Exhibit 4.1


 


EXECUTION COPY


 




 





AMENDED AND RESTATED


 


CREDIT AGREEMENT


 


dated as of


 


April 20, 2001


 


among


 


ALLIANT TECHSYSTEMS
INC.


 


The Borrowing
Subsidiaries Party Hereto


 


The Lenders Party
Hereto


 


The Issuing Banks
Party Hereto


 


CREDIT LYONNAIS NEW
YORK BRANCH

as Syndication Agent


 


and


 


BANK OF NEW YORK

FIRST UNION NATIONAL BANK

THE TORONTO-DOMINION BANK

US BANK


as Documentation
Agents


 


and


 


JPMORGAN CHASE BANK,

as Administrative Agent


 












 


J.P. MORGAN
SECURITIES INC.

as Sole Lead Arranger and Sole Bookrunner




 





 

















 


TABLE OF
CONTENTS


 


 


	
  ARTICLE
  IDefinitions

  
	
   

  
	
  SECTION 1.01.  Defined Terms

  
	
  SECTION 1.02.  Classification of Loans and
  Borrowings

  
	
  SECTION 1.03.  Terms Generally

  
	
  SECTION 1.04.  Accounting Terms; GAAP

  
	
   

  
	
  ARTICLE
  IIThe Credits

  
	
   

  
	
  SECTION 2.01.  Commitments

  
	
  SECTION 2.02.  Loans and Borrowings

  
	
  SECTION 2.03.  Requests for Borrowings

  
	
  SECTION 2.04.  Swingline Loans

  
	
  SECTION 2.05.  Letters of Credit

  
	
  SECTION 2.06.  Funding of Borrowings

  
	
  SECTION 2.07.  Interest Elections

  
	
  SECTION 2.08.  Termination and Reduction of
  Commitments

  
	
  SECTION 2.09.  Repayment of Loans; Evidence
  of Debt

  
	
  SECTION 2.10.  Amortization of Term Loans

  
	
  SECTION 2.11.  Prepayment of Loans

  
	
  SECTION 2.12.  Fees

  
	
  SECTION 2.13.  Interest

  
	
  SECTION 2.14.  Alternate Rate of Interest

  
	
  SECTION 2.15.  Increased Costs

  
	
  SECTION 2.16.  Break Funding Payments

  
	
  SECTION 2.17.  Taxes.

  
	
  SECTION 2.18.  Payments Generally; Pro Rata
  Treatment; Sharing of Setoffs

  
	
  SECTION 2.19.  Mitigation Obligations;
  Replacement of Lenders

  
	
  SECTION 2.20.  Obligations Constitute
  Designated Senior Indebtedness

  
	
   

  
	
  ARTICLE
  IIIRepresentations and Warranties

  
	
   

  
	
  SECTION 3.01.  Existence and Power

  
	
  SECTION 3.02.  Authorization; No Contravention

  
	
  SECTION 3.03.  Binding Effect

  
	
  SECTION 3.04.  Financial Information

  
	
  SECTION 3.05.  Litigation

  



 


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  SECTION 3.06.  Compliance with ERISA

  
	
  SECTION 3.07.  Environmental Matters

  
	
  SECTION 3.08.  Taxes

  
	
  SECTION 3.09.  Subsidiaries

  
	
  SECTION 3.10.  Not an Investment Company

  
	
  SECTION 3.11.  Full Disclosure

  
	
  SECTION 3.12.  Compliance with Laws

  
	
  SECTION 3.13.  Solvency

  
	
  SECTION 3.14.  Senior Indebtedness

  
	
   

  
	
  ARTICLE
  IVConditions

  
	
   

  
	
  SECTION 4.01.  Each Credit Event

  
	
   

  
	
  ARTICLE
  VAffirmative Covenants

  
	
   

  
	
  SECTION 5.01.  Financial Statements and
  Other Information

  
	
  SECTION 5.02.  Payment of Obligations

  
	
  SECTION 5.03.  Maintenance of Property;
  Insurance

  
	
  SECTION 5.04.  Conduct of Business and
  Maintenance of Existence

  
	
  SECTION 5.05.  Compliance with Laws

  
	
  SECTION 5.06.  Inspection of Property,
  Books and Records

  
	
  SECTION 5.07.  Use of Proceeds and Letters
  of Credit

  
	
  SECTION 5.08.  Additional Subsidiaries

  
	
  SECTION 5.09.  Further Assurances

  
	
  SECTION 5.10.  Maintenance of Collateral;
  Alterations

  
	
   

  
	
  ARTICLE
  VINegative Covenants

  
	
   

  
	
  SECTION 6.01.  Indebtedness; Certain Equity
  Securities

  
	
  SECTION 6.02.  Negative Pledge

  
	
  SECTION 6.03.  Consolidations, Mergers and
  Sales of Assets

  
	
  SECTION 6.04.  Investments

  
	
  SECTION 6.05.  Transactions with Affiliates

  
	
  SECTION 6.06.  Constitutional Documents

  
	
  SECTION 6.07.  Waivers and Amendments of
  Related Documents

  
	
  SECTION 6.08.  Restricted Payments

  
	
  SECTION 6.09.  Foreign Subsidiaries

  
	
  SECTION 6.10.  Minimum Consolidated Net
  Worth

  
	
  SECTION 6.11.  Leverage Ratio

  
	
  SECTION 6.12.  Interest Coverage

  
	
  SECTION 6.13.  Outside Letters of Credit

  
	
  SECTION 6.14.  Designated Senior Debt

  
	
  SECTION 6.15.  Derivatives Obligations

  
	
  SECTION 6.16.  Additional Debt Incurrence

  
	
  SECTION 6.17.  Capital Expenditures

  



 


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  ARTICLE
  VII

  
	
   

  
	
  Events of Default

  
	
   

  
	
  ARTICLE
  VIII

  
	
   

  
	
  The Administrative Agent

  
	
   

  
	
  ARTICLE
  IX

  
	
   

  
	
  Guarantee

  
	
   

  
	
   

  
	
  ARTICLE
  XMiscellaneous

  
	
   

  
	
  SECTION 10.01.  Notices

  
	
  SECTION 10.02.  Waivers; Amendments

  
	
  SECTION 10.03.  Expenses; Indemnity; Damage
  Waiver

  
	
  SECTION 10.04.  Successors and Assigns

  
	
  SECTION 10.05.  Survival

  
	
  SECTION 10.06.  Counterparts; Integration;
  Effectiveness

  
	
  SECTION 10.07.  Severability

  
	
  SECTION 10.08.  Right of Setoff

  
	
  SECTION 10.09.  Governing Law; Jurisdiction;
  Consent to Service of Process

  
	
  SECTION 10.10.  WAIVER OF JURY TRIAL

  
	
  SECTION 10.11.  Headings

  
	
  SECTION 10.12.  Confidentiality

  
	
  SECTION 10.13.  Interest Rate Limitation

  
	
  SECTION 10.14.  Information Concerning
  Foreign Persons

  
	
  SECTION 10.15.  Release of Liens and
  Guarantees

  



 


4

















 


	
  SCHEDULES:

  
	
   

  
	
  Schedule 1.01 —
  Acquisition Documents

  
	
  Schedule 2.01 —
  Commitments

  
	
  Schedule 2.05 —
  Letters of Credit

  
	
  Schedule 5.03 —
  Insurance

  
	
  Schedule 5.10 —
  Mortgaged Property

  
	
  Schedule 6.01 —
  Existing Indebtedness

  
	
  Schedule 6.02 —
  Existing Liens

  
	
  Schedule 6.04 —
  Existing Investments

  
	
   

  
	
   

  
	
  EXHIBITS:

  
	
   

  
	
  Exhibit A — Form of
  Assignment and Acceptance

  
	
  Exhibit B — Form of
  Perfection Certificate

  
	
  Exhibit C — Form of
  Pledge Agreement

  
	
  Exhibit D — Form of
  Security Agreement

  
	
  Exhibit E — Form of
  Subsidiary Guaranty Agreement

  
	
  Exhibit F —
  Solvency Certificate

  



 


5

















 


AMENDED AND RESTATED
CREDIT AGREEMENT dated as of April 20, 2001 among ALLIANT TECHSYSTEMS INC., a
Delaware corporation (the “Company”),
the BORROWING SUBSIDIARIES party hereto (each, a “Borrowing Subsidiary” and collectively with the Company, the
“Borrowers”), the LENDERS party
hereto, and JPMORGAN CHASE BANK, as Administrative Agent.


 


The Borrowers have
requested that (a) the Lenders extend credit in the form of
(i) Tranche A Term Loans to the Company on the Effectiveness Date, in an
aggregate principal amount not in excess of $300,000,000, (ii) Tranche B
Term Loans to the Company on the Effectiveness Date, in an aggregate principal
amount not in excess of $500,000,000, (iii) Tranche C Term Loans on the
Amendment Effectiveness Date, in an aggregate principal amount not in excess of
$525,000,000, and (iv) Revolving Loans and Swingline Loans to the
Borrowers at any time and from time to time commencing on the Effectiveness
Date and ending on the Revolving Maturity Date, in an aggregate principal
amount at any time outstanding not in excess of $250,000,000, of which not more
than $20,000,000 may be in the form of Swingline Loans, and (b) the
Issuing Banks extend credit to the Borrowers by issuing Letters of Credit for
the respective accounts of the Borrowers at any time and from time to time
commencing on the Effectiveness Date and ending on the Revolving Maturity Date,
in an aggregate stated amount at any time outstanding not in excess of
$150,000,000.


 


All the proceeds of
the Term Loans made on the Effectiveness Date, together with the proceeds of
either the Senior Subordinated Notes (or other Permanent Securities) or the
Bridge Facility, and of Revolving Loans in an aggregate amount not in excess of
$95,000,000, were used by the Company (a) to consummate the Acquisition,
(b) to refinance the indebtedness outstanding under the Existing Credit
Agreements, and (c) to pay related fees and expenses in connection with closing
the Transactions in an aggregate amount not to exceed $40,000,000.  All the proceeds of the Tranche C Term Loans
(a) were used by the Company on the Amendment Effectiveness Date to prepay
all Tranche B Term Loans outstanding on the Amendment Effectiveness Date, and,
with respect to any remaining proceeds, (b) will be used by the Company to
consummate the acquisition of certain assets of The Boeing Company and/or for
other general corporate purposes.  The
proceeds of Revolving Loans and Swingline Loans made after the Effectiveness
Date will be used for general corporate purposes, including to finance
acquisitions and to pay related fees and expenses.  The Letters of Credit and the Lender Letters of Credit will be used
for general corporate purposes.


 


The Lenders are
willing to extend such credit to the Borrowers, and the Issuing Banks are
willing to issue Letters of Credit for the respective accounts of


 


6

















 


the Borrowers, on the terms and
subject to the conditions set forth herein. 
Accordingly, the parties hereto agree as follows:


 


ARTICLE I


 


Definitions


 


SECTION 1.01.  Defined
Terms.  The following terms,
as used herein, have the following meanings:


 


“ABR”, when used in reference to any Loan
or Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by reference to the
Alternate Base Rate.


 


“Acquired Indebtedness” means any
Indebtedness (i) of any Subsidiary existing at the time of acquisition of
such Subsidiary or (ii) assumed by a Subsidiary in connection with the
acquisition of assets or the business of another Person, whether by purchase,
merger, consolidation or otherwise, in each case in clause (i) or (ii)
above, which Indebtedness is not incurred in contemplation of such acquisition,
purchase, merger, consolidation or other event.


 


“Acquisition” means the Company’s
acquisition of Thiokol from Alcoa in a transaction in which Cordant will divest
itself of all assets and liabilities other than those of Thiokol and the
Company will purchase all the capital stock of Cordant for an aggregate cash
purchase price of $685,000,000, all in accordance with, and subject to
adjustment as provided in, the Thiokol Purchase Agreement and the other Acquisition
Documents.


 


“Acquisition Documents” means the Thiokol
Purchase Agreement and all agreements, documents and instruments executed and
delivered pursuant thereto or in connection therewith, in each case
substantially in the form delivered to the Lenders prior to the date hereof,
and as amended from time to time in accordance with the terms hereof and
thereof.  Schedule 1.01 sets forth a
complete list of the Acquisition Documents.


 


“Adjusted LIBO Rate” means, with respect to
any Eurodollar Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the
LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve
Rate.


 


“Administrative Agent” means JPMorgan Chase
Bank, in its capacity as administrative agent for the Lenders hereunder.


 


“Administrative Questionnaire” means an
Administrative Questionnaire in a form supplied by the Administrative Agent,
duly completed by each Lender and submitted to the Administrative Agent (with a
copy to the Company).


 


7

















 


“Aerospace Notes” means the $150,000,000
aggregate principal amount of notes designated as “Aerospace Notes” on
Schedule 6.01.


 


“Affiliate” means, with respect to any
Person, (i) any Person that directly, or indirectly through one or more
intermediaries, controls such former Person (a “Controlling Person”) and
(ii) any Person (other than a Subsidiary of such former Person) which is
controlled by or is under common control with a Controlling Person; provided
that, no officer or director of a Person, who is not otherwise an Affiliate of
such Person, will be considered an Affiliate of such Person solely because of
his or her position as an officer or director of such Person.  As used herein, the term “control” means
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.  For purposes of Section 6.05, “Affiliate”
shall include any Person that, by itself or as a member of a group of persons
(in each case within the meaning of Section 13 or 14 of the Securities Exchange
Act of 1934, as amended), other than any employee benefit plan (including any
stock ownership plan (including 401K plans, restricted stock plans, employee
stock purchase plans, performance sharing plans and incentive plans))
maintained for the benefit of the employees of the Company or any Subsidiary,
owns 10% or more of the outstanding shares of common stock of the Company
(including any Affiliates of such Person).


 


“Aggregate Net Investment in Unrestricted Subsidiaries”
means, at any date of determination, the excess of (x) all Investments (valued
at the fair market value of the consideration paid or given in respect of such
Investments at the time paid or given) after the Effectiveness Date by the
Company or any Subsidiary in all Unrestricted Subsidiaries (including any
designation of a Subsidiary as an Unrestricted Subsidiary, which shall be
deemed to constitute an Investment in an amount equal to the relevant Person’s
shareholders’ equity in such Subsidiary at the time of such designation) over
(y) the sum, without duplication, of (i) net proceeds of the disposition
of the Equity Interests and other Investments in Unrestricted Subsidiaries
received by the Company or any Subsidiary, plus (ii) principal payments
and returns of capital received on or in respect of Investments in Unrestricted
Subsidiaries by the Company or any Subsidiary, in each case since the
Effectiveness Date.


 


“Alcoa” means Alcoa Inc., a Pennsylvania
corporation.


 


“Alternate Base Rate” means, for any day, a
rate per annum equal to the greatest of (a) the Prime Rate in effect on
such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1⁄2 of
1%.  Any change in the Alternate Base
Rate due to a change in


 


8

















 


the Prime Rate, the Base
CD Rate or the Federal Funds Effective Rate shall be effective from and
including the effective date of such change in the Prime Rate, the Base
CD Rate or the Federal Funds Effective Rate, respectively.


 


“Amendment Agreement” means the Amendment
and Restatement Agreement dated as of the Amendment Effectiveness Date, among
the Company, the Borrowing Subsidiaries, the Lenders (as defined therein) and
the Administrative Agent.


 


“Amendment Effectiveness Date” has the
meaning given such term in the Amendment Agreement.


 


“Applicable Percentage” means, with respect
to any Revolving Lender, the percentage of the total Revolving Commitments
represented by such Lender’s Revolving Commitment.  If the Revolving Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Revolving Commitments
most recently in effect, giving effect to any assignments.


 


“Applicable Rate” means, for any day,
(a) with respect to ABR Loans and Eurodollar Loans in the case of
Tranche A Term Loans and Revolving Loans and the commitment fee payable in
respect of unused Commitments, the applicable rate per annum set forth below
under the caption “ABR Spread”, “Eurodollar Spread” or “Commitment Fee Rate”,
as the case may be, based upon the Leverage Ratio as of the most recent
determination date, and (b) with respect to ABR Loans and Eurodollar Loans
in the case of Tranche C Term Loans, 1.25% and 2.25%, respectively.


 


	
  Leverage Ratio:

  	
   

  	
  ABR

  Spread

  	
   

  	
  Eurodollar

  Spread

  	
   

  	
  Commitment Fee

  Rate

  	
   

  
	
  Category
  1

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  >3.50

  	
   

  	
  2.00

  	
   

  	
  3.00

  	
   

  	
  0.500

  	
   

  
	
  Category
  2

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  <_ 3.50,
  but >3.00

  	
   

  	
  1.75

  	
   

  	
  2.75

  	
   

  	
  0.500

  	
   

  
	
  Category
  3

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  <_ 3.00,
  but >2.50

  	
   

  	
  1.50

  	
   

  	
  2.50

  	
   

  	
  0.500

  	
   

  
	
  Category
  4

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  <_ 2.50,
  but >2.00

  	
   

  	
  1.25

  	
   

  	
  2.25

  	
   

  	
  0.450

  	
   

  
	
  Category
  5

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  <_ 2.00,
  but >1.75

  	
   

  	
  1.00

  	
   

  	
  2.00

  	
   

  	
  0.375

  	
   

  
	
  Category
  6

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  <_1.75

  	
   

  	
  0.75

  	
   

  	
  1.75

  	
   

  	
  0.250

  	
   

  



 


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For purposes of the
foregoing, (i) the Leverage Ratio shall be determined as of the end of each
fiscal quarter of the Company’s fiscal year based upon the Company’s
consolidated financial statements delivered pursuant to Section 5.01(a) or
(b) and (ii) each change in the Applicable Rate resulting from a change in the
Leverage Ratio shall be effective during the period commencing on and including
the third Business Day after the date of delivery to the Administrative Agent
of such consolidated financial statements indicating such change and ending on
the date immediately preceding the effective date of the next such change; provided
that the Leverage Ratio shall be deemed to be in Category 1 (A) at any
time that an Event of Default has occurred and is continuing or (B) at the
option of the Administrative Agent or at the request of the Required Lenders if
the Company fails to deliver the consolidated financial statements required to
be delivered by it pursuant to Section 5.01(a) or (b), during the period from
the expiration of the time for delivery thereof until such consolidated
financial statements are delivered.


 


“Approved Fund” has the meaning assigned to
such term in Section 10.04.


 


“Arrow Available Restricted Payments”
means, at any time, the Arrow Restricted Payments Basket at such time minus
(a) all Restricted Payments made by the Arrow Subsidiaries pursuant to Section
6.08(v)(C), minus (b) all Investments made pursuant to Section
6.04(g)(i)(B)(z), minus (c) all Investments made pursuant to
Section 6.04(g)(ii)(B) or (C), and plus (d) all dividends or
distributions received by the Company or any Wholly-Owned Consolidated
Subsidiary from the Arrow Joint Venture to the extent in excess of any
substantially contemporaneous Restricted Payments made by the Arrow
Subsidiaries to the Arrow Joint Venture. 
For purposes of calculating the foregoing, (i) the amount of any noncash
Investment shall be deemed to be equal to the fair market value of the
consideration paid or given by the Company and the Subsidiaries in respect of
such Investment, (ii) the amount of any transaction described in Section 6.04(g)(ii)(B)
shall be deemed to be the maximum amount that could be required to be paid
under or in respect of any such Guarantee, letter of credit or bonding by the
Arrow Subsidiaries and (iii) the amount of any transaction described in
Section 6.04(g)(ii)(C) shall be deemed to be the fair market value of the
discrepancy between the terms and conditions that would apply in a similar
transaction with a Person not an Affiliate, in each case as determined in good
faith by the Company.


 


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“Arrow Joint Venture” means a joint venture
formed by the Company on substantially the terms contemplated by the Arrow term
sheet dated April 11, 2001, heretofore delivered to the Lenders.


 


“Arrow Restricted Payments Basket” means,
initially, $25,000,000, and, for any day after the
date that is six months after the Effectiveness Date, the amount set forth
below under the caption “Amount” based upon the Leverage Ratio as of the most
recent determination date.


 


	
  Leverage Ratio:

  	
   

  	
  Amount

  	
   

  
	
  Category 1

  	
   

  	
   

  	
   

  
	
  >3.00

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  Category 2

  	
   

  	
   

  	
   

  
	
  <_ 3.00, but >2.50

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Category 3

  	
   

  	
   

  	
   

  
	
  <_ 2.50

  	
   

  	
  $

  	
  35,000,000

  	
   

  



 


For purposes of the
foregoing, (i) the Leverage Ratio shall be determined as of the end of each
fiscal quarter of the Company’s fiscal year based upon the Company’s
consolidated financial statements delivered pursuant to Section 5.01(a) or
(b), (ii) no change resulting in a numerically greater category shall
become effective unless the financial statements for two consecutive fiscal
periods delivered under Section 5.01(a) or (b) shall have indicated such
change and (iii) each change in the Arrow Restricted Payments Basket
resulting from a change in the Leverage Ratio shall be effective during the period
commencing on and including the third Business Day after the date of delivery
to the Administrative Agent of such consolidated financial statements
indicating such change and ending on the date immediately preceding the
effective date of the next such change; provided that the Leverage Ratio
shall be deemed to be in Category 1 (A) at any time that an Event of
Default has occurred and is continuing or (B) at the option of the
Administrative Agent or at the request of the Required Lenders if the Company
fails to deliver the consolidated financial statements required to be delivered
by it pursuant to Section 5.01(a) or (b), during the period from the expiration
of the time for delivery thereof until such consolidated financial statements
are delivered.  Any Restricted Payment
permitted to be made pursuant to Section 6.08(v)(C) when made shall not
cease to be permitted by reason of any subsequent reduction in the amount of
the Arrow Restricted Payments Basket.


 


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“Arrow Subsidiaries” means, at all times
after the formation of the Arrow Joint Venture, each Borrowing Subsidiary,
Equity Interests in which have been contributed to the Arrow Joint Venture, and
each subsidiary of each such Borrowing Subsidiary.


 


“Assessment Rate” means, for any day, the
annual assessment rate in effect on such day that is payable by a member of the
Bank Insurance Fund classified as “well-capitalized” and within supervisory
subgroup “B” (or a comparable successor risk classification) within the meaning
of 12 C.F.R. Part 327 (or any successor provision) to the Federal Deposit
Insurance Corporation for insurance by such Corporation of time deposits made
in dollars at the offices of such member in the United States; provided
that if, as a result of any change in any law, rule or regulation, it is no
longer possible to determine the Assessment Rate as aforesaid, then the
Assessment Rate shall be such annual rate as shall be determined by the
Administrative Agent to be representative of the cost of such insurance to the
Lenders.


 


“Assignment and Acceptance” means an
assignment and acceptance entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section 10.04), and
accepted by the Administrative Agent, substantially in the form of
Exhibit A or any other form approved by the Administrative Agent.


 


“Base CD Rate” means the sum of
(a) the Three-Month Secondary CD Rate multiplied by the Statutory Reserve
Rate plus (b) the Assessment Rate.


 


“Benefit Arrangement” means at any time an
employee benefit plan within the meaning of Section 3(3) of ERISA which is
not a Plan or a Multiemployer Plan and which is maintained or otherwise
contributed to by any member of the ERISA Group.


 


“Board” means the Board of Governors of the
Federal Reserve System of the United States of America.


 


“Borrower” 
means the Company or any Borrowing Subsidiary.


 


“Borrowing” means Loans of the same Class
and Type, made, converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect.


 


“Borrowing Request” means a request by a
Borrower for a Borrowing in accordance with Section 2.03.


 


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“Borrowing Subsidiary” means each Subsidiary
to be contributed to the Arrow Joint Venture, as specified in the Arrow term
sheet referred to in the definition of “Arrow Joint Venture”, in each case from
and after the date the Company and such Subsidiary shall have executed and
delivered to the Administrative Agent an agreement that such Subsidiary shall
be bound by the terms of this Agreement and such documents and certificates as
the Administrative Agent may request relating to the organization, existence
and good standing of such Subsidiary and the authorization of the Financing
Transactions to which it will be party, and each successor thereto permitted
under Section 5.04 or 6.03.


 


“Bridge Credit Agreement” means the Bridge
Credit Agreement dated as of the date hereof among the Company, the lenders
named therein and JPMorgan Chase Bank (formerly, The Chase Manhattan Bank), as
administrative agent, substantially in the form made available to the Lenders
prior to the date hereof, as amended from time to time in accordance with the
terms hereof and thereof.


 


“Bridge Facility” means the senior
subordinated credit facility in a principal amount of up to $125,000,000
established under the Bridge Credit Agreement.


 


“Business Day” means any day that is not a
Saturday, Sunday or other day on which commercial banks in New York City are
authorized or required by law to remain closed; provided that, when used
in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are
not open for dealings in dollar deposits in the London interbank market.


 


“Business Entity” means a partnership,
limited partnership, limited liability partnership, corporation (including a
business trust), limited liability company, unlimited liability company, joint
stock company, trust, unincorporated association, joint venture or other
entity.


 


“Capital Expenditures” means, for any
period, the additions to property, plant and equipment and other capital
expenditures of the Company and its Consolidated Subsidiaries that are (or
would be) set forth in a consolidated statement of cash flows of the Company
for such period prepared in accordance with GAAP.


 


“Capital Lease” means a lease that would be
capitalized on a balance sheet of the lessee prepared in accordance with GAAP.


 


“Capital Lease Obligations” of any Person
means the obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement


 


13

















 


conveying the right to use) real
or personal property, or a combination thereof, which obligations are required
to be classified and accounted for as Capital Leases, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.


 


“Change in Law” means (a) the adoption of
any law, rule or regulation after the date of this Agreement, (b) any change in
any law, rule or regulation or in the interpretation or application thereof by
any Governmental Authority after the date of this Agreement or (c) compliance
by any Lender or any Issuing Bank (or, for purposes of Section 2.15(b), by any
lending office of such Lender making or maintaining Loans or by such Lender’s
or such Issuing Bank’s holding company, if any) with any request, guideline or
directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.


 


“Class”, when used in reference to any Loan
or Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are Revolving Loans, Tranche A Term Loans, Tranche C Term Loans or
Swingline Loans or any additional Class established pursuant to Section
10.02(c) and, when used in reference to any Commitment, refers to whether such
Commitment is a Revolving Commitment, Tranche A Term Loan Commitment or Tranche
C Term Loan Commitment.


 


“CLO” has the meaning assigned to such term
in Section 10.04.


 


“Code” means the Internal Revenue Code of
1986, as amended from time to time.


 


“Collateral” means any and all
“Collateral”, as defined in any applicable Security Document.


 


“Commitment” means a Revolving Commitment,
Tranche A Term Loan Commitment or Tranche C Term Loan Commitment, or any
combination thereof (as the context requires).


 


“Company” means
Alliant Techsystems Inc., a Delaware corporation, and its successors permitted
under Section 5.04 or 6.03.


 


“Consolidated EBITDA” means, for any fiscal
period, Consolidated Net Income for such period plus, to the extent
deducted in determining Consolidated Net Income for such period, the aggregate
amount of Consolidated Interest Charges, income tax expense, depreciation,
amortization, other nonrecurring non-cash or extraordinary non-cash losses,
charges and other items,


 


14

















 


write-offs or charges against
debt placement costs incurred in respect of Indebtedness under this Agreement,
and up to $20,000,000 of fees and expenses incurred in connection with closing
the Transactions and the issuance of the Senior Subordinated Notes or any
Permanent Securities issued in lieu or replacement thereof minus, to the
extent included in determining Consolidated Net Income for such period,
non-cash gains.  For purposes of
determining the Leverage Ratio or compliance with Sections 6.11 and 6.12,
Consolidated EBITDA for any fiscal period shall be determined on a pro forma
basis as if any acquisition or disposition and any incurrence or repayment of
Indebtedness during such period were consummated on the first day of such
period.


 


“Consolidated Interest Charges” means for
any fiscal period the aggregate consolidated interest charges incurred by the
Company and its Consolidated Subsidiaries for such period, whether expensed or
capitalized, including (a) the portion of any obligation under Capital
Leases allocable to interest expense in accordance with GAAP and (b) the
portion of any debt discount (but not expenses of issuance) that shall be
amortized in such period, but excluding interest charges on the Aerospace
Notes.  For purposes of determining
compliance with Section 6.12 as of the last day of each of the first three
fiscal quarters to end after the Effectiveness Date, Consolidated Interest
Charges shall for the four fiscal quarters ended on such day shall be deemed to
be equal, respectively, to (A) Consolidated Interest Charges for such
first fiscal quarter multiplied by 4, (B) Consolidated Interest Charges
for such first two fiscal quarters multiplied by 2 and (C) Consolidated
Interest Charges for such first three fiscal quarters multiplied by 4/3.


 


“Consolidated Net Income” means for any
period the consolidated net income (loss) of the Company and its Consolidated
Subsidiaries for such period.


 


“Consolidated Net Worth” means at any date
the consolidated stockholders’ equity of the Company and its Consolidated
Subsidiaries.


 


“Consolidated Subsidiary” means at any date
any Subsidiary or other Business Entity the accounts of which would be
consolidated with those of the Company on the consolidated financial statements
of the Company if such statements were prepared in accordance with GAAP as of
such date.  At all times after the
formation of the Spear Joint Venture and prior to the Spear Final Contribution
Date, the Spear Joint Venture will be deemed to be a Consolidated
Subsidiary.  At all times after the
formation of the Arrow Joint Venture that the Arrow Subsidiaries are
Subsidiaries,  the Arrow Subsidiaries
will be deemed to be Consolidated Subsidiaries.


 


15

















 


“Constitutional Documents” in relation to
any Person means the certificate or articles of incorporation and by-laws,
certificate of formation, limited liability company agreement, limited
partnership agreement or other constitutional documents of such Person.


 


“Cordant” means Cordant Technologies Inc.,
a Delaware corporation.


 


“December 2000 10-Q” means the Company’s
report on Form 10-Q for the period ended December 31, 2000, as filed with
the Securities and Exchange Commission.


 


“December 2001 10-Q” means the Company’s
report on Form 10-Q for the period ended December 31, 2001, as filed with
the Securities and Exchange Commission.


 


“Default” means any event or condition that
constitutes an Event of Default or that upon notice, lapse of time or both
would, unless cured or waived, become an Event of Default.


 


“Derivatives Obligations” of any Person
means all obligations of such Person in respect of any rate swap transaction,
basis swap, forward rate transaction, commodity swap, commodity option, equity
or equity index swap, equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction,
collar transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of the foregoing transactions) or any combination of
the foregoing transactions; provided that no phantom stock, deferred
compensation or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Company or its Subsidiaries shall be a Derivatives Obligation.


 


“dollars” or “$” refers to lawful money of the United States of America.


 


“Effectiveness Agreement” means the
Effectiveness Agreement dated as of the date hereof, among the Company, the
Borrowing Subsidiaries, the Lenders (as defined therein) and the Administrative
Agent.


 


“Effectiveness Date” has the meaning given
such term in the Effectiveness Agreement.


 


“Environmental Laws” means any and all
treaties, statutes, laws, rules, regulations, codes, ordinances, judgments,
orders, decrees, injunctions,


 


16

















 


directives, notices, binding
agreements, permits, licenses or approvals issued, promulgated or entered into
by any Governmental Authority relating in any way to the environment,
preservation or reclamation of natural resources, the management, release,
threatened release or presence of any Hazardous Material or to health and
safety matters.


 


“Environmental Liabilities” means all
liabilities, obligations, damages, losses, claims, actions, suits, judgments,
orders, fines, penalties, fees, expenses and costs, (including administrative
oversight costs, natural resource damages and remediation costs), whether
contingent or otherwise, arising out of or relating to: (a) compliance or
non-compliance with any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release
of any Hazardous Materials or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.


 


“Equity Interests” means shares of capital
stock, partnership, joint venture, member or limited liability or unlimited
liability company interests, beneficial interests in a trust or other equity
ownership interests in a Person of whatever nature.


 


“Equity Issuance” means any sale or
issuance by the Company of its capital stock other than (i) any Preference
Stock to the extent of the Maturing Amounts thereof, (ii) capital stock issued
pursuant to employee stock options or director stock options issued by the
Company in the ordinary course of business, or in connection with employee
benefit plans (including stock ownership plans (including 401K plans,
restricted stock plans, employee stock purchase plans, performance sharing
plans and incentive plans)), (iii) capital stock issued as consideration for
the acquisition of operating assets or business operations of any Person
(whether through an acquisition of stock or assets) and (iv) the issuance
of warrants, or Equity Interests upon the exercise of, or in connection with
the issuance of, warrants, in connection with the Bridge Facility.


 


“ERISA” means the Employee Retirement
Income Security Act of 1974, as amended, or any successor statute.


 


“ERISA Group” means the Company and all
members of a controlled group of Business Entities and all trades or businesses
(whether or not incorporated) under common control which, together with the
Company, are treated as a single employer under Section 414 of the Internal
Revenue Code.


 


17

















 


“Eurodollar”, when used in reference to any
Loan or Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by reference to the
Adjusted LIBO Rate.


 


“Event of Default” has the meaning assigned
to such term in Article VII.


 


“Excess Cash Flow” means, for any Fiscal
Year, the sum (without duplication) of:


 


(a) Consolidated Net
Income for such Fiscal Year, adjusted to exclude any gains or losses
attributable to Prepayment Events; plus


 


(b) depreciation,
amortization and other non-cash charges or non-cash losses to the extent deducted
in determining such Consolidated Net Income for such Fiscal Year; plus


 


(c) the sum of (i)
the amount, if any, by which Net Working Capital decreased during such Fiscal
Year plus (ii) the net amount, if any, by which the consolidated long-term
deferred revenues and other consolidated accrued long-term liability accounts
of the Company and its Consolidated Subsidiaries increased during such Fiscal
Year plus (iii) the net amount, if any, by which the consolidated accrued
long-term asset accounts of the Company and its Consolidated Subsidiaries
decreased during such Fiscal Year (in each case in clauses (i), (ii) and
(iii) above, except to the extent that the offset to such increases or
decreases, as applicable, were reflected in “other comprehensive income” in
accordance with GAAP); minus


 


(d) the sum of (i)
any non-cash gains included in determining such Consolidated Net Income for
such Fiscal Year plus (ii) the amount, if any, by which Net Working Capital
increased during such Fiscal Year plus (iii) the net amount, if any, by which
the consolidated long-term deferred revenues and other consolidated accrued
long-term liability accounts of the Company and its Consolidated Subsidiaries
decreased during such Fiscal Year plus (iv) the net amount, if any, by which
the consolidated accrued long-term asset accounts of the Company and its
Consolidated Subsidiaries increased during such Fiscal Year (in each case in
clauses (ii), (iii) and (iv) above, except to the extent that the offset
to such increases or decreases, as applicable, were reflected in “other
comprehensive income” in accordance with GAAP); minus


 


(e) the sum of (i)
Capital Expenditures for such Fiscal Year (except to the extent financed by
incurring Long-Term Indebtedness) plus (ii) cash


 


18

















 


consideration paid
during such Fiscal Year to make acquisitions or other capital investments
(except to the extent financed by incurring Long-Term Indebtedness); minus


 


(f) the aggregate
principal amount of Long-Term Indebtedness repaid or prepaid by the Company and
its Consolidated Subsidiaries during such fiscal year, excluding (i)
Indebtedness in respect of Revolving Loans and Letters of Credit, and (ii)
repayments or prepayments of Long-Term Indebtedness to the extent financed by
incurring other Long-Term Indebtedness.


 


“Existing Credit Agreements” means the
Company’s Credit Agreement dated as of November 23, 1998, and its Amended
and Restated Credit Agreement dated as of November 23, 1998.


 


“Existing Letters of Credit” means the
letters of credit issued before the Effectiveness Date pursuant to the Existing
Credit Agreements, each of which is set forth on Schedule 2.05.


 


“Excluded Taxes” means, with respect to the
Administrative Agent, any Lender, any Issuing Bank or any other recipient of
any payment to be made by or on account of any obligation of any Borrower
hereunder, (a) income or franchise taxes imposed on (or measured by) its net
income by the United States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America
or any similar tax imposed by any other jurisdiction described in clause (a)
above and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Company under Section 2.19(b)), (x) any withholding
tax that (i) is in effect and would apply to amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement (or
designates a new lending office), except to the extent that such Foreign Lender
(or its assignor, if any) was entitled, at the time of designation of a new
lending office (or assignment), to receive additional amounts from any Borrower
with respect to any withholding tax pursuant to Section 2.17(a), or (ii) is
attributable to such Foreign Lender’s failure to comply with
Section 2.17(e) and (y) any Tax imposed against, payable by or
withheld with respect to any Foreign Lender that is a direct or indirect
successor, transferee or assignee of any original Lender or Issuing Bank to the
extent that, based on applicable law in effect as of the date of the transfer
or assignment, the amount of such Tax exceeds the amount of such Tax that would
have been imposed against, payable by or withheld with respect to such original
Lender or Issuing Bank.


 


19

















 


“Federal Funds Effective Rate” means, for
any day, the weighted average (rounded upwards, if necessary, to the next 1/100
of 1%) of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.


 


“Financial Officer” means the chief
financial officer, principal accounting officer, treasurer or controller of the
Company.


 


“Financing Transactions” means the
execution, delivery and performance by each Loan Party of the Loan Documents to
which it is to be a party, the borrowing of Loans, the use of the proceeds
thereof, the issuance of Letters of Credit hereunder, the execution, delivery
and performance of the Bridge Credit Agreement and the borrowing of loans
thereunder, the issuance and sale of the Senior Subordinated Notes or any
Permanent Securities issued in lieu or replacement thereof and the payment of
related fees and expenses.


 


“Fiscal Year” means a fiscal year of the
Company, and “Fiscal Year” for any particular year means the fiscal year of the
Company ended or ending during the specified calendar year (for example,
“Fiscal Year 2001” means the fiscal year of the Company ending on March 31,
2001).


 


“Foreign Lender” means, as to any
Borrower,  any Lender or Issuing Bank
that is a Business Entity incorporated or organized under the laws of a
jurisdiction other than that in which such Borrower is located or that is an
individual, trust or estate that, in the case of a U.S. Borrower, is not a
“United States Person” within the meaning of Section 7701(c)(30) of the
Code.  For purposes of this definition,
the United States of America, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.


 


“Foreign Person” means (a) any government
(a “Foreign Government”) other
than the United States government or the government of any political
subdivision thereof, (b) any agency of a Foreign Government, (c) any form of
business enterprise organized under the laws of any country other than the
United States or its possessions or any political subdivision thereof or (d)
any form of business enterprise owned or controlled by any of the persons
described in clauses (a), (b) or (c).


 


20

















 


“Foreign Subsidiary” means any Subsidiary
that is organized under the laws of a jurisdiction other than the United States
of America or any State thereof or the District of Columbia.


 


“GAAP” means generally accepted accounting
principles in the United States of America.


 


“Governmental Authority” means the
government of the United States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.


 


“Guarantee” by any Person means any
obligation, contingent or otherwise, of such Person directly or indirectly
guaranteeing any Indebtedness or other obligation of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation (whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or (b)
entered into for the purpose of assuring in any other manner the obligee of
such Indebtedness or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided
that the term Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business. 
The term “Guarantee” used as a verb has a corresponding meaning.


 


“Hazardous Materials” shall mean
(A) petroleum products and byproducts, asbestos, urea formaldehyde foam
insulation, polychlorinated biphenyls, radon gas, chlorofluorocarbons and all
other ozone-depleting substances; or (B) any chemical, material,
substance, waste, pollutant or contaminant that is prohibited, limited or
regulated by or pursuant to any Environmental Law.


 


“Indebtedness” of any Person means at any
date, without duplication, (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such Person to pay
the deferred purchase price of property or services, except trade accounts
payable arising in the ordinary course of business, (iv) all obligations of
such Person as lessee which are capitalized in accordance with GAAP and all
Synthetic Lease Obligations, (v) all Indebtedness of others secured by a Lien
on any asset of such Person, whether or not such Indebtedness is assumed by
such Person (to the extent of the lesser of the amount of such Indebtedness and
the


 


21

















 


book value of any assets subject
to such Lien), (vi) all non-contingent obligations (and, for purposes of
Section 6.02 and the definitions of Material Indebtedness and Material
Financial Obligations, all contingent obligations) of such Person to reimburse
any bank or other Person in respect of amounts paid under a letter of credit or
similar instrument, including all obligations to reimburse LC Disbursements,
(vii) to the extent of any Maturing Amount thereof, any Preference Stock, and
(viii) all Indebtedness of others Guaranteed by such Person (to the extent of
the lesser of the amount of such Indebtedness Guaranteed or the amount of such
Guarantee).


 


“Indemnified Taxes” means Taxes other than
Excluded Taxes.


 


“Information Memorandum” means the
Confidential Information Memorandum dated April 2002 relating to the Company
and the Transactions.


 


“Interest Election Request” means a request
by a Borrower to convert or continue a Revolving Borrowing or Term Borrowing in
accordance with Section 2.07.


 


“Interest Payment Date” means (a) with
respect to any ABR Loan (other than a Swingline Loan), the last day of each March,
June, September and December, (b) with respect to any Eurodollar Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months’ duration, each day prior to the last day of such Interest
Period that occurs at intervals of three months’ duration after the first day
of such Interest Period, and (c) with respect to any Swingline Loan, the
day that such Loan is required to be repaid.


 


“Interest Period” means, with respect to
any Eurodollar Borrowing, the period commencing on the date of such Borrowing
and ending on the numerically corresponding day in the calendar month that is
one, two, three or six months thereafter, as the applicable Borrower may
elect; provided, that (i) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period.  For purposes of this
definition only, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.


 


22

















 


“Investment” means any investment in any
Person, whether by means of share purchase, capital contribution, loan, time
deposit or otherwise, except, in the case of the Company, for any investment to
the extent made utilizing common stock of the Company.


 


“Issuing Bank” means JPMorgan Chase Bank,
Chase Manhattan Bank Delaware and each other Lender that shall agree to issue
any Letter of Credit, each in its capacity as the issuer of any Letter of
Credit hereunder, and its successors in such capacity as provided in
Section 2.05(i).  Each Issuing Bank
may, in its discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.


 


“Joint Venture” means at any time (i) any
Business Entity of which not less than 20% nor more than 50% of each class of
Equity Interests therein having ordinary voting power to elect or appoint the
board of directors of such Business Entity or other persons performing similar
functions are at the time directly or indirectly owned by the Company and (ii)
any other Business Entity not less than 20% nor more than 50% of the Equity
Interests in which are at the time directly or indirectly owned by the Company,
but excluding in any event any Subsidiary of the Company.  The Spear Joint Venture shall not constitute
a “Joint Venture” at any time prior to the Spear Final Contribution Date.  The Arrow Joint Venture will constitute a
“Joint Venture” at any time that it satisfies the test set forth in
clause (ii) above.


 


“LC Disbursement” means a payment made by
an Issuing Bank pursuant to a Letter of Credit.


 


“LC Exposure” means, at any time, the sum
of (a) the aggregate undrawn amount of all outstanding Letters of Credit at
such time plus (b) the aggregate amount of all LC Disbursements that have not
yet been reimbursed by or on behalf of the Borrowers at such time.  The LC Exposure of any Revolving Lender at
any time shall be its Applicable Percentage of the total LC Exposure at such
time.


 


“Lender LC Exposure” means, at any time,
the sum of (a) the aggregate undrawn amount of all outstanding Lender
Letters of Credit at such time plus (b) the aggregate amount of all
disbursements under Lender Letters of Credit that have not been reimbursed by
or on behalf of the Borrowers at such time.


 


“Lender Letter of Credit” means any letter
of credit issued for the account of any Borrower by any Person that is a Lender
at the time such letter of credit is issued pursuant to a separate agreement
between such Borrower, or the


 


23

















 


Company on its behalf, and such
Lender; provided that the Company shall have designated such letter of
credit as a Lender Letter of Credit by written notice to the Administrative
Agent on or prior to the time of the issuance of such letter of credit.


 


“Lenders” means the Persons listed on
Schedule 2.01, the Persons listed on Schedule 3 to the Amendment Agreement
and any other Person that shall have become a Lender hereunder in accordance
with Section 10.04 and pursuant to an Assignment and Acceptance, other
than any such Person that ceases to be a party hereto pursuant to an Assignment
and Acceptance.  Unless the context
otherwise requires, the term “Lenders” includes the Swingline Lenders.


 


“Letter of Credit” means any letter of
credit issued pursuant to this Agreement.


 


“Leverage Ratio” means, as of any date, the
ratio of (i) consolidated Indebtedness of the Company and its Consolidated
Subsidiaries on such date to (ii) Consolidated EBITDA for the four consecutive
fiscal quarter period ending on or most recently prior to such date for which
financial statements have been delivered pursuant to Section 5.01(a) or
(b).


 


“LIBO Rate” means, with respect to any
Eurodollar Borrowing for any Interest Period, the rate appearing on Page 3750
of the Dow Jones Market Service (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page of such Service,
as determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period.  In the event that such rate is not available
at such time for any reason, then the “LIBO
Rate” with respect to such Eurodollar Borrowing for such Interest
Period shall be the rate at which dollar deposits of $5,000,000 and for a
maturity comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.


 


“Lien” means, with respect to any asset,
any mortgage, lien, pledge, charge, security interest or encumbrance of any
kind in respect of such asset.  For the
purposes of this Agreement, a Loan Party or any Subsidiary of a Loan Party
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any Synthetic Lease,
conditional


 


24

















 


sale agreement, capital lease or
other title retention agreement relating to such asset or, in the case of any
securities, subject to any purchase option, call or similar right of a third
party with respect to such securities.


 


“Loan Documents” means this Agreement, the
Amendment Agreement, the Effectiveness Agreement, each document required to be
delivered under Section 10 of the Effectiveness Agreement, any Notes, the
Subsidiary Guaranty Agreement and the Security Documents.


 


“Loan Parties” means each Borrower and the
Subsidiary Loan Parties.


 


“Loans” means the loans made by the Lenders
to the Borrowers pursuant to this Agreement or the Amendment Agreement.


 


“Long-Term Indebtedness” means any
Indebtedness that, in accordance with GAAP, constitutes (or, when incurred,
constituted) a long term liability.


 


“Material Adverse Effect” means a material
adverse effect on (a) the business, assets, results of operations,
prospects or condition, financial or otherwise, of the Company and the
Subsidiaries taken as a whole, (b) the ability of any Loan Party to
perform any of its obligations under any Loan Document or (c) the rights
of or benefits available to the Lenders under any Loan Document.


 


“Material Financial Obligations” means
(a) Indebtedness under the Bridge Credit Agreement, the Senior
Subordinated Notes or the Permanent Securities and (b) any other
Indebtedness or a principal or face amount of payment obligations or the net
amount that would become due in the event of a termination in respect of
Derivatives Obligations of the Company and/or one or more of its Subsidiaries,
arising in one or more related or unrelated transactions, exceeding in the
aggregate $15,000,000.


 


“Material Indebtedness” means
(a) Indebtedness under the Bridge Credit Agreement, the Senior
Subordinated Notes or the Permanent Securities and (b) any other
Indebtedness (other than the Indebtedness under the Loan Documents) of the
Company and/or one or more of its Subsidiaries, arising in one or more related
or unrelated transactions, in an aggregate principal or face amount exceeding
$15,000,000.


 


“Material Plan” means a Plan or Plans
having aggregate Unfunded Liabilities in excess of $20,000,000.


 


25

















 


“Maturing Amount” means, with respect to
any Preference Stock, an amount equal to the lesser of (i) the aggregate amount
of cash proceeds received by the issuer of such Preference Stock from or in
respect of such Preference Stock less any expenses reasonably incurred by such
Person in respect of such Preference Stock and (ii) the aggregate amount
of Preference Stock thereby issued that will or may become due before the
Tranche C Term Loan Maturity Date as a result of any scheduled maturity, amortization
or mandatory redemption or any right on the part of any holder thereof to
require any repayment or prepayment of any portion thereof.


 


“Moody’s” means Moody’s Investors Service,
Inc.


 


“Mortgage” means a mortgage, deed of trust,
assignment of leases and rents, leasehold mortgage or other security document
granting a Lien on any Mortgaged Property to secure the Obligations or any part
thereof.  Each Mortgage shall be
satisfactory in form and substance to the Administrative Agent.


 


“Mortgaged Property” means, initially, each
parcel of real property and the improvements thereto owned by a Loan Party and
identified on Schedule 5.10, and includes each other parcel of real property
and improvements thereto with respect to which a Mortgage is granted pursuant to
Section 5.08 or 5.09.


 


“Multiemployer Plan” means at any time an
employee pension benefit plan within the meaning of Section 4001(a)(3) of
ERISA to which any member of the ERISA Group is then making or accruing an
obligation to make contributions or has within the preceding five plan years
made contributions, including for these purposes any Person which ceased to be
a member of the ERISA Group during such five year period.


 


“Net Proceeds” means, with respect to any
event, (a) the cash proceeds received in respect of such event including (i)
any cash received in respect of any non-cash proceeds, but only as and when
received, (ii) in the case of a casualty, insurance proceeds, and (iii) in the
case of a condemnation or similar event, condemnation awards and similar
payments, net of (b) the sum of (i) all reasonable fees and out-of-pocket
expenses paid by the Company and the Subsidiaries to third parties (other than
Affiliates) in connection with such event, (ii) in the case of a sale, transfer
or other disposition of an asset (including pursuant to a sale and leaseback
transaction or a casualty or a condemnation or similar proceeding), the amount
of all payments required to be made by the Company and the Subsidiaries as a
result of such event to repay Indebtedness (other than Loans) or statutory or
other obligations secured by or subject to any Lien on such asset or otherwise
subject to mandatory prepayment (or other application of such proceeds) as a
result of such event, whether pursuant to any contractual obligation, law, rule
or regulation, and


 


26

















 


(iii) the amount of all
taxes paid (or reasonably estimated to be payable) by the Company and the
Subsidiaries, and the amount of any reserves established by the Company and the
Subsidiaries to fund contingent liabilities reasonably estimated to be payable,
in each case during the year that such event occurred or the next succeeding
year and that are directly attributable to such event (as determined reasonably
and in good faith by the treasurer or chief financial officer of the Company); provided
that the amount of such proceeds received by any non-Wholly-Owned Consolidated
Subsidiary shall be deemed for purposes of this Agreement to be that percentage
of such proceeds that is equivalent to the percentage of the economic Equity
Interests of such Subsidiary that are owned directly or indirectly by the
Company; and provided  further that, after the Net Proceeds of any
Senior Subordinated Notes or other Permanent Securities have been applied to
prepay in full all loans outstanding under the Bridge Credit Agreement and
$75,000,000 of Term Loans, the next $65,000,000 of proceeds therefrom that
would otherwise constitute “Net Proceeds”
shall, to the extent applied to prepay Revolving Borrowings, be deemed not to
constitute Net Proceeds and shall not be subject to Section 2.11(c).


 


“Net Working Capital” means, at any date,
(a) the consolidated current assets of the Company and its Consolidated
Subsidiaries as of such date (excluding cash and Temporary Cash Investments)
minus (b) the consolidated current liabilities of the Company and its
Consolidated Subsidiaries as of such date (excluding current liabilities in
respect of Indebtedness).  Net Working
Capital at any date may be a positive or negative number.  Net Working Capital increases when it
becomes more positive or less negative and decreases when it becomes less
positive or more negative.  For purposes
of calculating any increase or decrease in Net Working Capital under the
definition of Excess Cash Flow, the assets and liabilities of any business
acquired or disposed of during the Fiscal Year for which Excess Cash Flow is
being determined shall be excluded.


 


“Note” shall mean any promissory note of
any Borrower issued pursuant to this Agreement.


 


“Obligations” means (a) all principal
of and interest (including any interest that accrues after the commencement of
any case, proceeding or other action relating to the bankruptcy, insolvency or
reorganization of any Borrower, whether or not allowed or allowable in such
proceeding) on any Loan under this Agreement, (b) each payment required to
be made by any Borrower under this Agreement in respect of any Letter of
Credit, and any payment required to be made by any Borrower in respect of any
Lender Letter of Credit, in each case when and as due, including payments in
respect of reimbursement of disbursements, interest thereon and obligations to
provide cash collateral (“Reimbursement
Obligations”), (c) all other amounts payable by any Loan Party
hereunder or under any other


 


27

















 


Financing Document (as defined in
the Security Agreement), (d) any Hedging Obligations (as defined in the
Security Agreement), and (e) any renewals or extensions of any of the
foregoing.


 


“Other Taxes” means any and all present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made under any Loan Document
or from the execution, delivery or enforcement of, or otherwise with respect
to, any Loan Document but excluding in any event Excluded Taxes.


 


“Parent” means, with respect to any Lender,
any Person as to which such Lender is a subsidiary.


 


“Participant” has the meaning set forth in
Section 10.04.


 


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


 


“Perfection Certificate” means a
certificate in the form of Exhibit B or any other form approved by the
Administrative Agent.


 


“Permanent Securities” means the Senior
Subordinated Notes or any other securities issued in lieu thereof having terms,
taken as a whole, that are in no material respect less favorable to the Lenders
than those required hereby for the Senior Subordinated Notes (and that in any
event constitute Equity Interests or are subordinated to the Obligations on
terms in no material respect less favorable to the Lenders than customary
market terms for senior subordinated notes).


 


“Permitted Lines of Business” means the
business of government-owned contractor-operated facilities management or
research and development for, or the development, manufacture, acquisition and
distribution, sale, treatment, dismantling and disposal of, and other
businesses related to, non-nuclear and non-biological weapons, ammunition and
delivery systems and related products and services, defense, aerospace,
navigation, logistics, control and marine systems, and providing insurance or
self-insurance coverage for, or liability management or sales, marketing,
development, administrative and information management and logistical support
services and activities with respect to, the foregoing (including that
described in Part I, Item 1 of the Company’s Form 10-K for the Fiscal
Year ended March 31, 2001).


 


“Person” means any natural person,
corporation, limited liability company, trust, joint venture, association,
company, partnership, Governmental Authority or other entity.


 


28

















 


“Plan” means at any time an employee
pension benefit plan as defined in Section 3(2) of ERISA (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees
of any member of the ERISA Group or (ii) has at any time within the preceding
five years been maintained, or contributed to, by any Person which was at such
time a member of the ERISA Group for employees of any Person which was at such
time a member of the ERISA Group.


 


“Pledge Agreement” means the Amended and
Restated Pledge Agreement among the Company, the Subsidiary Loan Parties and
the Administrative Agent, substantially in the form of Exhibit C.


 


“Preference Stock” means, with respect to
any issuer, an Equity Interest in such issuer which under the Constitutional
Documents of such issuer is entitled to a preference over any other Equity
Interest in such issuer as to payment of dividends and/or distributions upon
the voluntary or involuntary liquidation of such issuer.


 


“Prepayment Event” means:


 


(a) any sale,
transfer or other disposition (including pursuant to a sale and leaseback
transaction) of any property or asset of the Company or any Subsidiary (other
than dispositions described in clauses (i)-(xi) of
Section 6.03(b) and other than any disposition of Equity Interests in
the Spear Joint Venture); provided that no sale, transfer, or other
disposition made in any fiscal year and subject to this paragraph (a)
shall constitute a “Prepayment Event” until the aggregate Net Proceeds from all
such sales, transfers and other dispositions not otherwise applied in
accordance with Section 2.11(c) in respect of Net Proceeds received in
respect of sales, transfers and other dispositions during such fiscal year
exceeds $20,000,000 (the amount of the first prepayment after exceeding
$20,000,000 being equal to the aggregate Net Proceeds received in respect of
sales, transfers and other dispositions from all such sales, transfers and
dispositions during such fiscal year) and thereafter in such fiscal year no
such sale, transfer or other disposition shall constitute a “Prepayment Event”
until the aggregate Net Proceeds therefrom not otherwise applied in accordance
with Section 2.11(c) in respect of Net Proceeds received in respect of sales,
transfers and other dispositions during such fiscal year exceeds $1,000,000
(the amount of each subsequent prepayment being equal to the aggregate of such
Net Proceeds not previously applied in accordance with Section 2.11(c) in
respect of Net


 


29

















 


Proceeds received in
respect of sales, transfers and other dispositions during such fiscal year); or


 


(b) any casualty
or other insured damage to, or any taking under power of eminent domain or by
condemnation or similar proceeding of, any property or assets, but only to the
extent that an amount equal to the amount of the Net Proceeds therefrom has not
been applied to repair, restore or replace such property or assets, or to
acquire other property or assets as contemplated in Section 2.11(c),
within 270 days after such event; or


 


(c) the incurrence by
the Company or any of its Subsidiaries of any Indebtedness of the type referred
to in clauses (i) or (ii) of the definition of “Indebtedness” or, to the extent
of any Maturing Amount thereof, the issuance by the Company or any of its
Subsidiaries of any Preference Stock, other than:


 


(i)            Indebtedness under the Loan
Documents,


 


(ii)           Indebtedness in an aggregate
principal amount at any time not to exceed $125,000,000 under the Bridge Credit
Agreement, and Indebtedness consisting of Senior Subordinated Notes and
Permanent Securities, to the extent incurred or issued in lieu or replacement
of Indebtedness under the Bridge Credit Agreement or to the extent the Net
Proceeds thereof are or were applied to prepay Indebtedness under the Bridge
Credit Agreement, and


 


(iii)         Indebtedness created, incurred or
assumed under any clause of Section 6.01(a) (other than clause (iii)
(B) or (C)), (b) or (c); or


 


(d) the issuance by
the Company or any Subsidiary of any Equity Interest to any Person other than
the Company or a Wholly-Owned Consolidated Subsidiary, other than pursuant to
any employee or director incentive or compensation program and other than as
described in paragraph (e) below and other than to the extent the Net
Proceeds thereof are or were applied to prepay Indebtedness under the Bridge
Credit Agreement; or


 


(e) the receipt by
the Company or any Subsidiary of any proceeds, directly or indirectly, in
respect of any transaction or series of related transactions resulting in a
reduction in the percentage of the Equity Interests in the Spear Joint Venture
owned, directly or indirectly, by the Company and the Subsidiaries to any
percentage below 85%.


 


30

















 


“Prime Rate” means the rate of interest per
annum publicly announced from time to time by JPMorgan Chase Bank as its prime
rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.


 


“Register” has the meaning set forth in
Section 10.04.


 


“Reimbursement Obligations” has the meaning
assigned to such term in the definition of “Obligations”.


 


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


 


“Required Lenders” means, at any time,
Lenders having Revolving Exposures, Term Loans and unused Commitments
representing more than 50% of the sum of the total Revolving Exposures,
outstanding Term Loans and unused Commitments at such time.


 


“Responsible Officers” means the chief
executive officer, chief financial officer, president, treasurer, controller,
secretary and any executive or senior vice president of the Company.


 


“Restricted Payment” means (i) any
dividend or other distribution (whether in cash, securities or other property)
with respect to any Equity Interests in the Company or any Subsidiary, or
(ii) any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancelation or termination of any Equity
Interests in the Company or any Subsidiary or any option, warrant or other
right to acquire any such Equity Interests in the Company or any Subsidiary; provided
that no such dividend, distribution or payment shall constitute a “Restricted
Payment” to the extent made solely with common stock of the Company.


 


“Restricted Payments Basket” means,
initially, $25,000,000, and, for any day after the date that is six months
after the Effectiveness Date, the amount set forth below under the caption
“Amount” based upon the Leverage Ratio as of the most recent determination
date.


 


31

















 


	
  Leverage Ratio:

  	
   

  	
  Amount

  	
   

  
	
  Category
  1

  	
   

  	
   

  	
   

  
	
  >3.00

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  Category
  2

  	
   

  	
   

  	
   

  
	
  <_ 3.00,
  but >2.50

  	
   

  	
  $

  	
  50,000,000

  	
   

  
	
  Category
  3

  	
   

  	
   

  	
   

  
	
  <_ 2.50

  	
   

  	
  $

  	
  75,000,000

  	
   

  



 


For purposes of the
foregoing, (i) the Leverage Ratio shall be determined as of the end of each
fiscal quarter of the Company’s fiscal year based upon the Company’s
consolidated financial statements delivered pursuant to Section 5.01(a) or (b),
(ii) no change resulting in a numerically greater
category shall become effective unless the financial statements for two
consecutive fiscal periods delivered under Section 5.01(a) or (b) shall
have indicated such change and (iii) each change in the Restricted Payments Basket resulting from
a change in the Leverage Ratio shall be effective during the period commencing
on and including the third Business Day after the date of delivery to the
Administrative Agent of such consolidated financial statements indicating such
change and ending on the date immediately preceding the effective date of the
next such change; provided that the Leverage Ratio shall be deemed to be
in Category 1 (A) at any time that an Event of Default has occurred and is
continuing or (B) at the option of the Administrative Agent or at the request
of the Required Lenders if the Company fails to deliver the consolidated financial
statements required to be delivered by it pursuant to Section 5.01(a) or (b),
during the period from the expiration of the time for delivery thereof until
such consolidated financial statements are delivered.  Any Restricted Payment permitted to be made pursuant to
Section 6.08(vi) when made shall not cease to be permitted by reason of
any subsequent reduction in the amount of the Restricted Payments Basket.


 


“Revolving Availability Period” means the
period from and including the Effectiveness Date to but excluding the earlier
of the Revolving Maturity Date and the date of termination of the Revolving
Commitments.


 


“Revolving Commitment” means, with respect
to each Lender, the commitment, if any, of such Lender to make Revolving Loans
and to acquire participations in Letters of Credit and Swingline Loans
hereunder, expressed as an amount representing the maximum permitted aggregate
amount of such Lender’s


 


32

















 


Revolving Exposure hereunder, as
such commitment may be (a) reduced from time to time pursuant to Section 2.08
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 10.04. 
The initial amount of each Lender’s Revolving Commitment is set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such
Lender shall have assumed its Revolving Commitment, as applicable.  The aggregate amount of the Lenders’
Revolving Commitments as of the Effectiveness Date is $250,000,000.


 


“Revolving Exposure” means, with respect to
any Lender at any time, the sum of the outstanding principal amount of such
Lender’s Revolving Loans and its LC Exposure and Swingline Exposure at such
time.


 


“Revolving Lender” means a Lender with a
Revolving Commitment or, if the Revolving Commitments have terminated or
expired, a Lender with Revolving Exposure.


 


“Revolving Loan” means a Loan made or
outstanding pursuant to clause (c) of Section 2.01.


 


“Revolving Maturity Date” means
April 20, 2007.


 


“Sale-Leaseback Transaction” means any
arrangement with any Person providing for the leasing by a Loan Party or any
Subsidiary of a Loan Party of any property that, or of any property similar to
and used for substantially the same purposes as any other property that, has
been or is to be sold, assigned, transferred or otherwise disposed of by a Loan
Party or any of its Subsidiaries to such Person with the intention of entering
into such a lease.


 


“S&P” means Standard & Poor’s.


 


“Security Agreement” means the Amended and
Restated Security Agreement among the Company, the Subsidiary Loan Parties and
the Administrative Agent, substantially in the form of Exhibit D.


 


“Security Documents” means the Pledge
Agreement, the Security Agreement, the Mortgages, each other security agreement
or other instrument or document executed and delivered pursuant to Section
5.08(a) or 5.09 to secure any of the Obligations and each security agreement or
other instrument or document executed and delivered pursuant to
Section 5.08(b) or 5.09 to secure any of the Spear Obligations.


 


“Senior Subordinated Notes” means senior
subordinated notes of the Company that are unsecured, mature not sooner than
the tenth anniversary of the


 


33

















 


issuance thereof and are
subordinated to the Loans on terms in no material respect less favorable to the
Lenders than customary market terms and any notes having substantially the same
terms issued in exchange therefor; and “Senior Subordinated Note” means any of
the foregoing.


 


“Senior Subordinated Note Indenture” means
the Senior Subordinated Note Indenture to be executed by the Company with
regard to the issuance of the Senior Subordinated Notes, as such indenture may
be amended from time to time in accordance with the terms hereof and thereof.


 


“SP Ratable Share Amount” means, at any
time, an amount equal to the excess at such time of (x) the quotient
obtained by dividing (i) the aggregate principal amount of Indebtedness of
the Spear Joint Venture outstanding at any date of determination pursuant to
Section 6.01(b)(ii) by (ii) the percentage (expressed as a decimal)
of the total Equity Interests of the Spear Joint Venture owned by the Company
and its Subsidiaries, over (y) the amount referred to in clause (x)(i)
above.


 


“Spear Army Ammunition Plant” means the
army ammunition plant referred to in the Spear term sheet referred to in the
definition of the “Spear Joint Venture”.


 


“Spear Collateral” means all the assets of
the Spear Joint Venture pledged or made subject to security interests pursuant
to Section 5.08 or 5.09 to secure the Spear Obligations.


 


“Spear Final Contribution Date” means
the date on which the Company ceases to own, directly or indirectly, a majority
of the voting Equity Interests in the Spear Joint Venture, whether as a result
of an equity contribution or a purchase of Equity Interests by the Spear
Partner or otherwise.


 


“Spear Joint Venture” means a joint venture
formed by the Company and the Spear Partner on substantially the terms
contemplated by the term sheet dated April 11, 2001, heretofore delivered
to the Lenders.


 


“Spear Note” means an intercompany
note delivered by the Spear Joint Venture to the Company on the date of the
formation of the Spear Joint Venture that (a) has terms reasonably
satisfactory to the Administrative Agent and (b) is secured by
substantially all the Spear Collateral.


 


“Spear Obligations” has the meaning
assigned to such term in Section 5.08(b).


 


34

















 


“Spear Partner” means the co-venturer of
the Company in the Spear Joint Venture specified in the Spear term sheet
referred to in the definition of “Spear Joint Venture”.


 


“Spear Partner Permitted Indebtedness”
means Indebtedness of the Spear Joint Venture or any of its subsidiaries owed
to the Spear Partner or any of its subsidiaries in an aggregate principal
amount outstanding at any time not to exceed the SP Ratable Share Amount at
such time.


 


“Special Investments Basket” means,
initially, $25,000,000, and, for any day after the date that is six months
after the Effectiveness Date, the amount set forth below under the caption
“Amount” based upon the Leverage Ratio as of the most recent determination
date.


 


	
  Leverage Ratio:

  	
   

  	
  Amount

  	
   

  
	
  Category
  1

  	
   

  	
   

  	
   

  
	
  >3.00

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  Category
  2

  	
   

  	
   

  	
   

  
	
  <_ 3.00,
  but >2.50

  	
   

  	
  $

  	
  50,000,000

  	
   

  
	
  Category
  3

  	
   

  	
   

  	
   

  
	
  <_ 2.50

  	
   

  	
  $

  	
  75,000,000

  	
   

  



 


For purposes of the
foregoing, (i) the Leverage Ratio shall be determined as of the end of each
fiscal quarter of the Company’s fiscal year based upon the Company’s
consolidated financial statements delivered pursuant to Section 5.01(a) or (b),
(ii) no change resulting in a numerically greater
category shall become effective unless the financial statements for two
consecutive fiscal periods delivered under Section 5.01(a) or (b) shall
have indicated such change and (iii) each change in the Special Investments Basket resulting from
a change in the Leverage Ratio shall be effective during the period commencing
on and including the third Business Day after the date of delivery to the
Administrative Agent of such consolidated financial statements indicating such
change and ending on the date immediately preceding the effective date of the
next such change; provided that the Leverage Ratio shall be deemed to be
in Category 1 (A) at any time that an Event of Default has occurred and is
continuing or (B) at the option of the Administrative Agent or at the request
of the Required Lenders if the Company fails to deliver the consolidated
financial


 


35

















 


statements required to be
delivered by it pursuant to Section 5.01(a) or (b), during the period from the
expiration of the time for delivery thereof until such consolidated financial
statements are delivered.  Any Investment
permitted to be made pursuant to Section 6.04(a) when made shall not cease
to be permitted by reason of any subsequent reduction in the amount of the
Special Investments Basket.  For
purposes of calculating usage of the Special Investments Basket, the amount of
each included investment shall be determined without duplication and net, in
the case of each investment, of repayments of such investment, the proceeds of
any sale or other disposition of such investment to any third party and other
returns of capital (but not returns on capital).


 


“Statutory Reserve Rate” means a fraction
(expressed as a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject (a) with respect to the Base CD Rate, for
new negotiable nonpersonal time deposits in dollars of over $100,000 with
maturities approximately equal to three months and (b) with respect to the
Adjusted LIBO Rate, for eurocurrency funding (currently referred to as
“Eurocurrency Liabilities” in Regulation D of the Board).  Such reserve percentages shall include those
imposed pursuant to such Regulation D. 
Eurodollar Loans shall be deemed to constitute eurocurrency funding and
to be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.


 


“subsidiary” means, with respect to any Person
(the “parent”) at any date, any
Business Entity the accounts of which would be consolidated with those of the
parent in the parent’s consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as
any other Business Entity (a) of which Equity Interests representing more
than 50% of the ordinary voting power or, in the case of a partnership, more
than 50% of the general partnership interests are, as of such date, owned,
controlled or held, or (b) that is, as of such date, otherwise controlled,
in each case in clause (a) and (b) above, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.


 


“Subsidiary” means any subsidiary of the Company
(other than an Unrestricted Subsidiary). At all times on and after the
Effectiveness Date (unless disposed of in accordance with this Agreement),
Cordant and its subsidiaries will constitute Subsidiaries.  At all times after the formation of the Spear
Joint Venture


 


36

















 


and prior to the Spear Final
Contribution Date (unless disposed of in accordance with this Agreement), the
Spear Joint Venture will be a Subsidiary. 
At all times after the formation of the Arrow Joint Venture that the
Arrow Subsidiaries are subsidiaries of the Company, the Arrow Subsidiaries will
be Subsidiaries although the Arrow Joint Venture shall not be a Subsidiary
unless and until the Company shall own more than 50% of the Equity Interests
therein.


 


“Subsidiary Guaranty Agreement” means the
Amended and Restated Subsidiary Guaranty Agreement among the Subsidiary Loan
Parties and the Administrative Agent, substantially in the form of
Exhibit E.


 


“Subsidiary Loan Party” means any Subsidiary
(other than Alliant Assurance Ltd. and other than the Spear Joint Venture and
any subsidiary thereof) that is not a Foreign Subsidiary.


 


“Support Agreement” means the Support
Agreement dated May 28, 1999, by and between the Company and Alliant Assurance
Ltd.


 


“Swingline Commitment” means, with respect
to each Swingline Lender, the commitment, if any, of such Swingline Lender to
make Swingline Loans, expressed as an amount representing the maximum aggregate
amount of such Swingline Lender’s Swingline Loans, as such commitment may from
time to time be reduced or increased by agreement with the Company and the
Administrative Agent.  The initial
amount of each Swingline Lender’s Swingline Commitment is set forth on
Schedule 2.01, or in the written agreement pursuant to which such
Swingline Lender shall have assumed its Swingline Commitment, as
applicable.  The aggregate amount of the
Swingline Lenders’ Swingline Commitments as of the Effectiveness Date is
$20,000,000.


 


“Swingline Exposure” means, at any time,
the aggregate principal amount of all Swingline Loans outstanding at such
time.  The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.


 


“Swingline Lender” means JPMorgan Chase
Bank, each other Lender that shall have executed this Agreement as a Swingline
Lender and each other Lender agreed to by each of the Company and the
Administrative Agent that shall have agreed after the date hereof in a writing
satisfactory to the Company and the Administrative Agent to serve as a
Swingline Lender, each in its capacity as a lender of Swingline Loans
hereunder.  Any Swingline Lender may be
replaced or removed or have its Swingline Commitment reduced or assigned in
whole or part to other Lenders upon three Business Days’ prior written notice
executed by the Company and the Administrative Agent, provided that
after giving effect thereto, and to any


 


37

















 


repayment of Swingline Loans made
in connection therewith, the aggregate outstanding Swingline Loans of such
Swingline Lender shall not exceed its Swingline Percentage of the total
aggregate principal amount of Swingline Loans outstanding.


 


“Swingline Loan” means a Loan made pursuant
to Section 2.04.


 


“Swingline Percentage” means, with respect
to any Swingline Lender, the percentage of the total Swingline Commitments
represented by such Swingline Lender’s Swingline Commitment.  If the Swingline Commitments have terminated
or expired, the Swingline Percentages shall be determined based upon the
Swingline Commitments most recently in effect, giving effect to any assignments
or replacements.


 


“Synthetic Lease” means, as to any Person,
any lease (including leases that may be terminated by the lessee at any time)
of any property (whether real, personal or mixed) (i) that is not a
capital lease in accordance with GAAP and (ii) in respect of which the
lessee retains or obtains ownership of the property so leased for federal
income tax purposes, other than any such lease under which such Person is the
lessor.


 


“Synthetic Lease Obligations” means, as to
any Person, the obligations of such Person to pay rent or other amounts under
any Synthetic Lease.


 


“Taxes” means any and all present or future
taxes, levies, imposts, duties, deductions, charges or withholdings imposed by
any Governmental Authority.


 


“Temporary Cash Investment” means any
Investment in (i) direct obligations of the United States or any agency
thereof, or obligations guaranteed by the United States or any agency thereof,
(ii) commercial paper rated at least A-1 by S&P and P-1 by Moody’s, (iii)
time deposits with, including certificates of deposit issued by, any office
located in the United States of any bank or trust company which is organized
under the laws of the United States or any state thereof and has capital,
surplus and undivided profits aggregating at least $1,000,000,000, (iv) shares
of any money market or mutual fund not less than 90% of the assets of which are
invested solely in securities or obligations of the type described in clauses
(i) through (iii) above and the remaining assets of which are invested solely
in securities or other obligations rated at least A-2 by S&P and P-2 by
Moody’s, and (v) repurchase agreements with respect to securities described in
clause (i) above entered into with an office of a bank or trust company meeting
the criteria specified in clause (iii) above, provided in each case that
such Investment matures within one year from the date of acquisition thereof by
the Company or a Subsidiary.


 


38

















 


“Term Loans” means Tranche A Term Loans,
Tranche C Term Loans and any additional Class of Term Loans established
pursuant to Section 10.02(c).


 


“Thiokol” means the Thiokol Propulsion
business of Alcoa.


 


“Thiokol Purchase Agreement” means the
Stock Purchase Agreement dated as of January 30, 2001 between Alcoa and the
Company, including the exhibits and schedules thereto, as amended from time to
time in accordance with the terms hereof and thereof.


 


“Three-Month Secondary CD Rate” means, for
any day, the secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day is not a Business Day,
the next preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will,
under the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day) or, if
such rate is not so reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at approximately
10:00 a.m., New York City time, on such day (or, if such day is not a
Business Day, on the next preceding Business Day) by the Administrative Agent
from three negotiable certificate of deposit dealers of recognized standing
selected by it.


 


“Tranche A Term Lender” means a Lender with
a Tranche A Term Loan Commitment or an outstanding Tranche A Term Loan.


 


“Tranche A Term Loan” means a Loan made
pursuant to clause (a) of Section 2.01.


 


“Tranche A Term Loan Commitment” means,
with respect to each Lender, the commitment, if any, of such Lender to retain,
make or acquire a Tranche A Term Loan hereunder on the Effectiveness Date,
expressed as an amount representing the maximum permitted principal amount of
the Tranche A Term Loan to be made by such Lender hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced
or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04.  The initial
amount of each Lender’s Tranche A Term Loan Commitment is set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such
Lender shall have assumed its Tranche A Term Loan Commitment, as


 


39

















 


applicable.  The aggregate amount of the Lenders’ Tranche
A Term Loan Commitments as of the Effectiveness Date is $300,000,000.


 


“Tranche A Term Loan Maturity Date” means
April 20, 2007.


 


“Tranche B Term Loan Commitment” means the
commitment pursuant to which certain Lenders made Tranche B Term Loans on the
Effectiveness Date.


 


“Tranche B Term Loan” means a Loan made
pursuant to clause (b) of Section 2.01.


 


“Tranche C Term Lender” means a Lender with
a Tranche C Term Loan Commitment or an outstanding Tranche C Term Loan.


 


“Tranche C Term Loan” means a Loan made
pursuant to Section 3 of the Amendment Agreement.


 


“Tranche C Term Loan Commitment” means,
with respect to each Lender, the commitment, if any, of such Lender under the
Amendment Agreement to make a Tranche C Term Loan on the Amendment Effectiveness
Date in an amount up to the amount set forth for such Lender on Schedule 3 to
the Amendment Agreement.  The aggregate
amount of the Lenders’ Tranche C Term Loan Commitments as of the Amendment
Effectiveness Date is $525,000,000.


 


“Tranche C Term Loan Maturity Date” means
April 20, 2009.


 


“Transactions” means the Acquisition and
the Financing Transactions.


 


“Type”, when used in reference to any Loan
or Borrowing, refers to whether the rate of interest on such Loan, or on the
Loans comprising such Borrowing, is determined by reference to the Adjusted
LIBO Rate or the Alternate Base Rate.


 


“Unfunded Liabilities” means, with respect
to any Plan at any time, the amount (if any) by which (i) the present value of
all accumulated benefit obligations under such Plan (based on the assumptions
used to fund the Plan) exceeds (ii) the fair market value of all Plan assets
allocable to such benefits (excluding any accrued but unpaid contributions),
all determined as of the then most recent valuation date for such Plan, but
only to the extent that such excess represents a potential liability of a
member of the ERISA Group to the PBGC or any other Person under Title IV of
ERISA.


 


40

















 


“Unrestricted Subsidiary” means any subsidiary
of the Company or any other Person in which the Company or any Subsidiary shall
have a direct or indirect Investment so long as (i) the Company shall have
notified the Administrative Agent of its acquisition or creation of such
subsidiary or such other Investment and its ownership interest therein or of
its designation of an existing Subsidiary as an Unrestricted Subsidiary
concurrently with such acquisition, creation, designation or Investment and of
the intended purposes of such subsidiary or Investment, (ii) any such
subsidiary (unless it is a foreign subsidiary) shall have entered into
a tax sharing agreement containing terms which, in the reasonable judgment
of the Administrative Agent, are customary in similar circumstances to provide
an appropriate allocation of tax liabilities and benefits, (iii) except as
permitted in the proviso below, none of the Company and the Subsidiaries shall
have any contingent liability in respect of such subsidiary or Investment and
(iv) any such subsidiary or Investment shall be capitalized solely from
the following sources: (A) any Investment by any Person other than
the Company and the Subsidiaries; (B) Indebtedness issued by such
subsidiary or any of its subsidiaries that is nonrecourse to the Company and
the Subsidiaries (except as otherwise permitted by the proviso below), or
proceeds thereof; and (C) Investments permitted to be made in Unrestricted
Subsidiaries pursuant to Section 6.04(e); provided that the Company
may incur a contingent liability or Indebtedness in a specified and limited
amount in respect of such a subsidiary or Investment if it would at the time of
such incurrence be permitted to make an additional Investment in such
subsidiary or Investment in the amount of such incurrence and the amount so
incurred shall thereafter constitute an Investment in such subsidiary or
Investment in such amount for purposes of calculating compliance with
Section 6.04(e).  Any subsidiary of
an Unrestricted Subsidiary is an Unrestricted Subsidiary.


 


“Wholly-Owned Consolidated Subsidiary”
means, with respect to any Person, any Consolidated Subsidiary of such Person
all of the shares of capital stock or other Equity Interests in which (except
directors’ qualifying shares) are at the time directly or indirectly owned by such
Person.


 


“Withdrawal Liability” means liability to a
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E
of Title IV of ERISA.


 


SECTION 1.02.  Classification
of Loans and Borrowings.  For
purposes of this Agreement, Loans may be classified and referred to by Class (e.g.,
a “Revolving Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class
and Type (e.g., a “Eurodollar Revolving Loan”).  Borrowings also may be classified and


 


41

















 


referred to by Class (e.g.,
a “Revolving Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or
by Class and Type (e.g., a “Eurodollar Revolving Borrowing”).


 


SECTION 1.03.  Terms Generally.  The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined.  Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter
forms.  The words “include”, “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation”.  The word “will” shall be
construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a)
any definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (c) the words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words “asset” and “property” shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.  References herein to
the taking of any action hereunder of an administrative nature by any Borrower
shall be deemed to mean a reference to the Company taking such action on such
Borrower’s behalf and the Administrative Agent is expressly authorized to
accept any such action taken by the Company as having the same effect as if
taken by such Borrower, it being understood and agreed that the Company shall
deliver all Borrowing Requests, Interest Election Requests and other notices,
elections, and requests to be delivered by any Borrowing Subsidiary on behalf
of such Borrowing Subsidiary and that no Borrowing Subsidiary shall deliver any
such request, election or notice.  Any
notice delivered to the Company in accordance with Section 10.01 shall be
deemed to have been simultaneously delivered to each Borrowing Subsidiary.


 


SECTION 1.04.  Accounting
Terms; GAAP.  Except as
otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time; provided that, if the Company notifies the Administrative Agent
that the Company requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Company that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP


 


42

















 


or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.  For the avoidance of doubt,
(a)(i) at all times after the formation of the Spear Joint Venture and
prior to the Spear Final Contribution Date, the Spear Joint Venture will be
included, without duplication, in the calculation of the Leverage Ratio and the
financial covenants in accordance with GAAP (i.e., with the minority
interest (including in respect of income, total liabilities, total interest
expense and other relevant items for the Spear Joint Venture) backed out) and
(ii) on and after the Spear Final Contribution Date, the income of the
Spear Joint Venture will be included, without duplication, in the calculation
of the Leverage Ratio and the financial covenants solely to the extent of cash
dividends or distributions actually received therefrom by the Company or a
Wholly-Owned Consolidated Subsidiary and (b) at all times after the formation
of the Arrow Joint Venture that the Arrow Subsidiaries are Subsidiaries, the
Arrow Subsidiaries will be included in the calculation of the Leverage Ratio
and the financial covenants in accordance with GAAP (i.e., with the
minority backed out, except that the entire principal amount of the Revolving
Loans, and all interest expenses in respect thereof, will be included in such
calculation) and the income of the subsidiaries of the co-venturer in the Arrow
Joint Venture that shall have been contributed to the Arrow Joint Venture will
be included in such calculation solely to the extent of cash dividends or
distributions actually received therefrom by the Company or a Wholly-Owned
Consolidated Subsidiary.


 


43

















 


ARTICLE II


 


The
Credits


 


SECTION 2.01.  Commitments.  Subject to the terms and conditions set
forth herein and in the Effectiveness Agreement, each Lender agrees (a) to
consummate the transactions with respect to Tranche A Term Loans contemplated
by the Effectiveness Agreement to be consummated by it on the Effectiveness
Date and to hold after giving effect thereto a Tranche A Term Loan to the
Company on the Effectiveness Date in a principal amount not exceeding its
Tranche A Term Loan Commitment, (b) to make a Tranche B Term Loan to the
Company on the Effectiveness Date in a principal amount not exceeding its
Tranche B Term Loan Commitment and (c) to consummate the transactions with
respect to Revolving Loans contemplated by the Effectiveness Agreement to be
consummated by it on the Effectiveness Date and to hold after giving effect
thereto Revolving Loans to the Company in an aggregate amount equal to its
Applicable Percentage of the Revolving Loans outstanding on the Effectiveness
Date and thereafter to make Revolving Loans to the Borrowers from time to time
during the Revolving Availability Period in an aggregate principal amount that
will not result in (i) such Lender’s Revolving Exposure exceeding such
Lender’s Revolving Commitment or (ii) the sum of the total Revolving
Exposures and the Lender LC Exposure exceeding the total Revolving Commitments.  Subject to the terms and conditions set
forth herein and in the Amendment Agreement, each Lender having a Tranche C
Term Loan Commitment made Tranche C Term Loans to the Company on the Amendment
Effectiveness Date in a principal amount equal to its Tranche C Term Loan
Commitment.  Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrowers may
borrow, prepay and reborrow Revolving Loans. 
Amounts repaid in respect of Term Loans may not be reborrowed.


 


SECTION 2.02.  Loans and
Borrowings.  (a)  Each
Loan (other than a Swingline Loan) shall be made as part of a Borrowing
consisting of Loans of the same Class and Type made by the Lenders ratably in
accordance with their respective Commitments of the applicable Class.  The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and
no Lender shall be responsible for any other Lender’s failure to make Loans as
required.


 


(b)  Subject
to Section 2.14, each Revolving Borrowing and Term Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the applicable Borrower
may request in accordance herewith; provided that all Borrowings made on
the Effectiveness Date must be made as ABR Borrowings.


 


44

















 


Each Swingline Loan shall be an
ABR Loan.  Each Lender at its option may
make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate
of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of any Borrower to repay such Loan in
accordance with the terms of this Agreement.


 


(c)  At the commencement of each Interest Period
for any Eurodollar Borrowing, and at the time that each ABR Revolving Borrowing
is made, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $10,000,000; provided that an
ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Revolving Commitments or that is required to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e).  Each Swingline Borrowing shall
be in an amount that is an integral multiple of $1,000,000.  Borrowings of more than one Type and Class
may be outstanding at the same time; provided that there shall not at
any time be more than a total of thirteen Eurodollar Borrowings outstanding.


 


(d)  Notwithstanding
any other provision of this Agreement, no Borrower shall be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Revolving Maturity
Date, the Tranche A Term Loan Maturity Date or the Tranche C Term Loan Maturity
Date, as applicable.


 


SECTION 2.03.  Requests
for Borrowings.   To request
a Revolving Borrowing or Term Borrowing, the applicable Borrower shall notify
the Administrative Agent of such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 12:00 noon, New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than 11:30 a.m., New York City time, on the
date of the proposed Borrowing; provided that any such notice of an
ABR Revolving Borrowing to finance the reimbursement of an
LC Disbursement as contemplated by Section 2.05(e) may be given not
later than 11:00 a.m., New York City time, on the date of the proposed
Borrowing.  Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by the Company on
behalf of the applicable Borrower.  Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:


 


(i)            the Borrower on whose behalf the
Company is requesting such Borrowing;


 


45

















 


(ii)           whether the requested Borrowing is to
be a Revolving Borrowing, Tranche A Term Borrowing or Tranche C Term Borrowing;


 


(iii)         the aggregate amount of such Borrowing;


 


(iv)          the date of such Borrowing, which
shall be a Business Day;


 


(v)            whether such Borrowing is to be an
ABR Borrowing or a Eurodollar Borrowing;


 


(vi)          in the case of a Eurodollar Borrowing,
the initial Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term “Interest Period”; and


 


(vii)         the location and number of the
applicable Borrower’s account to which funds are to be disbursed, which shall
comply with the requirements of Section 2.06.


 


If no election as to the Type of
Borrowing is specified, then the requested Borrowing shall be an ABR
Borrowing.  If no Interest Period is
specified with respect to any requested Eurodollar Revolving Borrowing, then
the applicable Borrower shall be deemed to have selected an Interest Period of
one month’s duration.  Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender’s Loan to be made as part of the requested Borrowing.


 


SECTION 2.04.  Swingline
Loans.  (a)  Subject to the terms and conditions set
forth herein, each Swingline Lender agrees to make Swingline Loans to the
Borrowers from time to time during the Revolving Availability Period, in an
aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of such Swingline Lender’s Swingline
Loans exceeding such Swingline Lender’s Swingline Commitment, (ii) the
aggregate principal amount of outstanding Swingline Loans exceeding $20,000,000
or (iii) the sum of the total Revolving Exposures and the Lender LC
Exposure exceeding the total Revolving Commitments.  Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrowers may borrow, prepay and reborrow
Swingline Loans.


 


(b)  To request a Swingline Borrowing, the
applicable Borrower shall notify the Administrative Agent of such request by
telephone (confirmed by telecopy), not later than 1:00 p.m., New York City
time, on the day of a proposed Swingline Borrowing.  Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested


 


46

















 


Swingline Borrowing.  The Administrative Agent will promptly
advise the Swingline Lenders of any such notice received from such
Borrower.  Each Swingline Lender shall
make its Swingline Percentage of each Swingline Borrowing available to such
Borrower by means of a credit to the general deposit account of such Borrower
with such Swingline Lender (or, in the case of a Swingline Borrowing made to
finance the reimbursement of an LC Disbursement as provided in
Section 2.05(e), by remittance to the applicable Issuing Bank) by
3:00 p.m., New York City time, on the requested date of such
Swingline Borrowing.


 


(c)  Any Swingline Lender may by written notice
given to the Administrative Agent not later than 1:30 p.m., New York City
time, on any Business Day require the Revolving Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans
outstanding.  Such participations shall
be made on a pro rata basis in the Swingline Loans of the Swingline Lenders
based upon their respective Swingline Percentages.  Such notice shall specify the aggregate amount of Swingline Loans
in which Revolving Lenders will participate. 
Promptly upon receipt of such notice, the Administrative Agent will give
notice thereof to each Revolving Lender, specifying in such notice such
Lender’s Applicable Percentage of such Swingline Loan or Loans.  Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of each Swingline Lender, such Lender’s Applicable
Percentage of such Swingline Loan or Loans. 
Each Revolving Lender acknowledges and agrees that its obligation to
acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.  Each Revolving Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available
funds, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, mutatis  mutandis,
to the payment obligations of the Revolving Lenders), and the Administrative
Agent shall promptly pay to each Swingline Lender its Swingline Percentage of
the amounts so received from the Revolving Lenders.  The Administrative Agent shall notify the Company of any participations
in any Swingline Loan acquired pursuant to this paragraph, and thereafter
payments in respect of such Swingline Loan shall be made to the Administrative
Agent and not to the Swingline Lenders. 
Any amounts received by any Swingline Lender from a Borrower (or other
party on behalf of a Borrower) in respect of a Swingline Loan after receipt by
such Swingline Lender of the proceeds of a sale of participations therein shall
be promptly remitted to the Administrative Agent; any such amounts received by
the Administrative Agent shall be promptly remitted by the Administrative Agent
to the Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lenders, as their


 


47

















 


interests may appear.  The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve any Borrower of any
default in the payment thereof.


 


SECTION 2.05.  Letters
of Credit.  (a)  General. 
Subject to the terms and conditions set forth herein and in the Effectiveness
Agreement and to a separate agreement among the Company and the
Administrative Agent regarding the beneficiaries of the Letters of Credit, each
Borrower may request the issuance of Letters of Credit for such Borrower’s own
account, in a form reasonably acceptable to the Administrative Agent and the
applicable Issuing Bank, at any time and from time to time during the Revolving
Availability Period.  In the event of
any inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other
agreement submitted by a Borrower to, or entered into by a Borrower with, any
Issuing Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.  On the
Effectiveness Date, each Issuing Bank that has issued an Existing Letter of
Credit shall be deemed, without further action by any party hereto, to have
granted to each Revolving Lender and each Revolving Lender shall have been
deemed to have purchased from such Issuing Bank a participation in such Letter
of Credit in accordance with paragraph (d) below.  The Company and the Lenders that are also
party to the Existing Credit Agreements agree that concurrently with such
grant, the participations in the Existing Letters of Credit granted to such
lenders under the Existing Credit Agreements shall be automatically canceled
without further action by any of the parties thereto.  On and after the Effectiveness Date each Existing Letter of
Credit shall constitute a Letter of Credit for all purposes hereof.


 


(b)  Notice of
Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of
Credit (or the amendment, renewal or extension of an outstanding Letter of
Credit), the applicable Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by
the applicable Issuing Bank) to the applicable Issuing Bank and the
Administrative Agent (three Business Days’ in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of
a Letter of Credit, or identifying the Letter of Credit to be amended, renewed
or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire and whether such Letter of Credit is to be an “evergreen”
Letter of Credit and the relevant terms of such “evergreen” feature (which in
each case shall comply with paragraph (c) of this Section), the amount of
such Letter of Credit, the name and address of the beneficiary thereof, the
proposed Issuing Bank for such Letter of Credit and such other information as
shall be necessary to prepare, amend, renew or extend such Letter of
Credit.  If requested by


 


48

















 


the applicable Issuing Bank, the
applicable Borrower also shall submit a letter of credit application on such
Issuing Bank’s standard form in connection with any request for a Letter of
Credit.  A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit each Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the sum of the LC Exposure and the Lender LC
Exposure shall not exceed $150,000,000 and (ii) the sum of the total
Revolving Exposures and the Lender LC Exposure shall not exceed the total Revolving
Commitments.


 


(c)  Expiration
Date.  No Letter of Credit
shall have a term of more than one year; provided that a Letter of
Credit may contain a provision pursuant to which it is deemed to be extended on
an annual basis for successive periods of not more than one year each unless
notice of termination is given by the Issuing Bank; provided  further
that no Letter of Credit shall have a term extending or be so extendible beyond
the fifth Business Day prior to the Revolving Maturity Date.


 


(d)  Participations.  By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender
hereby acquires from such Issuing Bank, a participation in such Letter of
Credit equal to such Lender’s Applicable Percentage of the aggregate amount
available to be drawn under such Letter of Credit.  In consideration and in furtherance of the foregoing, each
Revolving Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of such Issuing Bank, such Lender’s
Applicable Percentage of each LC Disbursement made by such Issuing Bank and not
reimbursed by the Borrowers on the date due as provided in paragraph (e) of
this Section, or of any reimbursement payment required to be refunded to any
Borrower for any reason.  Each Revolving
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the occurrence
and continuance of a Default or reduction or termination of the Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.


 


(e)  Reimbursement.  If any Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the applicable Borrower shall
reimburse such LC Disbursement by paying to the Administrative Agent an amount
equal to such LC Disbursement not later than 12:00 noon, New York City time, on
the date that such LC Disbursement is made, if such Borrower shall have
received notice of such LC Disbursement prior to 11:00 a.m., New York City
time, on such


 


49

















 


date, or, if such notice has not
been received by such Borrower prior to such time on such date, then not later
than 12:00 noon, New York City time, on (i) the Business Day that such Borrower
receives such notice, if such notice is received prior to 11:00 a.m., New York
City time, on the day of receipt, or (ii) the Business Day immediately
following the day that such Borrower receives such notice, if such notice is
not received prior to such time on the day of receipt; provided that a
Borrower may (x) subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.04 that such payment be financed
with an ABR Revolving Borrowing or Swingline Borrowing in an equivalent amount
and, to the extent so financed, such Borrower’s obligation to make such payment
shall be discharged and replaced by the resulting ABR Revolving Borrowing or
Swingline Borrowing or (y) if no Event of Default shall have occurred and
be continuing, give the Administrative Agent written notice electing to make
such payment at a subsequent time on or prior to the second Business Day after
the date on which such LC Disbursement is made and specifying such time.  If a Borrower fails to make such payment on
or before the time required, the Administrative Agent shall notify each Revolving
Lender of the applicable LC Disbursement, the payment then required to be made
to the applicable Issuing Bank in respect thereof and such Lender’s Applicable
Percentage thereof.  Promptly following
receipt of such notice, each Revolving Lender shall pay to the Administrative
Agent its Applicable Percentage of such payment, in the same manner as provided
in Section 2.06 with respect to Loans made by such Lender (and
Section 2.06 shall apply, mutatis  mutandis, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall
promptly pay to the applicable Issuing Bank the amounts so received by it from
the Revolving Lenders.  Promptly
following receipt by the Administrative Agent of any payment from a Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the applicable Issuing Bank or, to the extent that Revolving Lenders
have made payments pursuant to this paragraph to reimburse such Issuing Bank,
then to such Lenders and such Issuing Bank as their interests may appear.  Any payment made by a Revolving Lender
pursuant to this paragraph to reimburse an Issuing Bank for any LC Disbursement
(other than the funding of ABR Revolving Loans or a Swingline Borrowing as
contemplated above) shall not constitute a Loan and shall not relieve the
applicable Borrower of its obligation to reimburse such LC Disbursement.


 


50

















 


(f)  Obligations
Absolute.  Each Borrower’s
obligation to reimburse LC Disbursements as provided in paragraph (e) of
this Section shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by
an Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff
against, such Borrower’s obligations hereunder.  Neither the Administrative Agent, the Lenders nor any Issuing Bank,
nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder (irrespective
of any of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the applicable Issuing Bank; provided that the foregoing
shall not be construed to excuse any Issuing Bank from liability to a Borrower
to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by each Borrower to the extent
permitted by applicable law) suffered by such Borrower that are caused by such
Issuing Bank’s failure to (i) exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof or (ii) pay under any Letter of Credit after the presentment
to it of a request strictly complying with the terms and conditions of the
Letter of Credit; provided that this clause (ii) shall not apply to
any failure by the Issuing Bank to pay under such Letter of Credit to the
extent that such payment is prevented by an injunction or other legal
requirement.  The parties hereto
expressly agree that, in the absence of gross negligence or wilful misconduct
on the part of an Issuing Bank (as finally determined by a court of competent
jurisdiction), such Issuing Bank shall be deemed to have exercised care in each
such determination.  In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, an Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment


 


51

















 


upon such documents if such
documents are not in strict compliance with the terms of such Letter of Credit.


 


(g)  Disbursement
Procedures.  Each Issuing
Bank shall, promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit issued by it.  Such Issuing Bank shall promptly notify the
Administrative Agent and the applicable Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether such Issuing Bank has made or
will make an LC Disbursement thereunder and the proposed
LC Disbursement date; provided that any failure to give or delay in
giving such notice shall not relieve such Borrower of its obligation to
reimburse such Issuing Bank and the Revolving Lenders with respect to any such
LC Disbursement.


 


(h)  Interim Interest.  If an Issuing Bank shall make any LC
Disbursement, then, unless the applicable Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that such Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to ABR
Revolving Loans; provided that, if a Borrower fails to reimburse such LC
Disbursement when due pursuant to paragraph (e) of this Section, then
Section 2.13(c) shall apply with respect to the overdue amount for each day
overdue.  Interest accrued pursuant to
this paragraph shall be for the account of the applicable Issuing Bank, except
that interest accrued on and after the date of payment by any Revolving Lender
pursuant to paragraph (e) of this Section to reimburse such Issuing Bank shall
be for the account of such Lender to the extent of such payment.


 


(i)  Replacement
of Issuing Banks.  Any
Issuing Bank may be replaced or removed at any time by written agreement among
the Company and the Administrative Agent. 
The Administrative Agent shall notify the Lenders of any such
replacement or removal of an Issuing Bank. 
At the time any such replacement or removal shall become effective, the
Borrowers shall pay all unpaid fees, costs or expenses accrued for the account
of the replaced or removed Issuing Bank pursuant to Section 2.12(b).  From and after the effective date of any
such replacement, (i) in the case of any replacement, the successor
Issuing Bank shall have all the rights and obligations of an Issuing Bank under
this Agreement with respect to Letters of Credit to be issued thereafter and
(ii) references herein to the term “Issuing Bank” shall be deemed to refer to
such successor or to any previous Issuing Bank, or to such successor and all
previous Issuing Banks, as the context shall require.  After the replacement or removal of an Issuing Bank hereunder,
the replaced or removed Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of


 


52

















 


Credit issued by it prior to such
replacement or removal, but shall not be required to issue additional Letters
of Credit.


 


(j)  Cash
Collateralization.  If any
Event of Default shall occur and be continuing, on the Business Day that the
Company receives notice from the Administrative Agent upon instruction of the
Required Lenders (or, if the maturity of the Loans has been accelerated,
Revolving Lenders with LC Exposure representing more than 50% of the total LC
Exposure) demanding the deposit of cash collateral pursuant to this paragraph,
the Borrowers shall deposit in an account with the Administrative Agent, in the
name of the Administrative Agent and for the benefit of the Lenders, an
aggregate amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Event of Default with respect to the
Company described in clause (g) or (h) of Article VII.  The Borrowers also shall deposit cash
collateral pursuant to this paragraph as and to the extent required by Section 2.11(b).  Each such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrowers under this Agreement.  The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account.  Other than any interest earned on the
investment of such deposits, which investments shall be in Temporary Cash
Investments made at the option and sole discretion of the Administrative Agent
and at the Borrowers’ risk and expense, such deposits shall not bear
interest.  Interest or profits, if any,
on such investments shall accumulate in such account.  Moneys in such account shall be applied by the Administrative
Agent to reimburse the Issuing Banks for LC Disbursements which have not been
reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrowers for the LC
Exposure at such time or, if the maturity of the Loans has been accelerated (but
subject to the consent of Revolving Lenders with LC Exposure representing more
than 50% of the total LC Exposure), be applied to satisfy other obligations of
the Borrowers under this Agreement.  If
the Borrowers are required to provide an amount of cash collateral hereunder as
a result of the occurrence of an Event of Default, such amount (to the extent
not applied as aforesaid) shall be returned to the Borrowers within three
Business Days after all Events of Default have been cured or waived.  If the Borrowers are required to provide an
amount of cash collateral hereunder pursuant to Section 2.11(b), such
amount (to the extent not applied as aforesaid) shall be returned to the
Borrowers as and to the extent that, after giving effect to such return, the Borrowers
would remain in compliance with Section 2.11(b) and no Default shall have
occurred and be continuing.


 


53

















 


SECTION 2.06.  Funding
of Borrowings.  (a)  Each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately
available funds by (x) in the case of an ABR Borrowing, 1:00 p.m.,
New York City time, and (y) in the case of a Eurodollar Borrowing,
11:00 a.m., New York City time, to the account of the Administrative Agent
most recently designated by it for such purpose by notice to the Lenders; provided
that Swingline Loans shall be made as provided in Section 2.04.  The Administrative Agent will make such
Loans available to the applicable Borrower by promptly crediting the amounts so
received, in like funds, to an account of such Borrower maintained with the
Administrative Agent in New York City and designated by such Borrower in the
applicable Borrowing Request; provided that ABR Revolving Loans made to
finance the reimbursement of an LC Disbursement as provided in Section 2.05(e)
shall be remitted by the Administrative Agent to the applicable Issuing Bank.


 


(b)  Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date (or in the case of an
ABR Borrowing, prior to 1:00 p.m., New York City time, on the date)
of any Borrowing that such Lender will not make available to the Administrative
Agent such Lender’s share of such Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the applicable Borrower a corresponding amount.  In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the applicable Borrower severally agree
to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to such Borrower to but excluding the date of payment
to the Administrative Agent, at (i) in the case of such Lender, the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation or
(ii) in the case of such Borrower, the interest rate applicable to ABR
Loans.  If such Lender pays such amount
to the Administrative Agent, then such amount shall constitute such Lender’s
Loan included in such Borrowing.


 


SECTION 2.07.  Interest
Elections.  (a)  Each Revolving Borrowing and Term Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. 
Thereafter, the applicable Borrower may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section.  The applicable Borrower
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding


 


54

















 


the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing.  This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.


 


(b)  To make an election pursuant to this
Section, the applicable Borrower shall notify the Administrative Agent of such
election by telephone by the time that a Borrowing Request would be required
under Section 2.03 if such Borrower were requesting a Revolving Borrowing of
the Type resulting from such election to be made on the effective date of such
election.  Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by such
Borrower, or by the Company on its behalf.


 


(c)  Each telephonic and written Interest Election
Request shall specify the following information in compliance with
Section 2.02 and paragraph (f) of this Section:


 


(i)         the Borrowing to which such Interest
Election Request applies and, if different options are being elected with
respect to different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);


 


(ii)       the effective date of the election made
pursuant to such Interest Election Request, which shall be a Business Day;


 


(iii)      whether the resulting Borrowing is to be
an ABR Borrowing or a Eurodollar Borrowing; and


 


(iv)       if the resulting Borrowing is a
Eurodollar Borrowing, the Interest Period to be applicable thereto after giving
effect to such election, which shall be a period contemplated by the definition
of the term “Interest Period”.


 


If any such Interest Election
Request requests a Eurodollar Borrowing but does not specify an Interest
Period, then the applicable Borrower shall be deemed to have selected an
Interest Period of one month’s duration.


 


(d)  Promptly following receipt of an Interest
Election Request, the Administrative Agent shall advise each Lender of the
details thereof and of such Lender’s portion of each resulting Borrowing.


 


55

















 


(e)  If a Borrower fails to deliver a timely
Interest Election Request with respect to a Eurodollar Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing. 
Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Company, then, so long as an Event of
Default is continuing (i) no outstanding Borrowing may be converted to or
continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.


 


(f)  A Borrowing of any Class may not be
converted to or continued as a Eurodollar Borrowing if after giving effect
thereto (i) the Interest Period therefor would commence before and end after a
date on which any principal of the Loans of such Class is scheduled to be
repaid and (ii) the sum of the aggregate principal amount of outstanding
Eurodollar Borrowings of such Class with Interest Periods ending on or prior to
such scheduled repayment date plus the aggregate principal amount of
outstanding ABR Borrowings of such Class would be less than the aggregate
principal amount of Loans of such Class required to be repaid on such scheduled
repayment date.


 


SECTION 2.08.  Termination
and Reduction of Commitments. 
(a)  Unless previously
terminated, (i) the Tranche A Term Loan Commitments and the Tranche B Term Loan
Commitments shall terminate at 5:00 p.m., New York City time, on the
Effectiveness Date, (ii) the Tranche C Term Loan Commitments shall terminate at
5:00 p.m., New York City time, on the Amendment Effectiveness Date and
(iii) the Revolving Commitments and the Swingline Commitments shall
terminate on the Revolving Maturity Date.


 


(b)  The
Company may at any time terminate, or from time to time reduce, the Revolving
Commitments, the Tranche A Term Loan Commitments or the Tranche C Term Loan
Commitments; provided that (i) each reduction of the Commitments of any Class
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $10,000,000 and (ii) the Company shall not terminate or reduce the
Revolving Commitments if, after giving effect to any concurrent prepayment of
the Revolving Loans in accordance with Section 2.11, the sum of the total
Revolving Exposures and the Lender LC Exposure would exceed the total Revolving
Commitments.


 


(c)  If any prepayment of Term Borrowings is
required pursuant to Section 2.11 but cannot be made because there are no Term
Borrowings outstanding, or because the amount of the required prepayment
exceeds the outstanding amount of Term Borrowings, then, on the date that such
prepayment is


 


56

















 


required, the Revolving
Commitments shall be reduced by an aggregate amount equal to the amount of the
required prepayment, or the excess of such amount over the outstanding amount
of Term Borrowings, as the case may be.


 


(d)  If the aggregate principal amount of the
Senior Subordinated Notes and other Permanent Securities issued on or prior to
the Effectiveness Date is in excess of $125,000,000, the Tranche A Term Loan
Commitment and the Tranche B Term Loan Commitment shall be reduced on a pro
rata basis by the amount of such excess.


 


(e)  The Company shall notify the Administrative
Agent of any election to terminate or reduce the Commitments under
paragraph (b) of this Section, or any required reduction of the Revolving
Commitments under paragraph (c) of this Section, at least three Business
Days prior to the effective date of such termination or reduction, specifying
such election and the effective date thereof. 
Promptly following receipt of any notice, the Administrative Agent shall
advise the Lenders of the contents thereof. 
Each notice delivered by the Company pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Revolving
Commitments delivered by the Company may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice
may be revoked by the Company (by notice to the Administrative Agent on or
prior to the specified effective date) if such condition is not satisfied.  Any termination or reduction of the
Commitments of any Class shall be permanent. 
Each reduction of the Commitments of any Class shall be made ratably
among the Lenders in accordance with their respective Commitments of such
Class.


 


SECTION 2.09.  Repayment of
Loans; Evidence of Debt. 
(a) Each Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan of such Lender on the Revolving Maturity Date,
(ii) to the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Term Loan of such Lender as provided in Section 2.10
and (iii) to the Swingline Lenders the then unpaid principal amount of each
Swingline Loan on the earlier of the Revolving Maturity Date and the first date
after such Swingline Loan is made that is the 15th or last day of a calendar
month and is at least two Business Days after such Swingline Loan is made; provided
that on each date that a Revolving Borrowing is made, the Borrowers shall repay
all Swingline Loans then outstanding.


 


(b)  Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of each Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of


 


57

















 


principal and interest payable
and paid to such Lender from time to time hereunder.


 


(c)  The
Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder, the Class and Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal
or interest due and payable or to become due and payable from each Borrower to
each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.


 


(d)  The
entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima  facie evidence of the
existence and amounts of the obligations recorded therein; provided that
the failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of any
Borrower to repay the Loans in accordance with the terms of this Agreement.


 


(e)  Any Lender may request that Loans of any
Class made by it be evidenced by a promissory note.  In such event, each applicable Borrower shall prepare, execute
and deliver to such Lender a promissory note payable to the order of such
Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent.  Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 10.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered
assigns).


 


SECTION 2.10.  Amortization
of Term Loans.  (a)  Subject to adjustment pursuant to paragraph
(d) of this Section, the Company shall repay Tranche A Term Borrowings in the
aggregate annual principal amounts set forth below for the specified Fiscal
Years in consecutive equal quarterly installments on each June 30, September
30, December 31 and March 31, commencing on June 30, 2001.


 


58

















 


	
  Fiscal Year

  Ended

  	
   

  	
  Annual  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March
  31, 2002

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
  March
  31, 2003

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  March
  31, 2004

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
  March
  31, 2005

  	
   

  	
  $

  	
  55,000,000

  	
   

  
	
  March
  31, 2006

  	
   

  	
  $

  	
  60,000,000

  	
   

  
	
  Tranche
  A Term Loan Maturity Date

  	
   

  	
  $

  	
  65,000,000

  	
   

  



 


(b)  Subject to adjustment pursuant to
paragraph (d) of this Section, the Company shall repay Tranche C Term Borrowings
(i) in 20 consecutive quarterly installments equal to 0.25% of the original
principal amount of the Tranche C Term Loans on each June 30, September
30, December 31 and March 31, commencing on June 30, 2002, and (ii) in
consecutive equal quarterly installments on each June 30, September 30,
December 31 and March 31, thereafter and on the Tranche C Term Loan Maturity
Date in an aggregate amount for each of Fiscal Year 2008 and Fiscal Year 2009
equal to 47.5% of the original principal amount of the Tranche C Term
Borrowings.


 


(c)  To the extent not previously paid, (i) all
Tranche A Term Loans shall be due and payable by the Company on the Tranche A
Term Loan Maturity Date and (ii) all Tranche C Term Loans shall be due and
payable by the Company on the Tranche C Term Loan Maturity Date.


 


(d)  If the initial aggregate amount of the
Lenders’ Tranche A Term Loan Commitments or Tranche B Term Loan Commitments
exceeds the aggregate principal amount of Tranche A Term Loans or Tranche B
Term Loans that are made on the Effectiveness Date, then the scheduled
repayments of such Term Borrowings to be made pursuant to this Section shall be
reduced ratably by an aggregate amount equal to such excess.  Any prepayment of a Term Borrowing of either
Class shall be applied to reduce the subsequent scheduled repayments of the
Term Borrowings of such Class to be made pursuant to this Section ratably,
except as otherwise provided in the penultimate sentence of
Section 2.11(f).


 


(e)  Prior to any repayment of any Term Borrowings
of either Class hereunder, the Company shall select the Borrowing or Borrowings
of the applicable Class to be repaid and shall notify the Administrative Agent
by telephone (confirmed by telecopy) of such selection not later than 11:00
a.m., New York City time, three Business Days before the scheduled date of such
repayment.  Each repayment of a
Borrowing shall be applied ratably to the Loans included in the


 


59

















 


repaid Borrowing.  Repayments of Term Borrowings shall be
accompanied by accrued interest on the amount repaid.


 


SECTION 2.11.  Prepayment
of Loans.  (a)  The
Borrowers shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, subject to the requirements of this Section.


 


(b)  In the event and on such occasion that the
sum of the total Revolving Exposures and the Lender LC Exposures exceeds the
total Revolving Commitments, the Borrowers shall prepay Revolving Borrowings or
Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash
collateral in an account with the Administrative Agent pursuant to Section
2.05(j)) in an aggregate amount equal to such excess.


 


(c)  In the event and on each occasion that any
Net Proceeds are received by or on behalf of any Borrower or any Subsidiary in
respect of any Prepayment Event, the Company shall, within three Business Days
after such Net Proceeds are received, prepay Term Borrowings in accordance with
paragraph (e) of this Section 2.11 in an aggregate amount equal to such Net
Proceeds; provided that to the extent any such repayment or reduction
would otherwise require repayment or prepayment of Eurodollar Loans or portions
thereof prior to the last day of the related Interest Period, such portion of
such repayment or reduction shall, unless a Default or Event of Default exists,
be deferred to such last day; provided further that, in the case of any
event described in clause (a) or (b) of the definition of the term
Prepayment Event, if the Company shall deliver to the Administrative Agent a
certificate of a Financial Officer to the effect that the Company and the
Subsidiaries intend to apply an amount equal to the Net Proceeds from such
event, within 270 days after receipt of such Net Proceeds, to acquire, directly
or indirectly, real property, equipment or other tangible assets to be used in
the business of the Company and the Subsidiaries and certifying that no Default
has occurred and is continuing, then no prepayment shall be required pursuant
to this paragraph in respect of such event except to the extent an amount equal
to any Net Proceeds therefrom that have not been so applied by the end of such
270-day period, at which time a prepayment shall be required in an amount equal
to the Net Proceeds that have not been so applied.


 


(d)  Following the end of each Fiscal Year,
commencing with the Fiscal Year ending March 31, 2002, if the Leverage Ratio as
of the last day of such Fiscal Year is (i) less than or equal to 3.25, the
Company shall prepay Term Borrowings in an aggregate amount equal to 50% of
Excess Cash Flow for such Fiscal Year or (ii) more than 3.25, the Company shall
prepay Term Borrowings in an aggregate amount equal to 75% of Excess Cash Flow
for such Fiscal Year, provided that if the Leverage Ratio as of such
last day is less than 2.75, the


 


60

















 


Company shall not be required to
prepay any Term Borrowings in respect of Excess Cash Flow for such Fiscal
Year.  Each prepayment pursuant to this
paragraph shall be made within three Business Days after the date on which
financial statements are delivered pursuant to Section 5.01 with respect to the
Fiscal Year for which Excess Cash Flow is being calculated (and in any event
within 100 days after the end of such Fiscal Year).


 


(e)  Prior to any optional or mandatory
prepayment of Borrowings, the Company shall select the Borrowing or Borrowings
to be prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (f) of this Section.  In the event of any optional or mandatory prepayment of Term
Borrowings made at a time when Term Borrowings of both Classes remain
outstanding, the Company shall select Term Borrowings to be prepaid so that the
aggregate amount of such prepayment is allocated between the Tranche A Term
Borrowings and Tranche C Term Borrowings pro rata based on the aggregate
principal amount of outstanding Borrowings of each such Class. Any Tranche C
Lender may elect, by notice to the Administrative Agent by telephone (confirmed
by telecopy) at least one Business Day prior to the prepayment date, to decline
all or any portion of any prepayment of its Tranche C Term Loans pursuant to
this Section (other than an optional prepayment pursuant to paragraph (a) of
this Section, which may not be declined), in which case the aggregate amount of
the prepayment that was so declined shall be applied to prepay on a ratable
basis Tranche A Term Borrowings and Tranche C Term Borrowings of Lenders that
shall not have declined such prepayment; provided that Tranche C Lenders
shall be permitted to decline any prepayment only to the extent the aggregate
amount of the prepayment declined shall not exceed the sum of the outstanding
Tranche A Term Borrowings and the outstanding Tranche C Term Loans as to which
elections to decline such prepayment shall not have been made (and any
reduction of the amounts declined shall be distributed ratably among the
declining Lenders).


 


(f)  The Company shall notify the Administrative
Agent (and, in the case of prepayment of a Swingline Loan, the Swingline
Lenders) by telephone (confirmed by telecopy) of any prepayment hereunder (i)
in the case of prepayment of a Eurodollar Borrowing, not later than 2:00 p.m.,
New York City time, three Business Days before the date of prepayment, (ii) in
the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York
City time, one Business Day before the date of prepayment or (iii) in the
case of prepayment of a Swingline Loan, not later than 12:00 noon, New York
City time, on the date of prepayment. 
Each such notice shall be irrevocable and shall specify the prepayment
date, the principal amount of each Borrowing or portion thereof to be prepaid
and, in the case of a mandatory prepayment, a reasonably detailed calculation
of the amount of such prepayment; provided that, if a notice of optional
prepayment is given in connection with a conditional notice of termination of
the Revolving Commitments as


 


61

















 


contemplated by
Section 2.08, then such notice of prepayment may be revoked if such notice
of termination is revoked in accordance with Section 2.08.  Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the Administrative
Agent shall advise the Lenders of the contents thereof.  Each partial prepayment of any Borrowing
shall be in an amount that would be permitted in the case of an advance of a
Borrowing of the same Type as provided in Section 2.02, except as necessary to
apply fully the required amount of a mandatory prepayment.  Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing.  Any optional prepayment of Term Loans
pursuant to Section 2.11(a) shall be applied to reduce the amount of
subsequent scheduled repayments of Term Loans required by Section 2.10
(i) if such payment is made within 10 days prior to any date on which
a repayment is required under Section 2.10, first to such repayment and
then ratably to all remaining repayments, and (ii) otherwise, ratably to
all the remaining repayments. 
Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.13.


 


SECTION 2.12.  Fees.  (a)  The Borrowers agree to pay to
the Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the relevant Commitment Fee Rate specified in the definition of
Applicable Rate on the average daily unused amount of each Commitment (other
than any Swingline Commitment or Tranche C Term Loan Commitment) of such Lender
during the period from and including the date hereof to but excluding the date
on which such Commitment terminates. 
Accrued commitment fees shall be payable in arrears on the last day of
March, June, September and December of each year and, in respect of any Class
of Commitments, on the date on which such class of Commitments terminates,
commencing on the first such date to occur after the date hereof.  All commitment fees shall be computed on the
basis of a year of 365 days (or 366 days in a leap year) and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).  For purposes
of computing commitment fees with respect to Revolving Commitments, a Revolving
Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline
Exposure of such Lender and the Lender LC Exposure shall be disregarded for
such purpose).


 


(b)  The Borrowers agree to pay (i) to the
Administrative Agent for the account of each Revolving Lender a participation
fee with respect to its participations in Letters of Credit, which shall accrue
at the same Applicable Rate as interest on Eurodollar Revolving Loans on the average
daily amount of such Lender’s LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effectiveness Date to but excluding the later of the date on
which such Lender’s Revolving Commitment terminates and the date on which such
Lender ceases to have any LC Exposure, and (ii) to each Issuing Bank a fronting
fee, which shall accrue at the rate of 0.25% per


 


62

















 


annum (or any lesser rate that
shall have been separately agreed to by the Company and such Issuing Bank) on
the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) in respect of Letters of Credit
of such Issuing Bank during the period from and including the Effectiveness
Date to but excluding the later of the date of termination of the Revolving
Commitments and the date on which there ceases to be any LC Exposure, as well
as such Issuing Bank’s standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit issued by it or processing of
drawings thereunder.  Participation fees
and fronting fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the
Effectiveness Date; provided that all such fees shall be payable on the
date on which the Revolving Commitments terminate and any such fees accruing
after the date on which the Revolving Commitments terminate shall be payable on
demand.  Any other fees payable to any
Issuing Bank pursuant to this paragraph shall be payable within 10 days after
demand.  All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).


 


(c)  The
Borrowers agree to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between the
Borrowers and the Administrative Agent.


 


(d)  All fees payable hereunder shall be paid on
the dates due, in immediately available funds, to the Administrative Agent (or
to an Issuing Bank, in the case of fees payable to it) for distribution, in the
case of commitment fees and participation fees, to the Lenders entitled
thereto.  Fees paid shall not be
refundable under any circumstances.


 


SECTION 2.13.  Interest.  (a)  The
Loans comprising each ABR Borrowing (including each Swingline Loan) shall
bear interest at the Alternate Base Rate plus the Applicable Rate.


 


(b)  The
Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted
LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate.


 


(c)  Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable by any
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of
overdue principal of any Loan, 2% plus the rate


 


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otherwise applicable to such Loan
as provided in the preceding paragraphs of this Section or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Revolving Loans as
provided in paragraph (a) of this Section.


 


(d)  Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and, in the case
of Revolving Loans, upon termination of the Revolving Commitments; provided
that (i) interest accrued pursuant to paragraph (c) of this Section shall
be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of
the Revolving Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment
and (iii) in the event of any conversion of any Eurodollar Loan prior to
the end of the current Interest Period therefor, accrued interest on such Loan
shall be payable on the effective date of such conversion.


 


(e)  All interest hereunder shall be computed on
the basis of a year of 360 days, except that interest computed by reference to
the Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
a leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).  The applicable Alternate Base Rate or Adjusted
LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.


 


SECTION 2.14.  Alternate
Rate of Interest.  If prior
to the commencement of any Interest Period for a Eurodollar Borrowing:


 


(a) the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for
ascertaining the Adjusted LIBO Rate for such Interest Period; or


 


(b) the
Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate for such Interest Period will not adequately and fairly reflect the cost
to such Lenders (or Lender) of making or maintaining their Loans (or its Loan)
included in such Borrowing for such Interest Period;


 


then the Administrative Agent shall
give notice thereof to the Company and the Lenders by telephone or telecopy as
promptly as practicable thereafter and, until the Administrative Agent notifies
the Company and the Lenders that the circumstances giving rise to such notice
no longer exist, (i) any Interest Election Request that requests the conversion
of any Borrowing to, or continuation of any


 


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Borrowing as, a Eurodollar
Borrowing shall be ineffective and (ii) if any Borrowing Request requests a
Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.


 


SECTION 2.15.  Increased
Costs.  (a)  If any
Change in Law shall:


 


(i)         impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank;
or


 


(ii)         impose on any Lender or any Issuing
Bank or the London interbank market any other condition affecting this
Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;


 


and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining
any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or
to increase the cost to such Lender or such Issuing Bank of participating in,
issuing or maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender or such Issuing Bank hereunder (whether
of principal, interest or otherwise), in each case by an amount deemed by such
Lender or Issuing Bank to be material, then the Borrowers will pay to such
Lender or such Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or such Issuing Bank, as the case may
be, for such additional costs incurred or reduction suffered.


 


(b)  If any
Lender or any Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on
such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s
or such Issuing Bank’s holding company, if any, as a consequence of this
Agreement or the Loans made by, or participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by such Issuing Bank, to a level
below that which such Lender or such Issuing Bank or such Lender’s or such
Issuing Bank’s holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s or such Issuing Bank’s policies and
the policies of such Lender’s or such Issuing Bank’s holding company with
respect to capital adequacy), and by an amount deemed by such Lender or Issuing
Bank to be material, then from time to time the Borrowers will pay to such
Lender or such Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or such Issuing Bank or such Lender’s or
such Issuing Bank’s holding company for any such reduction suffered.


 


65

















 


(c)  A
certificate of a Lender or an Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or such Issuing Bank or its holding company,
as the case may be, as specified in paragraph (a) or (b) of this Section
shall be delivered to the Company and shall be conclusive absent manifest
error.  The Borrowers shall pay such
Lender or such Issuing Bank, as the case may be, the amount shown as due on any
such certificate within 15 days after receipt thereof.


 


(d)   Each
Lender and each Issuing Bank will promptly notify the Company and the
Administrative Agent of any event of which it has knowledge, occurring after
the Effectiveness Date, which will entitle such Lender or Issuing Bank to
compensation pursuant to Section 2.15.


 


Notwithstanding the
foregoing subsections (a) and (b) of this Section 2.15, the Borrowers
shall only be obligated to compensate any Lender or Issuing Bank for any amount
arising or accruing during (i) any time or period commencing not more
than (x) in the case of subsection (a), six months and (y) in
the case of subsection (b), three months, prior to the date on which such
Lender or Issuing Bank notifies the Administrative Agent and the Company that
it proposes to demand such compensation and identifies to the Administrative
Agent and the Company the statute, regulation or other basis upon which the
claimed compensation is or will be based and (ii) any time or period during which,
because of the retroactive application of such statute, regulation or other
basis, such Lender or Issuing Bank did not know that such amount would arise or
accrue.


 


SECTION 2.16.  Break
Funding Payments.  In the
event of (a) the payment of any principal of any Eurodollar Loan other than on
the last day of an Interest Period applicable thereto (including as a result of
an Event of Default), (b) the conversion of any Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Revolving Loan or Term Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.11(f) and is revoked in accordance
therewith), or (d) the assignment of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto as a result of a request by
the Company pursuant to Section 2.19, then, in any such event, the
Borrowers shall compensate each Lender for the loss, cost and expense
attributable to such event.  In the case
of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed
to include an amount determined by such Lender to be the excess, if any, of (i)
the amount of interest which would have accrued on the principal amount of such
Loan had such event not occurred, at the Adjusted LIBO Rate that would have
been applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period


 


66

















 


that would have been the Interest
Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market increased by Statutory Reserves at the same rate as utilized in
computing such Adjusted LIBO Rate.  A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Company and shall be conclusive absent manifest error.  The Borrowers shall pay such Lender the
amount shown as due on any such certificate within 15 days after receipt
thereof.


 


SECTION 2.17.  Taxes.  (a)  Any and all payments by or on
account of any obligation of any Borrower hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if any Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent, Lender or Issuing
Bank (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Borrower shall make
such deductions and (iii) such Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.


 


(b)  In
addition, the Borrowers shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.


 


(c)  If any
Borrower fails to pay any Indemnified Taxes or Other Taxes, then such Borrower
shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender
or the Issuing Bank, as the case may be, on or with respect to any payment by
or on account of any obligation of any Borrower hereunder or under any other
Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted
on or attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability
delivered to the Company by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.


 


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(d)  As
soon as practicable after any payment of Indemnified Taxes or Other Taxes by a
Borrower to a Governmental Authority, such Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.


 


(e)  Any
Foreign Lender that is entitled to an exemption from or reduction of withholding
tax under the law of the jurisdiction in which a Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to such Borrower (with a copy to the
Administrative Agent), at least five Business Days prior to the first date on
which interest or fees are payable hereunder for the account of any Foreign
Lender, such properly completed and executed documentation prescribed by
applicable law or reasonably requested by the Company as will permit such
payments to be made without withholding or at a reduced rate.  Each Foreign Lender further undertakes to
deliver to the Borrowers (with a copy to the Administrative Agent) properly
completed and executed documentation on or before the date that such prior
documentation expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent documentation so delivered by it, and
such amendments thereto or extensions or renewals thereof as may be reasonably requested
by the Borrowers or the Administrative Agent, unless an event (including
without limitation any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which
renders all such documentation inapplicable or which would prevent such Foreign
Lender from duly completing and delivering any documentation with respect to it
and such Foreign Lender advises the Borrowers and the Administrative Agent that
it is not capable of receiving payments without any (or reduced) deduction or
withholding of withholding tax.


 


SECTION 2.18.  Payments
Generally; Pro Rata Treatment; Sharing of Setoffs.  (a) 
Each Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest,
fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.15, 2.16 or 2.17, or otherwise) prior to the time expressly required
hereunder or under such other Loan Document for such payment (or, if no such
time is expressly required, prior to 12:00 noon, New York City time), on the
date when due, in immediately available funds, without setoff or
counterclaim.  Any amounts received
after such time on any date may, in the discretion of the Administrative Agent,
be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. 
All such payments shall be made to the Administrative Agent at its
offices at 270 Park Avenue, New York, New York, except payments to be made
directly to any Issuing Bank or Swingline Lender as expressly provided


 


68

















 


herein and except
that payments pursuant to Sections 2.15, 2.16, 2.17 and 10.03 shall be made
directly to the Persons entitled thereto and payments pursuant to other Loan
Documents shall be made to the Persons specified therein.  The Administrative Agent shall distribute
any such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof.  If any payment under any Loan Document shall
be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such
extension.  All payments under each Loan
Document shall be made in dollars.


 


(b)  If at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all
amounts of principal, unreimbursed LC Disbursements, interest and fees
then due hereunder, such funds shall be applied (i) first, towards 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, towards payment of principal and unreimbursed
LC Disbursements then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal and unreimbursed LC Disbursements
then due to such parties.


 


(c)  If any Lender shall, by exercising any right
of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Revolving Loans, Term Loans or
participations in LC Disbursements or Swingline Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans, Term Loans and participations in LC Disbursements and
Swingline Loans and accrued interest thereon than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving Loans, Term
Loans and participations in LC Disbursements and Swingline Loans of other
Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans, Term
Loans and participations in LC Disbursements and Swingline Loans; provided
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by any Borrower pursuant to and in accordance with
the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or
participant, other than to any Borrower or any Subsidiary or Affiliate thereof
(as to which the


 


69

















 


provisions of this
paragraph shall apply).  Each Borrower
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 Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.


 


(d)  Unless the Administrative Agent shall have
received notice from the Company prior to the date on which any payment is due
to the Administrative Agent for the account of the Lenders or any Issuing Bank
hereunder that the applicable Borrower will not make such payment, the
Administrative Agent may assume that such Borrower has made such payment on
such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or any Issuing Bank, as the case may be, the amount
due.  In such event, if such Borrower
has not in fact made such payment, then each of the Lenders or Issuing Banks,
as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
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 Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.


 


(e)  Subject to Section 2.06(a), if any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 10.03(c), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender’s obligations under
such Sections until all such unsatisfied obligations are fully paid.


 


SECTION 2.19.  Mitigation
Obligations; Replacement of Lenders.  (a)  If any Lender requests compensation under
Section 2.15, or if any Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.17, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 2.15 or 2.17, as the case may be, in the future and (ii)
would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. 
The Borrowers hereby agree to pay all reasonable


 


70

















 


costs and expenses
incurred by any Lender in connection with any such designation or assignment.


 


(b)  If any Lender requests compensation under
Section 2.15, or if any Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, or if any Lender defaults in its obligation to
fund Loans hereunder, then the Company may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) if the assignment is not to another
Lender, the Company shall have received the prior written consent of the
Administrative Agent (and, if a Revolving Commitment is being assigned, the
Issuing Banks and Swingline Lenders), which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans and participations in LC Disbursements
and Swingline Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Company (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments
required to be made pursuant to Section 2.17, such assignment will result
in a reduction in such compensation or payments.  A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Company to require such assignment
and delegation cease to apply.


 


SECTION 2.20.  Obligations
Constitute Designated Senior Indebtedness.  The Obligations constitute “Designated Senior Indebtedness” under
and as defined in the Senior Subordinated Note Indenture.


 


71

















 


ARTICLE III


 


Representations and Warranties


 


Each
Borrower represents and warrants to the Lenders that:


 


SECTION 3.01.  Existence
and Power.  Each Loan Party
is duly incorporated, formed or organized, validly existing and (to the extent
the concept is applicable in its jurisdiction of organization) in good standing
under the laws of its jurisdiction of organization, and has all applicable
Business Entity powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.


 


SECTION 3.02.  Authorization;
No Contravention.  The
execution and delivery by each Loan Party of each of the Loan Documents to
which it is a party and the performance by each such Loan Party of its
obligations thereunder and the other Transactions are within the applicable
Business Entity power of such Loan Party, have been duly authorized by all necessary
applicable Business Entity action, require no action by or in respect of, or
filing with, any governmental body, agency or official (except for any such
action or filing that has been taken and is in full force and effect) and do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the Constitutional Documents of any Loan Party or of any
material agreement, judgment, injunction, order, decree or other material
instrument binding upon such Loan Party or result in the creation or imposition
of any Lien on any asset of any Loan Party other than Liens created pursuant to
the Loan Documents.  There are no
Acquisition Documents other than those set forth on Schedule 1.01.


 


SECTION 3.03.  Binding
Effect.  This Agreement
constitutes a valid and binding agreement of each Borrower, and the other Loan
Documents, when executed and delivered as contemplated by this Agreement, will
constitute valid and binding obligations of each Loan Party that is a party
thereto, in each case enforceable in accordance with its terms.


 


SECTION 3.04.  Financial
Information. 
(a)  The consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of March 31, 2001 and the related consolidated
statements of income and of cash flows for the Fiscal Year then ended, reported
on by Deloitte & Touche LLP and set forth in the Company’s Form 10-K for
Fiscal Year 2001, a copy of which has been delivered to each of the Lenders,
fairly present, in conformity with GAAP, the consolidated financial position of
the Company and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such Fiscal Year.


 


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(b)  The unaudited consolidated balance sheets of
the Company and its Consolidated Subsidiaries as of December 31, 2001, and
the related unaudited consolidated statements of income and cash flow for the
nine months then ended, set forth in the December 2001 10-Q, copies of
which have been delivered to each of the Lenders, fairly present, in conformity
with GAAP applied on a basis consistent with the financial statements referred
to in Section 3.04(a), the consolidated financial position of the Company and
its Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such nine-month period (subject to normal
year-end adjustments).


 


(c)  Since March 31, 2001, there has been no
material adverse change in the business, financial position, results of
operations, property or prospects of the Company and its Consolidated
Subsidiaries, taken as a whole.


 


SECTION 3.05.  Litigation.  Except as described in the December 2001
10-Q, there is no action, suit or proceeding pending against, or to the
knowledge of the Company threatened against or affecting, any Loan Party or any
of its Subsidiaries before any court or arbitrator or any governmental body,
agency or official in which there is a reasonable possibility of an adverse
decision which would materially adversely affect the business, consolidated
financial position or consolidated results of operations of the Company and its
Consolidated Subsidiaries, or which in any manner draws into question the
validity of any Loan Document.


 


SECTION 3.06.  Compliance
with ERISA.  Each member of
the ERISA Group has fulfilled its obligations in all material aspects under the
minimum funding standards of ERISA and the Code with respect to each Plan and
is in compliance in all material respects with the presently applicable
provisions of ERISA and the Code with respect to each Plan.  No member of the ERISA Group has (i) sought
a waiver of the minimum funding standard under Section 412 of the Code in
respect of any Plan, (ii) failed to make any contribution or payment to any Plan
or Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which in either event has
resulted or would reasonably be expected to result in the imposition of a Lien
or the posting of a bond or other security under ERISA or the Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums or similar items under Section 4007 of ERISA.  The present value of all accumulated benefit
obligations under all the Plans (based on the assumptions used to fund the
Plans), did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than 10% the fair market value of the
assets of all such Plans taken together. 
No member of the ERISA Group has withdrawn (or expects to withdraw or
partially withdraw) from any Multiemployer Plan other than with respect to
withdrawals that in the aggregate would not be expected to result in


 


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withdrawal
liabilities for the Company and the Subsidiaries in excess of $10,000,000 for
any Fiscal Year.


 


SECTION 3.07.  Environmental
Matters.  (a)  Except
with respect to any matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Borrower nor any of its Subsidiaries (i) has failed to comply with any
applicable Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any applicable Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.


 


(b)  Since
the date of this Agreement, there has been no change in the status of the
matters disclosed on Schedule 3.07 that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material Adverse
Effect.


 


SECTION 3.08.  Taxes.  The Company and each of its Subsidiaries
have filed all United States Federal income tax returns and all other material
tax returns which are required to be filed by any of them and have paid all
taxes due pursuant to such returns or pursuant to any assessment received by
any of them, except for any such taxes which are being contested in good faith
and for which adequate reserves have been made on the books of the Company and
its Subsidiaries in accordance with GAAP. 
The charges, accruals and reserves on the books of the Company and its
Subsidiaries in respect of income taxes are, in the opinion of the Company,
adequate in accordance with GAAP.


 


SECTION 3.09.  Subsidiaries.  Each Subsidiary of each Loan Party is duly
incorporated, formed or organized, validly existing and (to the extent the
concept is applicable in its jurisdiction of organization) in good standing
under the laws of its jurisdiction of organization, and has all applicable
Business Entity powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.


 


SECTION 3.10.  Not an
Investment Company.  Neither
the Company nor any of its Subsidiaries is an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.


 


SECTION 3.11.  Full
Disclosure. 
(a)  As of the Effectiveness Date, the information contained
in the Information Memorandum, the Company’s Form 10-K for the period ended
March 31, 2001 and the December 2001 10-Q, taken together, does not and will not
contain any untrue statement of a material fact and does not or will not omit
to state a material fact necessary in order to make the statements


 


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contained therein, in
the light of the circumstances under which they are made, not misleading.  All information hereafter furnished in
writing by any Loan Party to any Agent or any Lender will be, taken as a whole
and considered together with all information previously so furnished, true and
accurate in all material respects on the date as of which such information is
stated or furnished.


 


(b)  The Loan Parties have disclosed to each of
the Lenders in writing (including by public filing, disclosure or press
release) any and all facts which currently do or may have a Material Adverse
Effect (to the extent the Loan Parties can now reasonably foresee).


 


(c)  Each of the representations and warranties
of the Borrowers made in or pursuant to the Loan Documents other than this
Agreement is true and correct.


 


(d)  It is understood that the representations
and warranties set forth in clauses (a) and (b) above are limited to the extent
that (i) any projections or forecasts are represented to be based upon
reasonable estimates believed by the Loan Parties to be accurate, but are not
warranted to be obtained and (ii) no representation is made as to disclosure of
matters of a general economic nature or matters of public knowledge that
generally affect any of the industry segments included in the business of the
Company and its Consolidated Subsidiaries.


 


SECTION 3.12.  Compliance
with Laws.  Each Loan Party
and each of its Subsidiaries is in compliance in all material respects with all
applicable laws, rules and regulations, and is not in violation of, or in
default under, any term or provision of any charter, bylaw, mortgage,
indenture, agreement, instrument, statute, rule, regulation, judgment, decree,
order, writ or injunction applicable to it, except for any such violations,
defaults or failures to comply which would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.


 


SECTION 3.13.  Solvency.  Immediately after the consummation of the
Transactions to occur on the Effectiveness Date and immediately following the
making of each Loan made on the Effectiveness Date and after giving effect to
the application of the proceeds of such Loans, (a) the fair value of the assets
of each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each Loan Party will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each


 


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Loan Party will not
have unreasonably small capital with which to conduct the business in which it
is engaged as such business is now conducted and is proposed to be conducted
following the Effectiveness Date.


 


SECTION 3.14.  Senior
Indebtedness.  The
Obligations constitute “Designated Senior Indebtedness” under and as defined in
the Senior Subordinated Note Indenture.


 


 


ARTICLE IV


 


Conditions


 


SECTION 4.01.  Each
Credit Event.  The obligation
of each Lender to make a Loan on the occasion of any Borrowing, and of any
Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject
to receipt of the request therefor in accordance herewith and to the
satisfaction of the following conditions:


 


(a)  The
representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct in all material respects on and as of the
date of such Borrowing or the date of issuance, amendment, renewal or extension
of such Letter of Credit, as applicable, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties shall have been true and correct in
all material respects as of such earlier date).


 


(b)  At the
time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.


 


Each Borrowing and each issuance,
amendment, renewal or extension of a Letter of Credit shall be deemed to
constitute a representation and warranty by the Company on the date thereof as
to the matters specified in paragraphs (a) and (b) of this Section.


 


 


ARTICLE V


 


Affirmative
Covenants


 


Until the Commitments
have expired or been terminated and the principal of and interest on each Loan
and all fees payable hereunder have been paid in full and all Letters of Credit
have expired or terminated and all LC Disbursements have been reimbursed, the
Company covenants and agrees with the


 


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Lenders as to itself
and its subsidiaries, and each Borrowing Subsidiary covenants and agrees with
the Lenders as to itself and its subsidiaries, that:


 


SECTION 5.01.  Financial
Statements and Other Information. 
The Company will furnish (by electronic or other means) to the
Administrative Agent and each Lender:


 


(a)  as soon as available and in any event within
100 days after the end of each fiscal year of the Company, a consolidated
balance sheet of the Company and its Consolidated Subsidiaries as of the end of
such fiscal year and the related consolidated statements of income and of cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on in a manner acceptable to
the Securities and Exchange Commission by Deloitte & Touche LLP or other
independent public accountants of nationally recognized standing;


 


(b)  as soon as available and in any event within
50 days after the end of each of the first three quarters of each fiscal year
of the Company, a consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter and the related
consolidated statements of income and of cash flows for such quarter and for
the portion of the Company’s fiscal year ended at the end of such quarter,
setting forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of the Company’s previous
fiscal year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, GAAP and consistency by the chief financial officer
or the chief accounting officer of the Company;


 


(c)  simultaneously with the delivery of each set
of financial statements referred to in subsections (a) and (b) of this Section,
a certificate of the treasurer, controller or chief financial officer of the
Company (i) setting forth in reasonable detail such calculations as are
required to establish (A) if the Arrow Joint Venture shall have been
formed on or prior to the date of such delivery, the amount as of such date of
delivery of the Arrow Available Restricted Payments, and (B) whether the
Company was in compliance with the requirements of Sections 6.10 through 6.12
and 6.17, inclusive on the date of such financial statements, (ii) stating
whether, to the best of such person’s knowledge after due inquiry, there exists
on the date of such certificate any Default and, if any Default then exists,
setting forth the details thereof and the action that the Company is taking or
proposes


 


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to take with respect
thereto and (iii) stating whether, since the date of the most recent financial
statements previously delivered pursuant to subsection (a) or (b) of this
Section, there has been a change in the generally accepted accounting
principles applied in preparing the financial statements then being delivered
from those applied in preparing the most recent audited financial statements so
delivered which is material to the financial statements then being delivered;


 


(d)  simultaneously with the delivery of each set
of financial statements referred to in clause (a) above, a statement of the
firm of independent public accountants which reported on such statements (i)
whether anything has come to their attention to cause them to believe that any
Default existed on the date of such statements (which statement may be limited
in form, scope and substance to the extent required by accounting rules or guidelines
in effect from time to time) and (ii) confirming the calculations set forth in
the officer’s certificate delivered simultaneously therewith pursuant to clause
(c) above;


 


(e)  within five Business Days after any
Responsible Officer of the Company obtains knowledge of any Default, if such
Default is then continuing, a certificate of the treasurer, controller or chief
financial officer of the Company setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect thereto;


 


(f)  promptly upon the mailing thereof to the
shareholders of the Company generally, copies of all financial statements,
reports and proxy statements so mailed;


 


(g)  promptly upon the filing thereof, copies of
all registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports on Forms
10-K, 10-Q and 8-K (or their equivalents) which the Company shall have filed
with the Securities and Exchange Commission;


 


(h)  if and when any member of the ERISA Group
(i) gives or is required to give notice to the PBGC of any “reportable event”
(as defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such reportable
event given or required to be given to the PBGC; (ii) receives notice of the
incurrence of complete or partial


 


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withdrawal liability
with respect to any Multiemployer Plan under Title IV of ERISA or notice that
any Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC under
Title IV of ERISA of its intent to terminate, impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to
administer any Plan, a copy of such notice; (iv) applies for a waiver of the
minimum funding standard under Section 412 of the Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under Section
4041(c) of ERISA, a copy of such notice and other information filed with the
PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of
ERISA, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of a bond
or other security under ERISA or the Code, a certificate of the chief financial
officer or the chief accounting officer of the Company setting forth details as
to such occurrence and action, if any, which the Company or applicable member
of the ERISA Group is required or proposes to take;


 


(i)  as soon as reasonably practicable after any
Responsible Officer of the Company obtains knowledge of the commencement of, or
of a material threat of the commencement of, an action, suit or proceeding
against the Company or any of its Subsidiaries before any court or arbitrator
or any governmental body, agency or official in which there is a reasonable
likelihood of an adverse decision which would materially and adversely affect
the business, financial position, results of operations or prospects of the
Company and its Consolidated Subsidiaries, in each case considered as a whole,
or which in any manner questions the validity of any Loan Document, a written
report informing the Lenders in reasonable detail of the nature of such pending
or threatened action, suit or proceeding and will provide such additional
information as may be reasonably requested by the Administrative Agent at the
request of any Lender;


 


(j)  except to the extent prohibited by
applicable law, rule, regulations or orders, from time to time such additional
information regarding the financial position or business of the Company and its
Subsidiaries as the Administrative Agent, at the request of any Lender, may
reasonably request;


 


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(k)  as soon as available and in any event within
60 days of the Effectiveness Date, audited consolidated balance sheets and
related statements of income, stockholders’ equity and cash flows of Thiokol
for the three fiscal years ended prior to the Effectiveness Date (including
such balance sheets and statements for the fiscal year ended December 31,
2000);


 


(l)  promptly upon the formation or acquisition
of any additional Foreign Subsidiary, notice of such formation or acquisition
and the amount of the Investment therein by the Company and the Subsidiaries;
and


 


(m)  prior to or immediately following the
issuance of any Lender Letter of Credit, the cancelation or termination of any
Lender Letter of Credit, any drawing under any lender Letter of Credit, any
payment in respect of any drawing under any Lender Letter of Credit or any
other event that would result in a change in the Lender LC Exposure, notice
thereof.


 


SECTION 5.02.  Payment
of Obligations.  Each Loan
Party will pay and discharge, and will cause each of its Subsidiaries to pay
and discharge, at or before maturity, all their respective obligations and
liabilities, including, without limitation, tax liabilities, except where the
same may be contested in good faith by appropriate proceedings, and except
where the failure to pay or discharge such obligations and liabilities would
not in the aggregate reasonably be expected to have a Material Adverse Effect,
and will maintain, and will cause each Subsidiary to maintain, in accordance
with GAAP, appropriate reserves for the accrual of any of the same.


 


SECTION 5.03.  Maintenance
of Property; Insurance. 
(a)  Each Loan Party will keep, and will cause each of its
Subsidiaries to keep, all property materially useful and necessary in its
business in good working order and condition, ordinary wear and tear excepted.


 


(b)  The Company will maintain, and will cause
each of its Subsidiaries to maintain, insurance from responsible companies in
such amounts and against such risks as is usually carried by owners of similar
businesses and properties in the same general areas in which the Company and
its Subsidiaries operate, provided that in any event the Company will
maintain, and will cause each of its Subsidiaries to maintain, (i) property and
casualty insurance on all real and personal property on an all risks basis
(including the perils of flood and quake), covering the repair or replacement
cost of all such property and consequential loss coverage for business
interruption and extra expense (which shall be limited to fixed continuing
expenses and such other business interruption expenses as are otherwise
generally available to similar businesses), covering such risks, for such
amounts not less than those, and with deductible and self-insurance amounts not
greater than 


 


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those, set forth in
Part I of Schedule 5.03, (ii) public liability insurance (including products
liability coverage) covering such risks, for such amounts not less than those,
and with deductible amounts not greater than those, set forth in Part II of
Schedule 5.03 and (iii) such other insurance coverage in such amounts and with
respect to such risks as the Required Lenders may reasonably request.  All such insurance shall be provided by
insurers or reinsurers which (x) in the case of United States insurers and
reinsurers have an A.M. Best policyholders rating of not less than A- with
respect to primary insurance, and B+ with respect to excess insurance, and (y)
in the case of non-United States insurers or reinsurers, the providers of at
least 80% of such insurance have either an ISI policyholders rating of not less
than A, an A.M. Best policyholders rating of not less than A-, or a surplus of
not less than $500,000,000 with respect to primary insurance, and an ISI
policyholders rating of not less than BBB with respect to excess insurance, or
such other insurers as the Required Lenders may approve in writing.  Such insurers may include a Subsidiary; provided
that such Subsidiary need not satisfy the foregoing requirements if all but
$15,000,000 of the insurance provided by such Subsidiary is reinsured by one or
more reinsurers which satisfy such requirements.


 


(c)  The Company will deliver to the
Administrative Agent on behalf of the Lenders, (i) on the Effectiveness Date, a
certificate dated such date showing the amount of coverage as of such date,
(ii) upon request of any Lender through the Administrative Agent from time to
time full information as to the insurance carried, (iii) within five days of
receipt of notice from any insurer, a copy of any notice of cancelation or
material change in coverage from that existing on the Effectiveness Date, (iv)
forthwith, notice of any cancelation or nonrenewal of coverage by the Company
or any Subsidiary, and (v) within five days of filing, full information as to
any claim for an amount in excess of $5,000,000 with respect to any property
and casualty insurance policy maintained by the Company or any Subsidiary.  The Administrative Agent shall be named as
additional insured on all property and casualty insurance policies and a loss
payee on all property insurance policies. 
Any proceeds from any such insurance policy in respect of any claim, or
any condemnation award or other compensation in respect of a condemnation (or
any transfer or disposition of property in lieu of condemnation) for which the
Company or any of its Subsidiaries receives a condemnation award or other
compensation shall be paid to the Company or the Subsidiary; provided
that, (A) the Company or the Subsidiary will use such proceeds, condemnation
award or other compensation in accordance with Section 2.11(c) or (B) if,
at the time of the receipt of such proceeds, condemnation award or other
compensation, a Default has occurred and is continuing, the aggregate amount of
all such proceeds, condemnation award or other compensation shall be paid to
the Administrative Agent and held as collateral for application in accordance
with the Security Documents.


 


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SECTION 5.04.  Conduct
of Business and Maintenance of Existence.  Each Loan Party will continue, and will cause each Subsidiary to
continue, to engage in business of the same general type as now conducted by
the Company and its Subsidiaries and by Thiokol and its subsidiaries, and will
preserve, renew and keep in full force and effect, and will cause each of its
Subsidiaries to preserve, renew and keep in full force and effect their
respective Business Entity existence and, except for any such rights,
privileges and franchises the failure to preserve which would not in the
aggregate have a Material Adverse Effect, their respective rights, privileges
and franchises necessary or desirable in the normal conduct of business; provided
that nothing in this Section 5.04 shall prohibit (a) the merger of a Subsidiary
into the Company or the merger or consolidation of the Company or any
Subsidiary with or into another Person if the Business Entity surviving such
consolidation or merger is, in the case of any merger or consolidation
involving the Company, the Company, and in the case of any merger or consolidation
involving any Subsidiary, a Wholly-Owned Consolidated Subsidiary and if, in
each case, after giving effect thereto, no Default shall have occurred and be
continuing or (b) the termination of the Business Entity existence of any
Subsidiary or the discontinuance of any line of business of the Company or any
of its Subsidiaries if the board of directors of the Company in good faith
determines that such termination is in the best interest of the Company and is
not materially disadvantageous to the Lenders; and provided  further
that the parties agree that this Section 5.04 shall not prohibit the Company
and its Subsidiaries from engaging in the business of (or acquiring other
businesses and assets not otherwise prohibited by this Agreement if such businesses
are engaged in, or such assets are used to conduct the business of) any
Permitted Lines of Business. 
Notwithstanding anything to the contrary in this Agreement, (i) Alliant
Assurance Ltd. will not conduct any business other than providing insurance or
self-insurance for the businesses of the Company and the Subsidiary Loan
Parties, the Spear Joint Venture and other Joint Ventures and (ii) any cash
held at any time by Alliant Assurance Ltd. that is in excess of its projected
45 day cash requirements will be lent to the Company under an intercompany note
pledged under the Pledge Agreement or will be dividended to the Company.


 


SECTION 5.05.  Compliance
with Laws.  Each Loan Party
will comply, and cause each of its Subsidiaries to comply, in all material respects
with all applicable laws, ordinances, rules, regulations, and requirements of
Governmental Authorities (including Environmental Laws and ERISA and the rules
and regulations thereunder) the failure to comply with which would reasonably
be expected to have a Material Adverse Effect, except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings.


 


SECTION 5.06.  Inspection
of Property, Books and Records. 
Each Loan Party will keep, and will cause each of its Subsidiaries to
keep, proper books of record and account in which full, true and correct
entries shall be made of all dealings and transactions in relation to its
business and activities; and, except to the


 


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extent prohibited by
applicable law, rule, regulations or orders, will permit, and will cause each
of its Subsidiaries to permit, representatives of any Lender at such Lender’s
expense to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants, all at such reasonable times and
as often as may reasonably be desired.


 


SECTION 5.07.  Use of
Proceeds and Letters of Credit. 
Subject to the immediately succeeding sentence, the proceeds of the
Loans, the Letters of Credit, and the Lender Letters of Credit will be used
only for the purposes set forth in the preamble to this Agreement.  Not more than $125,000,000 in the aggregate
of principal amount of Revolving Loans may be used to purchase, invest in or
otherwise acquire (i) stock or other Equity Interests in entities the
principal businesses of which are one or more Permitted Lines of Business or
(ii) assets to be used in Permitted Lines of Business.  No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations T, U and
X.  If any part of the proceeds of any
Loan are to be used to acquire margin stock, the Company shall deliver a Form
U-1 to each Lender demonstrating to the satisfaction of such Lender that such
Loan, the use of the proceeds thereof and the pledge of the margin stock so
acquired if required by Section 5.08 will not result in a violation of
Regulation T, U or X.


 


SECTION 5.08.  Additional
Subsidiaries.  (a) If
after the Effectiveness Date any additional Subsidiary (other than the Spear
Joint Venture) shall be formed or acquired, any Loan Party shall acquire any
Equity Interest in any Person or any Loan Party shall acquire any Indebtedness
in an aggregate principal amount for any obligor in excess of $5,000,000, the Company
will notify the Administrative Agent and the Lenders thereof and (i) if
such Subsidiary is a Subsidiary Loan Party, the Company will cause such
Subsidiary to become a party to the Subsidiary Guaranty Agreement and the
Security Agreement within five Business Days after such Subsidiary is formed or
acquired and promptly take such actions to create and perfect Liens on such
Subsidiary’s assets to secure the Obligations as the Administrative Agent or
the Required Lenders shall reasonably request and (ii) if any Equity
Interest in or Indebtedness of such Subsidiary or Person shall be owned by or
on behalf of any Loan Party, the Company will cause such Equity Interests and
any promissory notes evidencing such Indebtedness in an aggregate principal
amount for any obligor in excess of $5,000,000 to be pledged pursuant to the
Pledge Agreement within five Business Days after such Subsidiary is formed or
acquired or such Equity Interest or Indebtedness is acquired (except that, if
such Subsidiary is a Foreign Subsidiary, the voting Equity Interests in such
Subsidiary to be pledged pursuant to the Pledge Agreement may be limited to 65%
of the outstanding voting


 


83

















 


Equity Interests in
such Subsidiary), provided that no Loan Party shall be required to
pledge under the Security Documents any Aerospace Note or any Equity Interest
in Alliant Assurance Ltd. held by it.


 


(b) Upon the
formation of the Spear Joint Venture, the Company will notify the
Administrative Agent and the Lenders thereof and within 15 Business Days after
the Spear Joint Venture is formed (i) the Borrowers will cause the Spear Joint
Venture to deliver to the Administrative Agent each security agreement, pledge
agreement, mortgage and other document or instrument required to cause
substantially all the assets of the Spear Joint Venture to secure the
obligations of the Spear Joint Venture under the Spear Note and all obligations
in respect of Letters of Credit issued for the benefit of the Spear Joint Venture
or any of its subsidiaries (the “Spear
Obligations”), in each case on terms reasonably satisfactory to the
Administrative Agent, and promptly take such other actions as may be required
to create and perfect Liens on the Spear Joint Venture’s assets to secure the
Spear Obligations as the Administrative Agent or the Required Lenders shall
reasonably request and (ii) the Borrowers will cause all the Equity
Interests in the Spear Joint Venture owned by any Borrower or any Subsidiary
and the Spear Note to be pledged pursuant to the Pledge Agreement to secure the
Obligations and all the rights and interests of the Borrowers and the
Subsidiaries in and to the Spear Joint Venture to be assigned to the
Administrative Agent, for the benefit of the secured parties under the Security
Agreement, to secure the Obligations. 
In the event the Spear Joint Venture shall at any time own, directly or
indirectly, any Equity Interests in any Person, all such Equity Interests, and,
if such Person is a subsidiary of the Spear Joint Venture, substantially all
the assets of such subsidiary, shall within 15 Business Days of the
acquisition, creation or formation thereof be pledged under the foregoing
documents and instruments to secure the Spear Obligations.  The Administrative Agent shall be appointed
as collateral agent under each such document and instrument for all parties
secured thereby (it being understood that the Spear Partner Permitted
Indebtedness may be secured thereby ratably with the Spear Obligations) and
will control all actions and decisions thereunder and with respect to the
collateral subject thereto; provided
that in the event the Administrative Agent intends to exercise any right to
foreclose upon or otherwise cause the sale or transfer of any portion of the
Spear Collateral, the Administrative Agent will give the Spear Partner 10
Business Days’ notice prior to exercising such right and if within such 10
Business Day period the Spear Partner shall make a written offer to purchase
such portion of the Spear Collateral, the Administrative Agent will not be
permitted to sell such portion of the Spear Collateral to any Person other than
the Spear Partner on or prior to the 60th day following receipt of such offer
unless it has sold such portion of the Spear Collateral to one or more other
Persons on terms in its judgment, taken as a whole, more favorable than the
terms of such offer (and if no sale is made within such 60-day period to any
third party, the Administrative Agent will sell such portion of the Spear
Collateral to the


 


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Spear Partner on the
terms of such offer).  The Company
hereby agrees that any sale to the Spear Partner pursuant to such offer,
whether or not the Administrative Agent shall have solicited or considered any
offer from any other Person, will be conclusively deemed to be for fair value
and for adequate consideration.


 


(c)  Upon the formation of the Arrow Joint
Venture, the Company will notify the Administrative Agent and the Lenders
thereof and within 15 Business Days after the Arrow Joint Venture is formed the
Borrowers will cause all the Equity Interests in the Arrow Joint Venture owned
by the Company or any Subsidiary to be pledged pursuant to the Pledge Agreement
to secure the Obligations and all the rights and interests of the Company and
the Subsidiaries in and to the Arrow Joint Venture to be assigned to the
Administrative Agent, for the benefit of the secured parties under the Security
Agreement, to secure the Obligations.


 


SECTION 5.09.  Further
Assurances.  (a)  The Borrowers will, and will cause each
Subsidiary Loan Party and, with respect to the Spear Obligations, the Spear
Joint Venture to, execute any and all further documents, financing statements,
agreements and instruments, and take all such further actions (including the
filing and recording of financing statements, fixture filings, mortgages, deeds
of trust and other documents), which may be required under any applicable law,
or which the Administrative Agent or the Required Lenders may reasonably
request, to effectuate the transactions contemplated by the Loan Documents or
to grant, preserve, protect or perfect the Liens created or intended to be
created by the Security Documents or the validity or priority of any such Lien,
all at the expense of the Loan Parties and the Spear Joint Venture, as
applicable.  The Company also agrees to
provide to the Administrative Agent (i) from time to time upon request,
evidence reasonably satisfactory to the Administrative Agent as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents and (ii) upon request, survey updates in connection
with the Mortgaged Properties; provided that the Company shall not be
required to provide such a survey update with respect to a Mortgaged Property
more than once in any 24-month period.


 


(b)  If any material assets (including any real
property or improvements thereto or any interest therein) are acquired by any
Borrower or any Subsidiary Loan Party after the Effectiveness Date (other than
assets constituting Collateral under the Security Agreement that become subject
to the Lien of the Security Agreement upon acquisition thereof and as to which
no further actions are required to perfect such Lien), the Company will notify
the Administrative Agent and the Lenders thereof, and, if requested by the
Administrative Agent or the Required Lenders, the Company will cause such
assets to be subjected to a Lien securing the Obligations and will take, and
cause the Subsidiary Loan Parties to


 


85

















 


take, such actions as
shall be necessary or reasonably requested by the Administrative Agent to grant
and perfect such Liens, including actions described in paragraph (a) of this
Section, all at the expense of the Loan Parties.


 


(c)  For
the avoidance of doubt, (i) no Loan Party is required by any Loan Document
to pledge or grant a Lien on any Equity Interests in, or any assets of, Alliant
Assurance Ltd. and (ii) any Loan Party may limit its pledge of any class
of voting Equity Interests in any Foreign Subsidiary to 65% of the outstanding
voting Equity Interests of such class in such Foreign Subsidiary.


 


SECTION 5.10.  Maintenance
of Collateral; Alterations. 
No Loan Party shall commit any waste of any Collateral or, except in the
ordinary course of its business, make any material change in the use of any
Collateral, provided that any Loan Party may lease to any other Person
all or any portion of any item of Collateral that the Company has determined in
good faith is not used or useful in such Loan Party’s operating business.  Each Loan Party granting a security interest
in any Mortgaged Property represents and warrants that, to the best of its
knowledge: (i) such Mortgaged Property is served by all utilities required or
necessary for the current use thereof; (ii) all streets necessary to serve such
Mortgaged Property are completed and serviceable and have been dedicated and
accepted as such by the appropriate governmental entities; and (iii) such Loan
Party has access to such Mortgaged Property from public roads sufficient to
allow such Loan Party to conduct its business at such Mortgaged Property in
accordance with sound commercial and industrial practices.  The Loan Parties shall, at all times, maintain
all Collateral that is materially useful or necessary in their respective
businesses, in good operating order, condition and repair, ordinary wear and
tear excepted, and in compliance with all applicable laws, rules and
regulations, (including Environmental Laws) the failure to comply with which
would have a material adverse effect on the value or usefulness of such
Collateral, except where the necessity of compliance therewith is contested in
good faith by appropriate proceedings. 
Each Loan Party shall (a) not, except in the ordinary course of business
or as provided in the proviso to the first sentence of this Section,
alter the occupancy or use of all or any part of any Mortgaged Property without
the prior written consent of the Required Lenders, which consent shall not be
unreasonably withheld and (b) do what is deemed commercially reasonable to
maintain and preserve the value of the Collateral.


 


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ARTICLE VI


 


Negative
Covenants


 


Until the Commitments
have expired or terminated and the principal of and interest on each Loan and
all fees payable hereunder have been paid in full and all Letters of Credit
have expired or terminated and all LC Disbursements have been reimbursed, the
Company covenants and agrees with the Lenders as to itself and its
subsidiaries, and each Borrowing Subsidiary covenants and agrees with the
Lenders as to itself and its subsidiaries, that:


 


SECTION 6.01.  Indebtedness;
Certain Equity Securities. 
(a)  The Company will not and will not permit any Subsidiary
(other than the Spear Joint Venture and the Arrow Subsidiaries) to, create,
incur, assume or permit to exist any Indebtedness, except:


 


(i)                                    Indebtedness
created under the Loan Documents;


 


(ii)                                Indebtedness
of the Company created under the Bridge Credit Agreement in an aggregate
principal amount not to exceed $125,000,000, and any Guarantee thereof by any
Subsidiary Loan Party; provided that each such Subsidiary Loan Party
shall be automatically released from such Guarantee upon its release from its
Guarantee under the Subsidiary Guaranty Agreement;


 


(iii)                            Indebtedness
of the Company consisting of Senior Subordinated Notes and Permanent Securities
constituting Indebtedness in an aggregate amount not to exceed at any time the
sum at such time of (A) the aggregate principal amount thereof incurred or
issued in lieu of Indebtedness under the Bridge Credit Agreement or used to
prepay Indebtedness under the Bridge Credit Agreement, (B) the aggregate
amount of reductions of the Term Loan Commitments under Section 2.08(d) in
respect thereof and (C) the aggregate principal amount of Senior
Subordinated Notes and Permanent Securities the Net Proceeds of which were
applied to prepay Term Loans under Section 2.11(c), and any Guarantee thereof
by any Subsidiary Loan Party; provided that each such Subsidiary Loan
Party shall be automatically released from such Guarantee upon its release from
its Guarantee under the Subsidiary Guaranty Agreement;


 


(iv)                               Indebtedness
existing on the date hereof and set forth in Schedule 6.01, and
extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof


 


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or result in an
earlier maturity date or decreased weighted average life thereof or add any new
obligor in respect thereof;


 


(v)                                   Indebtedness
of the Company to any Subsidiary and of any Subsidiary to the Company or any
other Subsidiary; provided that Indebtedness of any Subsidiary that is
not a Loan Party to the Company or any Subsidiary Loan Party shall be subject
to Section 6.04;


 


(vi)                               Guarantees
by the Company of Indebtedness of any Subsidiary and by any Subsidiary of
Indebtedness of the Company or any other Subsidiary; provided that
Guarantees by the Company or any Subsidiary Loan Party of Indebtedness of any
Subsidiary that is not a Loan Party shall be subject to Section 6.04;


 


(vii)                           Indebtedness
of the Company or any Subsidiary incurred to finance the acquisition,
construction or improvement (including purchase or construction costs, design,
engineering, transportation, installation, testing and analogous costs, and all
related professional costs and expenses) of any fixed or capital assets,
including Capital Lease Obligations, Synthetic Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such assets or
secured by a Lien on any such assets prior to the acquisition thereof, and
extensions, renewals and replacements of any such Indebtedness that do not increase
the outstanding principal amount thereof or result in an earlier maturity date
or decreased weighted average life thereof; provided that (A) such
original Indebtedness is incurred prior to or within 180 days after such
acquisition or the completion of such construction or improvement and (B) the
aggregate principal amount of Indebtedness permitted by this clause (vii) shall
not exceed $50,000,000 at any time outstanding;


 


(viii)                       Acquired
Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any
time outstanding;


 


(ix)                              Indebtedness
in respect of (A) Lender Letters of Credit, provided that the sum
of the LC Exposure and the Lender LC Exposure shall not at any time exceed
$150,000,000, and (B) letters of credit permitted under Section 6.13;


 


(x)                                  other
unsecured Indebtedness in an aggregate principal amount not exceeding
$20,000,000 at any time outstanding; provided that the aggregate
principal amount of Indebtedness of the Company’s Subsidiaries permitted by
this clause (x) shall not exceed $10,000,000 at any time outstanding; and


 


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(xi)                              Indebtedness
of the Company in an aggregate principal amount not to exceed $300,000,000
consisting of senior subordinated indebtedness of the Company that is
unsecured, matures not sooner than the date that is six months after the latest
maturity of any Class of Loans or Commitments outstanding hereunder at the time
of the issuance thereof and is subordinated to the Loans on terms in no
material respect less favorable to the Lenders than customary market terms (and
any notes, instruments or other Indebtedness issued in exchange therefor or
replacement thereof that meets the foregoing requirements set forth in this
clause (xi)).


 


In the event any action governed
by this Section 6.01(a) is governed by more than one clause hereof, the Company
shall advise the Administrative Agent of the clause under which it shall have
elected, in its sole discretion, to treat such action.


 


(b)  Notwithstanding
anything to the contrary contained in paragraph (a) above, neither the
Spear Joint Venture nor any subsidiary thereof shall at any time prior to the
Spear Final Contribution Date create, incur, assume or permit to exist any
Indebtedness, except:


 


(i)                                    Indebtedness
in respect of Letters of Credit;


 


(ii)                                Indebtedness
under the Spear Note in an aggregate principal amount not exceeding $40,000,000
at any time outstanding; and


 


(iii)                            Spear
Partner Permitted Indebtedness.


 


Indebtedness incurred by the
Spear Joint Venture and its subsidiaries will not be counted against any of the
limits set forth in paragraph (a) above.


 


(c)  Notwithstanding anything to the contrary
contained in paragraph (a) above, no Arrow Subsidiary shall at any time that it
is a Subsidiary create, incur, assume or permit to exist any Indebtedness,
except:


 


(i)                                    Indebtedness
under this Agreement (including Letters of Credit), Lender Letters of Credit
and letters of credit issued in accordance with Section 6.13;


 


(ii)                                Indebtedness
owing to the Company or its Subsidiaries that constitutes a permitted
Investment under Section 6.04(a) or (g)(i); and


 


(iii)                            other
unsecured Indebtedness in an aggregate principal amount not to exceed
$1,000,000.


 


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Indebtedness incurred by the
Arrow Subsidiaries and their subsidiaries will not be counted against any of
the limits set forth in paragraph (a) above.


 


(d)  No Borrower will, nor will any Borrower
permit any Subsidiary to, issue any Preference Stock other than Preference
Stock of the Company the Net Proceeds of which are applied to prepay loans
under the Bridge Credit Agreement or, after all such loans have been prepaid in
full, to prepay Term Loans in accordance with Section 2.11(c).


 


SECTION 6.02.  Negative
Pledge.  Neither any Borrower
nor any of the Subsidiaries will create, assume or suffer to exist any Lien on
any asset now owned or hereafter acquired by it, or assign or sell any income
or revenues (including accounts receivable) or rights in respect of any
thereof, except:


 


(a)  Liens (i) existing on the Effectiveness
Date securing Indebtedness or other obligations or liabilities outstanding on
such date and identified or referred to on Schedule 6.02 or (ii) disclosed
in title insurance policies delivered to the Administrative Agent prior to the
Effectiveness Date relating to the Mortgaged Properties;


 


(b)  any Lien existing on any asset of any Person
at the time such Person becomes a Subsidiary of such Loan Party and not created
in contemplation of such event;


 


(c)  any Lien on any asset (other than Equity
Interests) securing Indebtedness and other related obligations incurred or
assumed for the purpose of financing all or any part of the costs (including
purchase or construction costs, design, engineering, transportation, installation,
testing and analogous costs, and all related professional costs and expenses)
of acquiring, constructing or improving such asset; provided that such
Lien attaches to such asset concurrently with or within 180 days after the
completion of the acquisition, construction or improvement thereof;


 


(d)  any Lien on any asset of any Person existing
at the time such Person is merged or consolidated with or into such Loan Party
or any of the Subsidiaries and not created in contemplation of such event;


 


(e)  any Lien existing on any asset, or on any
asset of any Person, prior to the acquisition of such asset or such Person, as
the


 


90

















 


case may be, by such
Loan Party or any of the Subsidiaries and not created in contemplation of such
acquisition;


 


(f)  carriers’, warehousemen’s, mechanics’,
landlords’, materialmen’s, repairmen’s or other like Liens arising in the
ordinary course of business and which are not overdue for a period of more than
30 days or which are being contested in good faith by appropriate proceedings;


 


(g)  Liens for taxes, assessments or other
governmental charges not yet overdue or which are being contested in good faith
and by appropriate proceedings;


 


(h)  pledges or deposits in connection with
workmen’s compensation, unemployment insurance and other social security
legislation;


 


(i)  deposits to secure the performance of bids,
tenders, trade or government contracts (other than for borrowed money), leases,
licenses, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of business;


 


(j)  easements, right-of-way, zoning and similar
restrictions and other encumbrances or title defects incurred, or leases or subleases
granted to others, in the ordinary course of business which do not in any
material respect interfere with or adversely affect the use or value of any
Mortgaged Property or the ordinary conduct of the business of any Borrower or
such Subsidiary and the matters listed in the policies of title insurance with
respect to the Mortgaged Properties delivered to the Administrative Agent prior
to the Effectiveness Date;


 


(k)  Liens on property of the Company or any of
the Subsidiaries in favor of the Company or such Subsidiary, as the case may
be;


 


(l)  Liens created by the Loan Documents;


 


(m)  Liens arising under documentary letters of
credit; provided that such Liens attach only to the assets purchased
thereunder and documents relating thereto;


 


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(n)  Liens arising in the ordinary course of its
business which (i) do not secure Indebtedness or Derivatives Obligations, (ii)
do not secure any obligation in an amount exceeding $1,000,000 and (iii) do not
in the aggregate materially detract from the value of the assets of any
Borrower or Subsidiary or materially impair the use thereof in the operation of
their businesses;


 


(o)  any interest or title of a lessor in assets
or property subject to a Capital Lease or Synthetic Lease of the Company or any
Subsidiary; provided that the aggregate of the capitalized value on the
consolidated balance sheet of the Company of all the Capital Leases and the
amount of all Synthetic Leases that would be so capitalized if such leases were
Capital Leases at any time does not exceed $50,000,000;


 


(p)  any Lien arising out of the refinancing,
extension, renewal or refunding of any Indebtedness or obligation secured by
any Lien permitted by any of the foregoing clauses of this Section; provided
that such Indebtedness or obligation is not increased and is not secured by
any additional assets;


 


(q)  Liens arising from the filing of Uniform
Commercial Code or personal property security financing statements (or
substantially equivalent filings outside the United States) regarding leases
that are neither Capital Leases nor Synthetic Leases;


 


(r)  Liens encumbering property or assets under
construction (and proceeds and products thereof) arising from progress or
partial payments by a customer of the Company or the Subsidiaries relating to
such property or assets;


 


(s)  Liens not otherwise permitted by this
Section 6.02 securing obligations in an aggregate principal, stated or
face amount at any date not to exceed $20,000,000;


 


(t)  Liens on the Spear Collateral securing
Indebtedness permitted under Section 6.01(b)(iii) ratably with the Spear
Obligations under the Security Documents executed and delivered pursuant to
Section 5.08(b);


 


(u) any right of
first refusal or first offer, redemption right, or option or similar right in
respect of Equity Interests in any Joint Venture, in favor of any co-venturer
of the Company or any Subsidiary in such Joint Venture (or in favor of any
other Person by virtue of such Person’s holding of any interest in the Equity
Interests of such co-venturer in such Joint Venture); and


 


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(w)  Liens on any proceeds (including insurance,
condemnation and eminent domain proceeds) or products of any collateral a Lien
over which is otherwise permitted by the foregoing clauses of this Section, and
on general intangibles relating to or embodied in such collateral.


 


SECTION 6.03.  Consolidations,
Mergers and Sales of Assets. 
(a)  No Loan Party will, and no Loan Party will permit any of
its Subsidiaries to, consolidate or merge with or into any other Person except
as permitted under clause (a) of Section 5.04.


 


(b)  No Loan Party will, or will permit any of
its Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset,
including any Equity Interest, owned by it, nor will any Loan Party permit any
of its Subsidiaries to issue any additional Equity Interest in such Subsidiary,
except as permitted under clause (a) of Section 5.04 and except:


 


(i)                                    sales of
inventory in the ordinary course of business;


 


(ii)                                any
disposition of surplus, discontinued or worn-out equipment or other assets
(including leasehold interests) no longer used in the on-going business of the
Company and the Subsidiaries;


 


(iii)                            (A) any
disposition of cash or Temporary Cash Investments or Investments referred to in
Section 6.04(e) or (B) any disposition resulting from the liquidation or
dissolution of any Subsidiary or Joint Venture to the extent made ratably in
accordance with the relative Equity Interests held by, or capital accounts of,
the owners thereof;


 


(iv)                               any sale or
other disposition of readily marketable securities in the ordinary course of
business;


 


(v)                                   any sale,
transfer or other disposition (x) to the Company or any Business Entity
that is, or immediately after giving effect to the foregoing will be, a
Wholly-Owned Consolidated Subsidiary or (y) to any other Business Entity that
is, or immediately after giving effect to the foregoing will be, a Subsidiary
or Joint Venture that would not be prohibited by Section 6.04(a) or (h)
(it being understood that the Company shall advise the Administrative Agent of
whether it shall have elected clause (a) or (h) to be applicable) if it were an
Investment; provided that any such sale, transfer or other disposition
involving a Subsidiary or Joint Venture that is not a Loan Party shall be made
in compliance with Section 6.05 (without regard to clause (v)
thereof) as if such Subsidiary or Joint Venture were an Affiliate for purposes
of such Section;


 


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(vi)                               the grant
of any Lien permitted under Section 6.02, any Investment permitted under
Section 6.04 (without regard to clause (b) thereof) and any
Restricted Payment permitted under Section 6.08;


 


(vii)                           sales,
transfers and other dispositions of Equity Interests in Subsidiaries which are
solely engaged in the business of providing insurance or self-insurance
coverage for the businesses of the Company and the Subsidiaries permitted by
Section 5.04, or the issuance of Equity Interests in such Subsidiaries to
non-Affiliated third Persons in an aggregate value (as determined by the
Company in good faith) in case of issuance, or aggregate book value in the case
of sales, transfers or other dispositions, not to exceed in the aggregate
$10,000,000 for all such Subsidiaries;


 


(viii)                       any
disposition of assets with a fair market value of $500,000 or less;


 


(ix)                              sales,
transfers and dispositions to Joint Ventures of assets with an aggregate fair
market value in any Fiscal Year not in excess of $10,000,000;


 


(x)                                  any
transaction expressly permitted under Section 6.04(f) or (g);


 


(xi)                              sales,
transfers or other dispositions of assets pursuant to the Support Agreement in
an aggregate amount during any Fiscal Year, taken together with Investments
under the second proviso to Section 6.04(a), not to exceed $2,000,000; and


 


(xii)                          sales,
transfers and other dispositions of assets (including Equity Interests in a
Subsidiary) that are not permitted by any other clause of this Section; provided
that the aggregate fair market value of all assets sold, transferred or
otherwise disposed of in reliance upon this clause (xii) shall not during any
Fiscal Year exceed 10% of consolidated total assets of the Company as of the
last day of the immediately preceding Fiscal Year; and provided further
that no sale, transfer or other disposition of Equity Interests in a Subsidiary
(other than a sale, transfer or other disposition of all the Equity Interests
in such Subsidiary owned by the Company and the Subsidiaries) shall be made
unless the remaining Investment in such Person after giving effect thereto
shall be permitted under Section 6.04(a) at the time of such sale, transfer or
other disposition;


 


provided that,
other than in respect of consideration received in an aggregate amount of up to
$10,000,000 for any Fiscal Year, all sales, transfers, leases and other


 


94

















 


dispositions permitted hereby
(other than those permitted by clauses (iii), (v), (vi), (x) and (xi) above)
shall be made (A) for fair value and (B) other than those permitted by
clause (ix) above, for at least 80% cash consideration.  In the event any action governed by this
Section 6.03(b) is governed by more than one clause hereof, the Company
shall advise the Administrative Agent of the clause under which it shall have
elected, in its sole discretion, to treat such action.


 


SECTION 6.04.  Investments.   Neither any Borrower nor any Subsidiary
will hold, make or acquire any Investment in any Person other than:


 


(a)  Investments not otherwise permitted by any
other paragraph of this Section 6.04 in Persons that are, or as a result
of such Investments will become, Subsidiaries or Joint Ventures; provided
that the aggregate fair market value of all Investments by the Company and its
Consolidated Subsidiaries in, or in Persons that as a result of such Investment
will become, Joint Ventures and Subsidiaries of the Company that are not,
or will not as a result of such Investment become, Wholly-Owned Consolidated
Subsidiaries of the Company (other than Investments made under clauses (i) and
(ii) of paragraph (f) below or under clauses (i) or (ii) of paragraph (g)
below), shall not at the time any such Investment is made or acquired, after
giving effect to such Investment (when taken together, without duplication,
with (A) the aggregate amount of transactions effected under Section 6.09(b),
(B) the aggregate value of assets sold, transferred or otherwise disposed of to
such Subsidiaries or Joint Ventures pursuant to Section 6.03(b)(v) (other
than those allocated by the Company to be governed under Section 6.04(h))
and net of any cash consideration or cash distribution received by the Company
or a Wholly-Owned Consolidated Subsidiary in respect of and at the time of or
substantially contemporaneously with any such sale, transfer or disposition or
Investment, and (C) the aggregate amount of the remaining Investments
contemplated by the second proviso to Section 6.03(b)(xii) after sales,
transfers and other dispositions of less than all the Equity Interests in
Subsidiaries held by the Company and the Subsidiaries), exceed the Special
Investments Basket (with the fair market value of each Investment being
measured at the time made or at the time of the consummation of the sale,
transfer or other disposition resulting in such Investment and without giving
effect to subsequent changes in value); provided further that the
Company may make additional Investments in Alliant Assurance Ltd. in accordance
with the Support Agreement in an aggregate amount during any Fiscal Year, taken
together, without duplication, with sales, transfers and dispositions under
Section 6.03(b)(xi), not to exceed $5,000,000;


 


95

















 


(b)  Investments acquired in the form of
consideration received from sales of assets permitted under Section 6.03(b)
(without regard to clause (vi) thereof);


 


(c)  Investments acquired as part of the
settlement of litigation or claims or in satisfaction of claims made pursuant
to a reorganization, bankruptcy or liquidation of a Person, or as a good faith
settlement of Indebtedness owed by a Person to the Company or any of the
Subsidiaries;


 


(d)  Temporary Cash Investments;


 


(e)  Investments in Unrestricted Subsidiaries; provided
that the Aggregate Net Investments in Unrestricted Subsidiaries (other than
Arrow Subsidiaries) shall at no time exceed $2,000,000;


 


(f)  Investments
in the Spear Joint Venture:


 


(i) at any time prior
to the Spear Final Contribution Date, consisting of:


 


(A) the
contribution in connection with the initial formation of the Spear Joint
Venture of the fixed assets and working capital of the Spear Army Ammunition
Plant, provided that the Spear
Partner shall have acknowledged and consented to the arrangements with respect
to the Spear Joint Venture set forth herein and in the Security Documents
required to be delivered under Section 5.08(b), including the pledge of the
Spear Note and the Equity Interests in the Spear Joint Venture owned by the
Company and the Subsidiaries, the security interests in the Spear Collateral
and the exercise of the Lenders’ rights thereunder following an Event of
Default, or


 


(B) loans
advanced and other extensions of credit by the Company to the Spear Joint
Venture under, or obligations in respect of which are evidenced by, the Spear
Note;


 


(ii) at any time
on or after the Spear Final Contribution Date, consisting of the remaining
Investment by the Company and the Subsidiaries after giving effect to the
reduction in ownership of Equity Interests resulting in the occurrence of the
Spear Final Contribution Date, provided
that the Net Proceeds of such reduction shall have been applied to prepay Term
Loans as contemplated by Section 2.11(c) and, if the Spear Final
Contribution Date shall occur as a result of a transaction other than the
acquisition by the Spear Partner as of or prior to January 1, 2005 of
Equity Interests in the


 


96

















 


Spear Joint Venture
resulting in it holding 50% or more of the pro forma outstanding Equity
Interests in the Spear Joint Venture, no Default or Event of Default shall have
occurred and be continuing and the Company and its Consolidated Subsidiaries
shall be in compliance with Sections 6.10, 6.11 and 6.12 as at and for the
four-fiscal-quarter period ending on the last day of the most recent fiscal
quarter for which financial statements shall have been delivered under
Section 5.01(a) or (b) on a pro forma basis determined as if such
reduction and the related prepayment of Loans occurred as of the first day of
such four-fiscal-quarter period; or


 


(iii) at any
time after the Spear Final Contribution Date, additional Investments made in
the resulting Joint Venture pursuant to paragraph (a) above; and


 


(g)  (i)  Investments
in the Arrow Joint Venture consisting of:


 


(A) the contribution
in connection with the initial formation of the Arrow Joint Venture of up to
98% of the Equity Interests in each of the Arrow Subsidiaries, provided
that (I) the co-venturer in the Arrow Joint Venture shall have
acknowledged and consented to the arrangements with respect to the Arrow Joint
Venture set forth herein and in the Security Documents required to be delivered
under Section 5.08(c), including the pledge of the Equity Interests in the
Arrow Joint Venture owned by the Company and the Subsidiaries and the exercise
of the Lenders’ rights thereunder following an Event of Default, including the
right to remove the Arrow Subsidiaries from the Arrow Joint Venture without
penalty, and (II) all filings and other actions required by any
Governmental Authority in connection with such contribution and formation shall
have been made or taken, all applicable approvals shall have been obtained and
all applicable waiting periods and/or appeal periods shall have expired or been
terminated, or


 


(B) Investments made
by the Company and the Subsidiaries in the Arrow Joint Venture (x) pursuant to
paragraph (a) above, (y) in addition to those in clause (x), in an
aggregate amount not to exceed $25,000,000 or (z), if not made pursuant to
clause (x) or (y), that when made will not cause the Arrow Available
Restricted Payments to be reduced to an amount less than zero; or


 


(C) up to 2% of the
outstanding Equity Interests in the Arrow Subsidiaries; and


 


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(ii) the Arrow
Subsidiaries may:


 


(A) provide
Guarantees, letters of credit or bonding to the extent solely supporting
performance obligations of the Arrow Subsidiaries;


 


(B) provide
Guarantees, letters of credit or bonding to the extent solely supporting
performance obligations of the Arrow Joint Venture or the subsidiaries of the
co-venturer in the Arrow Joint Venture that shall have been contributed to the
Arrow Joint Venture, provided that after giving effect thereto the Arrow
Available Restricted Payments will not be reduced to an amount below zero; or


 


(C) enter into
transactions with the Arrow Joint Venture or the subsidiaries of the
co-venturer in the Arrow Joint Venture that shall have been contributed to the
Arrow Joint Venture on a basis less favorable to the Arrow Subsidiaries than
the terms and conditions that would apply in a similar transaction with a
Person that is not an Affiliate, provided that after giving effect
thereto the Arrow Available Restricted Payments will not be reduced to an
amount below zero;


 


(h)  other Investments not otherwise permitted by
any other provision hereof in an aggregate amount (when taken together, without
duplication, with the aggregate value of assets sold, transferred or otherwise
disposed of pursuant to Section 6.03(b)(v) (other then those allocated by
the Company to be governed under Section 6.04(a))) not to exceed
$10,000,000; and


 


(i) Investments, in
addition to any of the foregoing, existing on the Effectiveness Date and set
forth on Schedule 6.04.


 


SECTION 6.05.  Transactions
with Affiliates.  No Loan
Party will, or will permit any of its Subsidiaries to, directly or indirectly,
pay any funds to or for the account of, make any Investment in, lease, sell,
transfer or otherwise dispose of any assets, tangible or intangible, to, or
participate in, or effect any transaction in connection with any joint
enterprise or other joint arrangement with, any of its Affiliates other than
Wholly-Owned Consolidated Subsidiaries that are Loan Parties; provided, however,
that the foregoing provisions of this Section shall not prohibit any Loan Party
or any of its Subsidiaries from (i) declaring or paying any lawful dividend
(subject to Section 6.08) so long as, after giving effect to any such
declaration, no Default shall have occurred and be continuing, (ii) making
sales to or purchases from any of its Affiliates and, in connection therewith,
extending credit or making payments, or making payments for labor or material
or services rendered by any of its Affiliates, if such sales or purchases are
made or such services are rendered in the ordinary course of business and on
terms and conditions at least as


 


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favorable to such
Loan Party or such Subsidiary as the terms and conditions which would apply in
a similar transaction with a Person not an Affiliate (other than (A) in
the case of contracts pursuant to which the Company or any Subsidiary provides
labor or materials or general and administrative services to the Spear Joint
Venture, which shall be permitted at any price equal to or greater than the
cost (including an allocation of overhead) to the Company and the Subsidiaries
of providing such labor or materials and (B) as permitted under
Section 6.04(g)(ii)), (iii) making payments of principal, interest
and premium on any Indebtedness of such Loan Party or such Subsidiary held by
any of its Affiliates if the terms of such Indebtedness are substantially as
favorable to such Loan Party or such Subsidiary as the terms which could have
been obtained at the time of the creation of such Indebtedness from a lender
which was not an Affiliate (other than as permitted under
Section 6.04(g)(ii)), (iv) performing its obligations pursuant to any
Acquisition Document, (v) consummating any disposition of assets to an
Affiliate not prohibited by Section 6.03 (without regard to clause (iii) or
(vi) thereof), (vi) participating in, making Investments in, or effecting any
other transaction with or in connection with, any Joint Venture (other than the
Spear Joint Venture or the Arrow Joint Venture) or other joint enterprise or
joint arrangement that is an Affiliate (regardless of whether the other party
participating in such Joint Venture or other joint enterprise or joint
arrangement is an Affiliate) if such Loan Party or such Subsidiary participates
in the ordinary course of its business and on a basis no less advantageous than
the basis on which any other venturer participates (taking into account the
respective interests of such Loan Party or Subsidiary and such other venturer
or venturers), (vii) to the extent approved by the board of directors of such
Loan Party or Subsidiary, making payments of money or issuances of securities
pursuant to employment agreements and arrangements and employee benefit plans
and making payments for services rendered by non-employee directors of the
Company and its Affiliates, (viii) providing overhead and other general
and administrative services and expenses to or for the Company and its
Subsidiaries (subject in the case of the Arrow Joint Venture, the Arrow
Subsidiaries and the Spear Joint Venture, to the limits set forth in
Section 6.04), or (ix) to the extent the Spear Partner shall have
agreed to pay its ratable share of any payment required thereunder, providing
to unrelated parties performance guarantees in respect of obligations of the
Spear Joint Venture under commercial contracts for goods or services.  Under no circumstances whatsoever shall the
Company permit the Spear Joint Venture or any subsidiary thereof to be subject
to any contractual restriction on its ability to make any Restricted Payment to
the Company or any Subsidiary.  Under no
circumstances whatsoever shall the Company permit any Arrow Subsidiary to be
subject to any contractual restriction on its ability to make any Restricted
Payment to the Company or any Subsidiary.


 


SECTION 6.06.  Constitutional
Documents.  No Loan Party
will, or will permit any Subsidiary to, amend its Constitutional Documents in
any manner


 


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which could adversely
affect the rights of the Lenders under the Loan Documents or their ability to
enforce the same.


 


SECTION 6.07.  Waivers
and Amendments of Related Documents.  The Company will not and will not permit its Subsidiaries to,
without the prior written consent of the Required Lenders, modify or amend, or
waive any provision or condition contained in, any of the Acquisition
Documents, the Bridge Credit Agreement, the Senior Subordinated Note Indenture
or the Senior Subordinated Notes from the forms of each of the foregoing
heretofore delivered to the Lenders (or, in the case of the Senior Subordinated
Note Indenture and the Senior Subordinated Notes, delivered to the Lenders in
connection with the initial issuance of the Senior Subordinated Notes) in any
manner that could reasonably be expected to be adverse to the Lenders.


 


SECTION 6.08.  Restricted
Payments.  The Borrowers will
not declare or make, or permit any Subsidiary to declare or make, any
Restricted Payment other than:


 


(i)                                    any
Restricted Payments made by Subsidiaries (other than by any Arrow Subsidiary at
any time on or after the formation of the Arrow Joint Venture) to the Company
or any other Borrower or a Wholly-Owned Consolidated Subsidiary (or with
respect to a Subsidiary other than a Wholly-Owned Consolidated Subsidiary,
Restricted Payments made ratably (or, if not ratably, on a basis more favorable
to the Company and its Subsidiaries than ratably) with respect to each class of
such Subsidiary’s Equity Interests in respect of which such Restricted Payment
is being made);


 


(ii)                                any
Restricted Payments made by the Company pursuant to the terms of employee
benefit plans and stock options (including stock ownership plans (including
401K plans, restricted stock plans, employee stock purchase plans, performance
sharing plans and incentive plans)), in each case as in effect on December 31,
2000, and as modified thereafter, provided that the aggregate amount of
Restricted Payments made or declared pursuant to this clause (ii) after the
Effectiveness Date shall not exceed $25,000,000;


 


(iii)                            any
Restricted Payment by the Company payable solely in additional Equity Interests
of the Company;


 


(iv)                               any
Restricted Payment in respect of the $2,000,000 Series A 11% Preferred
Stock of Alliant Assurance Ltd.;


 


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(v)                                   any
Restricted Payment by any Arrow Subsidiary at any time on or after the
formation of the Arrow Joint Venture that such Arrow Subsidiary is a
Subsidiary:


 


(A) to the extent
made solely to fund such Arrow Subsidiary’s ratable share of the ordinary
expenses of the Arrow Joint Venture’s holding company activities up to an
aggregate amount for the Arrow Subsidiaries, taken as a whole, made in any
Fiscal Year not to exceed $3,000,000;


 


(B) to the extent the
aggregate amount thereof, when taken together with all other substantially
contemporaneous Restricted Payments made by all the Arrow Subsidiaries, does
not exceed the aggregate amount of dividends or distributions paid or made
substantially contemporaneously by the Arrow Joint Venture’s holding company to
the Company or any Wholly-Owned Consolidated Subsidiary; and


 


(C) in addition to
the foregoing, so long as no Default or Event of Default shall have occurred
and be continuing, to the extent the making of such Restricted Payment shall
not result in the Arrow Available Restricted Payments being reduced to an
amount below zero; and


 


(vi)                               any other
Restricted Payments in addition to those permitted above (and whether of the
same or a different type, or in addition to amounts for any type, provided
above) made or declared after the Effectiveness Date to the extent that
immediately after giving effect thereto (x) no Default or Event of Default
shall have occurred and be continuing and (y) the aggregate amount of all
such Restricted Payments made or declared pursuant to this clause (vi)
after the Effectiveness Date does not exceed the Restricted Payments Basket.


 


SECTION 6.09.  Foreign
Subsidiaries. 
Notwithstanding any other provision of this Agreement, the aggregate
amount, without duplication, of Investments made in Foreign Subsidiaries and of
sales, transfers and other dispositions to Foreign Subsidiaries under
Section 6.03(b)(v), in each case by the Company and its Subsidiaries
(other than the Foreign Subsidiaries) after the Effectiveness Date shall not at
any time (a) exceed $10,000,000 (valued as provided in Section 6.04(a) and
determined without duplication and net, in the case of each investment, of
repayments of such investment, the proceeds of any sale or other disposition of
such investment to any third party and other returns of capital (but not
returns on capital)) or (b) if not permitted to be made under clause (a) above,


 


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shall not, when taken
together with all other transactions utilizing (or deemed pursuant to Section
6.03(b)(v) or (xii) to utilize) the Special Investments Basket under Section
6.04(a), exceed the Special Investments Basket.


 


SECTION 6.10.  Minimum
Consolidated Net Worth. 
Consolidated Net Worth shall at no time be less than the sum of (i)
$135,000,000 plus (ii) 50% of cumulative Consolidated Net Income for
each fiscal quarter beginning after March 31, 2001 for which the Company
shall have delivered financial statements pursuant to Section 5.01(a) or
(b), but excluding any such fiscal quarter for which Consolidated Net Income is
negative, plus (iii) 50% of the increase in consolidated stockholders’
equity of the Company from any Equity Issuances by the Company after
March 31, 2001.


 


SECTION 6.11.  Leverage
Ratio.  As of the last day of
each fiscal period of the Company ending most closely to the dates set forth
below, the Leverage Ratio as of such day shall not exceed the ratio set forth
below opposite such date:


 


	
  Date

  	
   

  	
  Ratio

  
	
  March 31, 2002

  	
   

  	
  3.85

  
	
  June 30, 2002

  	
   

  	
  3.50

  
	
  September 30, 2002

  	
   

  	
  3.50

  
	
  December 31, 2002

  	
   

  	
  3.50

  
	
  March 31, 2003

  	
   

  	
  3.50

  
	
  June 30, 2003

  	
   

  	
  3.25

  
	
  September 30, 2003

  	
   

  	
  3.25

  
	
  December 31, 2003

  	
   

  	
  3.25

  
	
  March 31, 2004

  	
   

  	
  3.25

  
	
  June 30, 2004

  	
   

  	
  3.00

  
	
  September 30, 2004

  	
   

  	
  3.00

  
	
  December 31, 2004

  	
   

  	
  3.00

  
	
  March 31, 2005

  	
   

  	
  3.00

  
	
  each fiscal quarter
  end thereafter

  	
   

  	
  2.75

  



 


SECTION 6.12.  Interest
Coverage.  As of the last day
of each fiscal quarter of the Company ending most closely to the dates set
forth below, the ratio of aggregate Consolidated EBITDA to aggregate
Consolidated Interest Charges, in


 


102

















 


each case for the
four consecutive fiscal quarters ending on such day, shall not be less than the
ratio set forth below opposite such date.


 


	
  Date

  	
   

  	
  Ratio

  
	
  March 31, 2002

  	
   

  	
  2.75

  
	
  June 30, 2002

  	
   

  	
  3.00

  
	
  September 30, 2002

  	
   

  	
  3.00

  
	
  December 31, 2002

  	
   

  	
  3.00

  
	
  March 31, 2003

  	
   

  	
  3.00

  
	
  June 30, 2003

  	
   

  	
  3.15

  
	
  September 30, 2003

  	
   

  	
  3.15

  
	
  December 31, 2003

  	
   

  	
  3.15

  
	
  March 31, 2004

  	
   

  	
  3.15

  
	
  each fiscal quarter
  end thereafter

  	
   

  	
  3.25

  



 


SECTION 6.13.  Outside
Letters of Credit.  Neither
any Borrower nor any Subsidiary shall at any time have any letters of credit
issued or outstanding for its account other than (i) Letters of Credit
hereunder, (ii) Lender Letters of Credit and (iii) other letters of credit
issued to secure the performance of the Borrowers and the Subsidiaries under
trade or government contracts (other than for borrowed money); provided
that (x) the aggregate amount available for drawing and (without
duplication) unpaid amount of all reimbursement obligations under all letters
of credit issued under clause (iii) shall at no time exceed $15,000,000 and
(y) neither any Borrower nor any Subsidiary will create, assume or suffer
to exist any Lien on any of its assets with respect to their obligations under
letters of credit issued under clause (iii).


 


SECTION 6.14.  Designated
Senior Debt.  Without the
consent of the Required Lenders, the Company shall not designate any
Indebtedness, other than Indebtedness under the Loan Documents, as “Designated
Senior Debt”, as such term is defined in the Senior Subordinated Note
Indenture, or any comparable designation that confers upon the holders of such
Indebtedness (or any Person acting on their behalf) the right to initiate
blockage periods under the Senior Subordinated Note Indenture (other than as a
result of a payment default), unless, prior to any such designation of such
Indebtedness as “Designated Senior Debt”, the holders of such Indebtedness
deliver a written agreement to the Administrative Agent providing for the
express benefit of the Lenders that neither such holders nor any Person acting
on their behalf will initiate any such blockage period under the Senior
Subordinated Note Indenture without the prior written consent of the Required
Lenders.


 


SECTION 6.15.  Derivatives
Obligations.  The Borrowers
will not, and will not permit any of the Subsidiaries to, enter into any
Derivatives Obligations,


 


103

















 


except (a)
Derivatives Obligations entered into to hedge or mitigate risks to which any
Borrower or any Subsidiary has actual potential or existing exposure (other
than those in respect of Equity Interests of any Borrower or any Subsidiary),
and (b) Derivatives Obligations entered into in order to effectively cap,
collar or exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary.


 


SECTION 6.16.  Additional
Debt Incurrence.  No
Indebtedness that constituted a Prepayment Event when incurred (other than
Indebtedness referred to in clause (vii) of the definition of “Indebtedness”)
shall mature, or provide for any amortization or other mandatory payment of
principal, or other repayment (in the absence of default) or right of
redemption at the option of the holder thereof, prior to the Tranche C Term Loan
Maturity Date.


 


SECTION 6.17.  Capital
Expenditures.  The Company
will not permit the aggregate amount of Capital Expenditures made by the
Company and the Subsidiaries during any period set forth below to exceed the
aggregate amount set forth below opposite such period:


 


	
  Period

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Effectiveness
  Date - March 31, 2003

  	
   

  	
  $

  	
  65,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  April
  1, 2003 - March 31, 2004

  	
   

  	
  $

  	
  70,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  each
  Fiscal Year thereafter

  	
   

  	
  $

  	
  75,000,000

  	
   

  



 


provided that to
the extent that the Capital Expenditures made in any period set forth above are
less than the amount set forth for such period, then after the available amount
for the next succeeding Fiscal Year has been fully used the Company and the
Subsidiaries may make additional Capital Expenditures during such next
succeeding Fiscal Year in an aggregate amount that at the time each such
Capital Expenditure is made is not in excess of the unused amount from the
immediately prior period set forth above.


 


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ARTICLE
VII


 


Events of
Default


 


If any of the
following events (“Events of Default”)
shall occur:


 


(a)  any Borrower shall fail to pay (i) any
principal of any Loan or any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or otherwise, or
(ii) within five Business Days after the same shall become due, any
interest on any Loan or any fee or any other amount (other than an amount
referred to in clause (i) of this paragraph (a)) payable under this
Agreement or any other Loan Document;


 


(b)  any Loan Party shall fail to observe or
perform any covenant contained in Section 5.01(e), 5.04 or 5.07 or in
Article VI;


 


(c)  any Loan Party shall fail to observe or
perform any covenant or agreement contained in any Loan Document (other than
those covered by clause (a) or (b) above) for 30 days after a Responsible
Officer of such Loan Party shall have become aware of such failure;


 


(d)  any representation, warranty, certification
or statement made or deemed made by any Loan Party in any Loan Document or in
any certificate, financial statement or other document delivered pursuant
thereto shall prove to have been incorrect in any material respect when made
(or deemed made);


 


(e)  any Loan Party or any of its Subsidiaries
shall fail to make any payment in respect of any Material Financial Obligation
when due or within any applicable grace period;


 


(f)  any event or condition shall occur which results
in the acceleration of the maturity of any Material Indebtedness or Material
Financial Obligation or enables (or, with the giving of notice or lapse of time
or both, would enable) the holder of such Material Indebtedness or Material
Financial Obligation or any Person acting on such holder’s behalf to accelerate
the maturity thereof;


 


(g)  any Loan Party or any of its Subsidiaries
shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar


 


105

















 


official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment
for the benefit of creditors, or shall take any Business Entity action to
authorize any of the foregoing;


 


(h)  an involuntary case or other proceeding
shall be commenced against a Loan Party or any Subsidiary of a Loan Party
seeking liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and unstayed
for a period of 60 days; or an order for relief shall be entered against a Loan
Party or any Subsidiary of a Loan Party under the federal bankruptcy laws as now
or hereafter in effect;


 


(i)  any Loan Party or any of its Subsidiaries
shall fail generally to pay its debts as they become due;


 


(j)  a Loan Party or any of its Subsidiaries
shall admit its inability to pay its debts as and when they fall due or becomes
or is deemed to be unable to pay its debts or insolvent, or convenes a meeting
for the purpose of proposing, or otherwise proposes or enters into, any
composition or arrangement with its creditors or any group or class thereof, or
anything analogous to, or having a substantially similar effect to, any of the
events specified in this paragraph or in paragraph (g) or (h) above occurs in
any jurisdiction;


 


(k)  any member of the ERISA Group shall fail to
pay when due an amount or amounts aggregating in excess of $20,000,000 which it
shall have become liable to pay under Title IV of ERISA; or notice of intent to
terminate any Plan which is then a Material Plan shall be filed under Title IV
of ERISA by any member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Plan which is then a Material Plan; or a condition
shall exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Plan which is then a Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more


 


106

















 


members of the ERISA
Group to incur a current payment obligation, that is, an obligation or series
of obligations payable within 12 months, in excess of $10,000,000;


 


(l)  a judgment or order for the payment of money
in excess of $10,000,000 shall be rendered against the Company or any
Subsidiary and such judgment or order shall continue unsatisfied and unstayed
for a period of 30 days;


 


(m)  any person or group of persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as
amended), other than any employee stock ownership plan maintained for the
benefit of the employees of the Company, shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the Securities
and Exchange Commission under said Act) of 35% or more of the outstanding shares
of common stock of the Company; or, during any period of 12 consecutive
calendar months, individuals (i) who were directors of the Company on the first
day of such period or (ii) whose nomination for election to the board of
directors of the Company was recommended or approved by a vote of at least a
majority of the directors then still in office who were directors of the
Company on the first day of such period, shall cease to constitute a majority
of the board of directors of the Company;


 


(n)  any levy, seizure or attachment of or on any
material portion of the Collateral shall be made, or the loss, theft,
substantial damage to or destruction of a material portion of any Collateral
shall occur, the value of which not fully payable through insurance or compensated
for pursuant to a condemnation award shall equal or exceed $10,000,000 in the
aggregate;


 


(o)  any Lien created by any of the Security
Documents shall at any time fail to constitute a valid and (to the extent
required by the Security Documents) perfected Lien on any material portion of
the Collateral purported to be subject thereto, securing the obligations
purported to be secured thereby, with the priority required by the Loan
Documents, or the Company or any other Loan Party shall so assert in writing;
or


 


(p)  the Subsidiary Guaranty Agreement shall at
any time cease to be a valid and binding obligation of any Subsidiary Loan
Party, or the Company or any Subsidiary Loan Party shall so assert in writing;


 


then, and in every such event
(other than an event with respect to the Company described in clause (g) or (h)
of this Article), and at any time thereafter during the continuance of such
event, the Administrative Agent (i) at the request of the


 


107

















 


Required Lenders, shall, by
notice to the Company, terminate the Commitments, and thereupon the Commitments
shall terminate immediately, and (ii) at the request of Lenders
representing more than 50% of the aggregate principal amount of outstanding
Loans, declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Company accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Company; and
in case of any event with respect to the Company described in clause (g) or (h)
of this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Company accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Company.


 


ARTICLE VIII


 


The
Administrative Agent


 


Each of the Lenders
and the Issuing Banks hereby irrevocably appoints the Administrative Agent as
its agent and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms of the Loan Documents, together with such actions and powers as
are reasonably incidental thereto.


 


The bank serving as
the Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Company or any Subsidiary or other Affiliate thereof as if it were not the
Administrative Agent hereunder.


 


The Administrative
Agent shall not have any duties or obligations except those expressly set forth
in the Loan Documents.  Without limiting
the generality of the foregoing, (a) the Administrative Agent shall not be
subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders (or


 


108

















 


such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 10.02), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to
the Company or any of its Subsidiaries that is communicated to or obtained by
the bank serving as Administrative Agent or any of its Affiliates in any
capacity.  The Administrative Agent
shall not be liable for any action taken or not taken by it with the consent or
at the request of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary under the circumstances as provided in
Section 10.02) or in the absence of its own gross negligence or wilful
misconduct.  The Administrative Agent
shall not be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Company or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or
in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness
of any Loan Document or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in the Effectiveness
Agreement, in Article IV or elsewhere in any Loan Document, other than to
confirm receipt of items expressly required to be delivered to the Administrative
Agent.


 


The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed
or sent by the proper Person.  The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. 
The Administrative Agent may consult with legal counsel (who may be
counsel for any Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.


 


The Administrative
Agent may perform any and all its duties and exercise its rights and powers by
or through any one or more sub-agents appointed by the Administrative
Agent.  The Administrative Agent and any
such sub-agent may perform any and all its duties and exercise its rights and
powers through their respective Related Parties.  The exculpatory provisions of the preceding paragraphs shall
apply to any such sub-agent and to the Related Parties of each Administrative
Agent and any such sub-agent, and shall apply to their respective activities in


 


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connection with the syndication
of the credit facilities provided for herein as well as activities as
Administrative Agent.


 


Subject to the
appointment and acceptance of a successor the Administrative Agent as provided
in this paragraph, the Administrative Agent may resign at any time by notifying
the Lenders, the Issuing Banks and the Company.  Upon any such resignation, the Required Lenders shall have the
right, with the consent of the Company (which consent shall not unreasonably be
withheld and may not be withheld if an Event of Default is continuing, but
which may in any event be withheld (regardless of whether an Event of Default is
continuing) if (a) such proposed successor Administrative Agent fails to
deliver evidence reasonably satisfactory to the Company that such proposed
successor Administrative Agent is not a Foreign Person and (b) the Company in
good faith concludes that the appointment of such proposed successor
Administrative Agent could result in a violation of any law, rule guideline or
regulation, or a violation of, revocation of, failure to renew or modification
of any, order, facility security clearance or permit), to appoint a
successor.  If no successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Banks, appoint a successor Administrative
Agent which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank, and which shall not be a Foreign Person.  Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder.  The fees payable by the Borrowers to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrowers and such successor.  After the Administrative Agent’s resignation hereunder, the
provisions of this Article and Section 10.03 shall continue in effect for
the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.


 


Each Lender
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. 
Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement, any other Loan Document or related agreement or any
document furnished hereunder or thereunder.


 


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None of the
Syndication Agent nor the Documentation Agents, in their capacity as a
syndication agent or a documentation agent, shall have any duties or
responsibilities under this Agreement or any other Loan Document.


 


 


ARTICLE IX


 


Guarantee


 


In order to induce
the Lenders to extend credit to the Borrowing Subsidiaries hereunder, the
Company hereby irrevocably and unconditionally guarantees, as a primary obligor
and not merely as a surety, the Obligations of the Borrowing Subsidiaries.  The Company further agrees that the due and
punctual payment of the Obligations of the Borrowing Subsidiaries may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee hereunder
notwithstanding any such extension or renewal of any Obligation.


 


The Company waives
presentment to, demand of payment from and protest to any Borrowing Subsidiary
of any of the Obligations, and also waives notice of acceptance of its
obligations and notice of protest for nonpayment.  The obligations of the Company hereunder shall not be affected by
(a) the failure of any Lender to assert any claim or demand or to enforce
any right or remedy against any Borrowing Subsidiary under the provisions of
this Agreement, any other Loan Document or otherwise; (b) any extension or
renewal of any of the Obligations; (c) any rescission, waiver, amendment
or modification of, or release from, any of the terms or provisions of this
Agreement or any other Loan Document or agreement; (d) the failure or
delay of any Lender to exercise any right or remedy against any other guarantor
of the Obligations; (e) the failure of any Lender to assert any claim or
demand or to enforce any remedy under any Loan Document or any other agreement
or instrument; (f) any default, failure or delay, wilful or otherwise, in
the performance of the Obligations; or (g) any other act, omission or
delay to do any other act which may or might in any manner or to any extent
vary the risk of the Company or otherwise operate as a discharge of the Company
as a matter of law or equity or which would impair or eliminate any right of
the Company to subrogation.


 


The Company further
agrees that its guarantee hereunder constitutes a promise of payment when due
(whether or not any bankruptcy or similar proceeding shall have stayed the
accrual or collection of any of the Obligations or operated as a discharge
thereof) and not merely of collection, and waives any right to require that any
resort be had by any Lender to any balance of any deposit


 


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account or credit on the books of
any Lender in favor of any Borrower or Subsidiary or any other Person.


 


The obligations of the
Company hereunder shall not be subject to any reduction, limitation, impairment
or termination for any reason, and shall not be subject to any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the Obligations, any
impossibility in the performance of the Obligations or otherwise.


 


The Company further
agrees that its obligations hereunder shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any Obligation is rescinded or must otherwise be restored by any Lender upon
the bankruptcy or reorganization of any Borrower or otherwise.


 


In furtherance of the
foregoing and not in limitation of any other right which any Lender may have at
law or in equity against the Company by virtue hereof, upon the failure of any
Borrowing Subsidiary to pay any Obligation when and as the same shall become
due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, the Company hereby promises to and will, upon receipt of written
demand by the Administrative Agent, forthwith pay, or cause to be paid, to the
Administrative Agent for distribution to the Lenders in cash an amount
equal the unpaid principal amount of such Obligation.


 


Upon payment in full
by the Company of any Obligation of any Borrowing Subsidiary, each Lender
shall, in a reasonable manner, assign to the Company the amount of such
Obligation owed to such Lender and so paid, such assignment to be pro tanto to
the extent to which the Obligation in question was discharged by the Company,
or make such disposition thereof as the Company shall direct (all without
recourse to any Lender and without any representation or warranty by any
Lender).  Upon payment by the Company of
any sums as provided above, all rights of the Company against any Borrowing
Subsidiary arising as a result thereof by way of right of subrogation or
otherwise shall in all respects be subordinated and junior in right of payment
to the prior indefeasible payment in full of all the Obligations owed by such
Borrowing Subsidiary to the Lenders (it being understood that, after the
discharge of all the Obligations due and payable from such Borrowing
Subsidiary, such rights may be exercised by the Company notwithstanding that
such Borrowing Subsidiary may remain contingently liable for indemnity or other
Obligations).


 


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ARTICLE X


 


Miscellaneous


 


SECTION 10.01.  Notices.  (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as
follows:


 


(i) if to the
Company, to it at 5050 Lincoln Drive, 
Edina, MN 55436-1097, Attention of Eric S. Rangen (Telecopy
No. (952) 351-3026);


 


(ii) if to any
Borrowing Subsidiary, to it in care of the Company as provided in paragraph (a)
above;


 


(iii) if to the
Administrative Agent, to JPMorgan Chase Bank, Loan and Agency Services Group,
One Chase Manhattan Plaza, 8th Floor, New York, New York 10081, Attention of
Doris Mesa (Telecopy No. (212) 552-5650), with a copy to JPMorgan
Chase Bank, 270 Park Avenue, New York, New York 10017, Attention of Jack
Riordan and Anne Schuler (Telecopy No. (212) 270-6549), and to Chase
Manhattan Bank Delaware, Corporate Banking Department, 8th Floor, 1201 Market
Street, Wilmington, Delaware 19801; and


 


(iv) if to an Issuing
Bank, a Swingline Lender or any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.


 


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


 


(c) Any party hereto
may change its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto.  All notices and other communications given to any party hereto in
accordance with


 


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the provisions of this Agreement
shall be deemed to have been given on the date of receipt.


 


SECTION 10.02.  Waivers;
Amendments. 
(a)  No failure or delay by the Administrative Agent, any
Issuing Bank or any Lender in exercising any right or power hereunder or under
any other Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or discontinuance
of steps to enforce such a right or power, preclude any other or further
exercise thereof or the exercise of any other right or power.  The rights and remedies of the
Administrative Agent, the Issuing Banks and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. 
No waiver of any provision of any Loan Document or consent to any
departure by any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given.  Without
limiting the generality of the foregoing, the making of a Loan or issuance of a
Letter of Credit shall not be construed as a waiver of any Default, regardless
of whether the Administrative Agent, any Lender or any Issuing Bank may have
had notice or knowledge of such Default at the time.


 


(b)  Neither this Agreement nor any other Loan
Document nor any provision hereof or thereof may be waived, amended or modified
except, in the case of this Agreement, pursuant to an agreement or agreements
in writing entered into by the Company and the Required Lenders or, in the case
of any other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Administrative Agent and the Loan Party or Loan Parties
that are parties thereto, in each case with the consent of the Required
Lenders; provided that no such agreement shall (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii)
reduce the principal amount of any Loan or LC Disbursement or reduce the rate
of interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the date of any
scheduled payment of the principal amount of any Loan or LC Disbursement, or
any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.18(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby (it being understood that the addition of
new tranches of loans or commitments that may be extended under this Agreement
shall not be deemed to alter such pro rata sharing of payments) without the
written consent of each Lender, (v) change any of the provisions of this
Section or the definition of “Required Lenders” or any other provision of any
Loan Document specifying the number or percentage of Lenders (or Lenders of any
Class) required


 


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to waive, amend or modify any
rights thereunder or make any determination or grant any consent thereunder
without the written consent of each Lender (or each Lender of such Class, as
the case may be) (except, in each case, to provide for new tranches of loans or
commitments that are extended under this Agreement), (vi) release the Company
from its Guarantee of any Borrowing Subsidiary under Article IX or, except
as set forth in Section 10.15, release all or substantially all of the
Subsidiary Loan Parties from their Guarantees under the Subsidiary Guaranty
Agreement, or limit their liability in respect of such Guarantee, without the
written consent of each Lender, (vii) release all or substantially all of the
Collateral from the Liens of the Security Documents, without the written
consent of each Lender, (viii) change any provisions of any Loan Document in a
manner that by its terms adversely affects the rights in respect of payments
due to Lenders holding Loans of any Class differently than those holding Loans
of any other Class, without the written consent of Lenders holding a majority
in interest of the outstanding Loans and unused Commitments of each adversely
affected Class and (ix) amend, modify or waive any condition precedent set
forth in Section 4.01 with respect to the making of Revolving Loans, without
the prior written consent of Revolving Lenders holding a majority in interest
of the Revolving Credit Commitments; provided further that (A) no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, any Issuing Bank or any Swingline Lender without the
prior written consent of the Administrative Agent, such Issuing Bank or such
Swingline Lender, as the case may be, and (B) any waiver, amendment or
modification of this Agreement that by its terms affects the rights or duties
under this Agreement of the Revolving Lenders (but not the Tranche A Term
Lenders and Tranche C Term Lenders), the Tranche A Term Lenders (but not the
Revolving Lenders and Tranche C Term Lenders) or the Tranche C Term Lenders
(but not the Revolving Lenders and Tranche A Term Lenders) may be effected by
an agreement or agreements in writing entered into by the Company and the
requisite percentage in interest of the affected Class of Lenders, as the case
may be.  In furtherance of clause (ix)
of this Section 10.02(b), (x) any amendment or modification to or waiver of
Section 6.10, 6.11 or 6.12 of this Agreement and (y) any amendment or
modification to or waiver of any provision of this Agreement or any other Loan
Document at a time when any Default or Event of Default has occurred and is
continuing that would have the effect of eliminating any such Default or Event
of Default shall not be deemed to be effective for purposes of determining
whether the conditions precedent set forth in Section 4.01 to the making of any
Revolving Loan have been satisfied unless the Revolving Lenders holding a
majority in interest of the Revolving Credit Commitments shall have consented
to such amendment, modification or waiver, provided that the foregoing
shall not be construed to affect any amendment or modification to any provision
of this Agreement or any other Loan Document (other than any amendment or
modification to Section 6.10, 6.11 or 6.12 of this Agreement) if no Default or
Event


 


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of Default has occurred and is
continuing at the time of such amendment or modification.


 


(c)
Notwithstanding anything in paragraph (b) of this Section 10.02 to the
contrary, this Agreement and the other Loan Documents may be amended at any
time and from time to time to establish one or more additional Classes of Term
Loans by an agreement in writing entered into by the Company, the
Administrative Agent and each Person (including any Lender) that shall agree to
make a Term Loan of any Class so established (and each such Person that shall
not already be a Lender shall, at the time such agreement becomes effective,
become a Lender with the same effect as if it had originally been a Lender
under this Agreement with the Commitment and/or Term Loans set forth in such
agreement); provided that the
aggregate outstanding principal amount of the Term Loans of all such additional
Classes (other than the Tranche A Term Loans and Tranche C Term Loans) shall at
no time, without the consent of the Required Lenders, exceed $300,000,000.  Any such agreement shall amend the
provisions of this Agreement and the other Loan Documents to set forth the
terms of each Class of Term Loans established thereby (including the amount and
final maturity thereof (which shall not be earlier than the Tranche C Term Loan
Maturity Date), any provisions relating to the amortization (which shall
reflect a weighted average maturity not less than that of the Tranche C Term Loans)
or mandatory prepayment thereof, the interest to accrue and be payable thereon
and any fees to be payable in respect thereof) and to effect such other changes
(including changes to the provisions of this Section 10.02, Section 2.18(b) and
the definition of “Required Lenders” (it being understood that the percentage
referred to in “Required Lenders” cannot be changed except in accordance with
paragraph (b) above)) as the Company and the Administrative Agent shall deem
necessary or advisable to provide for the establishment of any such Class; provided that no such agreement shall (i)
effect any change described in any of clauses (i), (ii), (iii), (vi), (vii),
(viii) or (ix) of paragraph (b) of this Section 10.02 without the consent of
each Person required to consent to such change under such clause (it being
agreed, however, that any establishment of any Class of Term Loans will not, of
itself, be deemed to effect any of the changes described in clauses (vi)
through (ix) of such paragraph (b)), or effect any change in violation of
clauses (iv) or (v) of such paragraph without the consent of each Person
required to consent to such change under such clauses, (ii) amend Article V, VI
or VII to establish any affirmative or negative covenant, Event of Default or remedy
that by its terms benefits one or more Classes, but not all Classes, of Loans
or Borrowings without the prior written consent of Lenders holding a majority
in interest of the Loans and Commitments of each Class not so benefitted (it
being agreed that no provision requiring the Company to prepay Term Loans of
one or more Classes with the proceeds of asset dispositions or casualty events,
with the proceeds of sales of Indebtedness or Equity Interests or with excess
cash flows will be deemed to violate this clause), or otherwise amend Article
V, VI or VII in any manner adverse to the Lenders without the consent of each
Person required to consent to such change as provided in paragraph (b) of this
Section 10.02, or (iii) change any other provision of this Agreement (including


 


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Section 2.11) or any other
Loan Document that creates rights in favor of Lenders holding Loans or
Commitments of any existing Class, other than as necessary or advisable in the
judgment of the Administrative Agent to cause such provision to take into
account, or to make the benefits of such provision available on a ratable basis
to, Lenders holding Term Loans of such new Class.  The Loans, Commitments and Borrowings of any Class established
pursuant to this paragraph shall constitute Loans, Commitments and Borrowings
under, and shall be entitled to all the benefits afforded by, this Agreement
and the other Loan Documents, and shall, without limiting the foregoing,
benefit equally and ratably from the Guarantees and security interests created
by this Agreement, the Subsidiary Guaranty Agreement and the Security
Documents.


 


SECTION 10.03.  Expenses;
Indemnity; Damage Waiver. 
(a)  The Borrowers shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation, execution, delivery and administration of the Loan
Documents or any amendments, modifications or waivers of the provisions thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by each
Issuing Bank in connection with the issuance, amendment, renewal or extension
of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Issuing Bank
or any Lender, including the fees, charges and disbursements of any counsel for
the Administrative Agent, any Issuing Bank or any Lender, in connection with
the enforcement or protection of its rights in connection with the Loan
Documents, including its rights under this Section, or in connection with the
Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.


 


(b)  The Borrowers shall indemnify the
Administrative Agent, each Issuing Bank and each Lender, and each Related Party
of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of
any Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective
obligations thereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the
use of the proceeds therefrom (including any refusal by any Issuing Bank to
honor a demand for payment under a Letter of


 


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Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any Environmental Liability related in any way to
the Company or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or wilful misconduct of such Indemnitee or any officer,
director, employee, affiliate, agent or controlling person of such Indemnitee
(or of an institution of which such Indemnitee is an officer, director,
employee, affiliate, agent or controlling person).


 


(c)  To the extent that the Borrowers fail to pay
any amount required to be paid by them to the Administrative Agent, any Issuing
Bank or any Swingline Lender under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to the Administrative Agent, such Issuing Bank
or such Swingline Lender, as the case may be, such Lender’s pro rata share
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent, such Issuing Bank or such Swingline Lender in its
capacity as such.  For purposes hereof,
a Lender’s “pro rata share” shall be determined based upon its share of the sum
of the total Revolving Exposures, outstanding Term Loans and unused Commitments
at the time.


 


(d)  To the extent permitted by applicable law,
no Borrower shall assert, and each hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.


 


(e)  All amounts due under this Section shall be
payable promptly after written demand therefor.


 


SECTION 10.04.  Successors and Assigns.  (a) 
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 (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), except that no Borrower may assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by a Borrower without
such consent shall be null and void) and except that no Lender


 


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may assign or otherwise transfer
any of its rights or obligations hereunder except in compliance with the
remaining paragraphs of this Section 10.04. 
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 (including any Affiliate of any Issuing
Bank that issues any Letter of Credit), Participants (to the extent provided in
paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing
Banks and the Lenders) any legal or equitable right, remedy or claim under or
by reason of this Agreement.


 


(b)(i)  Subject to the conditions set forth in
paragraph (b)(ii) below, any Lender may assign to one or more assignees all or
a portion of its rights and obligations under this Agreement (including all or
a portion of its Commitment and the Loans at the time owing to it); with the prior
written consent (such consent not to be unreasonably withheld) of:


 


(A) the Company,
provided that no consent of the Company shall be required for an assignment to
a Lender, an Affiliate of a Lender, an Approved Fund (as defined below) or, if
an Event of Default under clause (a), (g) or (h) of Article VII has
occurred and is continuing, any other assignee; and


 


(B) the
Administrative Agent (and, in the case of an assignment of all or a portion of
a Revolving Commitment or any Lender’s obligations in respect of its LC
Exposure or Swingline Exposure, each Issuing Bank and each Swingline Lender),
provided that no consent of the Administrative Agent shall be required for an
assignment to an assignee that is a Lender immediately prior to giving effect
to such assignment.


 


(ii)  Assignments shall be subject to the
following conditions:


 


(A) except in the
case of an assignment to a Lender or an Affiliate of a Lender or an assignment
of the entire remaining amount of the assigning Lender’s Commitment or Loans, the
amount of the Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than (x) $5,000,000, in the case of Tranche A Term Loans, Tranche A
Term Loan Commitments, Revolving Loans or Revolving Commitments and (y)
$1,000,000, in the case of Tranche C Term Loans or Tranche C Term Loan
Commitments, unless each of the Company and the Administrative Agent otherwise
consent, provided that no such consent of the Company shall be required if an
Event of Default under clause (a), (g) or (h) of Article VII has occurred and
is continuing;


 


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(B) 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, provided that
this clause shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender’s rights and obligations in
respect of one Class of Commitments or Loans;


 


(C) the parties to
each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500;


 


(D) the assignee, if
it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; and


 


(E) in the case of an
assignment by a Lender to a CLO (as defined below) administered or managed by
such Lender or an Affiliate of such Lender, the assigning Lender shall retain
the sole right to approve any amendment, modification or waiver of any
provision of this Agreement, provided that the Assignment and Acceptance
between such Lender and such CLO may provide that such Lender will not, without
the consent of such CLO, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such CLO.


 


For purposes of this
Section 10.04(b), the terms “Approved Fund” and “CLO” have the following
meanings:


 


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


 


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


 


(iii)  Subject to acceptance and recording thereof
pursuant to paragraph (b)(iv) of this Section, from and after the
effective date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder


 


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shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance 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 2.15, 2.16, 2.17 and
10.03.  Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 10.04 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 paragraph (c) of this Section.


 


(iv)  The Administrative Agent, acting for this
purpose as an agent of the Borrowers, shall maintain at one of its offices in
the United States a copy of each Assignment and Acceptance delivered to it and
a register for the recordation of the names and addresses of the Lenders, and
the Commitment of, and principal amount of the Loans and LC Disbursements 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 Administrative Agent, the Issuing Banks 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,
the Issuing Banks and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.


 


(v)  Upon its receipt of a duly completed
Assignment and Acceptance executed by an assigning Lender and an assignee, the
assignee’s completed Administrative Questionnaire (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Acceptance and record the information contained
therein in the Register.  No assignment
shall be effective for purposes of this Agreement unless it has been recorded
in the Register as provided in this paragraph.


 


(c)(i)  Any Lender may, without the consent of any
Borrower, the Administrative Agent, the Issuing Banks or the Swingline Lenders,
sell participations to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to
it); provided that (A) such Lender’s obligations under this
Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrowers, the Administrative Agent, the Issuing Banks and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this


 


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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 the Loan Documents and to approve any
amendment, modification or waiver of any provision of the Loan Documents; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 10.02(b) that affects such Participant.  Subject to paragraph (c)(ii) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.  To the extent permitted
by law, each Participant also shall be entitled to the benefits of
Section 10.08 as though it were a Lender, provided such Participant agrees
to be subject to Section 2.18(c) as though it were a Lender.


 


(ii)  A Participant shall not be entitled to
receive any greater payment under Section 2.15 or 2.17 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 Company’s prior written consent.  A Participant that is organized under the
laws of a jurisdiction outside the United States shall not be entitled to the
benefits of Section 2.17 unless the Company is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 2.17(e) as though it were a
Lender.


 


(d)  Any Lender may at any time pledge or assign
a security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.  In the case
of any Lender that is a fund that invests in bank loans, such Lender may,
without the consent of the Borrowers or the Administrative Agent, assign or
pledge all or any portion of its Notes or any other instrument evidencing its
rights as a Lender under this Agreement to any trustee for, or any other
representative of holders of, obligations owed or securities issued by such
fund, as security for such obligations or securities; provided that any
foreclosure or similar action by such trustee or representative shall be
subject to the provisions of this Section 10.04 concerning assignments.


 


SECTION 10.05.  Survival.  All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been


 


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relied upon by the other parties
hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letters of Credit, regardless of
any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent, any Issuing Bank or any Lender
may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in
full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this Agreement is
outstanding and unpaid or any Letter of Credit is outstanding and so long as
the Commitments have not expired or terminated.  The provisions of Sections 2.15, 2.16, 2.17 and 10.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.


 


SECTION 10.06.  Counterparts;
Integration; Effectiveness. 
This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract.  This Agreement, the other Loan Documents and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.  This Agreement shall become effective as
provided in the Effectiveness Agreement.


 


SECTION 10.07.  Severability.  Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.


 


SECTION 10.08.  Right of
Setoff.  If an Event of
Default shall have occurred and be continuing, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of any Borrower against any of and all the obligations of
any Borrower now or hereafter existing under this Agreement held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured.  The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.


 


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SECTION 10.09.  Governing
Law; Jurisdiction; Consent to Service of Process.  (a) 
Pursuant to NYGOL §5-1401, this Agreement shall be construed in
accordance with and governed by the law of the State of New York.


 


(b)  Each Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court.  Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.  Nothing in this Agreement or any
other Loan Document shall affect any right that the Administrative Agent, any
Issuing Bank or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any other Loan Document against any Borrower or
its properties in the courts of any jurisdiction.


 


(c)  Each Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in paragraph (b) of this
Section.  Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.


 


(d)  Each
party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 10.01.  Nothing in this Agreement or any other Loan Document will affect
the right of any party to this Agreement to serve process in any other manner
permitted by law.


 


SECTION 10.10.  WAIVER OF
JURY TRIAL.  EACH PARTY
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY).  EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF


 


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ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


SECTION 10.11.  Headings.  Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.


 


SECTION 10.12.  Confidentiality.  Each of the Administrative Agent, the
Issuing Banks and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates’ directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority,
(c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement, (g) with the consent
of the Company, (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent, any Issuing Bank or
any Lender on a nonconfidential basis from a source other than a Loan Party, or
(i) to any direct or indirect contractual counterpart in any swap, hedge
or similar agreement (or to any such contractual counterparty’s professional
advisor), so long as such contractual counterparty (or such professional
advisor) agrees to be bound by the provisions of this Section 10.12.  For the purposes of this Section, “Information” means all information
received from any Loan Party relating to any Loan Party or its business,
operations, assets, liabilities, financial condition or position or results of
operations or prospects other than any such information that is available to
the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by any Loan Party. 
Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation
to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.


 


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SECTION 10.13.  Interest
Rate Limitation. 
Notwithstanding anything herein to the contrary, if at any time the
interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law
(collectively the “Charges”), shall exceed the maximum lawful rate (the
“Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest
and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.


 


SECTION 10.14.  Information
Concerning Foreign Persons. 
Each Lender that is or becomes a Foreign Person after the Effectiveness
Date, shall deliver to each of the Company and the Administrative Agent
promptly after becoming a Foreign Person, written notice that such Lender is or
has become a Foreign Person and such other information concerning the
ownership, jurisdiction of organization or citizenship of such Lender or any
Person directly or indirectly controlling such Lender as the Company may
reasonably request to comply with any applicable laws, rules, regulations and
orders (including any applicable laws, rules, regulations and orders relating
to national security).  If, upon receipt
of any such notice, the Company in good faith concludes that, as a consequence
of such Lender’s being or becoming a Foreign Person, there could result a
violation of any law, rule or regulation, or a violation of, revocation of,
failure to renew or modification of any order, facility security clearance or
permit, the Company shall have the right, with the assistance of the
Administrative Agent, to seek a substitute lender or lenders reasonably
satisfactory to the Administrative Agent, the Issuing Banks, the Swingline
Lenders and the Company (which may be one or more of the Lenders) to purchase
the Loans and assume the Commitments of such Lender, and the Company, the
Administrative Agent, such Lender and substitute lender or lenders shall
execute and deliver an appropriately completed Assignment and Acceptance
pursuant to Section 10.04(b) hereof to effect the assignment of rights to and
assumption of obligations by such substitute lender or lenders.


 


SECTION 10.15.  Release
of Liens and Guarantees. (a) 
In the event that the Company or any Subsidiary sells, transfers or
otherwise disposes of all or any portion of any of the Equity Interests, assets
or property owned by the Company or such Subsidiary (other than to the Company
or a Subsidiary or


 


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Affiliate) in a transaction not
prohibited by this Agreement, the Administrative Agent shall promptly (and the
Lenders hereby authorize and instruct the Administrative Agent to) take such
action and execute any such documents as may be reasonably requested by the
Company to release any Liens created by any Loan Document in respect of such
Equity Interests, assets or property, including the release and satisfaction of
record of any mortgage or deed of trust granted in connection herewith, and, in
the case of a disposition of all or substantially all the Equity Interests or
assets of any Subsidiary that is a Loan Party, to terminate such Subsidiary’s
obligations under the Subsidiary Guaranty Agreement and each other Loan Document.


 


(b)  Promptly after the Spear Final Contribution
Date and the repayment in full of all amounts due under the Spear Note, the
Administrative Agent shall (and the Lenders hereby authorize and instruct the
Administrative Agent to) take such action and execute any such documents as may
be reasonably requested by the Company to release the Liens created by the
Security Documents under Section 5.08(b)(i) and the pledge of any Equity
Interests in the Spear Joint Venture being transferred to any third party in
connection with the Spear Final Contribution Date.  The pledge of the Equity Interests owned by the Company and the
Subsidiaries in the Spear Joint Venture shall continue after the Spear Final
Contribution Date.


 


(c)  The Administrative Agent will take such
actions as are reasonably requested by the Company to terminate the Liens and
security interests created by the Loan Documents when all the Obligations have
been paid in full and all Letters of Credit and Commitments have been
terminated.


 


(d)  The Company agrees to pay all out-of-pocket
expenses of the Administrative Agent in connection with releases of Liens and
obligations under the Subsidiary Guaranty Agreement provided for in this
Section.


 


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


 


 


	
   

  	
  ALLIANT TECHSYSTEMS
  INC.,

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CHASE MANHATTAN
  BANK

  DELAWARE, as an Issuing Bank,

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE
  BANK,

  individually and as Administrative Agent

  and Swingline Lender,

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (THE OTHER LENDERS,
  ISSUING

  BANKS AND SWINGLINE LENDERS

  THAT ARE SIGNATORIES TO THE

  EFFECTIVENESS AGREEMENT),

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
						



 


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