p.m. on the date specified for payment under such Loan Document in lawful money of the United
States of America in immediately available funds. Any payment received after 1:00 p.m. shall be
deemed received on the next Business Day. If any payment hereunder becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension.



(b) Location of Payments. All payments shall be made by the Borrowers to the Agent at
such place as the Agent may from time to time specify in writing, except that all payments with
respect to Letters of Credit shall be made by the Borrowers to such other place as the Agent and,
respectively, the Issuer, may from time to time specify in writing. Any such payment shall be made
in related Approved Currency in immediately available funds, without counterclaim or setoff and
free and clear of, and without any deduction or withholding for, any taxes or other payments.



(c) No Set-Off. The Borrowers agree to pay principal, interest, fees, expenses,
indemnities, reimbursements and all other amounts due under any Loan Document, without set-off or
counterclaim or any deduction whatsoever.



(d) Presumptions. Except as expressly set forth to the contrary in this Agreement, or
by the Borrowers with respect to any payment, all payments shall be applied first to the payment of
all fees, expenses and other amounts due to the Agent or the Lenders (excluding principal and
interest), then to accrued interest, and the balance on account of outstanding principal of Base
Rate Loans and then to principal of LIBOR Loans (and among such LIBOR Loans, first to those with
the earliest expiring Interest Periods); provided, however, that after an Event of
Default which is continuing, payments will be applied to the Obligations of Borrowers as Agent
determines in its sole discretion.



Section 4.2 The Notes. Upon the request of any Lender made through the Agent, the
Borrowers shall execute and deliver to such Lender (through the Agent) a Note, which shall evidence
such Lender’s Loans in addition to such accounts or records. Each Lender may attach
schedules to its Note and endorse thereon the date, amount and maturity of its Loans and
payments with respect thereto. Each Note shall be in the aggregate principal amount of the
applicable Lender’s share of the Commitment in substantially the form attached hereto as
Exhibit A (with appropriate completion of the name of the applicable Lender).


 


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Section 4.3 Loan Account. The Agent may open and maintain on its books in the name of
the Borrowers, a loan account with respect to the Loans and interest thereon. If the Agent opens
such an account, it shall debit such loan account for the principal amount of each Loan made by it
and accrued interest thereon, and, subject to Section 1.3 above; shall credit such loan account for
each payment on account of principal or interest. The records of the Agent with respect to the
loan account maintained by it shall be prima facie evidence of the Loans and accrued
interest thereon, but the failure of the Agent to make any such notations or any error or mistake
in such notations shall not affect the Borrowers’ repayment obligations with respect to such Loans.



Section 4.4 Additional Provisions Concerning Certain Loans.



(a) Mandatory Suspension and Conversion of LIBOR Loans. The Lenders obligation to
make, continue or convert into LIBOR Loans of any Type shall be suspended and all Lenders
outstanding Loans of such Type shall be converted into Base Rate Loans on the last day of their
applicable Interest Periods (or, if earlier, in the case of clause (iii) below, on the last day the
Lenders may lawfully continue to maintain Loans, of such Type or, in the case of clause (iv) below,
on the day determined by the Agent to be the last Business Day before the effective date of the
applicable restriction) into, and all pending requests for the making or continuation of or
conversion into Loans of such Type by the Agent shall be deemed requests for Base Rate Loans, if:



(i) on or prior to the determination of an interest rate for a LIBOR Loan for any Interest
Period, the Agent reasonably determines that for any reason appropriate information is not
available to it for purposes of determining the LIBOR Rate for such Interest Period;



(ii) on or prior to the first day of any Interest Period for a LIBOR Loan of such Type any of
the Lenders reasonably determines that the LIBOR Rate, as determined by such Lender, for such
Interest Period would not accurately reflect the cost to such Lender of making, continuing or
converting into a LIBOR Loan of such Type for such Interest Period;



(iii) at any time any of the Lenders determines that any Regulatory Change makes it unlawful
or impracticable for such Lender or its applicable lending office to make, continue or convert into
a LIBOR Loan of such Type, or to comply with its obligations hereunder in respect thereof; or



(iv) any of the Lenders determines, that, by reason of any Regulatory Change, such Lender or
its applicable lending office is restricted, directly or indirectly, in the amount that it may hold
of (A) a category of liabilities that includes deposits by reference to which, or on the basis of
which, the interest rate applicable to LIBOR Loans of such
Type is directly or indirectly determined or (B) the category of assets that includes LIBOR
Loans of such Type.


 


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(b) Regulatory Changes. If, in the determination of any of the Lenders:



(i) any Regulatory Change shall directly or indirectly: (A) reduce the amount of any sum
received or, receivable by such Lender with respect to the Revolving Credit Facility; (B) impose a
cost on such Lender or any Affiliate of such Lender that is attributable to the making available or
maintaining of, or such Lender’s commitment to make available, the Revolving Credit Facility; (C)
require such Lender or any Affiliate of such Lender to make any payment on, or calculated by
reference to, the gross amount of any amount received by such Lender under any Loan Document; or
(D) reduce, or have the effect of reducing, the rate of return on any capital of such Lender or any
Affiliate of such Lender that such Lender or such Affiliate is required to maintain on account of
the Revolving Credit Facility, or such Lender’s Commitment; and



(ii) such reduction, increased cost or payment shall not be fully compensated for by an
adjustment in the applicable rates of interest payable under the Loan Documents;



then the Borrowers shall pay to such Lender such additional amounts as such Lender reasonably
determines will, together with any adjustment in the applicable rates of interest payable
hereunder, fully compensate it for such reduction, increased cost or payment. Such additional,
amounts shall be payable, in the case of those applicable to prior periods, within 15 Business Days
after request by such Lender for such payment and, in the case of those applicable to future
periods, on the date specified, or determined in accordance with a method specified, by such
Lender. Such Lender will promptly notify the Agent and the Borrowers of any determination made by
it referred to in clauses (i) and (ii) above and provide to Agent and Borrowers a reasonably
detailed calculation of all amounts required to be paid by the Borrowers, but the failure to give
such notice shall not affect such Lender’s right to such compensation.



(c) Capital Requirements. If in the determination of any Lender such Lender or any
Affiliate of such Lender is required, as a result of a Regulatory Change, to maintain capital on
account of the Revolving Credit Facility or such Lender’s Commitment, then, upon request by such
Lender, the Borrowers shall from time to time thereafter pay to such Lender such additional amounts
as such Lender reasonably determines will fully compensate it for any reduction in the rate of
return on the capital that such Lender or such Affiliate is so required to maintain on account of
the Revolving Credit Facility or Commitment suffered as a result of such capital requirement. Such
additional amounts shall be payable, in the case of those applicable to prior periods, within 15
Business Days after request by such Lender to the Borrowers, and, in the case of those relating to
future periods, on the date specified or determined in accordance with a method specified by such
Lender. Such Lender will promptly notify the Agent and the Borrowers of any determination made by
it referred to in this paragraph(c), but the failure to give such notice shall not affect such
Lender’s right to such compensation.


 


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(d) Funding Losses. The Borrowers shall pay to the Agent, on behalf of the Lenders,
from time to time, upon request, such amount as the Agent reasonably determines is necessary to
compensate the Lenders for any loss, cost or expense, including, without limitation, loss of the
Applicable Margin incurred by it as a result of (a) any payment, prepayment or conversion of a
LIBOR Loan on a date other than the last day of an Interest Period for such LIBOR Loan or (b) a
LIBOR Loan for any reason not being made or converted, or any payment of principal thereof or
interest thereon not being made, on the date therefor determined in accordance with the applicable
provisions of this Agreement. At the election of the Agent, and without limiting the generality of
the foregoing, but without duplication, such compensation on account of losses may include an
amount equal to the excess of (i) the interest that would have been received from the Borrowers
under this Agreement, including the Applicable Margin on any amounts to be reemployed during an
Interest Period or its remaining portion over (ii) the interest component of the return that the
Agent, determines the Lenders could have obtained had they placed such amount on deposit in the
London Interbank Eurodollar Market selected by it for a period equal to such Interest Period or
remaining portion.



(e) Determinations. In making the determinations contemplated by this Section, the
Agent or the applicable Lender may make such estimates, assumptions, allocations and the like that
the Agent or such Lender in good faith determines to be appropriate, and the Agent or specified
Lender selection thereof in accordance with this Section, and the determinations made by such
Lender on the basis thereof, shall be final, binding and conclusive upon the Borrowers.
Notwithstanding any other provision of this Section, such Lender shall not apply the provisions of
subsections (b) or (c) of this Section with respect to the Borrowers if it shall not at the time be
the general policy or practice of the Agent or such Lender to apply provisions of subsections (b)
or (c) of this Section to other borrowers in substantially similar circumstances under
substantially comparable provisions of other credit agreements.



(f) Rate Quotations. The Borrowers may call the Agent on or before the date on which
a Request for Advance or notice of conversion is to be delivered to receive an indication of the
rates then in effect, but it is acknowledged that such projection shall not be binding on the Agent
nor affect the rate of interest which thereafter is actually in effect when the election is made.



(g) Inability to Determine Rates. If the Majority Lenders determine that for any
reason in connection with any request for a LIBOR Loan or a conversion to or continuation thereof
that (i) Dollar deposits are not being offered to banks in the London interbank eurodollar market
for the applicable amount and Interest Period of such LIBOR Loan, (ii) adequate and reasonable
means do not exist for determining the LIBOR Rate for any requested Interest Period with respect to
a proposed LIBOR Loan, or (iii) the LIBOR Rate for any requested Interest Period with respect to a
proposed LIBOR Loan does not adequately and fairly reflect the cost to such Lenders of funding such
Loan, the Agent will promptly so notify the Parent Borrower and each Lender. Thereafter, the
obligation of the Lenders to make or maintain LIBOR Loans shall be suspended until the Agent (upon
the instruction of the Majority Lenders) revokes such notice. Upon receipt of such notice, the
Borrowers may revoke any pending request for an advance of, conversion to or continuation of LIBOR
Loans or, failing that, will be deemed to have converted such request into a request for a Base
Rate Loan in the amount specified therein.


 


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Section 4.5 Taxes.



(a) Payments Free and Clear.



(i) Any and all payments by any Loan Party under any Loan Document shall be made free and
clear of and without deduction or withholding for any and all taxes (as defined below), provided
that that if any applicable law requires the deduction or withholding of any tax from any payment,
then the applicable Loan Party shall (A) make such deductions, (B) timely pay the full amount
deducted to the relevant taxing authority or other authority in accordance with applicable law and
(C) deliver to the Agent evidence of such payment to the relevant taxing authority or other
authority in the manner provided in Section 4.5(d) and, if such tax is a Tax (as defined below),
then the sum payable by any applicable Loan Party shall be increased as may be necessary so that
after making all required deductions and withholdings (including deductions and withholdings
applicable to additional sums payable under this Section) each Lender or the Agent (as the case may
be) receives an amount equal to the amount such party would have received had no such deductions or
withholdings been made.



(ii) For purposes of this Agreement (A) “taxes” means any and all present or future taxes,
levies, imposts, deductions, charges or withholding (including interest, penalties and additions to
tax), and all liabilities with respect thereto and (B) “Taxes” means any and all taxes
excluding, in the case of each Lender and the Agent, (x) income and franchise taxes imposed by the
jurisdiction under the laws of which such Lender or the Agent (as the case may be) is organized or
is or should be qualified to do business or any political subdivision thereof, and (y) income and
franchise taxes imposed by the jurisdiction of each Lender’s lending office or any political
subdivision thereof, and (z) United States federal withholding taxes imposed by reason of failure
or the inability of a Lender to comply with Section 4.5(e) (unless such compliance is precluded as
a result of a change in any law, rule, regulation or treaty, or in the administrative
interpretation or application thereof, in each case after the date hereof or, in the case of a
Participant or Assignee, the date on which such Participant or Assignee receives its interests in
the Loans).



(b) Stamp and Other Taxes. In addition, the Borrowers shall pay any present or future
stamp, registration, recordation or documentary taxes and any other similar fees or charges or
excise or property taxes, levies of the United States or of any state or political subdivision
thereof or of any applicable foreign jurisdiction which arise from any payment made hereunder or
from the execution, delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the other Loan Documents or the perfection of any rights or security interest in respect
thereto (hereinafter referred to as “Other Taxes”).



(c) Indemnity. The Borrowers shall indemnify each Lender and the Agent for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes and Other Taxes imposed
by any jurisdiction on amounts payable under this Section) paid by such Lender or the Agent and any
liability (including penalties, interest, additions thereto and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted. Such
indemnification shall be made within fifteen (15) Business Days from the date such Lender or the
Agent makes written demand therefor.


 


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(d) Evidence of Payment. Within fifteen (15) Business Days after the date of any
payment of Taxes or Other Taxes, the Borrowers shall furnish to the Agent, at its address a
referred to in Section 13.1, the original or a certified copy, of a receipt evidencing payment
thereof or other evidence of payment reasonably satisfactory to the Agent.



(e) Non-U.S. Lender. On or prior to the date on which any Participant or Assignee
that is not a United States person as defined in Section 7701(a)(30) of the Code (each a
“Non-U.S. Lender”) receives its interest in the Loans, each Non-U.S. Lender that is
entitled at such time to an exemption from United States withholding tax, or that is subject to
such tax at a reduced rate under an applicable tax treaty, shall provide the Agent and the Parent
Borrower with two duly completed copies of the appropriate United States Internal Revenue Service
Form W-8 or other applicable successor form prescribed by the Internal Revenue Service of the
United States, certifying that such Non-U.S. Lender is entitled to receive payments under this
Agreement without deduction or withholding of (or at a reduced rate of deduction and withholding
of) United States federal withholding taxes. The Borrowers shall have no obligation to pay any
additional amounts with respect to Loans made to a Non-U.S. Lender pursuant to Section 4.5(a) or
indemnify any Non-U.S. Lender under Section 4.5(c) if such Non-U.S. Lender is entitled at such time
to an exemption from or reduction of United States withholding tax but has failed to provide the
forms required pursuant to this Section 4.5(e). Notwithstanding any other provision of this
Section 4.5(e), no Non-U.S. Lender shall be required to deliver any form pursuant to this Section
4.5(e) that such Non-U.S. Lender is not legally able or obligated to deliver and, for purposes of
this Section 4.5, such non-delivery of a form shall not be decreed to be non-compliant with this
Section 4.5(e).



(f) Survival. Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations contained in this Section shall survive the
payment in full of the Obligations and the termination of the Commitment.



Section 4.6 Payment Generally; Agent’s Clawback.



(a) General. All payments to be made by the Borrowers shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrowers hereunder shall be made to the Agent, for the
account of the respective Lenders to which such payment is owed, at the Agent’s Office in the
applicable Approved Currency in which the credit was extended and in immediately available funds
not later than 2:00 p.m. on the date specified herein. The Agent will promptly distribute to each
Lender its Percentage of such payment in like funds as received by wire transfer to such Lender.
All payments received by the Agent after 2:00 p.m. shall be deemed received on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue. If any payment to be
made by the Borrowers shall come due on a day other than a Business Day, payment shall be made on
the next following Business Day, and such extension of time shall be reflected on computing
interest or fees, as the case may be.


 


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(b) Presumptions by Agent.



(i) Funding by Lenders. Unless the Agent shall have received notice from a Lender
prior to the proposed date of any LIBOR Loans (or, in the case of any Base Rate Loans, prior to
12:00 noon on the proposed date of such Loan) that such Lender will not make available to the
Agent such Lender’s share of such Loan, the Agent may assume that such Lender has made such
share available on such date in accordance with Section 1.1 and may, in reliance upon such
assumption, make available to the Borrowers a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Loan available to the Agent, then the applicable
Lender and the Borrowers severally agree to pay to the Agent forthwith on demand such corresponding
amount in immediately available funds with interest thereon, for each day from and including the
date such amount is made available to the Borrowers to but excluding the date of payment to the
Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds
Rate and a rate determined by the Agent in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by the Agent
in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowers, the
interest rate applicable to Base Rate Loans. If the Borrowers and such Lender shall pay such
interest to the Agent for the same or an overlapping period, the Agent shall promptly remit to the
Borrowers the amount of such interest paid by the Borrowers for such period. If such Lender pays
its share of the applicable Loan to the Agent, then the amount so paid shall constitute such
Lender’s Loan included in such Loan. Any payment by the Borrowers shall be without prejudice to
any claim the Borrowers may have against a Lender that shall have failed to make such payment to
the Agent.



(ii) Payments by Borrowers. Unless the Agent shall have received notice from the
Borrowers prior to the time at which any payment is due to the Agent for the account of the Lenders
or the Issuer hereunder that the Parent Borrower will not make such payment, the Agent may assume
that the Borrowers have made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the appropriate Lenders or the Issuer, as the case may be, the
amount due. In such event, if the Borrowers has not in fact made such payment, then each of the
appropriate Lenders or the Issuer, as the case may be, severally agrees to repay to the Agent
forthwith on demand the amount so distributed to such Lender or the Issuer, in immediately
available funds with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Agent, at the greater of the Federal
Funds Rate and a rate determined by the Agent in accordance with banking industry rules on
interbank compensation.



A notice of the Agent to any Lender or the Borrowers with respect to any amount owing under
this subsection (b) shall be conclusive, absent manifest error.



(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this
Agreement, and such funds are not made available to the Borrowers by the Agent because the
conditions to the applicable Loan set forth in Article 5 are not satisfied or waived in accordance
with the terms hereof, the Agent shall return such funds (in like funds as received from such
Lender) to such Lender, without interest.



(d) Obligations of Lenders’ Several. The obligations of the Lenders hereunder to make
Revolving Credit Loans, to fund participations in Letters of Credit and Swing Line Loans and to
make payments pursuant to Section 13.14 are several and not joint. The failure of any Lender to
make any Loan, to fund any such participation or to make any payment under Section 13.14 on any
date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Loan, to purchase its participation or to make its
payment under Section 13.14.


 


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(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



(f) Insufficient Funds. If at any time insufficient funds are received by and
available to the Agent to pay fully all amounts of principal, Reimbursement Obligations, interest
and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and
fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts
of interest and fees then due to such parties, and (ii) second, toward payment of principal and
Letter of Credit Liabilities then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and Letter of Credit Liabilities then due to such parties.



Section 4.7 Sharing of Payments by Lenders. If any Lender shall, by exercising any
right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in
respect of any the Facilities due and payable to such Lender hereunder and under the other Loan
Documents 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 at such time to (ii) the aggregate amount
of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under
the other Loan Documents at such time) of payments on account of the Obligations in respect of the
Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time
obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities
owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such
time in excess of its ratable share (according to the proportion of (i) the amount of such
Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate
amount of the Obligations in respect of the Facilities owing (but not due and payable) to all
Lenders hereunder and under the other Loan Parties at such time) of payment on account of the
Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder
and under the other Loan Documents at such time obtained by all of the Lenders at such time then
the Lender receiving such greater proportion shall (a) notify the Agent of such fact, and (b)
purchase (for cash at face value) participations in the Loans and subparticipations in L/C
Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of Obligations in respect of the Facilities then due and
payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be,
provided that:



(i) if any such participations or subparticipations are purchased and all or any portion of
the payment giving rise thereto is recovered, such participations or subparticipations shall be
rescinded and the purchase price restored to the extent of such recovery, without interest; and


 


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(ii) the provisions of this Section shall not be construed to apply to (A) any payment made by
the Borrowers pursuant to and in accordance with the express terms of this Agreement or (B) any
payment obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or
participant, other than to any Borrower or any Subsidiary thereof (as to which the provisions of
this Section shall apply).



Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.



ARTICLE 5




CONDITIONS PRECEDENT




Section 5.1 Conditions Precedent to Initial Loan. The obligation of the Lenders to
make the initial Loan is subject to the condition that each of the Lenders, or the Agent, as
applicable, shall have received each of the following, in form and substance satisfactory to it:



(a) a duly executed Revolving Loan Note for any requesting Lender;



(b) a duly executed Foreign Subsidiary Guaranty;



(c) (i) the Security Agreement, duly executed by each Borrower, together with such Uniform
Commercial Code financing statements as are necessary or, in the opinion of the Agent, desirable to
perfect the security interests created by such Security Agreement, (ii) either (A) a current
landlord waiver, or (B) if an existing landlord waiver is in full force an effect, a landlord
estoppel certificate, with regard to each leased facility of any Borrower which is located in the
United States, and (iii) the certificates, if any, representing the equity or other ownership
interests of each Subsidiary Borrower (other than 34% of the voting securities or other voting
equity of each Foreign Subsidiary that is a CFC), together with duly executed, undated stock powers
or similar assignments respecting such equity or other ownership interests;



(d) A perfection certificate duly completed by Borrowers, such questionnaire to be delivered
to the Agent prior to the closing;



(e) insurance policies or, certificates designating the Agent as lender loss payee or
mortgagee as its interests may appear, as appropriate, as required by Section 9.17 of this
Agreement or as required by any other Loan Document;



(f) to the extent requested by the Agent, an IP Security Agreement executed by each Borrower,
as appropriate, as to any registered or pending patents, trademarks and copyrights, in appropriate
form to file of record;


 


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(g) the results of tax, judgments, UCC, title and other lien searches in form and substance
satisfactory to the Agent, and from such jurisdictions as may be satisfactory to the Agent,
together with U.S. Patent and Trademark Office and Copyright Office searches of a recent date, in
each case, with respect to the Parent Borrower and each Subsidiary Borrower, showing no Liens
except Permitted Liens;



(h) modifications of Mortgages on all real property owned by each Borrower and polices of
title insurance, in amounts reasonably satisfactory to Agent, insuring the Lien of the Mortgages as
modified, together with evidence, in such form as the Agent may reasonably require, of the zoning
of the real property subject to the Mortgages and the Environmental Indemnity Agreement;



(i) audited financial statements of Parent Borrower and its Subsidiaries on a Consolidated
basis for the fiscal year ended December 31, 2007, together with projections of financial
statements respecting each fiscal year through the fiscal year 2011, which projections shall be
approved by the chief financial officer of Parent Borrower and based on reasonable assumptions;



(j) The unaudited financial statements of Parent Borrower and its Subsidiaries on a
Consolidated basis for the fiscal quarter ended June 30, 2008;



(k) any required governmental consents or other required consents to the closing of this
Agreement or to the execution, delivery and performance of this Agreement and the other Loan
Documents, each of which shall be in form and substance satisfactory to the Agent;



(l) a certificate of each Loan Party to which is attached each of the following certified as
such by a duly authorized officer of such Loan Party:



(i) a certificate of incumbency with respect to each Authorized Signatory thereof that signs
any Loan Documents;



(ii) a copy of the charter or other organizational documents of such Loan Party certified by
the Secretary of State or similar state official of the jurisdiction of formation of such Loan
Party, such Loan Party;



(iii) a copy of the bylaws or other constituent documents of such Loan Party;



(iv) a certificate of good standing or subsistence, as the case may be, for such Loan Party
issued as of a recent date by the Secretary of State or similar state official in the jurisdiction
of its organization and in each state in which such Loan Party is qualified to do business as set
forth on Schedule 6.1;



(v) a copy of the resolutions duly adopted by the Board of Directors or other governing body
of such Loan Party authorizing it to execute, deliver and perform each Loan Document to which it
is, or is to be, a party; and



(vi) a copy of any shareholders agreement or similar agreement respecting such Loan Party, if
any such agreements exist;


 


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(m) a legal opinion of Olshan Grundman Frome Rosenzweig & Wolosky LLP; and



(n) a certificate of the chief financial officer or Treasurer of the Parent Borrower with
respect to the solvency and adequacy, of capital of Parent Borrower and each Subsidiary Borrower
after giving effect to the initial Loan and the application of the proceeds thereof.



For purposes of determining compliance with the conditions specified in this Section 5.1, each
Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or
to be satisfied with, each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender unless the Agent shall have received notice
from such Lender prior to the date hereof specifying its objection thereto.



Section 5.2 Payment of Fees and Costs. In addition to the conditions specified in
Section 5.1 above, prior to making the initial Loan, the Agent shall receive payment of all accrued
costs and fees and (if then ascertainable) expenses arising out of reasonable attorneys fees for
the preparation of the Loan Documents and related services.



Section 5.3 Conditions Precedent to Each Loan. The obligation of the Lenders to make
each Loan (including the initial Loan) and issue any Letter of Credit is subject to the fulfillment
of each of the following conditions:



(a) All of the representations and warranties of the Borrowers in this Agreement and all
representations and warranties of each Loan Party in each other Loan Document shall be true and
correct in all material respects at such time, both before and after giving effect to the
application of the proceeds of such Loan;



(b) No Default or Event of Default hereunder shall then exist or be caused thereby;



(c) No Material Adverse Change shall have occurred and no event shall have occurred which
could reasonably be expected to result in a Material Adverse Change; and



(d) The Agent shall have received a duly executed Request for Advance, or, as to a Letter of
Credit, a Notice of LC Credit Event.



Section 5.4 Method of Satisfying Certain Conditions. The request for, and acceptance
of, each Loan by the Borrowers shall be deemed a representation and warranty by the Borrowers that
the conditions specified in subparts (a), (b) and (c) of Section 5.3 have been satisfied.


 


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ARTICLE 6




REPRESENTATIONS AND WARRANTIES OF BORROWERS




In order to induce the Lenders to enter into this Agreement, the Borrowers jointly and
severally make the following representations, covenants and warranties, for themselves and each of
their Subsidiaries:



Section 6.1 Organization and Qualification. Each Borrower and each of its Foreign
Subsidiaries are corporations or other entities, duly organized, validly existing and in good
standing under the laws of their respective jurisdictions of organization. Each Borrower and each
of its Foreign Subsidiaries have the lawful power to own or lease their respective properties and
to engage in the respective business they presently conduct or propose to conduct. Each Borrower
and each of its Foreign Subsidiaries are duly licensed or qualified and in good standing in each
jurisdiction where property is owned or leased by them, or the nature of the business transacted by
them, or both, makes such licensing or qualification necessary, except where the failure to be so
qualified could not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Change. Schedule 6.1 hereto shows as of the date hereof each state or
jurisdiction in which each Borrower and each of its Foreign Subsidiaries are qualified and their
respective jurisdictions of incorporation or organization, as applicable.



Section 6.2 Capitalization and Ownership of Subsidiary Borrowers. The name of each
Borrower and each of its Foreign Subsidiaries, their authorized equity or other ownership
interests, the number of issued and outstanding equity and other ownership interests and the owners
thereof as of the date hereof are set forth on Schedule 6.2 attached hereto. All
outstanding equity or other ownership interests of the Loan Parties are duly authorized, validly
issued, fully paid and nonassessable and are owned free and clear by the Borrowers except as
pledged pursuant to the Loan Documents and except for Permitted Liens to the extent arising by
operation of law. As of the date hereof, there are no options, warrants or other rights
outstanding to purchase any such equity and other ownership interests except as indicated on said
Schedule 6.2. Each Borrower has the unrestricted right to vote the issued and outstanding
equity and other ownership interests owned by it. Each Borrower’s ownership interest in a
Subsidiary represents a direct controlling interest of such Subsidiary for purposes of directing or
causing the direction of the management and policies of such Subsidiary.



Section 6.3 Authorization and Execution. The execution, delivery and performance of
this Agreement, and each other Loan Document to which any Loan Party is, or will be, a party are
within such Loan Party’s power and authority and have been duly authorized by all necessary
corporate or other applicable action. This Agreement has been, and each other Loan Document when
delivered hereunder will be, duly executed by each Loan Party which is a party hereto or thereto,
as the case may be.


 


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Section 6.4 Enforceability; Consents. This Agreement is, and each of the other Loan
Documents when delivered hereunder will be a legal, valid and binding obligation of each of the
Loan Parties which is, or will then be, a party hereto or thereto, as the case may be, enforceable
against each such Loan Party in accordance with its terms. No recording, filing, registration,
notice, consent (governmental or otherwise) or other similar action including, without
limitation, any action involving any federal, state, local or other applicable regulatory body, is
required in order to insure the legality, validity, binding effect or enforceability of this
Agreement or the other Loan Documents as against all Persons, except the recording of modifications
to the Mortgages as contemplated by this Agreement.



Section 6.5 Security Interests in Collateral.



(a) As of the date hereof no further action, including without limitation, any filing or
recording of any document or the obtaining of any consent, is necessary in order to establish,
perfect and maintain the Agent’s first priority security interests in the Collateral, for the
benefit of the Secured Parties, being encumbered pursuant to the Security Agreement, subject to
Permitted Liens to the extent taking priority by operation of law, except for the periodic filing
of continuation statements with respect to such UCC-1 financing statements. As of the date hereof,
the perfection questionnaire previously delivered to the Agent by Borrowers is true and correct and
there have been no changes thereto since the date of delivery.



(b) The Mortgages create perfected Liens on the real property described in the Mortgages
subject to no Liens of equal or greater priority except for Permitted Liens to the extent taking
priority by operation of law, and no further action, including, without limitation, the filing or
recording of any document, is necessary to maintain such perfected Liens.



Section 6.6 Real Property of Borrowers. As of the date hereof, Schedule 6.6
attached hereto is a complete and correct list of all real property owned or leased by each
Borrower, specifying, in each case, whether such property is owned or leased and specifying the
owner/lessee thereof.



Section 6.7 Absence of Conflict with other Agreements; Etc. The execution, delivery
and performance by each Borrower of this Agreement and the other Loan Documents to which it is, or
will be, a party do not and will not (a) require any consent or approval, governmental or
otherwise, not already obtained, (b) violate any Applicable Law respecting such Borrower, (c)
conflict with, result in a breach of, or constitute a default under, the organizational and
governing documents of such Borrower or any of its Foreign Subsidiaries, or under any material
indenture, agreement, license or other instrument to; which such Borrower or any of its Foreign
Subsidiaries are party to or by which any of them or their respective properties may be bound, or
(d) result in, or require the creation or imposition of, any Lien upon or with respect to any
property now owned or hereafter acquired by any Borrower or any of its Foreign Subsidiaries other
than as contemplated hereby.



Section 6.8 Business. Each Borrower, together with each of its Foreign Subsidiaries,
is currently engaged in the business of designing, manufacturing and marketing power electronics,
power motion, power protection, transportation and specialized communication equipment that is used
in a variety of medical, aerospace, computer, datacom, industrial, telecom; transportation, and
electric power utility equipment applications.


 


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Section 6.9 Condition of Assets. All of the material properties, equipment and
systems of each Borrower and each of its Foreign Subsidiaries are in good repair, working order and
condition for their intended use, ordinary wear and tear excepted, and are and will be in material
compliance with all standards or rules, imposed by any governmental agency or authority (including,
without limitation, any federal or state or local governments or instrumentalities) or otherwise
under Applicable Law.



Section 6.10 Use of Proceeds. The proceeds of the Loans will be used for certain
Permitted Acquisitions, capital expenditures, general corporate purposes and working capital
purposes. No proceeds of any Loan shall be used for any illegal purposes.



Section 6.11 Litigation. Except as described in Schedule 6.11, there is no
action, suit, proceeding or investigation pending against, or, to the best of the Borrowers
knowledge, threatened against or in any other manner relating to, any Borrower or any of its
Foreign Subsidiaries or any of their respective properties, in any court or before any arbitrator
of any kind or before or by any governmental body, which individually or in the aggregate, could
(if adversely determined) reasonably be expected to result in a Material Adverse Change, nor is any
Borrower or any of its Foreign Subsidiaries in violation of any order, writ, injunction or decree
of any such governmental body which could, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Change.



Section 6.12 Indebtedness. Except as permitted under Section 9.1, there is no
outstanding Indebtedness of any Loan Party, and any commitments of any such Person to incur
additional Indebtedness (other than Indebtedness pursuant to this Agreement).



Section 6.13 Financial Statements.



(a) The audited financial statements for Parent Borrower and its Subsidiaries on a
Consolidated basis for the fiscal year ended December 31, 2007, and the unaudited consolidated
financial statements of Parent Borrower and its Subsidiaries on a Consolidated basis for the six
months ended June 30, 2008, together with any other financial statements furnished to the Lenders,
are complete and correct in all material respects and present fairly in accordance with GAAP the
financial position of Parent Borrower and its Subsidiaries on a Consolidated basis on and as at
such dates and the results of operations for the periods then ended (subject, in the case of
unaudited financial statements, to normal year-end adjustments). Neither Parent Borrower nor any
of its Subsidiaries has any material liabilities, contingent or otherwise, other than as disclosed
in the financial statements referred to in the preceding sentence and there are not now and not
anticipated any material unrealized losses of Parent Borrower or any of its Subsidiaries.



(b) The projections delivered to the Lenders pursuant to Section 5.1 above and Section 8.1
below are made in good faith, based on reasonable assumptions by the Parent Borrower.



Section 6.14 Fiscal Year. The fiscal year of each Borrower ends on December 31.


 


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Section 6.15 Title to Assets. Borrowers have good, legal and marketable title to, or
a valid leasehold interest in, all of the assets included on the last balance sheet previously
delivered
to the Lenders except for assets disposed of in the ordinary course of business or as
permitted hereby. Each of the Borrowers and their Subsidiaries has good, legal and marketable
title to, or a valid leasehold interest in, all of its assets included on the last balance sheet
previously delivered to the Lenders except for assets disposed of in the ordinary course of
business. None of such properties or assets is subject to any Liens, except for Permitted Liens.
No financing statement under the Uniform Commercial Code as in effect in any jurisdiction and no
other filing which names any Borrower or any of their Subsidiaries as debtor or which covers or
purports to cover any of the assets of any Borrower or any of their Subsidiaries is currently
effective and on file in any state or other jurisdiction; and neither any Borrower nor any of their
Subsidiaries have signed any such financing statement or filing or any security agreement
authorizing any secured party thereunder to file any such financing statement or filing except with
respect to Permitted Liens.



Section 6.16 Patents, Trademarks, Licenses and Franchises. Each Borrower and each of
its Foreign Subsidiaries hold or have the right to use all patents, trademarks, service marks,
trade names, copyrights, franchises, licenses and authorizations, governmental or otherwise,
necessary for the conduct of their business as now conducted, without any known material conflict
with the rights of others which could, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Change. As of the date hereof, Schedule 6.16 attached hereto
correctly lists all patents, trademarks and copyrights registered to the Loan Parties as well as
all material governmental licenses, authorizations and similar rights. Each license agreement
necessary to any Borrower’s or any of their Foreign Subsidiaries’ business, and under which any
Borrower or any of its Foreign Subsidiaries are the licensee is a valid and binding license
agreement, enforceable against the licensee and, to Borrowers knowledge, the licensor.



Section 6.17 Compliance with Law. Each Borrower and each of its Foreign Subsidiaries
are in material compliance with all Applicable Law.



Section 6.18 Compliance with ERISA.



(a) None of the Borrowers, their Subsidiaries, or their ERISA Affiliate thereof maintains or
contributes to any Plan, Multiemployer Plan or other employee benefit plan, except as disclosed on
Schedule 6.18 attached hereto.



(b) Each Plan which is intended to be qualified within the meaning of Section 401(a) of the
Code is the subject of a favorable determination by the Internal Revenue Service with respect to
all plan document qualification requirements for which the remedial amendment period under Section
401(b) of the Code has closed, any plan document amendments required by such determination letter
were made as and when required by such determination letter, and nothing has occurred, whether by
action or failure to act, since the date of such letter which would prevent any, such plan from
remaining so qualified. Each Borrower has furnished to the Agent a copy of the most recent
actuarial report for each Plan which is a defined benefit plan as defined in Section 3(35) of ERISA
and for any Plan that is a funded employee welfare benefit plan, and each such report is accurate
in all material respects.


 


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(c) Each Borrower, each of their Subsidiaries and their respective ERISA Affiliates have
operated each Plan in all material respects in compliance with the requirements of the Code and
ERISA and the terms of each Plan.



(d) Except as specifically disclosed on Schedule 6.18 attached hereto, (1) no Plan has
engaged in any transaction in connection with which any Borrower or any of its Subsidiaries or
ERISA Affiliates could be subject to either a civil penalty assessed pursuant to Section 502(i) of
ERISA or a tax penalty imposed pursuant to Section 4975 of the Code, (2) there is no Accumulated
Funding Deficiency with respect to any Plan, whether or not waived, or an unfulfilled obligation to
contribute to any Multiemployer Plan or withdrawal from any Multiemployer Plan, (3) no Plan has
been terminated under conditions which resulted, or could result in any liability to the PBGC, (4)
no liability to the PBGC has been or is expected by any Borrower to be incurred with respect to any
Plan by any Borrower or any of their Subsidiaries or ERISA Affiliates except for required premium
payments to the PBGC, (5) there has been no Reportable Event with respect to any Plan, and no event
or condition exists which presents a risk of termination of any Plan by the PBGC, (6) none of the
Borrowers or any of their Subsidiaries or any ERISA Affiliate have incurred or anticipate incurring
Withdrawal Liability with respect to any Multiemployer Plan, (7) no Multiemployer Plan is in
Reorganization, and neither any Borrower, any of their Subsidiaries, or any ERISA Affiliate
reasonably expects any Multiemployer Plan to be in Reorganization, (8) each Borrower and each of
their Subsidiaries and ERISA Affiliates have complied in all respects with the requirements of
COBRA and HIPAA, and no liability, and no circumstances exist pursuant to which any such liability
could reasonably be imposed on any Borrower, any of their Subsidiaries or any ERISA Affiliate under
Sections 4980B, 4980D or 5000 of the Code or Sections 409 and 502(1) of ERISA, (9) there are no
unfunded benefit liabilities “(as defined in Section 4001(a)(18) of ERISA) in respect of any Plan,
(10) there is no violation of the Code or ERISA with respect to the filing of applicable reports,
documents and notices regarding any Plan with the Secretary of Labor, the Secretary of the
Treasury, the PBGC or any other governmental entity or the furnishing of documents as required to
participants and/or beneficiaries, (11) there is no Plan providing for retiree health and/or life
insurance or other death benefits or any other “employee benefit welfare plan” (as defined in
Section 3(1) of ERISA) having unfunded liabilities; and (12) neither any Borrower, any of their
Subsidiaries nor any ERISA Affiliate are subject to the Early Warning Program of the PBGC (as
described in PBGC Technical Update 00-3) or have been contacted by the PBGC in connection with the
PBGC’s Early Warning Program; except for any event described in the foregoing clauses (1) through
(12) which could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.



(e) No liability (whether or not such liability is being litigated) has been asserted against
any Borrower, any of their Subsidiaries or any ERISA Affiliate in connection with any Plan or any
Multiemployer Plan by the PBGC other than for required premium payments to the PBGC, by a trustee
appointed pursuant to Section 4042(b) or (c) of ERISA, or by a sponsor or an agent of a sponsor of
a Multiemployer Plan, and no Lien has been attached and no Person has threatened to attach a Lien
on any property of any Borrower, any of their Subsidiaries or ERISA Affiliates as a result of
failure to comply with ERISA or as a result of the termination of any Plan.


 


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Section 6.19 Compliance with Regulations U and X. Neither any Borrower nor any of
their Foreign Subsidiaries are engaged principally or as one bf their important activities in the
business of using credit for the purpose of purchasing or carrying, any “margin security” or
“margin stock” as defined in Regulations U and X of the Board of Governors of the Federal Reserve
System.



Section 6.20 Investment Company Act. Neither any Borrower nor any of their Foreign
Subsidiaries are an “investment company” or a company “controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as amended.



Section 6.21 [Intentionally Omitted].



Section 6.22 Absence of Default. No event has occurred which constitutes a Default or
an Event of Default.



Section 6.23 Agreements with Affiliates. Except for the Management Agreement and
agreements or arrangements with Affiliates in which any Borrower or any of their Foreign
Subsidiaries provides services to such Affiliates or vice versa for fair consideration and which
are set forth on Schedule 6.23 attached hereto, neither any Borrower nor any of their
Foreign Subsidiaries have any contracts or written agreements or binding arrangements of any kind
with any Affiliate.



Section 6.24 No Burdensome Agreements; Material Agreements. Neither any Borrower nor
any of their Foreign Subsidiaries are parties to any agreement or instrument or subject to any
corporate or other restrictions which, assuming compliance by such Persons with the terms of such
agreements or instruments could, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Change. Schedule 6.24 hereto lists all material agreements as of the
date hereof (the “Material Agreements”) of each Borrower and each of their Foreign
Subsidiaries. Neither any Borrower nor any of their Foreign Subsidiaries are in material default
of any of the Material Agreements. Except where any Borrower or any of their Foreign Subsidiaries
have allowed a Material Agreement to terminate because such termination was in the best interests,
of such Borrower or such Foreign Subsidiary, each of the Material Agreements remains in full force
and effect.



Section 6.25 Solvency. After giving effect to the transactions contemplated by the
Loan Documents: (a) the property of each Loan Party, at a fair valuation, will exceed its debt; (b)
the capital of each Loan Party will not be unreasonably small to conduct its business; (c) each
Loan Party will not have incurred debts, or have intended to incur debts, beyond its ability to pay
such debts as they mature; and (d) the present fair salable value of the assets of each Loan Party
will be materially greater than the amount that will be required to pay its probable liabilities
(including debts) as they become absolute and matured. The representations set forth in the
preceding sentence are equally true of the Loan Parties on a Consolidated basis and of each
Subsidiary on a Consolidating basis. For purposes of this Section, “debt” means any liability on a
claim, and “claim” means (i) the right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, undisputed, legal,
equitable, secured or unsecured, or (ii) the right to an equitable remedy for breach of performance
if such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, undisputed,
secured or unsecured.


 


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Section 6.26 Taxes. All federal, state and other tax returns of each Borrower and
each of their Foreign Subsidiaries required by law to be filed have been duly filed and all
federal, state and other taxes, as applicable, including, without limitation, withholding taxes,
assessments and other governmental charges or levies required to be paid by such Borrower or
Foreign Subsidiary, which are due and payable, have been paid, provided that there shall
not be deemed to be a violation of this representation if any such tax is being diligently
contested in good faith by appropriate proceedings promptly initiated and diligently conducted and
for which adequate reserves shall have been set aside on the appropriate books, but only if no
foreclosure, distraint, sale or similar proceeding shall have been commenced. The charges,
accruals and reserves on the books of each Borrower and each of their Foreign Subsidiaries in
respect of taxes are adequate.



Section 6.27 Environmental Compliance. Except as could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change or as scheduled in
Schedule 6.27:



(a) None of the real property currently owned or occupied by any Borrower or any of their
Foreign Subsidiaries, and, to the best of the knowledge of such Persons after due inquiry (based
solely on a review of their internal records), none of the real property formerly owned or occupied
by any Borrower or any of their Foreign Subsidiaries, has ever been used by any Borrower or any of
their Foreign Subsidiaries during its or their ownership or occupancy, or, to the best of the
knowledge of such Persons after due inquiry (based solely on a review of their internal records),
by previous owners or occupiers to treat, produce, store, handle, transfer, process, transport,
dispose of or otherwise release any Hazardous Substances in violation of any Environmental Law.



(b) There is no condition which exists on the real property owned or occupied by any Borrower
or any of their Foreign Subsidiaries which requires Remedial Action and which was caused or
exacerbated by any Borrower or any of their Foreign Subsidiaries or, to the best of the knowledge
of such Persons after due inquiry (based solely on a review of their internal records), any other
Person.



(c) Neither any Borrower nor any of their Foreign Subsidiaries have been notified of, or have
actual knowledge of any notification having been filed with regard to, a Release or a threat of
Release on or into any real property currently or formerly owned or occupied by any Borrower or any
of their Foreign Subsidiaries.



(d) Neither any Borrower nor any of their Foreign Subsidiaries have received a summons,
citation, notice of violation, administrative order, directive, letter or other communication,
written or oral, from any governmental or quasi governmental authority concerning any Release or
threat of Release or need for Remedial Action.



(e) There is no “friable asbestos material” (as that term is defined in regulations under the
Federal Clean Air Act) which has not been encapsulated as required by Environmental Laws, in
accordance with accepted guidelines promulgated by the United States
Environmental Protection Agency, existing in or on any real property owned and/or in the
portion of any other property occupied by any Borrower or any of their Foreign Subsidiaries.


 


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(f) No equipment, for which any Borrower or any of their Foreign Subsidiaries is responsible,
containing polychlorinated biphenyls, including electrical transformers, is located on any real
property owned or occupied by any Borrower or any of their Foreign Subsidiaries in levels which
exceed those permitted by any governmental authorities with jurisdiction over such premises or
which are not properly labeled in accordance with Environmental Laws.



(g) There are no tanks on any real property owned or occupied by any Borrower or any of their
Foreign Subsidiaries that have been used for the storage of petroleum products or any other
substance or waste, nor, to the best of the knowledge of such Persons after due inquiry (based
solely on a review of their internal records), have any such tanks been located on such property at
any time.



Section 6.28 Labor Disputes and Acts of God. Neither the business nor the properties
of any Borrower or any of their Foreign 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) which could, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Change.



ARTICLE 7




FINANCIAL COVENANTS




Section 7.1 Financial Covenants. Each Borrower shall, and shall cause each of its,
Subsidiaries to, maintain compliance with the following financial covenants:



(a) Maximum Total Leverage Ratio. As of any fiscal quarter end, the Total Leverage
Ratio for the period of four (4) consecutive fiscal quarters ending on or prior to such date shall
not be greater than 3:25 to 1:00.



(b) Minimum Interest Coverage Ratio. As of any fiscal quarter end, the Interest
Coverage Ratio shall not be less than 2:50 to 1:00.



(c) Minimum Net Worth. As of any fiscal quarter end, the total amount of stockholders
equity of Parent Borrower and its Subsidiaries, on a consolidated basis, shall be not less than the
sum of:



(i) Fifty Million Dollars ($50,000,000); plus



(ii) an amount equal to 50% of the cumulative amount of Net Income (which shall not be reduced
by the amount of any net loss for any fiscal quarter) of Parent Borrower and its Subsidiaries, on a
consolidated basis, for the period commencing on January 1, 2008, and ending on the date of
determination; minus



(iii) the aggregate amount paid on or after the date hereof for stock repurchases permitted
under Section 9.4(a) hereof.



(d) Maximum Capital Expenditures. The aggregate amount of Capital Expenditures made
during any period of twelve (12) calendar months shall not exceed Seven Million Dollars
($7,000,000), without cumulation or carryover, which amount shall not include any amounts used for
Permitted Acquisitions.


 


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Section 7.2 Calculations. Calculations made pursuant to Section 7.1 shall give
effect, on a pro forma basis, to all Acquisitions and dispositions made during the period to which
the required compliance relates (the “Applicable Period”), as if such Acquisition or
disposition had been consummated on the first day of the applicable period such that (a) the
results of operations of the assets or entities acquired or disposed of are included or excluded,
as applicable, and (b) any Indebtedness assumed or incurred of paid off in connection with such
Acquisition or disposition is included or excluded, as applicable, on a pro forma basis from the
first day of the Applicable Period.



ARTICLE 8




COVENANTS CONCERNING REPORTING REQUIREMENTS




Section 8.1 Financial Statements. So long as any of the Obligations is unpaid or any
Lender has any commitment to make Loans hereunder, the Parent Borrower shall, from time to time,
furnish (or cause to be furnished, as the case may be) to the Lenders the following information:



(a) Annual Financial Statements. As soon as available and in any event within one
hundred and five (105) calendar days after the end of each of each fiscal year of the Parent
Borrower, but no later than the date upon which the Parent Borrower’s annual report on Form 10-K is
to be filed with the Securities and Exchange Commission, the Parent Borrower shall deliver to the
Lenders audited Consolidated financial statements, together with any notes thereto of the Parent
Borrower and its Subsidiaries, consisting of a balance sheet as at the end of such fiscal year and
related statements of income, cash flows, and Changes in retained earnings for the fiscal year then
ended, all in reasonable detail and setting forth in comparative form the respective consolidated
financial statements as at the end of and for the preceding fiscal year, prepared in accordance
with GAAP and Unqualifiedly Certified by independent certified public accountants of nationally
recognized standing satisfactory to the Majority Lenders. The Parent Borrower shall also deliver a
letter signed by such accountants stating that, having conducted an ordinary and customary
examination of the affairs of the Parent Borrower in connection with the preparation of the
respective Consolidated financial statements, they are not aware of the existence of any condition
or event which constitutes a Default or an Event of Default hereunder, and, promptly upon receipt,
a copy of any management letter.



(b) Quarterly Financial Statements. As soon as available and in any event within
fifty (50) calendar days after the end of each of the first three fiscal quarters in each fiscal
year of the Parent Borrower, the Parent Borrower shall deliver to the Lenders Consolidated
financial statements of the Parent Borrower and its Subsidiaries, consisting of a balance sheet as
at the end of such fiscal quarter and related statements of income, cash flows, and changes in
retained earnings for the fiscal quarter then ended and the fiscal year through that date, all in
reasonable detail and setting forth in comparative form the respective Consolidated financial
statements of the corresponding date and period in the previous fiscal year and certified (subject
to normal year-end audit adjustments) by the President or chief financial officer of the Parent
Borrower as (i) having been prepared in accordance with GAAP and (ii) presenting fairly the
financial position of the Parent Borrower and its Subsidiaries as at the end of each fiscal
quarter.


 


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(c) Subsidiary Financial Statements. At the same time as the financial statements
delivered under subsections (a) and (b) above, a balance sheet, statement of income and statement
of cash flows for each Subsidiary of the Parent Borrower in form reasonably satisfactory to the
Agent.



(d) Business Plan. As soon as available and in any event within ninety (90) calendar
days after the end of each fiscal year, the Parent Borrower shall deliver to the Lenders the annual
Business Plan for such year on a quarter by quarter basis. Such Business Plan shall be accompanied
by a certification of the President or Chief Financial Officer of the Parent Borrower that such
Business Plan is reasonable, made in good faith, consistent with the Loan Documents, and represents
the Parent Borrower’s best judgment bas to such matters.



Section 8.2 Officer’s Compliance Certificates. As soon as available and in any event
within fifty (50) calendar days after the end of each of the first three fiscal quarters, and
within one hundred and five (105) calendar days after the end of each fiscal year, but no later
than the date upon which the Parent Borrower’s annual report on Form 10-K is to be filed with the
Securities and Exchange Commission, the Parent Borrower shall deliver to the Lenders a certificate
of the President or Chief Financial Officer of the Parent Borrower, in substantially the form of
Exhibit D attached hereto, containing the following information:



(a) a statement that no Default or Event of Default exists and is continuing on the date of
such certificate; and



(b) calculations in sufficient detail to demonstrate compliance as of the date of the relevant
financial statements with all of the financial covenants contained in Article 7 (Financial
Covenants) hereof.



Section 8.3 Auditors Reports. Promptly upon receipt, the Parent Borrower shall
deliver to the Lenders copies of all financial reports or written recommendations, if any,
submitted to the Parent Borrower or any of its Subsidiaries by its auditors in connection with each
annual or interim auditor examination of its books by such auditors.



Section 8.4 Notice of Default. Promptly after any officer of any Borrower has learned
of the occurrence of a Default or an Event of Default, the Parent Borrower shall deliver to the
Agent, the Issuer and the Lenders a notice of such Default or Event of Default. Each such notice
pursuant to this Section shall set forth details of the matter referred to therein and state what
action the Parent Borrower or the affected Subsidiary has taken, is taking and proposes to take,
with respect thereto, and shall be certified by the President or Chief Financial Officer of the
Parent Borrower as true and correct in all material respects.


 


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Section 8.5 Notice Concerning Representations and Warranties. Each Borrower shall
give the Agent notice of any changes in facts or circumstances on which the representations and
warranties set forth in this Agreement are made which makes such representations and warranties
false or misleading in any material respect. Such notice shall be given promptly, but in any event
not later than ten (10) days after any officer of any Borrower becomes aware of its occurrence.
Except as set forth in the proviso to Section 5.3, the delivery of such a notice shall not imply
any waive by the Lenders.



Section 8.6 Notice of Litigation. Promptly after the commencement thereof, but in any
event not later than ten (10) days after any officer or director of any Borrower becomes aware
thereof, the Parent Borrower shall deliver to the Agent notice of any actions, suits, and
proceedings before any court or governmental department, commission, board, bureau, agency, or
instrumentality, domestic or foreign, affecting any Borrower or any of their Subsidiaries in which
the amount involved is $250,000 or more or, which, if not solely for monetary damages, could,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.



Section 8.7 SEC Disclosure. Promptly after the sending or filing thereof, the Parent
Borrower shall deliver to the Agent and the Lenders copies of all proxy statements, financial
statements, and reports which the Parent Borrower or any Subsidiary sends to its shareholders, and
copies of all regular, periodic, and special reports, and all registration statements which the
Parent Borrower or any Subsidiary files with the Securities and Exchange Commission (or any
governmental authority which may be substituted therefor or with any national securities exchange
or regulatory body thereof.



Section 8.8  Conditions Affecting Collateral. Each Borrower shall give the Agent at
least thirty (30) days prior written notice of any of the following conditions: (a) the opening or
acquisition of a new facility or office; (b) a change in the jurisdiction of incorporation of any
Borrower or any Subsidiary of a Borrower; (c) any creation or acquisition of a Subsidiary; (d)
acquisition of any material amount of property by such Borrower or any Subsidiary not subject to a
valid and perfected Lien pursuant to the then existing Loan Documents with the priority required by
the Loan Documents; or (e) or any change of domicile or change of name or any change of address of
the chief executive office of any Loan Party.



Section 8.9 ERISA Notices. (a) Promptly after the filing or receiving thereof, each
Borrower shall deliver to the Agent copies of all reports and notices, including annual reports and
audited financial statements, which any Borrower or any Subsidiary or any ERISA Affiliate files
with or receives from PBGC, the U.S. Department of Labor under ERISA, or the Internal Revenue
Service, (b) as soon as possible and in any event within ten (10) business days after any Borrower
or any Subsidiary or any ERISA Affiliate knows or has reason to know that (i) any Reportable Event
has occurred or is reasonably expected to occur with respect to any Plan, (ii) that the PBGC or any
Borrower or any Subsidiary, or any ERISA Affiliate has instituted or will institute proceedings
under Title IV of ERISA to terminate any Plan, (iii) that any Withdrawal Liability from a
Multiemployer Plan has been or will be incurred by any Borrower or any of its Subsidiaries or any
ERISA Affiliate, (iv) that any Multiemployer Plan is or will be in Reorganization terminated,
partitioned or declared insolvent, (v) an Accumulated Funding Deficiency has



 


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been incurred or an
application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard or an extension of any
amortization period under Section 412 of the Code with respect to a Plan, (vi) an action has been
instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Multiemployer
Plan, (vii) any event, transaction, or condition has, occurred or will occur that could reasonably
be expected to result in the imposition of a lien under Part 3 of Subtitle B of Title I of ERISA or
Title IV of ERISA, (viii) any Prohibited Transaction or other transaction, event or condition has
occurred or will occur with respect to a Plan that could reasonably be expected to result in any
Borrower, any of its Subsidiaries or any ERISA Affiliate incurring a material liability or becoming
subject to a material penalty or excise tax, or (ix) the PBGC has contacted any Borrower, any of
its Subsidiaries or any ERISA Affiliate with respect to the PBGC’s Early Warning Program, each
Borrower shall deliver to the Agent a certificate of the chief financial officer of such Borrower
setting forth, details as to such event, transaction or condition and the action such Borrower has
taken, is taking or proposes to take with respect thereto, in either case, which respects an event,
transaction or condition which could, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Change.



Section 8.10 Environmental Matters. Promptly upon receipt, but no later than five (5)
Business Days following receipt thereof, the Borrowers shall provide written notice to the Agent of
(a) receipt of any written notice or demand from the State of New Jersey, the United States or
other Governmental Authority, which asserts against any Borrower liability or the potential for
liability for damages to any natural resource under the New Jersey Spill Compensation and Control
Act, as amended, N.J.S.A. 58:10-23.11 et seq., the federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., or other
Environmental Law, which, in any case, are, or could reasonably be expected to be, for amounts
equal to or greater than One Million Dollars ($1,000,000), or (b) any settlement of or accrual for
any environmental liability or liabilities in an amount equal to or greater than One Million
Dollars ($1,000,000).



Section 8.11 Miscellaneous. With reasonable promptness, each Borrower shall give to
the Agent and the Lenders such other information respecting the business operations and financial
condition of such Borrower or any of its Subsidiaries as the Agent may, from time to time, request,
including, without limitation, any change in management and any application or other filing made
with regard to any intellectual property.



Section 8.12 Authorization of Third Parties to Deliver Information. Each Borrower
hereby agrees that any opinion, report or other information delivered to the Agent or the Lenders
pursuant to the Loan Documents is hereby deemed to have been authorized and directed by the
Borrowers to be delivered for the benefit, and reliance thereupon, of the Agent and the Lenders.



 


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ARTICLE 9




BUSINESS COVENANTS




So long as any of the Obligations is unpaid or any of the Lenders has any commitment to make
Loans hereunder, the Borrowers shall, and shall cause each of their Subsidiaries to, comply with
the following covenants.



Section 9.1 Indebtedness.



(a) Each Borrower shall not, and shall not permit any of its Foreign Subsidiaries to, directly
or indirectly, create, assume, incur, on otherwise become or remain obligated in respect of, or
permit to be outstanding, any Indebtedness, except:



(i) Indebtedness consisting of Obligations;



(ii) obligations in an aggregate principal amount not to exceed at any time Two Million Five
Hundred Thousand Dollars ($2,500,000) in respect of Capital Lease Obligations and purchase money
Indebtedness in respect of equipment;



(iii) Indebtedness among Borrowers;



(iv) Indebtedness outstanding on the date hereof as set forth on Schedule 9.1 and
refinancings thereof;



(v) obligations (contingent or otherwise) existing or arising under any Swap Contract,
provided that (i) such obligations are (or were) entered into by such Person in the ordinary course
of business for the purpose of directly mitigating risks associated with fluctuations in interest
rates or foreign exchange rates and (ii) such Swap Contract does not contain any provision
exonerating the non-defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party; and



(vi) Other Indebtedness not described in clauses (i)-(v) above in an amount not to exceed Two
Million Five Hundred Thousand Dollars ($2,500,000).



(b) In addition to the limitations on the incurrence or existence of Indebtedness referred to
above, no Indebtedness may be incurred by any Borrower or any of its Foreign Subsidiaries unless
immediately before and after giving effect to the incurrence of such Indebtedness, no Default or
Event of Default shall have occurred and be continuing.



(c) Each Borrower shall not, and shall not permit any of its Foreign Subsidiaries to, directly
or indirectly, (i) pay, make or set aside any amount for payment of the Indebtedness set forth in
clauses (i)-(v) of Section 9.1(a) above (collectively, “Permitted Indebtedness”), except
for regularly scheduled payments required by the provisions of any agreements governing Permitted
Indebtedness, or (ii) amend or otherwise modify the terms of any agreements governing Permitted
Indebtedness.



Section 9.2 Liens.



(a) Each Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, create, assume, incur or permit to exist, any Lien on any of its properties or assets,
whether now owned or hereafter acquired, except the following (collectively, the “Permitted
Liens”):



(i) Liens in favor of the Agent, for the benefit of the Secured Parties, arising out of the
Collateral Documents;


 


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(ii) Liens for taxes, assessments or other governmental charges the payment of which is not at
the time required to be paid pursuant to Section 9.14, not yet subject to penalty or which are
being contested in good faith and by appropriate proceedings, if adequate reserves with respect
thereto are maintained or the books of the Borrowers in accordance with GAAP;



(iii) statutory Liens of bankers, carriers, landlords, warehousemen, mechanics, laborers and
materialmen incurred in the ordinary course of business for sums not yet due, or which are being
contested in good faith and by appropriate proceedings and adequate reserves with respect thereto
are maintained on the books of the Borrowers in accordance with GAAP;



(iv) Capital Leases and purchase money security interests incurred in compliance with clause
(a)(ii) of Section 9.1 above, provided, that no such Liens shall extend to or cover any
property other than the leased property or equipment purchased by proceeds of such permitted
purchase money Indebtedness;



(v) zoning restrictions, easements, rights-of-way, minor restrictions and other similar
encumbrances on real property, in each case incidental to, and not interfering with, the ordinary
conduct of the business of such Person;



(vi) Liens incurred or deposits made in the ordinary course of business to secure the
obligations of each Borrower and each Foreign Subsidiary under workers compensation, unemployment
insurance and other types of social security legislation or otherwise to secure statutory or
regulatory obligations or for the payment of rent of each Borrower or any of their Foreign
Subsidiaries in the ordinary course of business consistent with past practice, including to secure
the performance of tenders, surety and appeal bonds, performance bonds, performance of bids,
leases, trade contracts, governmental contracts, operating leases, performance and return-of-money
bonds and other similar obligations (exclusive in each case of obligations for the payment of
borrowed money); provided, that the obligations in connection with which such Liens were
incurred or deposits made shall have been incurred in the ordinary course of business and shall
otherwise be permitted by this Agreement;



(vii) Judgment Liens not giving rise to an Event of Default so long as any such Lien is
adequately bonded and any appropriate legal proceedings which may have been duly initiated for the
review of such judgment shall not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired;



(viii) Liens securing Indebtedness, or Liens on shares of capital stock, of a Person existing
at the time such Person becomes a Subsidiary or is merged with or into any Borrower or any of its
Foreign Subsidiaries pursuant to a Permitted Acquisition or any Lien securing Indebtedness incurred
in connection with a Permitted Acquisition, provided that (A) such Liens were in existence prior to
the date of such Permitted Acquisition, were not incurred in anticipation thereof, and do not
extend to any other assets; and (B) do not exceed One Million Dollars ($1,000,000) in the
aggregate;



(ix) licenses, leases or subleases granted to other Persons in the ordinary course of business
not materially interfering with the conduct of the business of any
Borrower or any of their Foreign Subsidiaries or materially detracting from the value of the
assets of any Borrower or any of their Foreign Subsidiaries; and


 


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(x) Liens disclosed on the title reports delivered to Agent on the date hereof or listed on
Schedule 9.2, provided that such Liens do not extend to assets or secure liabilities in
addition to those existing on the date hereof.



(b) Each Borrower shall not, and shall not permit any of its Foreign Subsidiaries to, agree
with any Person to restrict or place limitations on the right of any Borrower or any of its Foreign
Subsidiaries to create, incur, assume or permit to exist any Lien on or with respect to any
property or asset of any Borrower or any of its Foreign Subsidiaries, other than the lessor as to a
Capital Lease or the secured party as to a purchase money security interest, as long as the
restriction applies only to the specific equipment involved.



(c) Each Borrower shall not, and shall not permit any of its Foreign Subsidiaries to, license
or sublicense any of their owned or licensed Intellectual Property or general intangibles except to
any Subsidiary and in the ordinary course of business consistent with past practice as described on
Schedule 9.2.



Section 9.3 Investments and Acquisitions. Each Borrower shall not, and shall not
permit any Foreign Subsidiary to, directly or indirectly, make or permit to exist any Investment or
make any Acquisition, except that so long as no Default or Event of Default then exists or would be
caused thereby, any Borrower and any of its Foreign Subsidiaries may:



(a) maintain existing Investments in direct or indirect wholly-owned Subsidiaries;



(b) create new direct or indirect wholly-owned Subsidiaries, subject to the provisions of
Section 9.27;



(c) make Investments in Cash Equivalents;



(d) make Investments in securities of trade creditors, customers or any debtor of any Borrower
or any of its Subsidiaries received in compromise of obligations incurred in the ordinary course of
business, including pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors, customers or debtors and any Investments received
in satisfaction of judgments;



(e) make loans or advances to employees, directors, officers or consultants of any Borrower or
any of its Subsidiaries of the types consistent with past practice in an aggregate amount at any
time outstanding not to exceed Five Hundred Thousand Dollars ($500,000);



(f) make payroll, travel and similar advances to cover matters that are expected at the time
of the advances ultimately to be treated as expenses for accounting purposes and that are made in
the ordinary course of business and consistent with past practice;


 


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(g) make Investments in any Person to the extent such Investments consist of prepaid expenses,
negotiable instruments held for collection and lease, utility and workers compensation, performance
and other similar deposits made in the ordinary course of business and consistent with past
practice;



(h) make Permitted Acquisitions and Investments in Foreign Subsidiaries, so long as the
aggregate consideration (including the assumption of any Indebtedness in connection therewith if
the incurrence of such Indebtedness has been approved by the Required Lenders) to be paid for any
such Permitted Acquisitions, together with any such Investments in Foreign Subsidiaries and any
Restricted Payments made in accordance with Section 9.4(a) below (i) shall not exceed Twenty
Million Dollars ($20,000,000) for the period of four consecutive fiscal quarters ending on or
immediately prior to the date of any such Acquisition, Investment or Restricted Payment, or (ii)
when taken together with the total consideration paid for all other of such Acquisitions,
Investments and Restricted Payments effected at any time after the date hereof, does not exceed
Forty-Five Million Dollars ($45,000,000); and



(i) Investments by the Borrowers in Swap Contracts permitted under Section 9.1(a)(iv).



Section 9.4 Restricted Payments. Each Borrower shall not, and shall not permit any of
its Foreign Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum
or property for any Restricted Payment or agree with any Person to restrict or place limitations on
the right of each Borrower or any of its Foreign Subsidiaries to declare, order, pay, make or set
apart any sum or property for any Restricted Payment, except that:



(a) the Parent Borrower may, subject to compliance with 9.3(h), purchase its registered
capital stock then issued and outstanding;



(b) Subsidiaries may make Restricted Payments to the Borrowers or another Subsidiary of the
Borrowers which is not a Foreign Subsidiary;



(c) so long as no Default or Event of Default shall have occurred and be continuing, the
payment of cash dividends to Parent Borrower to the extent applied by Parent Borrower to
repurchase, redeem or otherwise retire or acquire equity or other ownership interests of Parent
Borrower from its employees or directors (or their heirs or estates) or employees or directors (or
their heirs or estates) of Parent Borrower or its Subsidiaries, in each case, pursuant to the terms
of any stockholders agreement, employment agreement, severance agreement, employee stock option
agreement or similar agreement in accordance with the provisions of any such arrangement as in
effect on the date hereof, in an Aggregate amount pursuant to this paragraph (b) to all such
employees or directors (or their heirs or estates) not to exceed $500,000 per fiscal year;


 


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(d) the payment of cash dividends to Parent Borrower (i) to the extent applied by Parent
Borrower to pay reasonable and customary directors fees payable to, and indemnity provided on
behalf of, the Board of Directors of Parent Borrower, indemnity provided on behalf of officers and
employees of Parent Borrower and customary reimbursement of travel and similar expenses incurred in
the ordinary course of business (without giving effect to any
amendment or supplement thereto or modification thereof), (ii) in an aggregate not to exceed
$250,000 per fiscal year, to the extent applied by Parent Borrower to pay its general
administrative expenses, including, without limitation, in respect of director fees and expenses,
administrative, legal and accounting services, or (iii) solely to enable Parent Borrower to make
payments in cash to holders of its capital stock in lieu of the issuance of fractional shares of
its capital stock in an aggregate amount not to exceed $200,000; and



(e) Payments may be made pursuant to the Management Agreement.



Section 9.5 Affiliate Transactions.



(a) Each Borrower shall not, and shall not permit any of its Foreign Subsidiaries to, directly
or indirectly, engage in any transaction with an Affiliate, or make an assignment or other transfer
of any of its properties or assets: to any Affiliate on terms that are less favorable to such
Borrower or such Foreign Subsidiary than those which might be obtained at the time from
unaffiliated third parties; provided, however, the foregoing restrictions shall not
apply to transactions exclusively among the Borrowers.



(b) Each Borrower shall not, and shall not permit any of its Foreign Subsidiaries to, (i)
enter into any management agreement with any Person (other than the Management Agreement as in
effect on the date hereof) that gives such Person the right to manage its business except for usual
and customary employment agreements and consulting agreements consistent with past practice, (ii)
directly or indirectly pay or accrue to any Person any sum or property for fees for management or
similar services rendered in connection with the operation of a business except as set forth in
clause (i) above, except for payment under and pursuant to the Management Agreement of not more
than $475,000 in annual management fees, (iii) amend the Management Agreement without the Agent’s
prior written consent, except to permit (A) an annual bonus of up to $250,000, if approved in
advance by the Board of Directors and the Compensation Committee of Parent Borrower or (B)
reductions in compensation, or (iv) make any payments under the Management Agreement unless Steel
maintains material involvement in the management of Parent Borrower.



Section 9.6 Disposition of Assets. Each Borrower shall not, and shall not permit any
of its Foreign Subsidiaries to, directly or indirectly, sell, assign, lease, abandon, or otherwise
transfer or dispose of any of their assets (including, without limitation, shares of stock and
indebtedness of Subsidiaries, receivables, and leasehold interests), except:



(a) inventory disposed of in the ordinary course of its business as presently conducted;



(b) the sale or other disposition of assets no longer used or useful in the conduct of its
business;



(c) that any Foreign Subsidiary may assign or otherwise transfer its assets to any Borrower;
or



(d) property subject to a governmental condemnation.


 


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Section 9.7 Liquidation or Merger. Each Borrower shall not, and shall not permit any
of its Foreign Subsidiaries to, liquidate or dissolve itself (or suffer any liquidation or
dissolution) or otherwise wind up, or enter into any merger or consolidation or division or similar
transaction, other than:



(a) a merger or consolidation between any two or more Borrowers;



(b) a merger or consolidation between or among two or more Foreign Subsidiaries;



(c) a merger or consolidation in connection with a Permitted Acquisition, so long as the
surviving Person, upon completion of such merger or consolidation, is a Borrower; or



(d) the liquidation and dissolution of a non-operating Subsidiary or a Subsidiary having book
assets not in excess of $100,000.00.



Section 9.8 Change in Organizational Documents. Each Borrower shall not, and shall
not permit any Foreign Subsidiary to, amend or otherwise modify, the respective articles or
certificate of incorporation, bylaws or other organizational documents of such Person, except in
connection with a merger permitted by Section 9.7 above.



Section 9.9 Issuance of Equity. Each Borrower shall not, and shall not permit any of
its Foreign Subsidiaries to, issue, authorize the issuance of, or obligate itself to issue any
shares of its capital stock or other equity (including, without limitation, any options, warrants
or other rights in respect thereof) to any Person that (a) would contravene any other provision of
this Agreement (including any provision respecting Change of Control) or (b) would result in there
being equity of any Subsidiary of any Borrower (other than directors’ qualifying shares) that is
not pledged pursuant to the Security Agreement (to the extent required to be pledged thereunder).



Section 9.10 Environmental Violations. Each Borrower shall not, and shall not permit
any of its Foreign Subsidiaries to, or permit any Person to, use, generate, treat, store, dispose
of or otherwise introduce, any Hazardous Materials into or on any real property owned or leased by
any of them and shall not permit such actions to occur, except in an environmentally safe manner
through methods which have been approved by and meet all of the standards of the federal
Environmental Protection Agency and any other federal, state or local agency with authority to
enforce Environmental Laws except where the failure to comply with the foregoing sentence could,
not, individually or in the aggregate, reasonably be expected to result in either (a) a Material
Adverse Change or (b) liabilities to the Borrowers in excess of Ten Million Dollars ($10,000,000).
Without limiting the generality of any other indemnities provided under this Agreement, each
Borrower hereby agrees to indemnify, reimburse, defend and hold harmless any Indemnified Person
for, from and against all, demands, liabilities, damages, costs, claims, suits, actions, legal or
administrative proceedings, interest, losses, expenses and reasonable attorney’s fees (including
any such fees and expenses incurred in enforcing this indemnity) asserted against, imposed on or
incurred by any of the Indemnified Persons, directly or indirectly, pursuant to, or in connection
with, the application of any Environmental Law to acts or omissions occurring at any time on or in
connection with any real estate owned or leased by any Borrower or any of its
Foreign Subsidiaries or any business conducted thereon except those which result from the
gross negligence or willful misconduct of any Indemnified Person.


 


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Section 9.11 Preservation of Existence, Etc. Except as permitted by Section 9.7, each
Borrower shall at all times preserve and keep in full force and effect (a) its corporate, company,
partnership or other existence and (b) the corporate, company, partnership or other existence of
each Foreign Subsidiary and (c) the good standing of such Persons in all states or jurisdictions in
which they are formed or required to qualify to do business, except, as to qualification only,
where the failure to keep in full force and effect any such good standing could not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Change.



Section 9.12 Permitted Businesses. Each Borrower shall, and shall cause each of its
Foreign Subsidiaries to engage in the businesses permitted under Section 6.8 and no other business.



Section 9.13 Compliance with Law. Each Borrower shall, and shall cause each of its
Foreign Subsidiaries to, comply with the requirements of all Applicable Law and will obtain or
maintain all franchises, permits, licenses and other governmental authorizations and approvals
necessary to the ownership, acquisition or disposition of their respective properties or to the
conduct of their respective businesses, except where failure to comply with, obtain or maintain any
of the foregoing could not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Change.



Section 9.14 Payment of Taxes and Claims. Each Borrower shall, and shall cause each
of its Foreign Subsidiaries to, timely file all tax and information returns required by federal,
state, local and foreign tax authorities. Each Borrower shall, and shall cause each of its Foreign
Subsidiaries to, pay all taxes (including, without limitation, withholding taxes), assessments and
governmental charges or levies required to be paid by it or imposed on it or on its income or
profits or upon any of its properties or assets, prior to the date on which penalties (or additions
to tax) attach thereto or interest accrues and all claims for (including, without limitation,
claims for labor, services, materials and supplies) for sums which have become due and payable and
which, if unpaid, might become a Lien upon its properties or assets; provided that it shall
not be deemed to be a violation of this covenant if any such charge or claim not paid is being
diligently contested in good faith by appropriate proceedings promptly initiated and diligently
conducted and for which adequate reserves shall have been set aside on the appropriate books, but
only so long as no foreclosure, distraint, sale or similar proceeding shall have been commenced.



Section 9.15 Tax Consolidation. Each Borrower shall not file or consent to or permit
the filing of any consolidated income tax return on behalf of it or any Subsidiary with any Person
(other than a consolidated return for the group of which Parent Borrower is the common parent).
Each Borrower shall not, and shall not permit any Subsidiary to, enter into any agreement with any
Person which would cause such Borrower or such Subsidiary to bear more than the amount of taxes to
which it would have been subject had it separately filed (or filed as part of a consolidated return
among the Parent Borrower’s Subsidiaries).


 


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Section 9.16 Maintenance of Properties. Each Borrower shall, and shall cause each of
its Foreign Subsidiaries to, maintain or, cause to be maintained in good repair, working order and
condition (ordinary wear and tear excepted) all properties used or useful in its business
(whether owned or leased), such maintenance to include, without limitation, repair, renewal,
replacement or improvement thereto; and keep, and cause each Subsidiary to, keep, all systems and
equipment which may now or in the future be subject to compliance with any standard or rules
imposed by any Governmental Authority in compliance in all material respects with such standards or
rules. Each Borrower shall, and shall cause each of its Foreign Subsidiaries to maintain, preserve
and protect, and, when necessary, renew, all franchises, licenses, patents, copyrights, permits,
service marks, trademarks and trade names and other general intangibles held by any of them and all
agreements to which any of them are parties which are necessary to conduct such Borrower’s or any
applicable Subsidiary’s business.



Section 9.17 Insurance.



(a) Each Borrower shall, and shall cause each of its Foreign Subsidiaries to, maintain or
cause to be maintained with financially sound and reputable insurers, insurance with respect to the
properties and business of such Borrower or any such Foreign Subsidiary against loss or damage of
the kinds and in the amounts reasonably prudent for the operation of its business and including
such risks as are customarily insured against by entities of established reputation having similar
properties similarly situated or engaged in the same or similar type of businesses. Each Borrower
and each of its Foreign Subsidiaries shall cause each insurance policy issued in connection
herewith to provide, and the insurer issuing such policy to certify to the Agent that (i) the Agent
will be named as additional insured and lender loss payee or mortgagee, as appropriate, under each
such insurance policy; (ii) if such insurance be proposed to be cancelled or materially changed for
any reason whatsoever, such insurer will promptly notify the Agent and such cancellation or change
shall not be effective as to the Agent for at least thirty (30) days after receipt by the Agent of
such notice, unless the effect of such change is to extend or increase coverage under the policy;
and (iii) the Agent will have the right (but no obligation) at its election to remedy any default
in the payment of premiums within thirty (30) days of notice from the insurer of such default.



(b) If no Default or Event of Default exists, loss payments will be applied by each Borrower
or the relevant Subsidiary to the repair and/or replacement of property with respect to which the
loss was incurred to the extent reasonably feasible, and any loss payments or the balance thereof
remaining, to the extent not so applied or used to purchase other assets useful in the business of
each such Borrower and each such Subsidiary within 360 days of receipt thereof and subject to the
Liens of the Agent hereunder, shall be payable to the Agent on behalf of the Lenders and applied to
the Obligations. If an Event of Default or Default shall then exist then such proceeds shall, at
the option of the Agent, be applied to reduce the Obligations, and at the Agent’s election the
Commitment shall be permanently reduced, or be reinvested in the business of such Borrower or
applicable Subsidiary. Notwithstanding the foregoing, payments received by the Agent in excess of
all Obligations shall be paid over by the Agent to the Borrowers. Copies of such policies or the
related certificates, in each case, naming the Agent as additional insured and lender loss payee or
mortgagee, as appropriate, shall be delivered to the Agent annually at the time of the delivery of
the financial statements referred to in Section 8.1(a) above and at the time any new policy of
insurance is issued. If no Default or Event of Default exists, no claim may be adjusted without
the consent of the Borrowers.



(c) Each Borrower shall maintain or cause to be maintained all insurance available through the
PBGC and/or insurers acceptable to the Agent against their obligations and the obligations of any
of its Foreign Subsidiaries to the PBGC.


 


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Section 9.18 Compliance with ERISA.



(a) Each Borrower shall, and shall cause each of its Subsidiaries and any ERISA Affiliates to
comply in all material respects with the requirements of the Code and ERISA with respect to the
operation of all Plans and Multiemployer Plans.



(b) Each Borrower shall, and shall cause each of its Subsidiaries and any ERISA Affiliates to,
comply in all material respects with the requirements of COBRA, HIPAA and Section 1862(b) of the
Social Security Act with respect to any Plans subject to the requirements thereof.



(c) Each Borrower shall not take, and shall prevent each of its Subsidiaries and any ERISA
Affiliate from taking, any of the following actions and shall not permit any of the following
events to occur if such action or event together with all other such actions or events, would
subject any Borrower, any of its Subsidiaries or any of its ERISA Affiliates to any tax, penalty,
or other liabilities which could, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Change:



(i) engage in or knowingly consent to any “party in interest” or any “disqualified person,” as
such terms are defined in Section 3(14) of ERISA and Section 4975(e)(2) of the Code respectively,
engaging in any Prohibited Transaction in connection with which any Borrower, any of its
Subsidiaries or any ERISA Affiliate could be subject to either a civil penalty assessed pursuant to
Section 502(i) of ERISA or a tax imposed by Section 4975 of the Code;



(ii) terminate any Plan in a manner, or take any other action, which could result in any
liability of any Borrower, any of its Subsidiaries or any ERISA Affiliate to the PBGC;



(iii) fail to make full payment when due of all amounts which, under the provisions of any
Plan or any Multiemployer Plan, any Borrower, any of its Subsidiaries or any ERISA Affiliate is
required to pay as contributions thereto, or permit to exist any Accumulated Funding Deficiency,
whether or not waived; with respect to any Plan or fail to pay PBGC premiums when due;



(iv) permit the current value of all accrued benefits under all Plans which are subject to
Title IV of ERISA to exceed the current value of the assets of such Plans allocable to such vested
accrued benefits, except as may be permitted under actuarial funding standards adopted in
accordance with Section 412 of the Code;



(v) withdraw from any Multiemployer Plan, if such withdrawal would result in the imposition of
Withdrawal Liability; or



(vi) adopt a Plan amendment which results in significant underfunding (as defined in Section
307 of ERISA) which requires any Borrower or any of its Subsidiaries or ERISA Affiliates to provide
security.



(d) The Borrowers shall comply with the ERISA reporting requirements set forth in Section 8.9.



As used in this Section 9.18, the term “accrued benefit” has the meaning specified in Section 3(23)
of ERISA and the term “current value” has the meaning specified in Section 4001(a)(18)(B) of ERISA.



 


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Section 9.19 Maintenance of Records; Fiscal Year. Each Borrower shall, and shall
cause each of its Foreign Subsidiaries to, keep at all times books of record and account in which
entries will be made of all dealings or transactions in relation to its business and affairs as
required by GAAP. Each Borrower shall keep, and shall cause each of its Foreign Subsidiaries to
keep, its books of account and financial statements in accordance with GAAP and report on the basis
of a fiscal year ending December 31.



Section 9.20 Inspections and Field Examinations. Upon reasonable notice (and for this
purpose no more than two Business Days notice shall be required under any circumstances) if no
Event of Default or Default shall exist, or at any time with or without notice after the occurrence
of an Event of Default or Default, each Borrower shall, and shall cause each of its Foreign
Subsidiaries to, allow any representative of the Agent or any Lender to visit and inspect any of
the properties of such Borrower and any of its Foreign Subsidiaries, to examine the books of
account and other records and files of such Borrower and any of its Foreign Subsidiaries
(including, without limitation, the financial statements (audited and unaudited, to the extent
prepared) of each Subsidiary and information with respect to each business operated by such
Borrower and any of its Foreign Subsidiaries), to make copies thereof and to discuss the affairs,
business, finances and accounts of such Borrower and its Foreign Subsidiaries with its personnel
and accountants. The Agent or any Lender shall also be permitted to conduct field examinations at
Borrowers expense, not more than once a year if no Event of Default shall have occurred and be
continuing and without limitation if any Event of Default shall have occurred and be continuing.
The Agent and the Lenders inspections are solely for the protection of the Agent and the Lenders
and no action or inaction of the Agent or the Lenders shall constitute any representation by the
Agent or the Lenders that the Borrowers are in compliance with the terms of any Loan Documents or
that the Agent or the Lenders approve of the Borrowers affairs, business, finances or accounts.



Section 9.21 Exchange of Notes. Upon receipt of a written notice of loss, theft,
destruction or mutilation of a Note and of a letter of indemnity from the affected Lender or its
successors or assigns, and upon surrendering for cancellation such Note if mutilated (in which
event no indemnity shall be required), each Borrower shall execute and deliver a new Note of like
tenor in lieu of such lost, stolen, destroyed or mutilated Note, as the case may be.



Section 9.22 Compliance with Federal Reserve Regulations. The Loans shall not be
used, in whole or in part, for the purpose of purchasing or carrying any margin stock, secured
directly or indirectly by margin stock, within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System. Following application of the proceeds of each Loan,
not more than 25 percent of the value of the assets of any Borrower or the Borrowers and their
Subsidiaries on a Consolidated basis, which are subject to the provisions of Section 9.2(a) or
Section 9.6 or subject to any restriction contained in any agreement or instrument between any
Borrower and any Lender or any Affiliate of any Lender, is represented by margin stock. If
requested by the Agent or any Lender, each Borrower shall complete and sign Part I of a copy of the
Federal Reserve Form U-1 referred to in Regulation U of the Board of Governors of the Federal
Reserve System and deliver such copy to the Agent or such Lender. Neither any Borrower nor any of
its Foreign Subsidiaries, nor any bank acting on any of their behalf, have taken or will take any
action which might cause this Agreement or the Notes to violate Regulation U or X or any other
regulation of the Board of Governors of the Federal Reserve System, as now or hereafter in effect.


 


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Section 9.23 Limitations on Certain Restrictive Provisions. Each Borrower shall not,
and shall not permit any of its Foreign Subsidiaries to (a), permit or place any restriction,
directly or indirectly, on (i) the payment of dividends or distributions by any Subsidiary or (ii)
the making of advances or other cash payments by any such Subsidiary or (iii) the transfer by any
Subsidiary of any of its properties or assets, in each case to any Borrower or its Subsidiaries, or
(b) agree with any Person other than Agent and the Lenders that the Borrowers and/or their
Subsidiaries shall not amend the Loan Documents.



Section 9.24 Corporate Separateness. Each Borrower and each of its Foreign
Subsidiaries, on the one hand, shall conduct their business and operations separate from that of
each other and their Affiliates, on the other hand. Without limiting the generality of the
foregoing, each Borrower shall not, and shall not permit any of its Foreign Subsidiaries, to
commingle funds with any Person that is not a Borrower or a Subsidiary of a Borrower.



Section 9.25 Deposit and Securities Accounts. Each Borrower and its Foreign
Subsidiaries shall at all times maintain their primary demand, time and other deposit accounts with
the Agent or a Lender approved by the Agent in order to facilitate the making of the Loans and to
provide security for repayment of the Obligations, other than accounts with aggregate deposits of
less than $5,000 per Borrower or payroll accounts (subject to the limitations set forth in clause
(b) of the next sentence). Deposits and investments in securities accounts with financial
institutions, other than as provided above, shall at no time exceed an aggregate of $200,000,
provided that, (a) one account may be maintained in England, six accounts in China, and six
accounts in Mexico, with aggregate deposits in all such accounts to be limited to $300,000, and (b)
amounts in excess of the aggregate limits stated above may be deposited in employee payroll
accounts (whether domestic or foreign) on any particular day if such excess is paid as compensation
to employees within one day.



Section 9.26 Collateral; Lockbox.



(a) Without limiting the generality of the provisions of Section 9.28 below, at any time that
any Borrower or any of its Foreign Subsidiaries shall (i) acquire any property which would
constitute Collateral, whether real, personal or other and whether tangible or intangible, (ii)
change the location of any property which would constitute Collateral, (iii) transfer or otherwise
issues shares of capital stock, (iv) change its name, or (v) take any action that would cause the
Agent to fail to have a valid, perfected first priority security interest in all
the property of the Borrowers and the Foreign Subsidiaries and in all the equity or other
ownership interests of the Borrowers and the Foreign Subsidiaries, subject only to the exceptions
explicitly permitted under the terms of this Agreement and the Security Agreement, or at any time
any condition shall exist which results in such failure of the Agent to be so secured, then each
Borrower shall, and shall cause its Subsidiaries to, take such action as is necessary to provide
such security to the Agent, all at the expense of the Borrowers.


 


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(b) If any Borrower or any of its Foreign Subsidiaries elect at any time to maintain a lockbox
or any other mechanism for the direct deposit or collection of accounts receivable or from which
collected accounts receivable will be swept into another deposit account, such lockbox or mechanism
shall be maintained with Agent or with a Lender approved by the Agent, and no other Person, and it
shall be maintained pursuant to documentation reasonably satisfactory to Agent.



Section 9.27 Joinder of Subsidiaries. Without limiting the generality of the
provisions of Section 9.28, at any time that any Borrower or any of its Foreign Subsidiaries forms
or acquires any new Subsidiary (a “New Subsidiary”), which formation or acquisition shall
be effected only if no Default or Event of Default has occurred and is continuing, or would be
caused thereby, then the Borrowers shall, at the time of such formation or acquisition, deliver to
the Agent:



(a) a duly executed joinder in the form of Exhibit F, joining such party to the
applicable Loan Documents (either as a Borrower or a Guarantor);



(b) a perfection questionnaire duly completed by such New Subsidiary;



(c) the results of tax, judgments and other lien searches in form and substance satisfactory
to the Agent, and from such jurisdictions as may be satisfactory to the Agent, together with U.S.
Patent and Trademark Office and Copyright Office searches of a recent date, in each case, with
respect to such New Subsidiary, showing no Liens except Permitted Liens;



(d) Mortgages on all real property located in the United States owned by such New Subsidiary,
and environmental indemnity agreements with respect thereto;



(e) for each property subject to a Mortgage, (i) title insurance insuring the priority of the
Mortgage, (ii) zoning certification, (iii) a flood certification, and (iv) a survey, in each case
satisfactory to the Agent;



(f) any required governmental consents or other required consents to the execution, delivery
and performance of the Loan Documents, each of which shall be in form and substance satisfactory to
the Agent;



(g) a certificate of such New Subsidiary to which is attached each of the following certified
as such by a duly authorized officer of such New Subsidiary:



(i) a certificate of incumbency with respect to each Authorized Signatory thereof that signs
any Loan Documents;



(ii) a copy of the charter or other organizational documents of such New Subsidiary, certified
by the Secretary of State or similar state official of the jurisdiction of formation of such New
Subsidiary;


 


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(iii) a copy of the bylaws or other constituent documents of such New Subsidiary;



(iv) a certificate of good standing or subsistence, as the case may be, for such New
Subsidiary, issued as of a recent date by the Secretary of State or similar state official in the
jurisdiction of its organization and in each state in which such New Subsidiary is qualified to
transact business;



(v) a copy of the resolutions, duly adopted by the Board of Directors or other governing body
of such New Subsidiary, authorizing it to execute, deliver and perform each Loan Document to which
it is, or is to be, a party; and



(vi) a copy of any shareholders agreement or similar agreement respecting such New Subsidiary,
if any such agreement exists;



(h) at the request of the Agent, a legal opinion of counsel and special local counsel in such
states as may be reasonably requested by the Agent speaking to such matters as the Agent may
reasonably request; and



(i) such stock certificates and other documentation as shall be necessary or advisable to
perfect the pledge of the equity of the New Subsidiary in favor of the Agent;



provided that, if such New Subsidiary is a Foreign Subsidiary (A) the foregoing
agreements delivered by the New Subsidiary shall be modified to the extent necessary that income is
not recognized by one or more of the Borrowers due to the operation of Code Section 956(d), (B) the
Agent may waive delivery of one or more of the required items to the extent that in its discretion
such items are not material, and (C) the Foreign Subsidiary shall execute and deliver a joinder to
the Foreign Subsidiary Guaranty (rather than to this Agreement).



Section 9.28 Further Assurances. Each Borrower; at its own expense, will promptly
execute and deliver or cause to be executed and delivered to the Agent all such other and further
documents, agreements and instruments, and shall provide, or cause to be provided, to the Agent
such additional information, and shall do or cause to be done such further acts, as may be
necessary or proper in the reasonable opinion of the Agent or any Lender to carry out more
effectively the provisions and purposes of this Agreement ands the other Loan Documents.


 


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ARTICLE 10




DEFAULT




Section 10.1 Events of Default. Each of the following shall constitute an Event of
Default, whatever the reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or otherwise:



(a) Any Borrower shall fail to make any payment of principal on the Loans on the dates when
the same shall become due and payable, whether at stated maturity or at a date fixed for any
installment or prepayment thereof or otherwise;



(b) Any Borrower shall fail to make any payment of interest on the Loans or shall fail to pay
the commitment fees or any other amounts owing hereunder (other than principal of the Loans) or
under the other Loan Documents on the dates when such interest, commitment fees or other amounts
shall become due and payable and such failure continues for more than three (3) Business Days;



(c) Any representation or warranty made in any Loan Document shall prove to have been
incorrect or misleading in any material respect when made or deemed to have been made;



(d) Any Borrower shall fail (i) to perform or observe any agreement or covenant contained in
Article 7 or Article 9 (other than those sections referred to in subsection (d)(iii) below) hereof,
(ii) to provide any financial statement or report under Article 8 hereof, and, with respect to this
clause (ii) only, such failure shall not be cured within a period of ten (10) days from the
occurrence thereof, or (iii) to perform or observe any agreement or covenant contained in Section
9.5, 9.10, 9.13, 9.16, 9.19, 9.21, 9.26 or 9.27 and, with respect to this clause (iii) only, such
failure shall not be cured within a period of ten (10) days from the occurrence thereof;



(e) Any Borrower or any Subsidiary shall fail to perform or observe any other agreement or
covenant contained in this Agreement or any other Loan Document other than those referred to in
subsections (a), (b), (c) or (d) above, and, if such failure is capable of being remedied, such
failure shall not be cured within a period of thirty (30) days from the occurrence thereof;



(f) (i) Any Loan Party or any Subsidiary thereof (A) fails to make any payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect
of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap
Contracts) having an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated credit arrangement)
of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or
condition relating to any such Indebtedness or Guarantee or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which
default or other event is to cause, or to permit the holder or holders of such Indebtedness



 


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or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or
to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to
repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity,
or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which a Loan Party or any
Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which a Loan Party or any
Subsidiary thereof is an Affected Party (as so defined) and, in either event, the Swap Termination
Value owed by such Loan Party or such Subsidiary as a result thereof is greater than the Threshold
Amount;



(g) Any Collateral Document shall at any time after its execution and delivery for any reason
cease to create a valid and perfected first priority security interest in and to the property
purported to be subject to such Collateral Document;



(h) Judgments, assessments or orders for the payment of money which aggregate at any time in
excess of the Threshold Amount shall be entered against any Borrower and/or any of its Subsidiaries
by a court or other tribunal of competent jurisdiction, which judgments, assessments or orders are
not discharged, vacated, bonded or stayed pending appeal within a period of thirty (30) days from
the date of entry;



(i) Any Borrower or any of its Subsidiaries shall suspend or discontinue its business, shall
make an assignment for the benefit of creditors or a composition with creditors, shall generally
not be paying their debts as they mature, shall admit their inability to pay their debts as they
mature, shall file a petition in bankruptcy, shall become insolvent (howsoever such insolvency may
be evidenced), shall be adjudicated insolvent or bankrupt, shall petition or apply to any tribunal
for the appointment of any receiver, custodian, liquidator or trustee of or for them or any
substantial part of their property or assets, shall commence any proceeding relating to them under
any bankruptcy, reorganization, arrangement, readjustment of debt, receivership, dissolution or
liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or if there
shall be commenced against any Borrower or any of its Subsidiaries, any such proceeding and the
same shall not be dismissed within sixty (60) days after an order, judgment or decree approving the
petition in any such proceeding shall be entered against any Borrower or any of its Subsidiaries;
or if any Borrower or any of its Subsidiaries shall by any act or failure to act indicate their
consent to, approval of or acquiescence in; any such proceeding or any appointment of any receiver,
custodian, liquidator or trustee of or for it or for any substantial part of its property or
assets; or if any court of competent jurisdiction shall assume jurisdiction with respect to any
such proceeding and the same shall not be dismissed within sixty (60) days; or if a receiver or a
trustee or other officer or representative of a court, governmental office or agency, shall, under
color of legal authority, take and hold possession of any substantial part of the property or
assets of any Borrower or any of its Subsidiaries, and shall not have relinquished possession
within sixty (60) days; or if any Borrower or any of its Subsidiaries shall have concealed,
removed, or permitted to be concealed or removed, any part of its property, with intent to hinder,
delay or defraud its creditors, or any of them, or shall have
made or suffered a transfer of any of its property which may be fraudulent under any
bankruptcy, fraudulent conveyance or similar law;


 


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(j) There shall be any Accumulated Funding Deficiency, whether or not waived, with respect to
any Plan maintained by any Borrower or any of its Subsidiaries or any ERISA Affiliate, or to which
any Borrower or any of its Subsidiaries or any ERISA Affiliate has any liabilities, or any trust
created thereunder; or a trustee shall be appointed by a United States District Court to administer
any such Plan; or PBGC shall institute proceedings to terminate any such Plan; or any Borrower or
any of its Subsidiaries or any ERISA Affiliate shall incur any liability to PBGC in connection with
the termination of any such Plan or their withdrawal from any such Plan with respect to which they
are substantial employer within the meaning of Section 4063(b) of ERISA; or any Plan or trust
created under any Plan of any Borrower or any of its Subsidiaries or any ERISA Affiliate shall
engage in a Prohibited Transaction which would subject any such Plan, any trustee created
thereunder, any trustee or administrator thereof, or any party dealing with any such Plan or trust
to the tax or penalty on Prohibited Transactions imposed by Section 502 of ERISA or Section 4975 of
the Code; or any Borrower or any Subsidiary or ERISA Affiliate fails to make a quarterly
installment to a Plan as required under Section 412(m) of the Code if such failure results in a
lien in favor of the Plan under Section 412(n) of the Code; or any Borrower or any Subsidiary or
ERISA Affiliate incurs any Withdrawal Liability which, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Change (or liability in excess of the
Threshold Amount);



(k) If there shall occur a Material Adverse Change that, in the reasonable judgment of the
Agent, could be expected to result in any Borrower’s failure to pay the Obligations when due;



(l) Any Loan Document shall cease to be a legal, valid and binding agreement, enforceable
against each Loan Party signatory thereto, in accordance with its terms or shall in any way be
declared ineffective or inoperative or shall in any way be challenged or contested by any Loan
Party;



(m) Any attachment or garnishment proceeding or similar type of action shall be commenced
against or involving the property of any Borrower or any of its Subsidiaries, which proceeding or
action could affect or involve any deposits held by any Borrower or any of its Subsidiaries with
any Lender; or



(n) A Change of Control shall occur.



Section 10.2 Remedies.



(a) Termination of Obligation to Make Loans. Without limiting the generality of
Section 5.3, at any time after an Event of Default, the Lenders shall have no obligation to make
any Loans or otherwise extend credit hereunder.



(b) Acceleration. At any time an Event of Default specified in Section 10.1, above
(other than an Event of Default under subsection (i) thereof) shall have occurred and shall be
continuing, the Agent may, by providing written notice to the Parent Borrower, declare the
principal, interest and other amounts due hereunder and under the Notes and all other
Obligations to be forthwith due and payable, without presentment, demand, protest or notice of
protest, notice of dishonor or other notice of any kind, all of which are hereby expressly waived,
anything in any Loan Document to the contrary notwithstanding.


 


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(c) Automatic Acceleration in Connection with Bankruptcy or Insolvency Proceeding.
Upon the occurrence of an Event of Default specified in subsection (i) of Section 10.1 above, all
principal, interest and other amounts due hereunder and under the Notes, and all other Obligations,
shall be immediately due and payable, all without any action by the Agent or the Lenders and
without presentment, demand, protest or other notice of protest or other notice of dishonor of any
kind, all of which are expressly waived, anything in the Loan Documents to the contrary
notwithstanding.



(d) Appointment of Receiver. Upon acceleration of the Notes as provided in paragraphs
(b) or (c) above, the Agent shall have the right to the appointment of a receiver for the
properties and assets of any Borrower and its Subsidiaries. Each Borrower, for itself and on
behalf of its Subsidiaries, hereby consents to such right and such appointment and hereby waives
any objection it or any Subsidiary may have thereto or the right to have a bond or other security
posted by, or on behalf of, the Agent, in connection therewith.



(e) Additional Remedies. In addition to the remedies set forth above, the Agent and
the Lenders shall have all of the post-default rights granted to it under any of the Loan Documents
and under Applicable Law.



Section 10.3 Cash Collateral. If (a) any Event of Default specified in Section
10.1(i) shall occur, (b) the Obligations shall have otherwise been accelerated pursuant to Section
10.2, or (c) the Commitment shall have been terminated pursuant to Section 10.2, then, without any
request or the taking of any other action by Agent, Borrowers shall immediately comply with the
provisions of Section 1.4(e) with respect to the deposit of Cash Collateral to secure the existing
Letter of Credit Liabilities and future payment of related fees.



Section 10.4 Application of Funds. After the exercise of remedies provided for in
Section 10.2 (or after the Loans have automatically become immediately due and payable and
the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the
Section 10.3), any amounts received on account of the Obligations shall be applied by the
Agent in the following order:



First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the Agent and
amounts payable under Article 4) payable to the Agent in its capacity as such;



Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
and the Issuer (including fees, charges and disbursements of counsel to the respective Lenders and
the Issuer (including fees and time charges for attorneys who may be employees of any Lender or the
Issuer) arising under the Loan Documents and amounts payable under Article 4, ratably among
them in proportion to the respective amounts described in this clause Second payable to
them;




 


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Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, Reimbursement Obligations and other Obligations
arising under the Loan Documents, ratably among the Lenders and the Issuer in proportion to the
respective amounts described in this clause Third payable to them;



Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans, Reimbursement Obligations and amounts owing under Secured Hedge Agreements and Secured
Cash Management Agreements, ratably among the Lenders, the Issuer, the Hedge Banks and the Cash
Management Banks, in proportion to the respective amounts described in this clause Fourth
held by them;



Fifth, to the Agent for the account of the Issuer, to Cash Collateralize any portion
of Reimbursement Obligations comprised of the aggregate undrawn amount of Letters of Credit; and



Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrowers or as otherwise required by law.



Subject to Section 1.4(e), amounts used to Cash Collateralize the aggregate undrawn
amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy
drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or expired, such remaining
amount shall be applied to the other Obligations, if any, in the order set forth above.



ARTICLE 11




DEFINITIONS




Section 11.1 Defined Terms. For the purposes of this Agreement, the following terms
shall have the meanings specified in this Article 11 unless the context otherwise requires:



“Acquisition” means (whether by purchase, lease, exchange, issuance of equity or debt
securities, merger, reorganization or any other method) (a) any acquisition by any Borrower or any
of its Subsidiaries of an interest in any other Person which shall then become Consolidated with
any Borrower or any such Subsidiary in accordance with GAAP, or (b) any acquisition by any Borrower
or any of its Subsidiaries of all or any substantial part of the assets of any other Person.



“Accumulated Funding Deficiency” means any accumulated funding deficiency as defined
in Section 302(a) of ERISA.



“Administrative Questionnaire” means an Administrative Questionnaire in such form as
approved by the Agent.



 


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“Affiliate” means, with respect to a Person, a spouse of such Person, any relative (by
blood, adoption or marriage) of such Person within the third degree, any director, officer or
employee of such Person, any other Person of which such first Person is a partner, member,
director, officer or employee, and any other Person directly or indirectly controlling or
controlled by or under common control with such first Person. For purposes of this definition
“control”
(including, with correlative meanings, the terms “controlled by” and “under common control
with”), as used with respect to any Person, means the possession, direct or indirect, of the power
to direct, or cause the direction of, the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise. Without limiting the generality of
the foregoing, (a) Steel shall be deemed to be an “Affiliate” of the Borrowers, and (b) any Person
who has the direct or indirect beneficial ownership of more than thirty percent (30%) of the voting
securities or voting equity of another Person shall be deemed an Affiliate of such other Person.



“Agreement” means this Amended and Restated Revolving Credit Agreement, as the same
may be amended, modified or supplemented, from time to time.



“Alternative Currency” means any Approved Currency other than Dollars.



“Alternative Currency Letter of Credit” means a Letter of Credit denominated in an
Alternative Currency.



“Applicable Law” means, with respect to any Person, all provisions of constitutions,
laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals,
interpretations and orders of court or Governmental Authorities and all orders of arbitrators with
appropriate jurisdiction (by contract or otherwise), and decrees of all courts and arbitrators in
proceedings or actions to which the Person is a party or by which it (or any of its property) is
bound.



“Applicable Margin” means the interest rate margin applicable to the Loans as follows:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Revolving Credit Loans Then the	 
	 	 	 	 	Applicable Margin is	 
	Tier	 	If the Total Leverage Ratio is:	 	LIBOR Rate+	 	 	Base Rate+	 
	1	 	Less than or equal to
1.50 to 1.00
	 	 	1.75	%	 	 	0	%
	2	 	Greater than 1.50 to
1.00, but less than or
equal to 2.50 to 1.00
	 	 	2.25	%	 	 	0.50	%
	3	 	Greater than 2.50 to
1.00, but less than or
equal to 3.00 to 1.00
	 	 	2.75	%	 	 	0.75	%
	4	 	Greater than 3.00 to 1.00
	 	 	3.25	%	 	 	1.00	%






On the date hereof the Applicable Margin shall be set at Tier 1 above, and thereafter shall be
determined and adjusted quarterly on the date (each a “Adjustment Date”) ten (10) Business
Days after the date by which the Parent Borrower is required to provide a Compliance Certificate
pursuant to Section 8.2 for the most recently ended fiscal quarter of the Parent Borrower;
provided, however, that if the Parent Borrower fails to provide the Compliance
Certificate as required by Section 8.2 for the most recently ended fiscal quarter of the Parent
Borrower preceding the applicable Adjustment Date, the Applicable Margin from such Adjustment Date
shall be based on Tier 4 until such time as an appropriate Compliance Certificate is provided, at
which time the Tier shall be determined by reference to the Total Leverage Ratio as of the last day
of the most recently ended fiscal quarter of the Parent Borrower preceding such Adjustment Date.
The Applicable Margin shall be effective from one Adjustment Date until the next Adjustment Date.
Any adjustment in the Applicable Margin shall be applicable to all Loans then existing or
subsequently made or issued.


 


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“Approved Currencies” means Dollars and Euros (each, an “Approved Currency”), and such
other currencies as shall be requested by the Borrowers to be an Approved Currency hereunder
subject to the approval of all Lenders, in their sole and absolute discretion, in each case
constituting freely transferable lawful money of the country of issuance and in the case of each
such currency (other than Dollars) is readily transferable and convertible into Dollars in the
international interbank market.



“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



“Assignee” has the meaning set forth in Section 13.6(b).



“Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another and/ or two or more Approved Funds managed by the same investment advisor.



“Assignment and Acceptance Agreement” means an Assignment and Acceptance Agreement in
substantially the form of Exhibit E attached hereto.



“Authorized Signatory” means, with respect to any documents, agreements or
instruments, such officer(s) of a Person as may be duly authorized by its Board of Directors, its
bylaws or similar authority to execute the relevant documents, agreements or instruments on behalf
of such Person.



“Available Commitment” means that portion of the Commitment which, at any date of
determination, the Borrowers are eligible to borrow under the terms of this Agreement.



“Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as
publicly announced from time to time by Bank of America as its “prime rate.” The “prime rate” is a
rate set by Bank of America based upon various factors including Bank of America’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 Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.



“Base Rate Loan” means any Loan that bears interest based on the Base Rate.



“Borrower” means each Borrower referred to in the preamble hereto, together with such
successors and assigns thereof as are permitted pursuant to the terms of Section 13.6 below, or
joined pursuant to Section 9.27 above.


 


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“Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the laws of, or are in fact closed in, the state in
which the Agent’s office is located, and, if such day relates to any LIBOR Loan, means any such day
on which dealings in Dollar deposits are conducted by and between banks in the London interbank
eurodollar market.



“Business Plan” means, for any fiscal year of the Parent Borrower, a detailed budget
by each operating Subsidiary setting forth the amounts budgeted on a quarterly basis for revenues
and operating expenses by category for each Subsidiary as well as the amount of Capital
Expenditures, along with a comparison of the actual amounts (and, if applicable, the budgeted
amounts) of such items for the preceding year.



“Calculation Date” with respect to each Alternative Currency, means the last day of
each calendar month (or, if such day is not a Business Day, the next succeeding Business Day) and
during the occurrence and continuation of an Event of Default, such other days from time to time as
the Agent shall designate as a “Calculation Date”, provided that each of the following shall also
be a “Calculation Date”: (i) the Business Day preceding each date on which a participation in an
Alternative Currency Letter of Credit or Loan denominated in an Alternative Currency is calculated
pursuant to Section 1.4(f) or a reimbursement obligation with respect to an Alternative Currency
Letter of Credit or Loan denominated in an Alternative Currency is calculated pursuant to Section
3.6; (ii) the Business Day preceding the Business Day on which any fee payable pursuant to Section
3.4 is payable in respect of an Alternative Currency Letter of Credit or a Loan denominated in an
Alternative Currency; and (iii) the date of issuance or amendment of a Letter of Credit in an
Alternative Currency or the making of a Loan denominated in an Alternative Currency.



“Capital Expenditures” means expenditures for the purchase of assets of long-term use
which are or should be capitalized in accordance with GAAP.



“Capital Lease” means, with respect to any Person, any lease which has been, or should
be, in accordance with GAAP, accounted for as a capital lease in respect of which such Person is
liable as lessee.



“Capital Lease Obligation” means that portion of any obligation of a Person as lessee
under a Capital Lease which at the time appears, or in accordance with GAAP should appear, on the
balance sheet of such Person or in a note to such balance sheet.



“Capital Securities” means, with respect to any Person, any and all shares, interests
(including partnership interests or limited liability company interests), participations or other
equivalents (however designated, whether voting or non-voting) of such Person’s capital, whether
now outstanding or issued after the date hereof.



“Cash Collateralize” means to pledge and deposit with or deliver to the Agent, for the
benefit of the Issuer and the Lenders, as collateral for the Letter of Credit Liabilities, cash or
deposit account balances pursuant to documentation in form and substance satisfactory to the Agent
and the Issuer (which documents are hereby consented to by the Lenders). Derivatives of such term
have corresponding meanings.


 


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“Cash Equivalent” means:



(a) securities issued or directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided, that the full faith and credit of the
United States of America is pledged in support thereof);



(b) securities issued or directly and fully guaranteed or insured by any state of the United
States of America or any agency or instrumentality thereof and that are rated within one of the two
highest ratings for such securities by Standard & Poor’s Corporation or Moody’s Investors Service,
Inc.;



(c) demand and time deposits, certificates of deposit, bankers acceptances and commercial
paper issued by the parent corporation of any domestic commercial bank of recognized standing
having capital and surplus in excess of $500 million;



(d) commercial paper issued by Persons rated at least A-2 or the equivalent thereof by
Standard & Poor’s Corporation or at least P-2 or the equivalent thereof by Moody’s Investors
Service, Inc.;



(e) repurchase obligations with a term of not more than seven days for underlying securities
of the types described in (a) through (d) above entered into with any financial institution meeting
the qualifications specified in (d) above; and



(f) money market funds, substantially all of the assets of which constitute Cash Equivalents
of the kinds described in (a) through (e) of this definition, and in the case of each of (b), (c),
(d) and (e) maturing within one year after the date of acquisition.



“Cash Management Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic funds transfer and
other cash management arrangements.



“Cash Management Bank” means any Person that, at the time it enters into a Cash
Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such
Cash Management Agreement.



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



“CFC” means a controlled foreign corporation as defined in Section 956 of the Code.



“Change of Control” means any of:



(a) any “person” or “group” (each as used in Sections 13(d)(3) and 14(d)(2) of the Exchange
Act), other than any person or group which was on April 14, 2008, the “beneficial owner” (as
defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of outstanding shares of common
stock of Parent Borrower (or securities convertible into or exchangeable for such stock)
representing twenty percent (20%) or more of the outstanding common stock of the Parent Borrower as
set forth in the Parent Borrower’s Proxy Statement
dated April 14, 2008, for the Parent Borrower’s 2008 Annual Meeting of Shareholders, either
(A) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of voting Stock of the Parent Borrower (or securities convertible into or exchangeable
for such voting Stock) representing thirty percent (30%) or more of the combined voting power of
all voting Stock of the Parent Borrower (on a fully diluted basis) or (B) otherwise has the
ability, directly or indirectly, to elect a majority of the board of directors of the Parent
Borrower;


 


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(b) During any period of two consecutive years, individuals who at the beginning of such
period constituted the board of directors (together with any new directors whose election by such
board of directors or whose nomination for election by the shareholders of the Parent Borrower was
approved by a vote of 66 2/3% of the directors of the Parent Borrower at the time of such approval
who were either directors at the beginning of such period or whose election or nomination for
election was previously so approved) of Parent Borrower cease for any reason to constitute a
majority of the board of directors then in office;



(c) Parent Borrower shall cease to own 100% of the outstanding equity or other ownership
interests of the Subsidiary Borrowers, except as permitted under Section 9.9;



(d) The Agent shall fail to have a valid, first priority Lien in all issued and outstanding
shares of capital stock of each Borrower (other than Parent Borrower) and its Subsidiaries (except
to the extent provided in Section 9.9);



(e) Any Borrower or any Subsidiary adopts a plan of liquidation, except as permitted under
Section 9.7;



(f) any merger or consolidation of Parent Borrower with or into another Person or the merger
of another Person with or into Parent Borrower, unless in the case of a merger or consolidation
transaction, holders of securities that represented 100% of the aggregate voting power of Parent
Borrower’s voting stock immediately prior to such transaction (together with holders of nonvoting
securities that were convertible into Borrower’s voting stock immediately prior to such
transaction) own directly or indirectly at least a majority of the aggregate voting power of the
voting stock of the surviving Person in such merger or consolidation transaction immediately after
such transaction or have the right or ability by voting power, contract or otherwise to elect or
designate for a election a majority of Parent Borrower’s Board of Directors;



(g) the sale of all or substantially all of Parent Borrower’s assets (determined on a
consolidated basis) to another Person; or



(h) There exists any “change of control” or “change in control” as defined under any agreement
to which any Borrower or any Subsidiary is party or is subject.



For purposes of this definition, “voting stock” means capital stock or other ownership interests of
any class or classes of a corporation or another entity the holders of which are entitled to elect
a majority of the corporate directors or Persons performing similar functions.



“COBRA” means group health plan continuation coverage requirements of Section 4980B of
the Code and Part 6 of Subtitle B of Title I of ERISA.


 


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“Code” means the Internal Revenue Code of 1986, as amended from time to time, and any
regulations, revenue rulings or technical information releases issued thereunder.



“Collateral” means all property which is, or is to be, subject to the Lien granted by
the Collateral Documents.



“Collateral Documents” means the Security Agreement, the Mortgages, the IP Security
Agreement, the Uniform Commercial Code financing statements, and all other Loan Documents which
purport to grant or perfect a Lien in favor of the Agent, on behalf of the Lenders, securing the
Obligations.



“Commitment” means the obligation of the Lenders pursuant to the terms hereof to make
Revolving Credit Loans to the Borrowers in an initial aggregate principal amount outstanding at any
time not to exceed Sixty Million Dollars ($60,000,000), from time to time until the Termination
Date. The amount of the Commitment may be reduced pursuant to the terms hereof.



“Commitment Fee Margin” means the corresponding percentages set forth below:



	 	 	 	 	 	 	 
	 	 	 	 	Then the Commitment Fee	 
	Tier	 	If the Total Leverage Ratio is:	 	Margin is	 
	1	 	Less than or equal to 1.50 to 1.00
	 	 	0.35	%
	2	 	Greater than 1.50 to 1.00, but less than
or equal to 2.50 to 1.00
	 	 	0.45	%
	3	 	Greater than 2.50 to 1.00, but less than
or equal to 3.00 to 1.00
	 	 	0.60	%
	4	 	Greater than 3.00 to 1.00
	 	 	0.75	%






On the date hereof the Commitment Fee Margin shall be set at Tier 1 above, and thereafter shall be
determined and adjusted quarterly on each Adjustment Date; provided, however, that
if the Parent Borrower, fails to provide the Compliance Certificate as required by Section 8.2 for
the most recently ended fiscal quarter of the Parent Borrower preceding the applicable Adjustment
Date, the Commitment Fee Margin from such Adjustment Date shall be based on Tier 4 until such time
as an appropriate Compliance Certificate is provided, at which time the Tier shall be determined by
reference to the Total Leverage Ratio as of the last day of the most recently ended fiscal quarter
of the Borrowers preceding such Adjustment Date. The Commitment Fee Margin shall be effective from
one Adjustment Date until the next Adjustment Date. Any adjustment in the Applicable Margins shall
be applicable to all Loans then existing or subsequently made or issued.



“Consideration” means an amount equal to the sum of (a) the aggregate fair market
value of any securities and any other non-cash consideration, (including, without limitation, any
joint venture interest delivered to, or retained by, the applicable selling entity), issued or
delivered or to be issued or delivered and any cash or deferred consideration paid or payable in
connection with an Acquisition, and (b) the amount of all indebtedness and preferred stock of the
selling entity which is assumed or acquired by the applicable Borrower or retired or deceased in
connection with an Acquisition. The fair market value of any securities issued and any other
non-cash consideration delivered or retained in connection with an Acquisition shall be the value
stated in the agreements governing such Acquisition.


 


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“Consolidated” means, with respect to any Person and any specified Subsidiaries, the
consolidation of financial statements of such Person and, such Subsidiaries in accordance with
GAAP.



“Default” means any event which, with the giving of notice or passage of time, or
both, would constitute an Event of Default.



“Default Rate” is defined in Section 3.3.



“Disqualified Stock” means, with respect to any Person, any Capital Security which by
its terms (or by the terms of any security into which it is convertible or for which it is
exchangeable) (a) matures or is mandatorily redeemable for any reason, (b) is convertible or
exchangeable for Indebtedness or Disqualified Stock, or (c) is redeemable at the option of the
holder thereof, in whole or in part, in each case on or prior to the first anniversary of the
stated maturity of the Notes.



“Dollar Equivalent” means, with respect to any Alternative Currency, on the date of
determination thereof, the amount of Dollars which could be purchased with the amount of such
Alternative Currency involved in such computation at the spot rate at which such Alternative
Currency may be exchanged into Dollars as set forth on such date on (i) the applicable Reuters
pages, or (ii), if such rate is not set forth on such Reuters pages, on the applicable Telerate
Service pages, or (iii) if such rate does not appear on such Reuters or Telerate Service pages, at
the spot exchange rate therefor as determined by the Agent, in each case as of 11:00 A.M. (London
time, as applicable, or such other local time as the Agent shall deem appropriate) on such date of
determination thereof.



“Dollars” and “$” means dollars in lawful currency of the United States.



“EBIT” means, for any Person for any period, the Net Income of such Person for such
period (before deducting fees either paid in cash or deferred during the applicable period under
the Management Agreement referenced in Section 9.5) plus the sum of the following (to the
extent deducted in the computation of such Net Income):



(a) Interest Expense; and



(b) income taxes including (with respect to each Subsidiary Borrower) any amounts payable or
paid to Parent Borrower for such taxes (but, if there is a net tax benefit, that should be deducted
from Net Income in calculating EBIT).


 


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“EBITDA” means, for any Person for any period:



(a) the Net Income of such Person for such period (before deducting fees either paid in cash
or deferred during the applicable period under the Management Agreement); plus



(b) the sum of the following (to the extent deducted in the computation of such Net Income):



(i) depreciation expense;



(ii) amortization expense (including amortization expense associated with purchase accounting
write-up of tangible and intangible assets) and deferred financing costs;



(iii) Interest Expense;



(iv) income taxes, including (with respect to each Subsidiary Borrower) any amounts payable or
paid to Parent Borrower for such taxes (but, if there is a net tax benefit, that should be deducted
from Net Income in calculating EBITDA);



(v) restructuring charges (as determined in accordance with GAAP) relating to the
consolidation of operations or reduction in head-count which have been approved, in writing, by the
Majority Lenders;



(vi) all other non-cash charges reducing Net Income for such period (A) including, but not
limited to, (1) non-cash charges attributable to the grant, exercise or repurchase of options for
or shares of capital stock to or from employees of such Person and its Consolidated Subsidiaries
determined in accordance with GAAP, (2) unrealized losses resulting solely from the marking to
market of derivative securities or securities held in deferred compensation plans, (3) non-cash
charges associated with the amortization or write-off of deferred financing costs and debt issuance
costs of such Person and its Consolidated Subsidiaries during such period, and (4) non-cash charges
associated with the purchase accounting write-up of inventory, but (B) excluding non-cash charges
that require an accrual of or a reserve for cash charges for any future periods and normally
occurring accruals such as reserves for accounts receivable; and



(vii) any premium or penalty paid in connection with redeeming or retiring Indebtedness of
such Person and its Consolidated Subsidiaries prior to the stated maturity thereof pursuant to the
agreements governing such Indebtedness; less



(c) the sum of the following:



(i) all non-cash items increasing Consolidated Net Income for such period (including
unrealized gains resulting solely from the marking to market of derivative securities or securities
held in deferred compensation plans); and



(ii) the amount of all cash payments made by such Person or any of the Subsidiaries during
such period to the extent such payments relate to non-cash charges that were added back in
determining EBITDA for such period or any prior period.


 


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“Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 13.6(b)(iii), (v) and (vi) (subject to such consents, if any,
as may be required under Section 13.6(b)(iii)).



“Eligible Institution” means any federally chartered or state chartered bank or any
financial institution whose deposits are insured by the Federal Deposit Insurance Corporation.



“Environmental Indemnity Agreement” means that certain Environmental Indemnity
Agreement from the Borrowers, dated the date hereof, together with any other environmental
indemnity agreement executed and delivered pursuant to the terms of this Agreement, as such
environmental indemnity agreements may be amended, restated, modified or supplemented from time to
time.



“Environmental Laws” means all Applicable Laws relating to the pollution or protection
of the environment and human health and safety, including, without limitation, Applicable Laws
relating to the discharge, emission, spill, leaching, disposal, release, or threatened release of
Hazardous Substances to air, water or land, or to the withdrawal or use of ground water, or to the
use, handling, disposal, treatment, storage or management of Hazardous Substances, including,
without limitation, CERCLA and the Resource Conservation and Recovery Act of 1976, as amended.



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



“ERISA Affiliate” means (a) any corporation included with any Borrower in a controlled
group of corporations within the meaning of Section 414(b) of the Code, (b) any trade or business
(whether or not incorporated) which is under common control with the Borrowers within the meaning
of Section 414(c) of the Code, (c) any member of an affiliated service group of which any Borrower
is a member within the meaning of Section 414(m) of the Code, and (d) any other entity required to
be aggregated with any Borrower pursuant to Section 414(o) of the Code.



“Event of Default” means any of the events specified in Section 10.1, provided
that any requirement for notice or lapse of time has been satisfied.



“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as
determined by the Agent.


 


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“Fee Letter” means the letter agreement, dated August 1, 2008, among the Parent
Borrower, Banc of America Securities LLC and the Agent.



“Foreign Subsidiary” means any Subsidiary of any Borrower which (a) is not organized
under the laws of the United States, any state thereof or the District of Columbia and (b) conducts
substantially all of its business operations outside the United States of America.



“Foreign Subsidiary Guaranty” means that certain Amended and Restated Guaranty, dated
the date hereof, providing for a Guarantee of the Obligations from each Foreign Subsidiary in favor
of the Agent, as may be amended, restated, modified or supplemented from time to time.



“Fronting Fee” has the meaning specified in Subsection 1.4(b).



“Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its activities.



“GAAP” means generally accepted accounting principles in the United States, which, as
to any Borrower and its Subsidiaries, shall be consistently applied with those applied in the
preparation of the financial statements referred to in Section 5.1.4(a), with such changes as may
be agreed pursuant to Section 11.2.



“Governmental Authority” means any nation, province, state or political subdivision
thereof, and any government or any Person exercising executive, legislative, regulatory or
administrative functions of or pertaining to government, including, without limitation, any central
bank or comparable agency and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.



“Guarantee” or “Guaranteed,” as applied to any Person (the “guarantor”) means
and includes any direct or indirect liability, contingent or otherwise, of such guarantor with
respect to any indebtedness, lease, dividend or other financial or performance obligation, of
another Person (“primary obligor”), including, but not limited to (a) any direct or indirect
guaranty, endorsement (other than for collection or deposit in the ordinary course of business),
discount or sale with recourse by such guarantor of the obligations of the primary obligor and (b)
any agreement (contingent or otherwise) to (i) purchase, repurchase or otherwise acquire an
obligation of the primary obligor or any security therefor, (ii) provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise), (iii) maintain the solvency or financial condition of the primary
obligor, or (iv) make payment for any products, materials, supplies or services tendered or
rendered to the primary obligor, in any case if the purpose or intent of such agreement or
arrangement is to provide assurance that the primary obligor’s obligation will be paid or
discharged, or that any agreements relating thereto will be complied with, or that the holders of
such obligation will be protected against loss in respect thereof. In addition to the other
restrictions on Guaranties set forth in this Agreement, no Guarantee shall be permitted by this
Agreement unless the maximum dollar amount of the obligation being guaranteed is readily
ascertainable by the terms of such
obligation or the agreement or instrument evidencing such Guarantee specifically limits the
dollar amount of the maximum exposure of the guarantor thereunder. For purposes of making
computations under this Agreement, the amount of any Guarantee made during any period shall be the
aggregate amount of the obligation guaranteed (or such lesser amount as to which the maximum
exposure of the guarantor shall have been specifically limited), less any amount by which the
guarantor may have been discharged with respect thereto (including any discharge by way of a
reduction in the amount of the obligation guaranteed).


 


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“Guarantor” means each Foreign Subsidiary party to the Foreign Subsidiary Guaranty
(other than, as of any date, any Foreign Subsidiary as to which the Foreign Subsidiary Guaranty is
not, pursuant to Section 15 thereof, effective).



“Hazardous Substances” means any and all pollutants, contaminants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the removal of which
may be required, or the generation, manufacture, refining, production, processing, treatment,
storage, handling, transportation, transfer, use, disposal, release, discharge, spillage, seepage
or filtration of which may be restricted, prohibited or penalized by any Environmental Law
(including, without limitation, petroleum products, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls and any substance defined as a “hazardous substance” under CERCLA).



“Hedge Bank” means any Person that, at the time it enters into a Secured Hedge
Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Secured
Hedge Agreement.



“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as
amended from time to time.



“Indebtedness” means, with respect to any Person (without duplication):



(a) all indebtedness for borrowed money of such Person;



(b) all obligations of such Person for the deferred purchase price of capital assets or other
property or services (other than accounts payable incurred in the ordinary course of business) to
the extent such liabilities and obligations would appear as a liability upon the Consolidated
balance sheet of such specified Person in accordance with GAAP;



(c) all obligations of such Person evidenced by notes, bonds, debentures or other instruments;



(d) all indebtedness 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) and all other obligations secured by a Lien on the property or assets of
such Person;



(e) all Capital Lease Obligations of such Person;


 


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(f) all obligations, contingent or otherwise, of such Person under acceptances, letters of
credit or similar facilities;



(g) all obligations of such Person in respect of Disqualified Stock or other obligations of
such Person to purchase, redeem, retire or otherwise acquire for value any capital stock of such
Person or any warrants, rights or options to acquire such capital stock, which obligations shall be
valued, in the case of redeemable preferred stock, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends and, in the case of other such
obligations, at the amount that, in light of all the facts and circumstances existing at the time
of determination, is reasonably expected to be payable;



(h) interest accrued but not paid on the scheduled date;



(i) all Guarantees of such Person;



(j) all Indebtedness referred to in clauses (a) through (i) above secured by (or which the
holder of such Indebtedness 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;



(k) all fixed (but not variable) payments required by such Person under non-compete
agreements;



(l) net obligations of such Person under any Swap Contract; and



(m) all obligations of such Person that are the functional equivalent of the Indebtedness
referred to in clauses (a) through (l) above.



For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date.



“Indemnified Person” means the Agent, the Issuer, the other Lenders and their
officers, agents, employees, attorneys, consultants and Affiliates and any successors, assigns and
participants thereof.



“Intellectual Property” means the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including, without limitation, (a) all copyrights arising under the laws
of the United States, any other country or any political subdivision thereof, whether registered or
unregistered and whether published or unpublished, registrations and recordings thereof, and all
applications in connection therewith, including, without limitation, all registrations, recordings
and applications in the United States Copyright Office, (b) all letters patent of the United
States, any other country or any political subdivision thereof, all reissues and extensions thereof
and all
goodwill associated therewith, and all applications for letters patent of the United States or
any other country and all divisions, continuations and continuations-in-part thereof, (c) all
trademarks, trade names, corporate names, company names, business names, fictitious business names,
trade styles, service marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all registrations and
recordings thereof, and all applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the United States, any State
thereof or any other country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, (d) all rights to obtain any reissues or extensions of the foregoing and
(e) all licenses for any of the foregoing.



 


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“Interest Coverage Ratio” means, as of any date, the ratio of (a) EBIT, for the period
of four (4) consecutive fiscal quarters ending on or immediately prior to such date, to (b)
Interest Expense (whether or not paid), payable during the period of four (4) consecutive fiscal
quarters ending on or immediately prior to such date.



“Interest Expense” means, with respect to any Person for any period, all cash interest
expense (including imputed interest with respect to Capitalized Lease Obligations and accreted
interest on zero coupon bonds and similar obligations) paid, accrued or accreted, or to be paid,
accrued or accreted, with respect to any Indebtedness of such Person during such period pursuant to
the terms of the agreement respecting such Indebtedness, together with all fees (including, without
limitation, commitment or unused fees) payable in respect thereof, all as calculated in accordance
with GAAP, excluding amortization or write-off or deferred financing cost and debt issuance cost of
such Person for such period.



“Interest Period” means a period commencing, in the case of the first Interest Period
applicable to a LIBOR Loan, on the day of the making of, or conversion into, such Loan, and, in the
case of each subsequent, successive Interest Period applicable thereto, on the last day of the
immediately preceding Interest Period, and ending on the same day in the first, second, third or
sixth calendar month thereafter, except that:



(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day, unless such Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding Business Day; and



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



“Inventory” means “inventory” (as defined in Article 9 of the UCC) of
Borrowers and their Subsidiaries.



“Investment” means, as applied to any Person, any direct or indirect purchase or other
acquisition by such Person of stock or other securities of another Person, or any direct or
indirect loan, advance or capital contribution by such Person to any other Person, including all
Indebtedness and accounts receivable from such other Person which are not current assets or
did not arise from sales to such other Person in the ordinary course of business.


 


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“IP Security Agreement” means that certain Amended and Restated IP Security Agreement
from certain Loan Parties, dated the date hereof, together with any other IP security agreement
executed and delivered pursuant to the terms of the Security Agreement, as such security agreements
may be amended, restated, modified or supplemented from time to time.



“Issuer” means Bank so long as it is a Lender, or if Bank is no longer a Lender, then
a Lender designated by the Parent Borrower as Issuer and acceptable to the Agent.



“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the Issuer and any
Borrower (or any Subsidiary) or in favor of the Issuer and relating to such Letter of Credit.



“Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.



“Lender Required Payment” has the meaning set forth in Section 4.7.



“Letter of Credit” means a standby letter of credit issued for the account of
Borrowers or any of their Subsidiaries by Issuer which expires by its terms within one year after
the date of issuance and in any event at least thirty (30) days prior to the Revolving Credit
Termination Date. Notwithstanding the foregoing, a Letter of Credit may provide for automatic
extensions of its expiry date for one or more successive one (1) year periods provided that the
Issuer has the right to terminate such Letter of Credit on each such annual expiration date and no
renewal term may extend the term of the Letter of Credit to a date that is later than the thirtieth
(30th) day prior to the Revolving Credit Termination Date.



“Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the Issuer.



“Letter of Credit Facility” means the facility extended pursuant to Section 1.4 for
the Borrowers to request Letters of Credit from Issuer.



“Letter of Credit Fees” has the meaning set forth in Section 1.4(b).



“Letter of Credit Liabilities” means, at any time of calculation, the Dollar
Equivalent of the sum of (i) the amount then available for drawing under all outstanding Letters of
Credit (without regard to whether any conditions to drawing thereunder can then be met), plus (ii)
the aggregate unpaid amount of all reimbursement obligations in respect of previous drawings made
under such Letters of Credit.



“Letter of Credit Sublimit” means an amount equal to $10,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.



“LIBOR Loan” means any Loan bearing interest at a rate based on the LIBOR Rate.


 


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“LIBOR Rate” means, for any Interest Period with respect to a Eurodollar Rate Loan,
the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published
by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated
by the Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period. If such rate is not
available at such time for any reason, then the “LIBOR Rate” for such Interest Period shall be the
rate per annum determined by the Agent to be the rate at which deposits in Dollars for delivery on
the first day of such Interest Period in same day funds in the approximate amount of the LIBOR Rate
Loan being made, continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America’s London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period.



“Lien” means any mortgage, lien, pledge, adverse claim, assignment, charge, security
interest, title retention agreement, separate beneficial interest, levy, execution, seizure,
attachment, garnishment or other encumbrance in respect of any property, whether created by
statute, contract, common law or otherwise, and whether or not choate, vested or perfected.



“Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the
Foreign Subsidiary Guarantee, (d) the Collateral Documents, (e) the Fee Letter, (f) each Issuer
Document, (g) each Secured Hedge Agreement, (h) each Secured Cash Management Agreement, (i) the
Environmental Indemnity Agreement, and (j) all other documents and agreements executed or delivered
in connection with or contemplated by this Agreement, in each case as amended, modified or
supplemented, from time to time; provided that for purposes of the definition of “Material Adverse
Change” and Articles 6 through 10, “Loan Documents” shall not include Secured Hedge Agreements or
Secured Cash Management Agreements.



“Loan Party” means any Borrower, any of their Foreign Subsidiaries, and any other
obligor under any of the Loan Documents.



“Loans” means the Revolving Credit Loans and the Swing Line Loans.



“Management Agreement” means that certain Management Agreement dated as of January 23,
2002 between the Parent Borrower and Steel, as may be amended, restated, modified, supplemented or
replaced from time to time.



“Majority Lenders” means at any time, Lenders having greater than fifty percent (50%)
of the Commitment (whether borrowed or not).



“Material Adverse Change” means (a) any material adverse change in the business,
condition (financial or otherwise), assets, liabilities, results of operations, properties, or
business prospects of the Borrowers and the Foreign Subsidiaries on a Consolidated basis, or (b)
any material adverse change with respect to the binding nature, validity, or enforceability of this
Agreement or any other Loan Document, or with respect to the ability of any Loan Party to perform
its obligations under this Agreement or deed(s) of trust, as applicable, whether resulting
from any single act, omission, situation or event or taken together with other such acts,
omissions, situations or events.


 


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“Material Agreements” has the meaning set forth in Section 6.24.



“Maturity Date” means October 1, 2011.



“Mortgage” means one or more real estate mortgages or deeds of trust, as applicable,
executed or to be executed and delivered pursuant to the terms of this Agreement, as such
instruments may be amended, modified or supplemented, from time to time.



“Multiemployer Plan” means a multiemployer pension plan as defined in Section 3(37) of
ERISA to which any Borrower, any of its Subsidiaries or any ERISA Affiliate is, or was, required to
contribute.



“Net Income” means, for any Person and for any period, the net income (or net loss) of
such Person for such period determined in accordance with GAAP provided that such amount shall be
adjusted to exclude (to the extent otherwise included therein and without duplication) the
following:



(a) any write-up or write-down of any asset;



(b) any net gain from the collection of the proceeds of life insurance policies;



(c) any gain (or loss) arising from the acquisition or sale of any securities or Indebtedness
of such Person and any gain or loss arising from the exercise of any warrant of such Person;



(d) any aggregate net gain (or loss) during such period arising from the sale, exchange or
other disposition of capital assets (such term to include all fixed assets, whether tangible or
intangible, all inventory sold in conjunction with the disposition of fixed assets and all
securities) other than any sale, exchange or other disposition in the ordinary course of business;



(e) all other extraordinary items; and



(f) any net income that is attributable to or derived from an entity or other issuer that is
not a Subsidiary of such Person.



“New Subsidiary” has the meaning set forth in Section 9.27.



“Non-U.S. Lender” has the meaning set forth in Section 4.5(e).



“Notes” means any promissory notes issued by the Borrowers to the Lenders in
substantially the form of Exhibit A attached hereto, and any other promissory note or notes
issued by the Borrowers to evidence the Loans and Reimbursement Obligations pursuant to this
Agreement and any replacement or restatement of, and any supplement to, such note.


 


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“Notices” has the meaning set forth in Section 13.1.



“Notice of LC Credit Event” means a written notice from an Authorized Signatory of
Parent Borrower to the Issuer with respect to any issuance, increase or extension of a Letter of
Credit specifying: (a) the date of issuance or increase of a Letter of Credit; (b) the expiry date
of such Letter of Credit; (c) the proposed terms of such Letter of Credit, including the face
amount; and (d) the transactions or additional transaction or transactions that are to be supported
or financed with such Letter of Credit or increase thereof.



“Obligations” means (a) all payment and performance obligations of every kind, nature
and description of the Borrowers and any other Loan Party to the Agent or any Lender under this
Agreement and the other Loan Documents (including, without limitation, any interest, fees and other
charges on the Loans or otherwise under the Loan Documents that would accrue but for the filing of
a bankruptcy action, whether or not such claim is allowed in such bankruptcy action), whether such
obligations are direct or indirect, absolute or contingent, due or not due, contractual or
tortious, liquidated or unliquidated, arising by operation of law or otherwise, now existing or
hereafter arising, and (b) (to the extent not included in the preceding clause (a)) the obligation
of the Borrowers or any obligor to pay an amount equal to the amount of any and all damage which
the Agent or any Lender may suffer by reason of a breach by such Person of any obligation, covenant
or undertaking with respect to this Agreement or any other Loan Document.



“Other Taxes” has the meaning set forth in Section 4.5(b).



“Participant” has the meaning set forth in Section 13.6(d).



“Payment Date” means (a) the last Business Day of each calendar month and (b) the
Revolving Credit Termination Date.



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



“Percentage” means, with respect to any Lender at any time, the percentage (carried
out to the ninth decimal place) of the Revolving Credit Facility represented by such Lender’s
Commitment at such time. If the commitment of each Lender to make Revolving Credit Loans and the
obligation of the Issuer to issue Letters of Credit have been terminated, or if the Commitments
have expired, then the Percentage of each Lender in respect of the Revolving Credit Facility shall
be determined based on the Percentage of such Lender in respect of the Revolving Credit Facility
most recently in effect, giving effect to any subsequent assignments. The initial Percentage of
each Lender in respect of the Revolving Credit Facility is set forth opposite the name of such
Lender on Schedule A or in the Assignment and Acceptance Agreement pursuant to which such Lender
becomes a party hereto, as applicable.


 


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“Permitted Acquisition” means an acquisition (whether pursuant to an acquisition of
all (but not less than all) of the Capital Securities of a Person, assets (only in the event of an
acquisition of all or substantially all of the assets of another Person, or of a division or line
of business of another Person) or otherwise) by a Borrower from any Person, in which the following
conditions are satisfied:



(a) immediately before and immediately after giving affect to such acquisition no Default or
Event of Default shall have occurred and be continuing or would result therefrom;



(b) such acquisition was not preceded by an unsolicited tender offer for such business;



(c) all transactions related thereto are consummated in accordance with applicable law;



(d) in the case of any acquisition of Capital Securities in a Person, 100% of the Capital
Securities in such Person, and any other Subsidiary resulting from such acquisition, shall be owned
directly or indirectly by a Borrower and all actions required to be taken with respect to each
Subsidiary resulting from such acquisition under Section 9.27;



(e) the Borrowers shall have delivered to the Agent a Compliance Certificate for the four
quarters immediately preceding such acquisition (prepared in good faith and in a manner and using
such methodology which is consistent with the most recent financial statements delivered pursuant
to Section 8.1) giving pro forma effect to the consummation of such acquisition and all borrowings
of Loans in connection therewith and evidencing compliance with the covenants set forth in Article
7 at all times prior to the Maturity Date; and



(f) the Borrowers shall have delivered to Agent at least ten (10) Business Days notice of such
proposed Permitted Acquisition and delivered to Agent such documentation and due diligence
materials with respect to such proposed Permitted Acquisition as Agent shall reasonably request.



“Permitted Indebtedness” has the meaning set forth in Section 9.1.



“Permitted Liens” has the meaning set forth in Section 9.2.



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



“Plan” means an “Employee Pension Benefit Plan” (as defined in Section 3(2) of ERISA)
and/or an “Employee Welfare Benefit Plan” (as defined in Section 3(1) of ERISA) which is or has
been established or maintained, or to which contributions are, or are required to be, or were, or
were required to be, made by any Borrower, any of its Subsidiaries or any ERISA Affiliate (or any
predecessor thereof), except a Multiemployer Plan.



“Prohibited Transaction” has the meaning given to such terrain Section 406 of ERISA,
Section 4975(c) of the Code, or any successor sections, and any Treasury regulations issued
thereunder.


 


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“Regulatory Change” means any Applicable Law including, without limitation, any
interpretation, directive, request or guideline (whether or not having the force of law) or any
change therein or in the administration or enforcement thereof, that becomes effective or is
implemented or first required or expected to be complied with after the date of this Agreement
(including any Applicable Law that shall have become such as the result of any act or omission
of any Borrower or any of its Affiliates, without regard to when such Applicable Law shall have
been enacted or implemented), whether the same is (a) the result of an enactment by a government or
any agency or political subdivision thereof, a determination of a court or regulatory authority or
otherwise; or (b) enacted, adopted, issued or proposed before or after the date of this Agreement,
including any such that imposes, increases or modifies any tax, reserve requirement, insurance
charge, special deposit requirement, assessment or capital adequacy requirement.



“Reimbursement Obligations” means, at any date, the obligations of Borrowers then
outstanding to reimburse the Issuer for payments made by the Issuer under a Letter of Credit.



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



“Release” means a release, spill, emission, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, leaching or migration of any Hazardous Substance into the indoor or
outdoor environment or into or out of any property, including the movement of Hazardous Substances
through or in air, soil, surface water or groundwater on any property.



“Remedial Action” means any action necessary to comply with any Environmental Law with
respect to: (a) any response to, or clean up, removal, treatment or handling of Hazardous
Substances in the indoor or outdoor environment; (b) prevention of Releases or threats of Releases
or minimization of further Releases so they do not migrate or endanger or threaten to endanger
public health or welfare or the indoor or outdoor environment; (c) performance, of pre-remedial
studies and investigations and post-remedial monitoring and care; or (d) the assessment or payment
of natural resource damages.



“Reorganization” means reorganization as defined in Section 4241(a) of ERISA.



“Reportable Event”, means an event described in Section 4043(c) of ERISA.



“Request for Advance” means a certificate designated as a “Request for Advance”,
signed by an Authorized Signatory of the Parent Borrower requesting an Advance hereunder, which
shall be substantially in the form of Exhibit B attached hereto.



“Reserve Percentage” means, with respect to any LIBOR Loan, the maximum rate at which
reserves (including any marginal, supplemental or emergency reserves) are required to be maintained
during the relevant Interest Period under Regulation D (and/or other similar regulation) of the
Board of Governors of the Federal Reserve System against “Eurocurrency Liabilities” (as such term
is used in Regulation D). Without limiting the effect of the foregoing, the Reserve Percentage
shall reflect any other reserves required to be maintained by reason of any regulatory change
against (a) any category of liabilities which includes deposits by reference to which LIBOR Rate is
to be determined as provided in the definition of “LIBOR Rate” or (b) any category of extensions of
credit or other assets which include loans the interest rate of which is based on LIBOR Rate.


 


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“Restricted Payment” means:



(a) any direct or indirect distribution, dividend or other payment (other than stock dividends
and stock splits) to any Person on account of (i) any general or limited partnership interest in,
or shares of capital stock or other securities of, any Borrower or any of its Subsidiaries or (ii)
any warrants or other rights or options to acquire shares of capital stock of, or other interest
in, any Borrower or any of its Subsidiaries;



(b) any redemption, retirement, purchase or other acquisition or any other payment on account
of any interests or securities listed above, except to the extent that the consideration therefor
consists solely of shares of stock of any Borrower or its Subsidiary, as the case may be;



(c) any sinking fund, other prepayment or installment payment on account of the foregoing;



(d) any other payment, loan or advance to a shareholder, partner or equity owner of any
Borrower or any of its Subsidiaries (whether or not in its capacity as shareholder, partner or
equity owner) other than salaries or compensation which are (i) not otherwise restricted under the
Loan Documents, (ii) in reasonable amounts and (iii) paid in the ordinary course of business; and



(e) any forgiveness or release without adequate consideration by any Borrower or any of its
Subsidiaries of any Indebtedness or, other obligation of a shareholder, partner or equity owner.



“Revolving Credit Facility” means the Revolving Credit Facility of Sixty Million
Dollars ($60,000,000) extended hereunder, consisting of the Revolving Loan Facility and the Letter
of Credit Facility.



“Revolving Credit Loans” means the loans made by the Lenders to the Borrowers pursuant
to Section 1.1 below.



“Revolving Credit Outstandings” means at any time of calculation the Dollar Equivalent
of the sum of the then existing (a) aggregate outstanding principal amount of Loans and (b) Letter
of Credit Liabilities.



“Revolving Credit Termination Date” means the Maturity Date, or such earlier date on
which the Commitment shall be completely terminated hereunder.



“Revolving Loan Facility” means the facility extended pursuant to Article 1 for the
Borrowers to make Revolving Loans from Lender.



“Secured Cash Management Agreement” means any Cash Management Agreement that is
entered into by and between a Borrower and any Cash Management Bank.



“Secured Hedge Agreement” means any interest rate Swap Contract permitted under
Section 9.1(a)(v) that is entered into by and between a Borrower and any Hedge Bank.


 


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“Secured Parties” means, collectively, the Agent, the Lenders, the Issuer, the Hedge
Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Agent from time to
time pursuant to Section 9.05, and the other Persons the Obligations owing to which are or are
purported to be secured by the Collateral under the terms of the Collateral Documents.



“Security Agreement” means that certain Amended and Restated Security Agreement from
the Borrowers, dated the date hereof, together with any other security agreement executed and
delivered pursuant to the terms of this Agreement, as such security agreements may be amended,
restated, modified or supplemented from time to time.



“Steel” means Steel Partners II, L.P., a Delaware limited partnership.



“Subsidiary” means, as applied to any Person, (a) any corporation of which more than
fifty percent (50%) of the outstanding stock (other than directors qualifying shares) having
ordinary voting power to elect a majority of the board “of directors of such corporation
(regardless of whether the holders of any class or classes of securities shall or might have such
voting power upon the occurrence of any contingency) is 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, (b) any partnership, joint venture or other association which is 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, or (c) any other entity which is directly or
indirectly controlled or capable of being controlled by such Person, or by one or more Subsidiaries
of such Person, or by such Person and one or more Subsidiaries of such Person.



“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



“Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a Lender).


 


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“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 1.5.



“Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



“Swing Line Loan” has the meaning specified in Section 1.5(a).



“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section
1.5(b).



“Swing Line Sublimit” means an amount equal to the lesser of (a) $10,000,000 and (b)
the Commitment. The Swing Line Sublimit is part of, and not in addition to, the Revolving Credit
Facility.



“Taxes” has the meaning set forth in Section 4.5(a)(ii).



“Threshold Amount” means One Million Dollars ($1,000,000).



“Total Funded Indebtedness” means all Indebtedness other than that described in
subsections (h), (i), (j) and (k) of the definition thereof.



“Transferee” has the meaning set forth in Section 9.11.



“Total Leverage Ratio” means the ratio of (a) Total Funded Indebtedness as of such
date to (b) EBITDA.



“Type” with respect to any Loan, means its designation as a Base Rate Loan or LIBOR
Loan of a specified Interest Period. Loans with Interest Periods ending on different days or of
differing durations shall be deemed to be different Types of Loans.



“UCC” shall have the meaning set forth in the Security Agreement.



“Unqualifiedly Certified” when used in connection with audited financial statements
delivered pursuant to Section 8.1 hereby by the Parent Borrower’s independent auditors or
accountants, means the absence of any qualification, limitation, exception or explanatory paragraph
that would (a) call into question or express substantial doubt about the ability of the Parent
Borrower or any Subsidiary to continue as a going concern, as discussed in the American Institute
of Certified Public Accountants Statement of Auditing Standard Number 59, (b) relate to the limited
scope of examination of matters relevant to such financial statements or (c) relate to the
treatment or classification of any item in such financial statements and, which as a condition of
its removal would require an adjustment to such item the effect of which would be to cause the
occurrence of a Default or an Event of Default.



“Withdrawal Liability” means any withdrawal liability as defined in Section 4201 of
ERISA.


 


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Section 11.2 Accounting Terms. Unless otherwise specified herein, all accounting
terms used herein shall be interpreted, all accounting determinations hereunder (including without
limitation determinations made pursuant to the exhibits hereto) shall be made, and all financial
statements required to be delivered hereunder shall be prepared on a consolidated basis in
accordance with GAAP applied on a basis consistent with the audited consolidated financial
statements of Parent Borrower and its Consolidated Subsidiaries for the year ended December 31,
2007, delivered to the Lenders; provided, that if (a) Parent Borrower shall object to
determining compliance with the provisions of this Agreement on such basis by written notice
delivered to the Lenders at the time of delivery of required financial statements due to any change
in GAAP or the rules promulgated with respect thereto or (b) the Majority Lenders shall so object
in writing by written notice delivered to Parent Borrower within sixty (60) days after delivery of
such financial statements, then compliance with this Agreement shall be determined on a basis
consistent with the above-referenced financial statements, but the parties hereto shall promptly
enter into negotiations in order to amend the financial covenants and other terms of this Agreement
and so as to equitably reflect such changes in GAAP with the desired result that the criteria for
evaluating the financial condition of Parent Borrower and its Consolidated Subsidiaries and such
other terms shall be the same in all material respects after such changes as if such changes had
not been made. All amounts used for purposes of financial calculations required to be made herein
shall be without duplication.



Section 11.3 Other Definitional Provisions. References in this Agreement to
“Articles”, “Sections”, “Annexes” or “Exhibits” shall be to Articles, Sections, Annexes or Exhibits
of or to this Agreement unless otherwise specifically provided. Any term defined herein may be
used in the singular or plural. “Include”, “includes” and “including” shall be deemed to be
followed by “without limitation”. Except as otherwise specified herein, references to any Person
include the successors and assigns of such Person. References “from” or “through” any date mean,
unless otherwise specified, “from and including” or “through and including”, respectively.
References to any statute or act shall include all related current regulations and all amendments
and any successor statutes, acts and regulations. Unless the context otherwise requires, any terms
used in the masculine form shall also include the feminine and neuter forms and vice versa and any
terms used in the plural shall include the singular and vice versa. Unless otherwise stated, any
references to a time of day shall be to the time of day in Philadelphia, Pennsylvania.



ARTICLE 12




AGENT




Section 12.1 Authority.



(a) Each of the Lenders and the Issuer hereby irrevocably appoints Bank of America to act on
its behalf as the Agent hereunder and under the other Loan Documents and authorizes the Agent to
take such actions on its behalf and to exercise such powers as are delegated to the Agent by the
terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the
benefit of the Agent, the Lenders and the L/C Issuer, and neither any Borrower nor any other
Loan Party shall have rights as a third party beneficiary of any of such provisions.


 


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(b) The Agent shall also act as the “Collateral Agent” under the Loan Documents, and each of
the Lenders (in its capacities as a Lender, Swing Line Lender (if applicable), potential Hedge Bank
and potential Cash Management Bank) and the Issuer hereby irrevocably appoints and authorizes the
Agent to act as the agent of such Lender and the L/C Issuer for purposes of acquiring, holding and
enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the
Obligations, together with such powers and discretion as are reasonably incidental thereto. In
this connection, the Agent, as “Collateral Agent” and any co-agents, sub-agents and
attorneys-in-fact appointed by the Agent for purposes of holding or enforcing any Lien on the
Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any
rights and remedies thereunder at the direction of the Agent), shall be entitled to the benefits of
all provisions of this Agreement in favor of the Agent as if set forth in full herein with respect
thereto.



Section 12.2 Expenses. In default of reimbursement or indemnification by the
Borrowers, the Lenders will, in proportion to their respective portions of the Commitment,
reimburse the Agent for and against all expense, liability, penalty and damage of any nature
whatsoever (including but not limited to reasonable attorneys fees) which may be incurred or
sustained by the Agent in any way in connection with the Loan Documents or its duties under the
Loan Documents; provided that no Lender shall be liable for any portion of the foregoing items
resulting from the gross negligence or willful misconduct of the Agent. Without limiting the
generality of any other provision excusing the Agent form taking any actions, the Agent shall not
have any obligation to take any action in connection with the, performance of its duties as Agent
under the Loan Documents which, in its opinion, requires the payment of expenses or the incurrence
of liability, if there is any ground for belief that reimbursement of such expenses or liability is
not reasonably assured to it.



Section 12.3 Action by Agent. The Agent is authorized to take any action specified in
this Agreement and all actions reasonably related thereto. However, except for actions expressly
required to be taken by the Agent in this Agreement (which actions the Agent will take as required
subject to all of the exculpatory provisions herein), the Agent is not required to take actions
that it may be authorized to take.



Section 12.4 Exculpatory Provisions.



(a) General Standard. Neither the Agent nor any of its officers, directors, employees
or agents, shall be liable for any action taken or omitted under the Loan Documents or in
connection with the Loan Documents unless caused by its or their gross negligence or willful
misconduct. Neither the Agent nor any of its officers, directors, employees or agents, shall be
liable for any action taken or omitted by it at the direction of the Majority Lenders. The Agent
shall not be responsible for any recitals, warranties or representations in the Loan Documents or
for the validity, enforceability, collectability or due execution of this Agreement or any of the
other Loan Documents.


 


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(b) Agents and Employees. The Agent may execute any of its duties by or through
agents or employees, all of whom shall be entitled to the benefits of any exculpatory provision
herein.



(c) Advice of Professionals. Agent shall be entitled to advice of counsel,
accountants or other professionals of its selection concerning all matters pertaining to the Loan
Documents and its duties under the Loan Documents. Agent is entitled to rely on the advice of its
professionals whether or not the advice is correct.



(d) Reliance on Information Believed to Be Genuine. The Agent shall be entitled to
rely upon any writing or other document, telegram or telephone conversation believed by it to have
been signed, sent or made by the proper person or persons.



Section 12.5 Investigation by Lenders. Each Lender expressly acknowledges that the
Agent has not made any representation or warranty to it and that no act taken by the Agent shall be
deemed to constitute a representation or warranty by the Agent to the Lenders. Each Lender further
acknowledges that it has taken and will continue to take such action and to make such investigation
as it deems necessary to inform itself of the affairs of the Loan Parties. Each Lender further
acknowledges that it has made and will continue to make its own independent investigation of the
creditworthiness and the business and operations of the Loan Parties. In entering into this
Agreement, and in making an advance under this Agreement, each Lender represents that it has not
relied and shall not rely upon any information or representations furnished or given by the Agent
or by any other Lender. The Agent shall be under no duty or responsibility to the Lenders to
ascertain or to inquire into the performance or observance by the Loan Parties of any of the
provisions of this Agreement or any document or instrument now or hereafter executed in connection
with this Agreement.



Section 12.6 Notice of Events of Default. Without limiting the generality of the
provisions of the preceding Section 12.5, it is expressly understood and agreed that the Agent
shall not be deemed to have knowledge of the existence, occurrence or continuance of an Event of
Default or Default, unless the Agent shall have been notified in writing of such Event of Default
by any Lender or the Borrowers pursuant to a writing designated as a “Notice of Event of
Default”. For the avoidance of doubt, the provisions of this Section 12.6 are expressly not
for the benefit of the Borrowers.



Section 12.7 Resignation; Termination. The Agent may resign at any time by giving
prior written notice to the Parent Borrower and the Lenders and the Agent may be removed at any
time with or without cause by the Majority Lenders. Such resignation or removal shall take effect
at the end of the sixty (60) day period after such notice of resignation or removal has been given
or upon the earlier appointment of a successor agent. The Lenders shall (with the consent of the
Parent Borrower so long as no Event of Default has occurred and is then continuing), upon receipt
of such notice, appoint a successor agent from among, the Lenders. The Lenders and the Borrowers
shall execute such documents as shall be necessary to effect such appointment. During any period
that there shall not be a duly appointed and acting Agent, the Borrowers agree to make each payment
due under this Agreement and under the Notes directly to each Lender entitled thereto and to
provide copies of each certificate or other document required under this Agreement directly to each
Lender.


 


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Section 12.8 Sharing. If any Lender shall at any time receive payment of principal on
account of all or a part of any Note held by it, whether by set-off or otherwise, in a greater
proportion than the principal payments made on the Notes held by the other Lenders, such Lender
shall simultaneously purchase, without recourse, for crash, ratably from each of the other Lenders,
such portion of the Notes held by such other Lenders so that, after such purchase, each Lender will
hold an unpaid principal amount of Notes in the same proportion that the outstanding principal
balance due to such Lender immediately prior to such payment bore to the aggregate outstanding
principal balance due to all Lenders immediately prior to such payment. In the event that, at any
time, any Lender shall be required to refund any amount which has been paid to or received by it on
account of any Note held by it, and which has been applied to the purchase of a portion of the
Notes held by other Lenders pursuant to this Section, then, upon notice from such Lender, each of
the other Lenders shall simultaneously purchase, without recourse, its portion for cash, to the
extent of its ratable share thereof, of the Notes held by the Lender required to make such refund.



Section 12.9 Other Relationships. It is acknowledged that the Agent, the Lenders
and/or any of their Affiliates may now or hereafter have lending or other relationships with the
Borrowers and Affiliates of the Borrowers. It is agreed that the Agent and the Lenders are free to
act with respect thereto without consulting with one another and without regard to the effect of
any such action or relationship upon the Loans or other Obligations. With respect to the portion
of the Loans made by it and Notes issued to it, the Agent shall have the same rights and powers
under the Loan Documents as any other Lender or holder of a Note and may exercise the same as
though it were not the Agent, and the term “Lenders” or “Holders of Notes” or any
similar term shall, unless the context otherwise indicates, include the Agent in its capacity as a
Lender.



ARTICLE 13




MISCELLANEOUS




Section 13.1 Notices. All notices, requests, demands, directions and other
communications (collectively, “Notices”) given to or made upon any party hereto under the
provisions of this Agreement shall be by telephone or in writing (including telex or facsimile
communication) unless otherwise expressly provided hereunder and, if in writing, shall be delivered
or sent by telex or facsimile to the respective parties at the addresses and numbers set forth
under their respective names on the signature pages hereof or in accordance with any subsequent
unrevoked written direction from any party to the others. All Notices shall, except as otherwise
expressly herein provided, be effective (a) in the case of facsimile, when received, (b) in the
case of over-night courier or other hand-delivered notice, when hand-delivered, (c) in the case of
telephone or e-mail, when telephoned or e-mailed; provided, however, that in order
to be effective, telephonic Notices or e-mail must be confirmed in writing by another medium
provided for in this Section 13.1, received no later than the next day, (d) if given by mail, four
(4) days after such communication is deposited in the mails with first class postage prepaid,
return receipt requested, and (e) if given by any other means (including by air courier), when
delivered. In the event of a discrepancy between any telephonic or written notice, the written
notice shall control. Any Lender giving any Notice to the Borrowers shall simultaneously send a
copy of such Notice to the Agent.


 


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Section 13.2 Duration; Survival. All representations and warranties of the Borrowers
contained in the Loan Documents shall survive the making of the Loans and shall not be waived by
the execution and delivery of any Loan Document or any investigation by the Agent or the Lenders,
or payment in full of the Loans. All such representations and warranties as well as all other
covenants and agreements of the Borrowers contained in the Loan Documents shall continue in full
force and effect from and after the date hereof so long as the Borrowers may borrow hereunder and
until termination of the Commitment and payment in full of the Obligations.



Section 13.3 Borrower Representative. Each Subsidiary Borrower does hereby
irrevocably make, constitute and appoint the Parent Borrower as its agent and attorney-in-fact for
all purposes in connection with the Loan Documents, including, without limitation, with respect to
any and all payments, borrowings, disbursements and notices described hereunder. All actions taken
by the Agent or the Lenders for the benefit of the Parent Borrower with respect to the matters
described above shall be deemed to have been taken for the benefit of each Borrower. The power of
attorney granted in this Section 13.3 is coupled with an interest. All actions taken by the Parent
Borrower with respect to the matters described above shall be deemed to have been taken on behalf
of each Borrower. The Agent and the Lender shall be entitled to rely conclusively upon the status
of the Parent Borrower as agent and attorney-in-fact of each Subsidiary Borrower.



Section 13.4 No Implied Waiver; Rights Cumulative. No failure or delay on the part of
the Agent or any Lender in exercising any right, power or privilege hereunder or under any other
Loan Document and no course of dealing between the Borrowers and the Agent or any Lender shall
operate as a waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Loan Document preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The rights and remedies herein expressly
provided are cumulative and not exclusive of any other rights or remedies which the Agent
or any Lender would otherwise have. No notice to or demand on the Borrowers in any case shall
entitle the Borrowers to any other or further notice or demand in similar or other circumstances,
or shall constitute a waiver of the right of the Agent or any Lender to take any other or further
action in any circumstances without notice or demand.



Section 13.5 Amendments, etc. 



No amendment or waiver of any provision of this Agreement or any other Loan Document, and no
consent to any departure by the Borrowers or any other Loan Party therefrom, shall be effective
unless in writing signed by the Majority Lenders and the Borrowers or the applicable Loan Party, as
the case may be, and acknowledged by the Agent, and each such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given; provided, however, that
no such amendment, waiver or consent shall:



(a) waive any condition set forth in Section 5.3, or, in the case of the initial Loans,
Section 5.1, without the written consent of each Lender;



(b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 10.2) without the written consent of such Lender;


 


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(c) postpone any date fixed by this Agreement or any other Loan Document for any payment
(excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under such other Loan Document without the written consent of each
Lender entitled to such payment;



(d) reduce the principal of, or the rate of interest specified herein on, any Loan or
Reimbursement Obligations, or (subject to clause (iv) of the second proviso to this Section 13.5)
any fees or other amounts payable hereunder or under any other Loan Document without the written
consent of each Lender entitled to such amount; provided, however, that only the consent of the
Majority Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any
obligation of the Borrowers to pay interest or Letter of Credit Fees at the Default Rate or (ii) to
amend any financial covenant hereunder (or any defined term used therein) even if the effect of
such amendment would be to reduce the rate of interest on any Loan or Reimbursement Obligation or
to reduce any fee payable hereunder;



(e) change Section 1.6 or Section 10.4 in a manner that would alter the pro rata sharing of
payments required thereby without the written consent of each Lender; or



(f) release all or substantially all of the Collateral in any transaction or series of related
transactions, without the written consent of each Lender;



and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and
signed by the Issuer in addition to the Lenders required above, affect the rights or duties of the
Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be
issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing
Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing
and signed by the Agent in addition to the Lenders required above, affect the rights or duties of
the Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended,
or rights or privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender.



If any Lender does not consent to a proposed amendment, waiver, consent or release with
respect to any Loan Document that requires the consent of each Lender and that has been approved by
the Required Lenders, the Borrowers may replace such non-consenting Lender in accordance with
Section 13.6; provided that such amendment, waiver, consent or release can be effected as a result
of the assignment contemplated by such Section (together with all other such assignments required
by the Borrowers to be made pursuant to this paragraph).


 


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Section 13.6 Successors and Assigns.



(a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that neither a Borrower nor any other Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder without the
prior written consent of the Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with
the provisions of Section 13.6(b), (ii) by way of participation in accordance with the provisions
of Section 13.6(d), or (iii) by way of pledge or assignment of a security interest subject to the
restrictions of Section 13.6(f) (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the
extent expressly contemplated hereby, the Related Parties of each of the Agent, the Issuer and the
Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.



(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees (each an “Assignee”) all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment(s) and the Loans (including for purposes of this
Section 13.6(b), participations in Letter of Credit Liabilities) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:



(i) Minimum Amounts.




(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s
Commitment under any Facility and the Loans at the time owing to it under such Facility or in
the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum
amount need be assigned; and




(B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount
of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the
Commitment is not then in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment, determined as of the date the Assignment and
Acceptance Agreement with respect to such assignment is delivered to the Agent or, if “Trade
Date” is specified in the Assignment and Acceptance Agreement, as of the Trade Date, shall not
be less than $5,000,000, unless each of the Agent and, so long as no Event of Default has
occurred and is continuing, the Parent Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided, however, that concurrent
assignments to members of an Assignee Group and concurrent assignments from members of an
Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its
Assignee Group) will be treated as a single assignment for purposes of determining whether such
minimum amount has been met;



(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned, except that this clause (ii) shall not prohibit
any Lender from assigning all or a portion of its rights and obligations among any separate
facilities on a non-pro rata basis;


 


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(iii) Required Consents. No consent shall be required for any assignment except to
the extent required by subsection (b)(i)(B) of this Section and, in addition:




(A) the consent of the Parent Borrower (such consent not to be unreasonably withheld or
delayed; provided that the Parent Borrower shall not be required to consent to any assignment to
a Fund which is not an Approved Fund) shall be required unless (1) an Event of Default has
occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender,
an Affiliate of a Lender or an Approved Fund;




(B) the consent of the Agent (such consent not to be unreasonably withheld or delayed)
shall be required for assignments if such assignment is to a Person that is not a Lender, an
Affiliate of such Lender or an Approved Fund with respect to such Lender; and




(C) the consent of the Issuer (such consent not to be unreasonably withheld or delayed)
shall be required for any assignment that increases the obligation of the assignee to
participate in exposure under one or more Letters of Credit (whether or not then outstanding).



(iv) Assignment and Acceptance Agreement. The parties to each assignment shall
execute and deliver to the Agent an Assignment and Acceptance Agreement, together with a processing
and recordation fee in the amount of $3,500; provided, however, that the Agent may,
in its sole discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Agent an Administrative
Questionnaire.



(v) No Assignment to Borrowers. No such assignment shall be made to a Borrower or any
of a Borrower’s Affiliates or Subsidiaries.



(vi) No Assignment to Natural Persons. No such assignment shall be made to a natural
person.



Subject to acceptance and recording thereof by the Agent pursuant to subsection (c) of this
Section, from and after the effective date specified in each Assignment and Acceptance Agreement,
the assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Acceptance Agreement, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance Agreement, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance Agreement covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto)
but shall continue to be entitled to the benefits of Sections 4.4, and 4.5 with
respect to facts and circumstances occurring prior to the effective date of such assignment. Upon
request, the Borrowers (at its expense) shall execute and deliver a Note to the assignee Lender.
Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not
comply with this subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with Section
13.6(d).



(c) Register. The Agent, acting solely for this purpose as an agent of the Borrowers,
shall maintain at the Agent’s office a copy of each Assignment and Acceptance Agreement delivered
to it and a register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and Letter of Credit Liabilities owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and the Borrowers, the Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.


 


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(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrowers or the Agent, sell participations to any Person (other than a natural person or the
Borrowers or any of the Borrowers’ Affiliates or Subsidiaries) (each, a “Participant”) in
all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or
a portion of its Commitment and/or the Loans (including such Lender’s participations in Letter of
Credit Liabilities) owing to it); provided that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrowers, the Agent, the
Lenders and the Issuer shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any amendment, waiver
or other modification described in Section 13.5 that affects such Participant. Subject to
subsection (e) of this Section, the Borrowers agrees that each Participant shall be
entitled to the benefits of Sections 4.4 and 4.5 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section 13.6(b). To the
extent permitted by law, each Participant also shall be entitled to the benefits of Section
13.12 as though it were a Lender, provided such Participant agrees to be subject to
Section 12.8 as though it were a Lender.



(e) Limitation Upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 4.4 or 4.5 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrowers’ prior written consent. A
Participant that would be a Non-U.S. Lender if it were a Lender shall not be entitled to the
benefits of Section 4.5 unless the Borrowers are notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrowers, to comply with Section
4.5(e) as though it were a Lender.



(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.


 


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(g) Resignation as Issuer after Assignment. Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its Revolving Credit Commitment and
Revolving Credit Loans pursuant to Section 13.6(b), Bank of America may, upon 30 days’ notice to
the Borrowers and the Lenders, resign as Issuer. In the event of
any such resignation as Issuer, the Borrowers shall be entitled to appoint from among the
Lenders a successor Issuer hereunder; provided, however, that no failure by the Borrowers to
appoint any such successor shall affect the resignation of Bank of America as Issuer. If Bank of
America resigns as Issuer, it shall retain all the rights, powers, privileges and duties of the
Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its
resignation as Issuer and all Letter of Credit Liabilities with respect thereto (including the
right to require the Lenders to make Base Rate Loans or fund risk participations in unreimbursed
amounts pursuant to Section 1.4(f)). Upon the appointment of a successor Issuer, (a) such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring Issuer and (b) the successor Issuer shall issue letters of credit in substitution
for the Letters of Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of
America with respect to such Letters of Credit.



Section 13.7 Descriptive Headings. The descriptive headings of the several sections
of this Agreement are inserted for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.



Section 13.8 Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be construed and interpreted in accordance with the laws of the
Commonwealth of Pennsylvania without reference to the laws applicable to conflicts or choice of
law.



Section 13.9 Payments Due on Non-Business Days. If any payment under the Loan
Documents becomes due on a day which is not a Business Day, the due date of such payment shall be
extended to the next succeeding Business Day, and such extension of time shall be included in
computing interest and fees in connection with such payment.



Section 13.10 Counterparts. This Agreement and the other Loan Documents may be
executed in one or more counterparts, each of which shall constitute an original, but all of which
together shall constitute one and the same instrument. Delivery of a photocopy or telecopy of an
executed counterpart of a signature page to any Loan Document shall be as effective as delivery of
a manually executed counterpart of such Loan Document.



 


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Section 13.11 Maximum Lawful Interest Rate.



(a) All agreements between any Borrowers and Guarantors and the Lenders are hereby expressly
limited so that in no contingency or event, whatsoever, whether by reason of acceleration of
maturity of the indebtedness evidenced hereby or otherwise, shall the amount paid or agreed to be
paid to the Lenders for the use or the forbearance of the indebtedness evidenced hereby exceed the
maximum permissible under applicable law. As used herein, the term “Applicable Law” shall
mean the law in effect as of the date hereof; provided, however, that in the event
there is a change in the law, which results in a higher permissible rate of interest, then this
Agreement shall be governed by such new law as of its effective date. In this regard, it is
expressly agreed that it is the intent of Borrowers and the Lenders in the execution, delivery and
acceptance of this Agreement to contract in strict compliance with the laws of the Commonwealth of
Pennsylvania from time to time in effect. If, under or from any circumstances whatsoever,
fulfillment of any provision hereof or of any of the Loan Documents
at the time of performance of such provision shall be due, shall involve transcending the
limit of such validity prescribed by Applicable Law, then the obligation to be fulfilled shall
automatically be reduced to the limits of such validity, and if under or from circumstances
whatsoever the Lenders should ever receive as interest an amount which would exceed the highest
lawful rate, such amount which would be excessive interest shall be applied to the reduction of the
principal balance evidenced hereby and not to the payment of interest. This provision shall
control every other provision of all agreements between any Borrowers, Guarantors and the Lenders.



(b) If, at any time, the rate of interest, together with all amounts which constitute interest
and which are reserved, charged or taken by the Lenders as compensation for fees, services or
expenses incidental to the making, negotiating or collection of the loan evidenced hereby, shall be
deemed by any competent court of law, governmental agency or tribunal to exceed the maximum rate of
interest permitted to be charged by the Lenders to Borrowers under applicable law, then, during
such time as such rate of interest would be deemed excessive, that portion of each sum paid
attributable to that portion of such interest rate that exceeds the maximum rate of interest so
permitted shall be deemed a voluntary prepayment of principal.



Section 13.12 Set-off of Bank Accounts. The Borrowers hereby grant to Agent for the
pro rata benefit of the Lenders and their successors and assigns a continuing lien, security
interest and right of set-off as security for all Obligations, whether now existing or hereafter
arising, upon and against all deposits, credits, collateral and property now or hereafter in the
possession, custody, safekeeping or control of any Lender or any entity under common control with
any Lender or in transit to any of them. At any time following an Event of Default which is
continuing without demand or notice (any such notice being expressly waived by the Borrowers), the
Agent and/or such Lender may set-off the same or any part thereof and apply the same to the
Obligations of the Borrowers or any Guarantor even though unmatured and regardless of the adequacy
of the other Collateral. ALL RIGHTS TO REQUIRE THE AGENT OR ANY LENDER TO EXERCISE ITS RIGHTS OR
REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOANS, PRIOR TO EXERCISING ITS
RIGHT TO SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS, ARE
HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.



Section 13.13 Severability. Every provision of the Loan Documents is intended to be
severable, and if any term or provision hereof or thereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of the remaining provisions
hereof or thereof shall not be affected or impaired thereby, and any invalidity, illegality or
unenforceability in any jurisdiction shall not affect the validity, legality or enforceability of
any such term or provision in any other jurisdiction.


 


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Section 13.14 Payment and Reimbursement of Costs and Expenses; Indemnification.



(a) Whether or not any Loans are made, the Borrowers shall, unconditionally upon demand, pay
or reimburse the Agent for, and indemnify and save the Agent harmless against, any and all
liabilities, losses (including judgments, penalties and fines), costs,
expenses, claims, and/or charges (including without limitation reasonable fees and
disbursements of legal counsel, accountants, investigators, the reasonable allocated costs , of
in-house legal counsel, accounting, consulting, brokerage or other similar professional fees and
expenses, and any fees and expenses associated with travel or other costs relating to any
appraisals or examinations conduction with the Loans or any Collateral, and other experts, whether
or not they are employees of the Agent) (collectively, “Losses”) arising out of, relating to or
connected with:



(i) the negotiation, preparation, default, collection, waiver or amendment of any of the Loan
Documents, whether or not executed, or any waiver, modification, restatement, reaffirmation,
amendment or consent thereunder or thereto;



(ii) the administration of the Loan Documents, including, without limitation, performing
audits or investigations or consulting with attorneys or other advisors with respect to any matter
in any way arising out of, related to, or connected with, the Loan Documents; and



(b) Without limiting the generality of the foregoing paragraph (a), whether or not any Loans
are made, the Borrowers shall, unconditionally upon demand, pay or reimburse each Indemnified
Person for, and indemnify and save each Indemnified Person harmless against, any and all Losses
incurred by such Indemnified Person in connection with, arising out of or in any way relating to:



(i) any claim (whether civil, criminal or administrative and whether sounding in tort,
contract or otherwise) arising out of, related to or connected with, the Loan Documents (including,
without limitation, related to property subject to Mortgages or leasehold mortgages), whether such
claim arises or is asserted before or after the date hereof or before or after the Maturity Date
(whether such claim is asserted by such Indemnified Person or the Borrowers or any other Person);



(ii) any investigation, governmental or otherwise, arising out of, related to, or in any way
connected with, the Loan Documents or the relationships established thereunder, including the
prosecution or defense or investigation thereof and any litigation or proceeding with respect
thereto (whether or not, in the case of any such litigation or proceeding, such Indemnified Party
is a party thereto);



(iii) protecting, preserving, exercising or enforcing any of the rights of the Agent and the
Lenders in, under or related to the Loan Documents;



(iv) all transfer, documentary, stamp and similar taxes, and all recording and filing fees and
taxes payable in connection with, arising out of, or in any way related to, the execution, delivery
and performance of the Loan Documents or the making of the Loans; and



(v) commissions or claims by or on behalf of brokers, finders or agents not retained by the
Lenders (and the Borrowers represent that they have not engaged or used any such broker, finder or
agent);


 


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except to the extent any of the foregoing is held by a final, non-appealable judgment of a court of
competent jurisdiction to have resulted solely and directly from the gross negligence or willful
misconduct of such Indemnified Person.



(c) The amount of all of such Losses shall, beginning ten (10) days following notification of
the Parent Borrower thereof until paid, bear interest at the rate applicable to Base Rate Loans
hereunder (including the Default Rate) and all obligations of Borrowers in respect thereof shall be
secured by the Collateral.



Section 13.15 Consent to Jurisdiction. For the purpose of any action that may be
brought in connection with this Agreement or any Loan Document, the Borrowers hereby consent to the
jurisdiction and venue of the courts of the Commonwealth of Pennsylvania or of any federal court
located in such state and waives personal service of any and all process upon it and consents that
all such service of process be made by certified or registered mail directed to such Borrowers at
the address provided for in Section 13.1 and service so made shall be deemed to be completed on
actual receipt. The Borrowers waive the right to contest the jurisdiction and venue of the courts
located in the Commonwealth of Pennsylvania on the ground of inconvenience or otherwise and,
further, waives any right to bring any action or proceeding against the Lenders in any court
outside the City of Philadelphia in the Commonwealth of Pennsylvania. The provisions of this
Section shall not limit or otherwise affect the right of the Agent or any Lender to institute and
conduct an action in any other appropriate manner, jurisdiction or court.



Section 13.16 Termination. This Agreement shall remain in full force and effect until
the later of (a) the time that all Obligations shall have been indefeasibly paid in full and (b)
the time that there shall be no Commitment; provided, however, that the Borrowers
expense and indemnification obligations pursuant to Section 13.13 above as well as any liability in
connection with any untrue representation or warranty, shall survive such termination.



Section 13.17 Waiver of Right to Jury Trial. EACH PARTY MUTUALLY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS
CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY
COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF THE AGENT OR ANY LENDER RELATING TO
THE ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT NO PARTY WILL
SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS
NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, BORROWERS HEREBY WAIVE ANY RIGHT THEY MAY HAVE TO
CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. BORROWERS CERTIFY THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF THE AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE
AGENT
OR ANY LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.
THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR LENDER TO ACCEPT THIS AGREEMENT AND MAKE THE
LOAN.


 


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Section 13.18 Confidentiality. The Agent and the Lenders agree to keep confidential
all non-public information provided to it by any Loan Party pursuant to this Agreement;
provided that nothing herein shall prevent the Agent and the Lenders from disclosing any
such information (a) to any Transferee or prospective Transferee that agrees to comply with the
provisions of this Section (or executes a confidentiality agreement with confidentiality terms that
are substantially similar to the terms of this Section), (b) to any of its employees, directors,
agents, attorneys, accountants and other professional advisors), (c) upon the request or demand of
any Governmental Authority or self regulatory body having or claiming to have jurisdiction over it,
(d) in response to any order of any court or other Governmental Authority or as may otherwise be
required pursuant to any requirement of law, (e) if requested or required to do so in connection
with any litigation or similar proceeding to which it is a party (so long as the pertinent Loan
Party is given a reasonable opportunity to seek a protective order to safeguard such information),
or (f) in connection with the exercise of any remedy hereunder or under any other Loan Document.
Notwithstanding any other express or implied agreement, arrangement or understanding to the
contrary, each of the parties hereto hereby, agree that, each party hereto (and each of its
employees, representatives or agents) are permitted to disclose to any and all persons, without
limitation, the tax treatment and tax aspects of the Loans and the other transactions contemplated
hereby, and all materials of any kind (including opinions or other tax analyses) that are
provided to the Loan Parties or the Agent and the Lenders, related to such tax treatment
and tax aspects. To the extent not inconsistent with the immediately preceding sentence, this
authorization does not extend to disclosure of any other information or any other term or detail
not related to the tax treatment or tax aspects of the Loans or the other transactions contemplated
hereby.



Section 13.19 USA Patriot Act. Each Lender that is subject to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) hereby
notifies the Borrowers that, pursuant to the requirements of the Act, it is required to obtain,
verify and record information that identifies each Borrower, which information includes the name
and address of each Borrower and other information that will allow such Lender to identify such
Borrower in accordance with the Act.



Section 13.20 Conversion of Currencies.



(a) If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum
owing hereunder in one currency into another currency, each party hereto agrees, to the fullest
extent that it may effectively do so, that the rate of exchange used shall be that at which, in
accordance with normal banking procedures in the relevant jurisdiction, the first currency could be
purchased with such other currency on the Business Day immediately preceding the day on which final
judgment is given.


 


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(b) The obligations of the Borrowers in respect of any sum due to any party hereto or any
holder of the obligations owing hereunder (the “Applicable Creditor”) shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than the
currency
in which such sum is stated to be due hereunder (the “Agreement Currency”), be
discharged only to the extent that, on the Business Day following receipt by the Applicable
Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may, in
accordance with normal banking procedures in the relevant jurisdiction, purchase the Agreement
Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less
than the sum originally due to the Applicable Creditor in the Agreement Currency, the Borrowers
agree, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the Borrowers contained in this Section 13.20 shall
survive the termination of this Agreement and the payment of all other amounts owing hereunder.



Section 13.21 Amendment and Restatement. Notwithstanding that this Agreement is
amending and restating the Existing Credit Agreement, nothing contained herein shall be deemed to
cause a novation of any transfers, conveyances or transactions which were effected under the
Existing Agreement, or of any Obligations, including, without limitation, the Indebtedness
evidenced by the Notes issued pursuant thereto and the security interests granted pursuant to the
Collateral Documents.


 


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IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Revolving
Credit Agreement, or caused it to be executed by their duly authorized officers, all as of the day
and year first above written.



	 	 	 	 	 	 	 
	 	 	Parent Borrower:
	 
	 	 	 	 	 	 
	 	 	SL INDUSTRIES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David R. Nuzzo	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: David R. Nuzzo	 	 
	 

	 	 	 	Title: Vice President & Chief Financial Officer	 	 
	 

	 	 	 	Phone: (856) 222-5515	 	 
	 

	 	 	 	Fax: (856) 727-1683	 	 
	 

	 	 	 	E-Mail: david.nuzzo@slindustries.com	 	 
	 
	 	 	 	 	 	 
	 	 	Subsidiary Borrowers:	 	 
	 
	 	 	 	 	 	 
	 	 	SL DELAWARE, INC.	 	 
	 	 	SL DELAWARE HOLDINGS, INC.	 	 
	 	 	MTE CORPORATION	 	 
	 	 	RFL ELECTRONICS INC.	 	 
	 	 	SL MONTEVIDEO TECHNOLOGY, INC.	 	 
	 	 	CEDAR CORPORATION	 	 
	 	 	TEAL ELECTRONICS CORPORATION	 	 
	 	 	MEX HOLDINGS LLC	 	 
	 	 	SL POWER ELECTRONICS CORPORATION	 	 
	 	 	SLGC HOLDINGS, INC.	 	 
	 	 	SLW HOLDINGS, INC.	 	 
	 	 	SL AUBURN, INC.	 	 
	 	 	SL SURFACE TECHNOLOGIES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David R. Nuzzo	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: David R. Nuzzo	 	 
	 

	 	 	 	Title: Authorized Officer	 	 
	 
	 	 	 	 	 	 
	 	 	See contact information above	 	 






 


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	 	 	BANK OF AMERICA, N.A., in its capacity as Agent
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Anne Zeschke	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Anne Zeschke	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	For payments and requests for credit extensions:	 	 
	 

	 	 	 	Mail Stop: NC1-001-04-39	 	 
	 

	 	 	 	101 North Tryon Street	 	 
	 

	 	 	 	Charlotte, NC 28255	 	 
	 

	 	 	 	Attn: Brian Greuling	 	 
	 

	 	 	 	Phone: 704-386-3767	 	 
	 

	 	 	 	Fax: 704-683-9368	 	 
	 

	 	 	 	E-Mail: brian.t.greuling@bankofamerica.com	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	For all other notice purposes:	 	 
	 

	 	 	 	Mail Stop IL1-231-10-41	 	 
	 

	 	 	 	231 South LaSalle Street	 	 
	 

	 	 	 	Chicago, IL 60604	 	 
	 

	 	 	 	Attn: Laura Call	 	 
	 

	 	 	 	Phone: 312-828-3559	 	 
	 

	 	 	 	Fax: 877-207-2883	 	 
	 

	 	 	 	E-Mail: laura.call@bankofamerica.com	 	 
	 
	 	 	 	 	 	 
	 	 	Wire Transfer Information:
	 
	 	 	 	 	 	 
	 

	 	 	 	Bank of America, N.A.	 	 
	 

	 	 	 	Attention: Corporate Credit Services	 	 
	 

	 	 	 	Account Number: 136-621-225-0600	 	 
	 

	 	 	 	Reference: SL Industries	 	 
	 

	 	 	 	ABA Number: 026009593	 	 






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	 	 	BANK OF AMERICA, N.A., in its capacity as a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Christian Barrow	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Christian Barrow	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Bank of America, N.A.	 	 
	 

	 	 	 	1600 John F. Kennedy Boulevard	 	 
	 

	 	 	 	4 Penn Center, Suite 1100	 	 
	 

	 	 	 	Philadelphia, PA 19103	 	 
	 

	 	 	 	Attn: Christian Barrow	 	 
	 

	 	 	 	Phone: 267.675.0109	 	 
	 

	 	 	 	Fax: 212.548.8911	 	 
	 

	 	 	 	christian.d.barrow@bankofamerica.com	 	 






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	 	 	PNC BANK, NATIONAL ASSOCIATION
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ John Siegrist	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: John Siegrist	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	PNC Bank, National Association	 	 
	 

	 	 	 	1600 Market Street	 	 
	 

	 	 	 	Philadelphia, PA 19103	 	 
	 

	 	 	 	Attn: John Siegrist, Senior Vice President	 	 
	 

	 	 	 	Phone: 215-585-5355	 	 
	 

	 	 	 	Fax:	 	 
	 

	 	 	 	John.siegrist@pnc.com	 	 






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	 	 	KEYBANK, N.A.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ronald W. Gale	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Ronald W. Gale	 	 
	 

	 	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	KeyBank Capital Markets Inc.	 	 
	 

	 	 	 	45 Rockefeller Plaza	 	 
	 

	 	 	 	33rd Floor	 	 
	 

	 	 	 	New York, NY 10111	 	 
	 

	 	 	 	Attn: Ronald W. Gale, Director	 	 
	 

	 	 	 	Phone: 212-424-1828	 	 
	 

	 	 	 	Fax:	 	 
	 

	 	 	 	rgale@keybanccm.com	 	 






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