exv10w1



 


Exhibit 10.1



 



 



COMPOSITE CONFORMED COPY



As amended by:

First Amendment to Loan and Security Agreement

dated as of August 22, 2002,

Second Amendment to Loan and Security Agreement

dated as of October 4, 2002,

and

Third Amendment to Loan and Security Agreement

dated as of February 4, 2003



 




LOAN AND SECURITY AGREEMENT



by and among



ORBITAL SCIENCES CORPORATION



as Borrower,



THE LENDERS THAT ARE SIGNATORIES HERETO

as the Lenders,

and

FOOTHILL CAPITAL CORPORATION

as the Arranger and Agent



Dated as of March 1, 2002



 










 



LOAN AND SECURITY AGREEMENT



     THIS LOAN AND SECURITY AGREEMENT (this “Agreement”), is entered into as of
March 1, 2002, between and among, on the one hand, the lenders identified on
the signature pages hereof (such lenders, together with their respective
successors and assigns, are referred to hereinafter each individually as a
“Lender” and collectively as the “Lenders”), FOOTHILL CAPITAL CORPORATION, a
California corporation, as the arranger and agent for the Lenders (“Agent”),
and, on the other hand, ORBITAL SCIENCES CORPORATION, a Delaware corporation
(“Borrower”).


     The parties agree as follows:


1.     DEFINITIONS AND CONSTRUCTION.



      1.1    Definitions. As used in this Agreement, the following terms shall
have the following definitions:


               “Ableco” means Ableco Finance LLC, a Delaware limited liability company.


               “Account Debtor” means any Person who is or who may become obligated
under, with respect to, or on account of, an Account, Chattel Paper, or a
General Intangible.


               “Accounts” means all of Borrower’s now owned or hereafter acquired right,
title, and interest with respect to “accounts” (as that term is defined in the
Code), and any and all Supporting Obligations in respect thereof.


               “ACH Transactions” means any cash management or related services
(including the Automated Clearing House processing of electronic funds
transfers through the direct Federal Reserve Fedline system) provided by Wells
Fargo or its Affiliates for the account of Borrower or its Subsidiaries.


               “Additional Documents” has the meaning set forth in Section 4.4.


               “Advances” has the meaning set forth in Section 2.1.



               “Affiliate” means, as applied to any Person, any other Person who,
directly or indirectly, controls, is controlled by, or is under common control
with, such Person. For purposes of this definition, “control” means the
possession, directly or indirectly, of the power to direct the management and
policies of a Person, whether through the ownership of Stock, by contract, or
otherwise; provided, however, that, for purposes of the definition of Eligible
Accounts and Section 7.14 hereof: (a) any Person which owns directly or
indirectly 10% or more of the securities having ordinary voting power for the
election of directors or other members of the governing body of a Person or 10%
or more of the partnership or other ownership interests of a Person (other than
as a limited partner of such Person) shall be deemed to control such Person;
(b) each director (or comparable manager) of a Person shall be deemed to be an
Affiliate of such Person; and (c) each partnership or joint venture in which a
Person is a partner or joint venturer shall be deemed to be an Affiliate of
such Person.


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               “Agent” means Foothill, solely in its capacity as agent for the Lender
Group hereunder, and any successor thereto.


               “Agent’s Account” means an account at a bank designated by Agent from time
to time as the account into which Borrower shall make all payments to Agent for
the benefit of the Lender Group and into which the Lender Group shall make all
payments to Agent under this Agreement and the other Loan Documents; unless and
until Agent notifies Borrower and the Lender Group to the contrary, Agent’s
Account shall be that certain deposit account listed on Schedule A-1.


               “Agent Advances” has the meaning set forth in Section 2.3(e)(i).


               “Agent’s Liens” means the Liens granted by Borrower or any Guarantor to
Agent for the benefit of the Lender Group under this Agreement or the other
Loan Documents.


               “Agent-Related Persons” means Agent together with its Affiliates,
officers, directors, employees, and agents.


               “Agreement” has the meaning set forth in the preamble hereto.



               “Andersen” means Arthur Andersen LLP.



               “Applicable Partial Prepayment Premium” means, as of any date of
determination, an amount equal to (a) during the period of time from and after
the Closing Date up to the date that is the first anniversary of the Closing
Date, 3.0% times the portion of the Net Proceeds received by Borrower from a
Permitted Disposition that is applied to permanently reduce the Revolver Usage
and the Revolver Commitments, (b) during the period of time from and including
the date that is the first anniversary of the Closing Date up to the date that
is the second anniversary of the Closing Date, 2.0% times the portion of the
Net Proceeds from a Permitted Disposition received by Borrower from a Permitted
Disposition that is applied to permanently reduce the Revolver Usage and the
Revolver Commitments, and (c) during the period of time from and including the
date that is the second anniversary of the Closing Date up to the Maturity
Date, 1.0% times the portion of the Net Proceeds from a Permitted Disposition
received by Borrower from a Permitted Disposition that is applied to
permanently reduce the Revolver Usage and the Revolver Commitments.



               “Applicable Prepayment Premium” means, as of any date of determination, an
amount equal to (a) during the period of time from and after the date of the
execution and delivery of this Agreement up to the date that is the first
anniversary of the Closing Date, 3.0% times the Maximum Revolver Amount, (b)
during the period of time from and including the date that is the first
anniversary of the Closing Date up to the date that is the second anniversary
of the Closing Date, 2.0% times the Maximum Revolver Amount, and (c) during the
period of time from and including the date that is the second anniversary of
the Closing Date up to the Maturity Date, 1.0% times the Maximum Revolver
Amount.




               “Assignee” has the meaning set forth in Section 14.1.



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               “Assignment and Acceptance” means an Assignment and Acceptance in the form
of Exhibit A-1.


               “Assignment of Claims Act” means the Assignment of Claims Act of 1940, as
amended, 31 U.S.C. § 3727, 41 U.S.C. § 15, or any replacement statute thereto.


               “Authorized Person” means any officer or other employee of Borrower.


               “Availability” means, as of any date of determination, if such date is a
Business Day, and determined at the close of business on the immediately
preceding Business Day, if such date of determination is not a Business Day,
the amount that Borrower is entitled to borrow as Advances under Section 2.1
(after giving effect to all then outstanding Obligations (other than Bank
Product Obligations) and all sublimits and reserves applicable hereunder).


               “Bank Product Agreements” means those certain cash management service
agreements entered into from time to time by Borrower or its Subsidiaries in
connection with any of the Bank Products.


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


               “Bank Products” means any service or facility extended to Borrower or its
Subsidiaries by Wells Fargo or any Affiliate of Wells Fargo including: (a)
credit cards, (b) credit card processing services, (c) debit cards, (d)
purchase cards, (e) ACH Transactions, (f) cash management, including controlled
disbursement accounts or services, or (g) Hedge Agreements.


               “Bank Product Reserves” means, as of any date of determination, the amount
of reserves that Agent has established (based upon Wells Fargo’s or its
Affiliate’s reasonable determination of the credit exposure in respect of then
extant Bank Products) for Bank Products then provided or outstanding; provided
that such reserves are established at the time Wells Fargo or its Affiliate
provides such Bank Products.


               “Bankruptcy Code” means the United States Bankruptcy Code, as in effect
from time to time.


               “Baseline Contract” means each of the twenty (20) largest Firm Contracts
of Borrower (other than Excluded Contracts), determined on the basis of
remaining firm backlog under each such Firm Contract as of the last day of the
immediately preceding fiscal quarter, provided, however, that any Firm Contract
entered into after the Closing Date shall not be a Baseline Contract until such
time as Borrower has formally established the Baseline EAC Profit


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of such
contract in a manner consistent with past practices for establishing such
amount on similar contracts.


               “Baseline EAC Profit” means, as of any date of determination, the
aggregate estimated profit at completion as established for all of the Baseline
Contracts as of most recently ended fiscal year. For purposes of calculating
Baseline EAC Profit as of any date of determination pursuant to Section
7.20(c), Baseline EAC Profit may be adjusted to reflect any amendment,
modification or termination of any Baseline Contract that occurs during any
fiscal quarter.


               “Baseline Reserve” means a $5,000,000 reserve against Availability, which
reserve may be reduced by Required Lenders in their sole discretion.


               “Base Rate” means, the rate of interest announced within Wells Fargo at
its principal office in San Francisco as its “prime rate”, with the
understanding that the “prime rate” is one of Wells Fargo’s base rates (not
necessarily the lowest of such rates) and serves as the basis upon which
effective rates of interest are calculated for those loans making reference
thereto and is evidenced by the recording thereof after its announcement in
such internal publication or publications as Wells Fargo may designate.


               “Base Rate Revolving Loan Margin” means 2.25 percentage points.



               “Benefit Plan” means a “defined benefit plan” (as defined in Section 3(35)
of ERISA) for which Borrower or any Subsidiary or ERISA Affiliate of Borrower
has been an “employer” (as defined in Section 3(5) of ERISA) within the past
six (6) years.


               “Board of Directors” means the board of directors (or comparable managers)
of Borrower or any committee thereof duly authorized to act on behalf of the
board.


               “Boeing” means The Boeing Company, a Delaware corporation, and its
Subsidiaries.


               “Books” means Borrower’s and its Subsidiaries now owned or hereafter
acquired books and records (including all of its Records indicating,
summarizing, or evidencing its assets (including the Collateral) or
liabilities, all of Borrower’s or its Subsidiaries’ Records relating to its or
their business operations or financial condition, and all of its or their goods
or General Intangibles related to such information, including, without
limitation, (i) original copies of all documents, instruments or other writings
or electronic records or other Records evidencing Accounts, (ii) all books,
correspondence, credit or other files, Records, ledger sheets or cards,
invoices and other papers relating to Accounts, including, without limitation,
all tapes, cards, computer tapes, computer discs, computer runs, record keeping
systems and other papers and documents relating to Accounts, whether in the
possession or under the control of Borrower or any of its Subsidiaries or any
computer bureau or agent from time to time acting for Borrower or any of its
Subsidiaries or otherwise, (iii) all evidences of the filing of financing
statements and the registration of other instruments in connection therewith,
and all amendments, supplements or other modifications thereto, notices to
other creditors or secured parties, and certificates, acknowledgments, or other
writings, including, without limitation, lien search reports, from


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filing or
other registration offices, and (iv) all credit information related in any way
to the foregoing or any Account).


               “Borrower” has the meaning set forth in the preamble to this Agreement.


               “Borrowing” means a borrowing hereunder consisting of Advances made on the
same day by the Lenders (or Agent on behalf thereof), or by Swing Lender in the
case of a Swing Loan, or by Agent in the case of an Agent Advance.


               “Borrowing Base” has the meaning set forth in Section 2.1.



               “Borrowing Base Certificate” means a certificate substantially in the form
of Exhibit B-1 delivered by the chief financial officer or chief accounting
officer of Borrower to Agent.


               “Business Day” means any day that is not a Saturday, Sunday, or other day
on which national banks are authorized or required to close.


               “Capital Expenditures” means capital expenditures as determined in
accordance with Borrower’s consolidated statement of cash flows determined in
accordance with GAAP.


               “Capital Lease” means a lease that is required to be capitalized for
financial reporting purposes in accordance with GAAP.


               “Capitalized Lease Obligation” means any Indebtedness represented by
obligations under a Capital Lease.


               “Cash Equivalents” means (a) marketable direct obligations issued or
unconditionally guaranteed by the United States or issued by any agency thereof
and backed by the full faith and credit of the United States, in each case
maturing within one (1) year from the date of acquisition thereof, (b)
marketable direct obligations issued by any state of the United States or any
political subdivision of any such state or any public instrumentality thereof
maturing within one (1) year from the date of acquisition thereof and, at the
time of acquisition, having the highest rating obtainable from either S&P or
Moody’s, (c) commercial paper maturing no more than two hundred seventy (270)
days from the date of acquisition thereof and, at the time of acquisition,
having a rating of A-1 or P-1, or better, from S&P or Moody’s, (d) certificates
of deposit or bankers’ acceptances maturing within one (1) year from the date
of acquisition thereof either (i) issued by any bank organized under the laws
of the United States or any state thereof which bank has a rating of A or A2,
or better, from S&P or Moody’s, or (ii) certificates of deposit less than or
equal to $100,000 in the aggregate issued by any other bank insured by the
Federal Deposit Insurance Corporation, (e) repurchase obligations with a term
of not more than seven (7) days for underlying obligations of the types
described in clauses (a), (b) and (d) above entered into with any financial
institutions meeting the qualifications specified in clause (d)(i) above and
(f) money market funds that (i) have a rating of AAA or Aaa, or better, from
S&P or Moody’s and (ii) consist of assets that constitute Cash Equivalents of
the kinds described in clauses (a)-(c) of this definition.


               “Cash Management Bank” has the meaning set forth in Section 2.7(a).


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               “Cash Management Account” has the meaning set forth in Section 2.7(a).


               “Cash Management Agreements” means those certain cash management service
agreements, including, without limitation, lockbox agreements and blocked
account agreements, in form and substance satisfactory to Agent, each of which
is among Borrower, Agent, and one of the Cash Management Banks.


               “Change of Control” means (a) any “person” or “group” (within the meaning
of Sections 13(d) and 14(d) of the Exchange Act), becomes the beneficial owner
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
30%, or more, of the Stock of Borrower having the right to vote for the
election of members of the Board of Directors, or (b) a majority of the members
of the Board of Directors do not constitute Continuing Directors, or (c)
Borrower ceases to directly own and control (i) 100% of the outstanding capital
Stock of each of its Subsidiaries (other than Orbital Communications) extant as
of the Closing Date (other than in connection with any permitted dissolution of
such Subsidiary in accordance with the Loan Documents), or (ii) 99% of the
outstanding capital stock of Orbital Communications.


               “Chattel Paper” means all of Borrower’s now owned or hereafter acquired
right, title and interest with respect to the “chattel paper” as that term is
defined in the Code, including, without limitation, tangible chattel paper and
electronic chattel paper.


               “Closing Date” means the date of the making of the initial Advance (or
other extension of credit) hereunder or the date on which Agent sends Borrower
a written notice that each of the conditions precedent set forth in Section 3.1
either have been satisfied or have been waived.


               “Closing Date Baseline EAC Analysis” shall mean the Baseline Contract
analysis as of December 31, 2001 attached hereto as Schedule C-2.


               “Closing Date Business Plan” means the set of consolidated Projections of
Borrower and all divisions thereof for the three (3) year period commencing on
January 1, 2002 (on a year by year basis, and for the one (1) year period
following the Closing Date, on a quarter by quarter basis, attached hereto as
Schedule C-3.


               “Code” means the New York Uniform Commercial Code, as in effect from time
to time.


               “Collateral” means all of Borrower’s now owned or hereafter acquired
right, title, and interest in and to each of the following:


               (a) Accounts,



               (b) Books,



               (c) Chattel Paper,



               (d) Deposit Accounts, including any DDAs,




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               (e) Equipment,



               (f) Financial Assets,



               (g) General Intangibles,



               (h) Inventory,



               (i) Investment Property,



               (j) Negotiable Collateral,



               (k) Real Property Collateral,



               (l) Supporting Obligations,



               (m)  any “commercial tort claims” as that term is defined in the Code, as
set forth on Schedule C-4 attached hereto,


               (n)  money, cash (except as otherwise excluded by clause (b) of the
definition of “Excluded Collateral”), Cash Equivalents, or other assets of
Borrower that now or hereafter come into the possession, custody, or control of
any member of the Lender Group, and


               (o)  the proceeds and products, whether tangible or intangible, of any of
the foregoing, including proceeds of insurance or commercial tort claims,
covering any or all of the foregoing, and any and all Accounts, Books, Chattel
Paper, Deposit Accounts, Equipment, Financial Assets, General Intangibles,
Inventory, Investment Property, Negotiable Collateral, Real Property,
Supporting Obligations, money, Deposit Accounts, or other tangible or
intangible property resulting from the sale, lease, license, exchange,
collection, or other disposition of any of the foregoing, or any portion
thereof or interest therein, and the proceeds thereof, and


               (p)  to the extent not included in the foregoing and to the extent such
assets are not Excluded Collateral, all other personal property of Borrower of
any kind or description.


               “Collateral Access Agreement” means a landlord waiver, bailee letter, or
acknowledgement agreement of any lessor, warehouseman, processor, consignee, or
other Person in possession of, having a Lien upon, or having rights or
interests in the Equipment or Inventory, in each case, in form and substance
satisfactory to Agent in its Permitted Discretion.


               “Collections”
means all cash, checks, notes, instruments, and other items
of payment (including insurance proceeds, Net Proceeds of cash sales, Net
Proceeds from equity issuances, rental proceeds, and tax refunds) of Borrower.


               “Commitment” means, with respect to each Lender, its Revolver Commitment
or its Total Commitment, as the context requires, and, with respect to all
Lenders, their Revolver Commitments or their Total Commitments, as the context
requires, in each case as such Dollar amounts are set forth beside such
Lender’s name under the applicable heading on Schedule C-1


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or on the signature
page of the Assignment and Acceptance pursuant to which such Lender became a
Lender hereunder in accordance with the provisions of Section 14.1.


               “Compliance Certificate” means a certificate substantially in the form of
Exhibit C-1 delivered by the chief financial officer of Borrower to Agent.


               “Continuing Director” means (a) any member of the Board of Directors who
was a director (or comparable manager) of Borrower on the Closing Date, and (b)
any individual who becomes a member of the Board of Directors after the Closing
Date if such individual was appointed or nominated for election to the Board of
Directors by a majority of the Continuing Directors, but excluding any such
individual originally proposed for election in opposition to the Board of
Directors in office at the Closing Date in an actual or threatened election
contest relating to the election of the directors (or comparable managers) of
Borrower (as such terms are used in Rule 14a-11 under the Exchange Act) and
whose initial assumption of office resulted from such contest or the settlement
thereof.


               “Control Agreement” means a control agreement, in form and substance
satisfactory to Agent in its Permitted Discretion, executed and delivered by
Borrower or any Subsidiary of Borrower, as applicable, Agent, and the
applicable securities intermediary with respect to a Securities Account or a
bank with respect to a deposit account.


               “Current EAC Profit” means, as of the date of determination, the aggregate
profit as of such date of determination and the remaining aggregate estimated
profit at completion for all the Baseline Contracts, solely to the extent the
profit with respect to such Baseline Contracts is included in the Baseline EAC
Profit, calculated in a manner consistent with the Closing Date Baseline EAC
Analysis.


               “Daily Balance” means, with respect to each day during the term of this
Agreement, the amount of an Obligation owed at the end of such day.


               “DDA” means any checking or other demand deposit account maintained by
Borrower or a Subsidiary of Borrower.


               “Default” means an event, condition, or default that, with the giving of
notice, the passage of time, or both, would be an Event of Default.


               “Defaulting Lender” means any Lender that fails to make any Advance (or
other extension of credit) that it is required to make hereunder on the date
that it is required to do so hereunder.


               “Defaulting Lender Rate” means (a) the Base Rate for the first three (3)
days from and after the date the relevant payment is due, and (b) thereafter,
at the interest rate then applicable to Advances (inclusive of the Base Rate
Revolving Loan Margin applicable thereto).


               “Deposit Accounts” means all of Borrower’s now owned or hereafter acquired
right, title, and interest with respect to any “deposit account” as that term
is defined in the Code, including, without limitation, any DDA maintained by
Borrower.


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               “Designated Account” means that certain account in Borrower’s name at the
Designated Account Bank designated as such on Schedule B-1, or such other
deposit account of Borrower (located within the United States) that has been
designated as such, in writing, by Borrower to Agent.


               “Designated Account Bank” means the designated institution that has been
designated as such on Schedule B-1 or has otherwise been designated as such, in
writing by Borrower to Agent.


               “Designated Insurance Policy” has the meaning set forth in Section 6.8(a).


               “Designated Senior Indebtedness” has the meaning set forth in the
Indenture and the New Indenture, respectively.


               “Dilution” means, as of any date of determination, a percentage, based
upon the experience of the immediately prior three (3) months, that is the
result of dividing the Dollar amount of (a) bad debt write-downs, discounts,
credits, or other dilutive items with respect to the Accounts during such
period, by (b) Borrower’s gross billings with respect to Accounts during such
period (excluding extraordinary items).


               “Dilution Reserve” means, as of any date of determination, an amount
sufficient to reduce the advance rate against Eligible Accounts by one
percentage point for each percentage point by which Dilution is in excess of
5.0%.


               “Disbursement Letter” means an instructional letter executed and delivered
by Borrower to Agent regarding the extensions of credit to be made on the
Closing Date, in form and substance satisfactory to Agent.


               “Dollars” or “$” means United States dollars.



               “EBITDA” means, with respect to any fiscal period, Borrower’s and its
Subsidiaries’ consolidated net earnings (or loss), plus interest expense,
income taxes and depreciation and amortization, for such period, as determined
in accordance with GAAP, plus the non-cash portion of extraordinary losses
(including, without limitation, non-cash losses from equity adjustments), minus
gains as a result of the termination of the X-34 project with NASA, minus
extraordinary gains (excluding insurance recoveries under any Mission Success
Policy).


               “Eligible Accounts” means, collectively, the Eligible Domestic Billed
Accounts and the Eligible Domestic Unbilled Accounts.


               “Eligible Domestic Accounts” means those Accounts created by Borrower in
the ordinary course of its business, that arise out of Borrower’s sale of goods
or rendition of services, that comply with each of the representations and
warranties respecting Eligible Domestic Accounts made by Borrower in the Loan
Documents, and that are not excluded as ineligible by virtue of one or more of
the criteria set forth below; provided, however, that such criteria may be
fixed and revised from time to time by Agent in Agent’s Permitted Discretion to
address the results of any accounts receivable audit performed by Agent from
time to time after the Closing Date. The amount to be included with respect to
any Eligible Domestic Account shall be


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calculated net of customer deposits (to
the extent not applied) and unapplied cash remitted to Borrower in connection
with such Eligible Domestic Account. Eligible Domestic Accounts shall not
include the following:


               (a)  Accounts with respect to which the Account Debtor is an employee,
Affiliate, or agent of Borrower;


               (b)  Accounts arising in a transaction wherein goods are placed on
consignment or are sold pursuant to a guaranteed sale, a sale or return, a sale
on approval, a bill and hold, or any other terms by reason of which the payment
by the Account Debtor may be conditional;


               (c)  Accounts that are not payable in Dollars;


               (d)  Accounts with respect to which the Account Debtor either (i) does not
maintain its chief executive office in the United States, or (ii) is not
organized under the laws of the United States or any state thereof, or (iii) is
the government of any foreign country or sovereign state, or of any state,
province, municipality, or other political subdivision thereof, or of any
department, agency, public corporation, or other instrumentality thereof,
unless, with respect to billed Accounts only, the Account is supported by an
irrevocable letter of credit satisfactory to Agent (as to form, substance and
issuer or domestic confirming bank) that has been delivered to Agent and is
directly drawable by Agent;


               (e)  Accounts with respect to which the Account Debtor is the United States
or any United States Agency, exclusive of (i) any Account with a remaining
billable contract value of less than $2,000,000 after the Closing Date, and
(ii) any Account with a remaining billable contract value equal to or greater
than $2,000,000 after the Closing Date if (A) Agent has received a written
acknowledgement from the relevant government contracting officer (or other
authorized party) acknowledging receipt of a notice of assignment under the
Assignment of Claims Act for such Account or (B) (I) if such Account relates to
a contract existing on the Closing Date, (x) Borrower prepares and delivers to
Agent on the Closing Date a notice of assignment or other documentation
required pursuant to F.A.R. § 32.802 and F.A.R. § 32.805 and (y) the ninetieth
(90th) day following the Closing Date has not yet occurred, or (II) if such
Account relates to a contract entered into after the Closing Date, (x) Borrower
prepares and delivers to Agent a notice of assignment or other documentation
required pursuant to F.A.R. § 32.802 and F.A.R. § 32.805 within twenty (20)
days of the execution of such contract and (y) the ninetieth (90th) day
following the execution of such contract has not yet occurred; provided,
however, that no Account shall be excluded pursuant to this clause (e) if the
reason that an acknowledgement was not received within the requisite ninety
(90) day period is due to Agent’s failure to execute and deliver the notice of
assignment or other required documentation provided by Borrower to Agent in a
timely manner;


               (f)  Accounts with respect to which the Account Debtor is a State of the
United States, exclusive of (i) any Account with a remaining billable contract
value of less than $2,000,000 after the Closing Date, (ii) any Account owed by
any State that does not have a statutory counterpart to the Assignment of
Claims Act, and (iii) any Account with a remaining billable contract value
equal to or greater than $2,000,000 after the Closing Date that is owed by


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a
State that has a statutory counterpart of the Assignment of Claims Act if (A)
Agent has received a written acknowledgement (to the extent applicable under
the applicable state statute) from the relevant government contracting officer
(or other authorized party) acknowledging receipt of a notice of assignment
under the applicable statute for such Account or (B) (I) if such Account
relates to a contract existing on the Closing Date, (x) Borrower prepares and
delivers to Agent on the Closing Date a notice of assignment or other
documentation required pursuant to applicable statute and (y) the ninetieth
(90th) day following the Closing Date has not yet occurred, or (II) if such
Account relates to a contract entered into after the Closing Date, (x) Borrower
prepares and delivers to Agent a notice of assignment or other documentation
required pursuant applicable statute within twenty (20) days of the execution
of such contract and (y) the ninetieth (90th) day following the execution of
such contract has not yet occurred; provided, however, that no Account shall be
excluded pursuant to this clause (f) if the reason that an acknowledgement (to
the extent applicable under the applicable state statute) was not received
within the requisite ninety (90) day period is due to (x) Agent’s failure to
execute and deliver the notice of assignment or other required documentation
provided by Borrower to Agent in a timely manner, or (y) the applicable State
does not provide such acknowledgements under the applicable state statute;


               (g)  Accounts with respect to which the Account Debtor is a creditor of
Borrower, has (i) asserted a right of setoff, or (ii) disputed its liability to
pay the Account, to the extent of such right of setoff or dispute;


               (h)  Accounts with respect to (i) an Account Debtor (other than Boeing or
any United States Agency) whose total obligations owing to Borrower exceed 15%
(such percentage as applied to a particular Account Debtor being subject to
reduction by Agent in its Permitted Discretion if the creditworthiness of such
Account Debtor deteriorates) of all Eligible Accounts, to the extent the
obligations owing by such Account Debtor exceed such percentage, (ii) Boeing,
as Account Debtor, to the extent its total obligations owing to Borrower exceed
20% of all Eligible Accounts, (iii) any United States Agency other than NASA,
as Account Debtor, to the extent the total obligations of such United States
Agency owing to Borrower exceed 30% of all Eligible Accounts, and (iv) NASA, as
Account Debtor, to the extent its total obligations owing to Borrower exceed
40% of all Eligible Accounts;


               (i)  Accounts with respect to which the Account Debtor is subject to an
Insolvency Proceeding, is not Solvent, has gone out of business, or as to which
Borrower has received notice of an imminent Insolvency Proceeding or a material
impairment of the financial condition of such Account Debtor;


               (j)  Accounts with respect to which the Account Debtor is located in the
states of New Jersey, Minnesota, or West Virginia (or any other state that
requires a creditor to file a business activity report or similar document in
order to bring suit or otherwise enforce its remedies against such Account
Debtor in the courts or through any judicial process of such state), unless
Borrower has qualified to do business in New Jersey, Minnesota, West Virginia,
or such other states, or has filed a business activities report with the
applicable division of taxation, the department of revenue, or with such other
state offices, as appropriate, for the then-current year, or is exempt from
such filing requirement;


11






 




               (k)  Accounts, the collection of which, Agent, in its Permitted Discretion,
believes to be doubtful by reason of the Account Debtor’s financial condition;


               (l)  Accounts that are not subject to a valid and perfected first priority
Agent’s Lien;


               (m)  Accounts with respect to which the services giving rise to such
Account have not been performed;


               (n)  Accounts for which Borrower is required to provide the Account Debtor
with a performance or other form of surety bond that entitles the surety or
other issuer to have a claim (in law or equity) on the Accounts; or


               (o)  Accounts with respect to which ORBIMAGE is the Account Debtor.


               “Eligible Domestic Billed Accounts” means all Eligible Domestic Accounts
other than the following:


               (a)  Accounts that the Account Debtor has failed to pay within ninety (90)
days of the original invoice date or Accounts with selling terms of more than
sixty (60) days;


               (b)  Accounts owed by an Account Debtor (or its Affiliates) where 50% or
more of all Accounts owed by that Account Debtor (or its Affiliates) are deemed
ineligible under clause (a) above; or


               (c)  Accounts with respect to which the services giving rise to such
Account have not been billed to the Account Debtor, and Accounts that
constitute Eligible Domestic Unbilled Accounts.


               “Eligible Domestic Unbilled Accounts” means all Eligible Domestic Accounts
with respect to which the services giving rise to such Account have been
performed (and the revenue earned) but not billed to the Account Debtor,
provided, (a) Agent, in its Permitted Discretion, has not determined such
Account Debtor to be uncreditworthy, and (b) not more than 180 days have passed
after the initial unbilled services by Borrower were performed (it being
understood that the requirement set forth in this clause (b) shall be
applicable only upon the earlier of the date forty-five (45) days following the
Closing Date or the date Agent has established a methodology for calculating
aging of unbilled services in its Permitted Discretion after consultation with
Borrower), and provided further that Eligible Domestic Unbilled Accounts shall
not include the Accounts of any Account Debtor (or its Affiliates) as to which
50% or more of all billed Accounts owed by such Person are unpaid more than
ninety (90) days after the original invoice date or have selling terms of more
than sixty (60) days.


               “Eligible Transferee” means (a) a commercial bank organized under the laws
of the United States, or any state thereof, and having total assets in excess
of $250,000,000, (b) a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic Cooperation and
Development or a political subdivision of any such country and which has total
assets in excess of $250,000,000, provided that such bank is acting through a
branch or agency located in the United States, (c) a finance company, insurance


12






 


company, or other financial institution or fund that is engaged in making,
purchasing, or otherwise investing in commercial loans in the ordinary course
of its business and having (together with its Affiliates) total assets in
excess of $250,000,000, (d) any Affiliate (other than individuals) of a Lender
that was party hereto as of the Closing Date, including without limitation a
fund or account managed by such Lender or an Affiliate of such Lender or its
investment manager (a “Related Fund”), (e) so long as no Event of Default has
occurred and is continuing, any other Person approved by Agent and Borrower,
and (f) during the continuation of an Event of Default, any other Person
approved by Agent.


               “Environmental Actions” means any complaint, summons, citation, notice,
directive, order, claim, litigation, investigation, judicial or administrative
proceeding, judgment, letter, or other communication from any Governmental
Authority, or any third party involving violations of Environmental Laws or
releases of Hazardous Materials from (a) any assets, properties, or businesses
of Borrower or any Subsidiary of Borrower or any predecessor in interest, (b)
from adjoining properties or businesses, or (c) from or onto any facilities
which received Hazardous Materials generated by Borrower or any Subsidiary of
Borrower or any predecessor in interest.



               “Environmental Indemnity Agreement” means that certain environmental
indemnity agreement dated as of even date herewith executed and delivered by
Borrower in favor of Agent, for the benefit of the Lender Group.



               “Environmental Law” means any applicable federal, state, provincial,
foreign or local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy or rule of common
law, as in effect from time to time, and in each case as amended, or any
applicable judicial or administrative interpretation thereof, including any
applicable judicial or administrative order, consent decree or judgment, to the
extent binding on Borrower or any Subsidiary of Borrower, relating to the
environment, or Hazardous Materials (including occupational exposure to
Hazardous Materials), including CERCLA; RCRA; the Federal Water Pollution
Control Act, 33 U.S.C. § 1251 et seq.; the Toxic Substances Control Act, 15
U.S.C. § 2601 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Safe
Drinking Water Act, 42 U.S.C. § 3803 et seq.; the Oil Pollution Act of 1990, 33
U.S.C. § 2701 et seq.; the Emergency Planning and the Community Right-to-Know
Act of 1986, 42 U.S.C. § 11001 et seq.; the Hazardous Material Transportation
Act, 49 U.S.C. § 1801 et seq.; and the Occupational Safety and Health Act, 29
U.S.C. § 651 et seq. (to the extent it regulates occupational exposure to
Hazardous Materials); any applicable state and local or foreign counterparts or
equivalents, in each case as amended from time to time.


               “Environmental Liabilities and Costs” means all liabilities, monetary
obligations, Remedial Actions, losses, damages, punitive damages, consequential
damages, treble damages, costs and expenses (including all reasonable fees,
disbursements and expenses of counsel, experts, or consultants, and costs of
investigation and feasibility studies), fines, penalties, sanctions, and
interest incurred as a result of any claim or demand by any Governmental
Authority or any third party, and which relate to any Environmental Action.


               “Environmental Lien” means any Lien in favor of any Governmental Authority
for Environmental Liabilities and Costs.


13






 


               “Equipment” means all of Borrower’s now owned or hereafter acquired right,
title, and interest with respect to equipment (including, without limitation,
the manufacturing equipment located at Borrower’s Highbay facility whether or
not any such equipment is so attached to the real property that it constitutes
fixtures), machinery, machine tools, motors, furniture, furnishings, fixtures,
vehicles (including motor vehicles), tools, parts, goods (other than consumer
goods, farm products, or Inventory), wherever located, including all
attachments, accessories, accessions, replacements, substitutions, additions,
and improvements to any of the foregoing, excluding assets described in clause
(a) of the definition of “Excluded Collateral”.


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


               “ERISA Affiliate” means (a) any Person subject to ERISA whose employees
are treated as employed by the same employer as the employees of Borrower under
IRC Section 414(b), (b) any trade or business subject to ERISA whose employees
are treated as employed by the same employer as the employees of Borrower under
IRC Section 414(c), (c) solely for purposes of Section 302 of ERISA and Section
412 of the IRC, any organization subject to ERISA that is a member of an
affiliated service group of which Borrower is a member under IRC Section
414(m), or (d) solely for purposes of Section 302 of ERISA and Section 412 of
the IRC, any Person subject to ERISA that is a party to an arrangement with
Borrower and whose employees are aggregated with the employees of Borrower
under IRC Section 414(o).


               “ERISA Event” means (a) a Reportable Event with respect to any Benefit
Plan or Multiemployer Plan, (b) the withdrawal of Borrower, any of Borrower’s
Subsidiaries or ERISA Affiliates from a Benefit Plan during a plan year in
which it was a “substantial employer” (as defined in Section 4001(a)(2) of
ERISA), (c) the providing of notice of intent to terminate a Benefit Plan in a
distress termination (as described in Section 4041 (c) of ERISA), (d) the
institution by the PBGC of proceedings to terminate a Benefit Plan or
Multiemployer Plan, (e) any event or condition (i) that provides a basis under
Section 4042(a)(1), (2), or (3) of ERISA for the termination of, or the
appointment of a trustee to administer, any Benefit Plan or Multiemployer Plan,
or (ii) that may result in termination of a Multiemployer Plan pursuant to
Section 4041A of ERISA, (f) the partial or complete withdrawal within the
meaning of Sections 4203 and 4205 of ERISA, of Borrower, any of Borrower’s
Subsidiaries or ERISA Affiliates from a Multiemployer Plan, or (g) providing
any security to any plan under Section 401(a)(29) of the IRC by Borrower or any
of its Subsidiaries or any of their ERISA Affiliates.


               “Escrow Account” has the meaning set forth in Section 7.1(g).


               “Event of Default” has the meaning set forth in Section 8.



               “Excess Availability” means the amount, as of the date any determination
thereof is to be made, equal to (a) Availability minus (b) the aggregate
amount, if any, of all vouchered and unvouchered trade payables of Borrower
that are more than sixty (60) days past due and all book overdrafts in excess
of Borrower’s historical practices with respect thereto, in each case under
clause (b) of this definition as determined by Agent in its Permitted
Discretion.


14






 


               “Exchange Act” means the Securities Exchange Act of 1934, as in effect
from time to time.


               “Excluded Collateral” means all of Borrower’s now owned right, title, and
interest in and to each of the following:


               (a)  that certain aircraft with Model Number L-1011-385-1-15, Serial Number
193E-1067, and Registration Number N#140SC, and the engines and all other parts
attached thereto,


               (b)  the money, in an amount not to exceed $10,355,676 in the aggregate, so
long as such money is collateralizing the following existing letters of credit:
(i) (a) the letter of credit number M-12870/01G in the amount of $1,847,500,
the letter of credit number M-12974/02G in the amount of $2,804,219, the letter
of credit number M-12945/01G in the amount of $735,474, which amount is being
increased to $5,516,057, each of which were issued by the International
Commercial Bank of China in favor of the National Science Counsel, the
Executive Yuan of the Republic of China, (ii) the letter of credit number
930718 in the amount of $27,900 issued by Bank of America, N.A. (successor by
merger to NationsBank, N.A.) in favor of Hellenic Air Force Command, and (iii)
the letter of credit number SM416742C in the amount of $160,000 issued by
Wachovia Bank, N.A. (successor by merger to First Union National Bank) in favor
of Boston Properties Limited Partnership, and


               (c)  the common stock of ORBIMAGE that is owned or beneficially held by
Borrower.


               “Excluded Contracts” means the System Procurement Agreement and
Subcontract PO #MSB0081500 for Bus Subsystem, Satellite Supervising and Control
Equipment, System Engineering and Launch Services between Lockheed Martin
Corporation (acting by and through Lockheed Martin Commercial Space Systems)
and Borrower and any other contract as Borrower and Agent shall from time to
time agree in writing to exclude from the requirements of Section 7.20(c).


               “Excluded Coverages” has the meaning set forth in Section 6.8(a).


               “Executive Officer” means the chairman of the board, president, each
executive vice president, Borrower’s chief financial officer, principal
accounting officer, and any vice president of Borrower in charge of a principal
business unit, division or function, and any other officer appointed by the
board of directors of Borrower who performs a policy-making function.


               “EXIM” means the Export-Import Bank of the United States.



               “F.A.R.” means the Federal Acquisition Regulation, 48 C.F.R. Part 1, as in
effect from time to time and any replacement regulations thereto.


               “FCC” means the Federal Communications Commission of the United States.


               “FCC Licenses” means, collectively, those certain licenses issued by the
FCC and held by Orbital Communications relating to the space and ground
segments of the ORBCOMM


15






 


NVNG MSS system (ITU designation LEOTELCOM-1) (the
“ORBCOMM System”) as follows: Space Segment Authorizations and Special
Temporary Authority (SAT-STA-20001215-00165) issued under FCC Call Sign S2103
relating to construction, launch and operation of the ORBCOMM System; Ground
Segment Authorizations Associated with the ORBCOMM System issued under FCC Call
Signs E940534, E940535, E940536, E940537 and E940538; Experimental
Authorizations Associated with the ORBCOMM System under FCC Call Signs WB2XDL
and WB2XGL; C-Bank Relay Earth Station Authorizations Associated with the
ORBCOMM System under VCC Call Signs E9900557, E990058, E990059, E990060 and
E990061.


               “Fee Letter” means that certain amended and restated fee letter, dated as
of August 22, 2002, among Borrower, Agent and Lenders.


               “FEIN” means Federal Employer Identification Number.



               “Firm Contracts” means contracts that have been executed and delivered to
Borrower or that are included in “backlog” pursuant to Regulation S-K of the
Securities Act of 1933.


               “Financial Asset” means all of Borrower’s now owned or hereafter acquired
right, title and interest with respect to any “financial asset” as that term is
defined in the Code.


               “First Amendment Effective Date” means the date on which the First
Amendment to Loan and Security Agreement, dated as of August 22, 2002, shall
become effective pursuant to Section 3 of such agreement.


               “Foothill” means Foothill Capital Corporation, a California corporation.


               “Funding Date” means the date on which a Borrowing occurs.



               “GAAP” means generally accepted accounting principles as in effect from
time to time in the United States, consistently applied.


               “General Intangibles” means all of Borrower’s now owned or hereafter
acquired right, title, and interest with respect to general intangibles
(including payment intangibles, contract rights, rights to payment, rights
arising under common law, statutes, or regulations, choses or things in action,
goodwill, patents, trade names, trademarks, servicemarks, copyrights,
blueprints, drawings, purchase orders, customer lists, monies due or
recoverable from pension funds, route lists, rights to payment and other rights
under any royalty or licensing agreements, infringement claims, computer
programs, information contained on computer disks or tapes, software,
literature, reports, catalogs, money, deposit accounts, insurance premium
rebates, tax refunds, and tax refund claims), and any and all Supporting
Obligations in respect thereof, and any other personal property other than
goods, Accounts, Investment Property, Negotiable Collateral and Chattel Paper.


               “Governing Documents” means, with respect to any Person, the certificate
or articles of incorporation, bylaws, or other organizational documents of such
Person.


16






 


               “Governmental Authority” means any federal, state, local, or other
governmental or administrative body, instrumentality, department, or agency or
any court, tribunal, administrative hearing body, arbitration panel,
commission, or other similar dispute-resolving panel or body.


               “Guarantor” means each of Orbital Communications and Orbital
International.


               “Guarantor Security Agreement” means that certain guarantor security
agreement dated as of even date herewith among the Guarantors and Agent.


               “Guaranty” means that certain guaranty dated as of even date herewith
executed and delivered by each Guarantor in favor of Agent, for the benefit of
the Lender Group.


               “Hazardous Materials” means (a) substances that are defined or listed in,
or otherwise classified pursuant to, any Environmental Laws as “hazardous
substances,” “hazardous materials,” “hazardous wastes,” “toxic substances,” or
any other formulation intended to define, list, or classify substances by
reason of deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, reproductive toxicity, or “EP toxicity”, (b) oil, petroleum,
or petroleum derived substances, natural gas, natural gas liquids, synthetic
gas, drilling fluids, produced waters, and other wastes associated with the
exploration, development, or production of crude oil, natural gas, or
geothermal resources, (c) any flammable substances or explosives or any
radioactive materials, and (d) asbestos in any form or electrical equipment
that contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty (50) parts per million.


               “Hedge Agreement” means any and all transactions, agreements, or documents
now existing or hereafter entered into between Borrower or its Subsidiaries and
Wells Fargo or its Affiliates, which provide for an interest rate, credit,
commodity or equity swap, cap, floor, collar, forward foreign exchange
transaction, currency swap, cross currency rate swap, currency option, or any
combination of, or option with respect to, these or similar transactions, for
the purpose of hedging Borrower’s or its Subsidiaries’ exposure to fluctuations
in interest or exchange rates, loan, credit exchange, security or currency
valuations or commodity prices.


               “Holdout Lender” has the meaning set forth in Section 15.2(a).


               “Indebtedness” means (a) all obligations for borrowed money, (b) all
obligations evidenced by bonds, debentures, notes, or other similar instruments
and all reimbursement or other obligations in respect of letters of credit,
bankers acceptances, interest rate swaps, or other financial products, (c) all
obligations under Capital Leases, (d) all obligations or liabilities of others
secured by a Lien on any asset of Borrower or its Subsidiaries, irrespective of
whether such obligation or liability is assumed, (e) all obligations for the
deferred purchase price of assets (other than trade debt incurred in the
ordinary course of business and repayable in accordance with customary trade
practices), and (f) any obligation guaranteeing or intended to guarantee
(whether directly or indirectly guaranteed, endorsed, co-made, discounted, or
sold with recourse) any obligation of any other Person. It is understood by
the parties hereto that amounts owed by Borrower pursuant to the ORBIMAGE
Purchase Agreement shall not constitute “Indebtedness” for purposes of this
Agreement.


17






 


               “Indemnified Liabilities” has the meaning set forth in Section 11.3.


               “Indemnified Person” has the meaning set forth in Section 11.3.


               “Indenture” means that certain Indenture dated September 16, 1997 between
Borrower and Deutsche Bank AG, New York Branch, as trustee, for $100,000,000 of
5.0% Convertible Subordinated Notes due 2002.


               “Indostar” means, collectively, PT. Datakom Asia, PT. Matahori Lintas
Cakrawala, PT. Media Citra Indostar, and all of their respective Subsidiaries
and Affiliates.


               “Insolvency Proceeding” means any proceeding commenced by or against any
Person under any provision of the Bankruptcy Code or under any other state or
federal bankruptcy or insolvency law, assignments for the benefit of creditors,
formal or informal moratoria, compositions, extensions generally with
creditors, or proceedings seeking reorganization, arrangement, or other similar
relief.


               “Intellectual Property Security Agreement” means that certain intellectual
property security agreement dated as of even date herewith between Borrower and
Agent.


               “Intercreditor Agreement” means that certain intercreditor and
subordination agreement dated as of the First Amendment Effective Date between
Agent and Trustee and acknowledged by Borrower and Orbital International.


               “Inventory” means all Borrower’s now owned or hereafter acquired right,
title, and interest with respect to inventory, including goods held for sale or
lease or to be furnished under a contract of service, goods that are leased by
Borrower as lessor, goods that are furnished by Borrower under a contract of
service, and raw materials, work in process, or materials used or consumed in
Borrower’s business; including all accessions, additions, attachments,
improvements, substitutions and replacements thereto and therefor.


               “Investment” means (a) with respect to any Person (including ORBIMAGE),
any investment by such Person in any other Person (including Affiliates) in the
form of loans, guarantees, advances, or capital contributions (excluding (i)
commission, travel, and similar advances to officers and employees of such
Person made in the ordinary course of business, and (ii) bona fide Accounts
arising in the ordinary course of business consistent with past practices),
purchases or other acquisitions for consideration of Indebtedness or Stock, and
any other items that are or would be classified as investments on a balance
sheet prepared in accordance with GAAP, and (b) with respect to ORBIMAGE,
Borrower’s purchase of the ORBIMAGE Accounts pursuant to the provisions of the
ORBIMAGE Purchase Agreement.


               “Investment Property” means all of Borrower’s now owned or hereafter
acquired right, title, and interest with respect to “investment property” as
that term is defined in the Code, and any and all Supporting Obligations in
respect thereof, excluding assets described in clause (c) of the definition of
“Excluded Collateral”.


               “IRC” means the Internal Revenue Code of 1986, as in effect from time to
time.


18






 


               “IRS” means the Internal Revenue Service of the United States.



               “Issuing Lender” means Foothill or any other Lender that, at the request
of Borrower and with the consent of Agent agrees, in such Lender’s sole
discretion, to become an Issuing Lender for the purpose of issuing L/Cs or L/C
Undertakings pursuant to Section 2.12.


               “JPMorgan” means JPMorgan Chase Bank (f/k/a Morgan Guaranty Trust Company
of New York), as administrative agent and collateral agent under that certain
Third Amended and Restated Credit and Reimbursement Agreement dated as of
December 21, 1998 (as amended and restated from time to time).


               “L/C” has the meaning set forth in Section 2.12(a).



               “L/C Disbursement” means a payment made by the Issuing Lender pursuant to
a Letter of Credit.


               “L/C Undertaking” has the meaning set forth in Section 2.12(a).


               “Lender” and “Lenders” have the respective meanings set forth in the
preamble to this Agreement, and shall include any other Person made a party to
this Agreement in accordance with the provisions of Section 14.1.


               “Lender Group” means, individually and collectively, each of the Lenders
(including the Issuing Lender) and Agent.


               “Lender Group Expenses” means all (a) costs or expenses (including taxes,
and insurance premiums) required to be paid by Borrower under any of the Loan
Documents that are paid or incurred by any one or more members of the Lender
Group, (b) reasonable out-of-pocket costs paid or incurred by any one or more
members of the Lender Group in connection with any one or more members of the
Lender Group’s transactions with Borrower, including, fees or charges for
photocopying, notarization, couriers and messengers, telecommunications, (c)
fees and charges paid or incurred by (i) Agent for public record searches
(including tax lien, judgment, and Uniform Commercial Code searches and
including searches with the patent and trademark office, the copyright office,
or the department of motor vehicles and periodic status reports from Borrower’s
jurisdiction of formation), filings, recordings and publications, and (ii) one
or more members of the Lender Group in connection with appraisals (including
periodic Collateral appraisals or appraisals of any other collateral securing
the Obligations or business valuations to the extent of the fees and charges
(and up to the amount of any limitation contained in this Agreement), real
estate surveys, real estate title policies and endorsements, and environmental
audits conducted in accordance with this Agreement or pursuant to the
Environmental Indemnity Agreement, (d) costs and expenses incurred by any one
or more members of the Lender Group in the disbursement of funds to Borrower
(by wire transfer or otherwise), (e) charges paid or incurred by any one or
more members of the Lender Group resulting from the dishonor of checks, (f)
reasonable costs and expenses paid or incurred by the Lender Group to correct
any Default or enforce any provision of the Loan Documents, or in gaining
possession of, maintaining, handling, preserving, storing, shipping, selling,
preparing for sale, or advertising to sell the Collateral, or any portion
thereof, irrespective of whether a sale is consummated, (g) audit fees and
expenses of any one or more members of the Lender Group


19






 




related to audit
examinations of the Books to the extent of the fees and charges (and up to the
amount of any limitation) contained in this Agreement, (h) reasonable costs and
expenses of third party claims or any other suit paid or incurred by any one or
more members of the Lender Group in enforcing or defending the Loan Documents
or in connection with the transactions contemplated by the Loan Documents or
any one or more members of the Lender Group’s relationship with Borrower or any
guarantor of the Obligations, (i) Agent’s and each Lender’s reasonable fees and
expenses (including attorneys’ fees) incurred in advising, structuring,
drafting, reviewing, administering, or amending the Loan Documents, and (j)
Agent’s and each Lender’s reasonable fees and expenses (including attorneys’
fees) incurred in terminating, enforcing (including attorneys fees and expenses
incurred in connection with a “workout,” a “restructuring,” or an Insolvency
Proceeding concerning Borrower or any Subsidiary of Borrower or in exercising
rights or remedies under the Loan Documents), or defending the Loan Documents,
irrespective of whether suit is brought, or in taking any Remedial Action
concerning the Collateral or any other collateral securing the Obligations.
Notwithstanding the foregoing, the attorneys’ fees to be paid by Borrower to
Lenders (other than Foothill or any other Lender that is a successor Agent
hereunder) in accordance with clauses (i) and (j) of this definition shall be
limited to the fees of one law firm representing all Lenders (other than
Foothill or any other Lender that is a successor Agent hereunder. It is
further understood that counsel for Agent or any successor Agent hereunder
shall primarily be responsible for the items set forth in clauses (i) and (j).
It is further understood that in no event shall Lender Group Expenses include
any amounts in respect of obligations that are specifically excluded pursuant
to Section 11 of the Intellectual Property Security Agreement, Section 17 of
the Guarantor Security Agreement, Section 2.12(c) hereof or Section 11.3
hereof.


               “Lender-Related Person” means, with respect to any Lender, such Lender,
together with such Lender’s Affiliates, and the officers, directors, employees,
and agents of such Lender.


               “Letter of Credit” means an L/C or an L/C Undertaking, as the context
requires.


               “Letter of Credit Reimbursement Agreement” means that certain letter
agreement dated as of January 8, 2002 between Foothill and Borrower and
acknowledged by Ableco.


               “Letter of Credit Usage” means, as of any date of determination, the
aggregate undrawn amount of all outstanding Letters of Credit, including,
without limitation, so long as such letters of credit are outstanding, the
Letters of Credit originally issued pursuant to the Letter of Credit
Reimbursement Agreement, plus 100% of the amount of outstanding time drafts
accepted by an Underlying Issuer as a result of drawings under Underlying
Letters of Credit.


               “Lien” means any interest in an asset securing an obligation owed to, or a
claim by, any Person other than the owner of the asset, whether such interest
shall be based on the common law, statute, or contract, whether such interest
shall be recorded or perfected, and whether such interest shall be contingent
upon the occurrence of some future event or events or the existence of some
future circumstance or circumstances, including the lien or security interest
arising from a mortgage, deed of trust, encumbrance, pledge, hypothecation,
assignment, deposit arrangement, security agreement, conditional sale or trust
receipt, or from a lease, consignment, or bailment for security purposes and
also including reservations, exceptions, encroachments,


20






 


easements,
rights-of-way, covenants, conditions, restrictions, leases, and other title
exceptions and encumbrances affecting Real Property.


               “Loan Account” has the meaning set forth in Section 2.10.



               “Loan Documents” means this Agreement, the Bank Product Agreements, the
Cash Management Agreements, the Control Agreements, the Intellectual Property
Security Agreement, the Disbursement Letter, the Environmental Indemnity
Agreement, the Fee Letter, the Guaranty, the Guarantor Security Agreement, the
Intercreditor Agreement, the Letters of Credit, the Mortgages, the Officers’
Certificate, the Stock Pledge Agreement, any note or notes executed by Borrower
in connection with this Agreement and payable to a member of the Lender Group,
and any other agreement entered into, now or in the future, by Borrower and the
Lender Group in connection with this Agreement.



               “Material Adverse Change” means (a) a material adverse change in the
business, prospects, operations, results of operations, assets, liabilities or
condition (financial or otherwise) of Borrower or any Subsidiary of Borrower,
taken as a whole; provided, however, that a “going concern” qualification on
the auditor’s report on the financial statements of Borrower for the fiscal
year ended December 31, 2001 shall not constitute a Material Adverse Change,
(b) a material impairment of Borrower’s or any Guarantor’s ability, taken as a
whole, to perform its obligations under the Loan Documents to which it is a
party or of the Lender Group’s ability to enforce the Obligations or realize
upon the Collateral or any other collateral securing the Obligations, or (c) a
material impairment of the enforceability or priority of the Agent’s Liens with
respect to the Collateral or any other collateral securing the Obligations as a
result of an action or failure to act on the part of Borrower or any Guarantor.


               “Maturity Date” has the meaning set forth in Section 3.4.



               “Maximum Revolver Amount” means $35,000,000, as such amount may be reduced
from time to time pursuant to Section 2.2.


               “MetLife” means MetLife Capital Corporation, a Delaware corporation.


               “Mission Success Policy” has the meaning set forth in Section 6.8(a).


               “Moody’s” means Moody’s Investors Service, Inc., a Delaware corporation,
and its successors.


               “Mortgage Policy” has the meaning set forth in Section 3.1(v).


               “Mortgages” means, individually and collectively, (a) that certain credit
line deed of trust and security agreement dated as of the date hereof executed
by Borrower in favor of Agent, for the benefit of the Lender Group, and (b) any
other mortgages , deeds of trust, or deeds to secure debt, executed and
delivered by Borrower in favor of Agent, for the benefit of the Lender Group,
in form and substance satisfactory to Agent in its Permitted Discretion, that
encumber the Real Property Collateral and the related improvements thereto.


21






 


               “Multiemployer Plan” means a “multiemployer plan” (as defined in Section
4001(a)(3) of ERISA) to which Borrower, any of its Subsidiaries, or any ERISA
Affiliate has contributed, or was obligated to contribute, within the past six
(6) years.


               “NASA” means the National Aeronautics and Space Administration of the
United States.


               “Negotiable Collateral” means all of Borrower’now owned and hereafter
acquired right, title, and interest with respect to letters of credit, letter
of credit rights, instruments, promissory notes, drafts and documents and any
and all supporting obligations in respect thereof.


               “Net Proceeds” means, with respect to any asset disposition by Borrower or
any Subsidiary or any proceeds from casualty insurance received by Borrower or
any issuance by Borrower of Stock, the aggregate amount of cash or Cash
Equivalents received for such assets or Stock, net of (a) reasonable and
customary transaction costs and expenses, (b) transfer taxes (including sales
and use taxes), (c) amounts payable to holders of applicable Permitted Liens
hereunder to the extent that such Permitted Liens, if any, are senior in
priority to the Agent’s Liens, (d) an appropriate reserve for income taxes in
accordance with GAAP, and (e) appropriate amounts to be provided as a reserve
against liabilities or otherwise held in escrow in association with any such
disposition, in each case clauses (a) though (e) to the extent the amounts so
deducted are properly attributable to such transaction and payable (or
reserved) by Borrower in connection with such disposition or loss or the
issuance of Stock, including without limitation reasonable and customary
commissions and underwriting discounts, to a Person that is not an Affiliate of
Borrower or such Subsidiary.


               “New Indenture” has the meaning set forth in Section 7.1(g).


               “New Deposit Account” has the meaning set forth in Section 3.2(i).


               “Obligations” means (a) all loans, Advances, debts, principal, interest
(including any interest that, but for the provisions of the Bankruptcy Code,
would have accrued), contingent reimbursement obligations with respect to
outstanding Letters of Credit, premiums, liabilities (including all amounts
charged to Borrower’s Loan Account pursuant hereto), obligations, fees
(including the fees provided for in the Fee Letter), charges, costs, Lender
Group Expenses (including any fees or expenses that, but for the provisions of
the Bankruptcy Code, would have accrued), guaranties, covenants, and duties of
any kind and description owing by Borrower to the Lender Group pursuant to or
evidenced by the Loan Documents and irrespective of whether for the payment of
money, whether direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising, and including all interest not paid
when due and all Lender Group Expenses that Borrower is required to pay or
reimburse by the Loan Documents, by law, or otherwise, and (b) all Bank Product
Obligations. Any reference in this Agreement or in the Loan Documents to the
Obligations shall include all amendments, changes, extensions, modifications,
renewals replacements, substitutions, and supplements, thereto and thereof, as
applicable, both prior and subsequent to any Insolvency Proceeding.


22






 


               “Officers’ Certificate” means the representations and warranties of
officers in the form submitted by Agent to Borrower, together with Borrower’s
completed responses to the inquiries set forth therein, the form and substance
of such responses to be satisfactory to Agent.


               “ORBCOMM System” has the meaning set forth in the definition of “FCC
Licenses”.


               “ORBIMAGE” means Orbital Imaging Corporation, a Delaware corporation.


               “ORBIMAGE Accounts” has the meaning set forth in Section 7.13.


               “ORBIMAGE Purchase Agreement” means that certain Purchase Agreement dated
as of February 9, 2001 between Borrower and ORBIMAGE.


               “ORBIMAGE Reserve” means a reserve against Availability established by
Agent in an amount equal to the difference between the purchase price of the
ORBIMAGE Accounts paid by Borrower (not to exceed $10,000,000) and the actual
value of the ORBIMAGE Accounts, as determined by Agent in its Permitted
Discretion pursuant to its audit, which reserve shall be reduced by $1.00 for
each $1.00 collected by Borrower from the ORBIMAGE Accounts. Notwithstanding
anything else in this Agreement to the contrary, the ORBIMAGE Reserve shall be
released upon the occurrence of each of the ORBIMAGE Reserve Termination
Events.


               “ORBIMAGE Reserve Termination Events” means, each of the following events:



	 	(a)	 	the ORBIMAGE Reserve has not been reduced to $0
upon the collection of all of the ORBIMAGE Accounts,
	 
	 	(b)	 	the first anniversary date of the closing date of
the first purchase by Borrower of a portion of the ORBIMAGE
Accounts has occurred,
	 
	 	(c)	 	no Default or Event of Default exists under this
Agreement or the Loan Documents, and
	 
	 	(d)	 	for two consecutive fiscal quarters, Borrower has
maintained an average daily amount of Excess Availability and
unrestricted cash and Cash Equivalents of not less than
$20,000,000.



               “ORBIMAGE Settlement Plan Term Sheet” means, collectively, (a) that
certain Orbital Imaging Corporation Term Sheet for Plan of Settlement, dated
January 15, 2003, among ORBIMAGE, David Thompson, James R. Thompson, the
Official Committee of Unsecured Creditors of ORBIMAGE and Borrower, as such
agreement exists on the Third Amendment Effective Date, and (b) any definitive
settlement agreement executed by such parties on terms no less favorable to
Borrower than the terms set forth in such ORBIMAGE Settlement Term Sheet.


               “Orbital Communications” means Orbital Communications Corporation, a
Delaware corporation.


               “Orbital Holdings” means Orbital Holdings Corporation, a Delaware
corporation.


23






 


               “Orbital International” means Orbital International, Inc., a Virginia
corporation.


               “Organizational I.D. Number” means, with respect to any Person, the
organizational identification number assigned to such Person by the applicable
governmental unit or agency of the jurisdiction of organization of such Person.


               “Originating Lender” has the meaning set forth in Section 14.1(e).


               “Overadvance” has the meaning set forth in Section 2.5.



               “Participant” has the meaning set forth in Section 14.1(e).


               “Participant Register” has the meaning set forth in Section 14.1(i).


               “Paul Hastings” has the meaning set forth in Section 16.19.


               “PBGC” means the Pension Benefit Guaranty Corporation as defined in Title
IV of ERISA, or any successor thereto.


               “Permitted Discretion” means a determination made in good faith and in the
exercise of reasonable (from the perspective of a secured asset-based lender)
business judgment.


               “Permitted Dispositions” means (a) sales or other dispositions by Borrower
or its Subsidiaries of Equipment that is substantially worn, damaged, or
obsolete or otherwise not necessary and useful in the ordinary course of
business, (b) sales by Borrower or its Subsidiaries of Inventory or services to
buyers in the ordinary course of business, (c) the use or transfer of money or
Cash Equivalents by Borrower or its Subsidiaries in a manner that is not
prohibited by the terms of this Agreement or the other Loan Documents, (d) the
licensing by Borrower or its Subsidiaries, on a non-exclusive basis, of
patents, trademarks, copyrights, and other intellectual property rights in the
ordinary course of business, (e) the sale by Borrower of its TMS division so
long as (i) no Event of Default has occurred and is continuing at the time such
sale is consummated, and (ii) Borrower receives a minimum of $15,000,000 in Net
Proceeds for such sale, (f) the transfer from Orbital Communications to OGLP
Acquisition Sub LLC (or any successor thereof) of the FCC Licenses so long as
such transfer is required pursuant to the provisions of that certain Asset
Purchase Agreement dated as of April 23, 2001 between Orbital Communications,
OGLP Acquisition Sub LLC and OGLP Acquisition Sub II Corp., as such agreement
exists as of the date hereof or as amended with the consent of the Required
Lenders, (g) the sale by Borrower of the unimproved Real Property located at
Steeplechase Industrial Park, Lots 1-4 so long as (i) no Event of Default has
occurred and is continuing at the time such sale is consummated, and (ii)
Borrower receives a minimum of $3,000,000 in Net Proceeds for such sale, and
(h) the sale or disposition by Borrower of the Stock of ORBIMAGE.


               “Permitted Investments” means (a) investments in Cash Equivalents, (b)
investments in negotiable instruments for collection, (c) advances made in
connection with purchases of goods or services in the ordinary course of
business, (d) investments in any Guarantor not to exceed $10,000 per year per
Guarantor, (e) deposits to secure the performance of (i) letters of credit (not
to exceed an aggregate amount of $500,000 at any time outstanding), (ii) bids,
tenders, or obtaining of any license from a governmental authority, or



24






 




(iii)
indemnification obligations (not to exceed an aggregate amount of $100,000 at
any time outstanding), or (iv) operating leases in the ordinary course of
business, (f) deposits existing as of the Closing Date in escrow accounts or
securing the letters of credit of the type described in clause (b) of the
definition of Excluded Collateral, (g) deposits in connection with the sale of
TMS (including, without limitation, deposits to secure indemnification
obligations arising in connection therewith) and deposits to the Escrow Account
contemplated by Section 7.1(g), (h) the Stock and debt instruments held by
Borrower as set forth on Schedule P-2, and (i) the advance of funds to ORBIMAGE
of the “Orbital Payment” (as defined in the ORBIMAGE Settlement Plan Term
Sheet) in the original principal amount not to exceed $2,500,000 (whether or
not evidenced by a promissory note issued by ORBIMAGE).


               “Permitted Liens” means (a) Liens held by Agent for the benefit of Agent
and the Lenders, (b) Liens for unpaid taxes that either (i) are not yet
delinquent, or (ii) do not constitute an Event of Default hereunder and are the
subject of Permitted Protests, (c) Liens set forth on Schedule P-1, (d) the
interests of lessors under operating leases, (e) purchase money Liens or the
interests of lessors under Capital Leases to the extent that such Liens or
interests secure Permitted Purchase Money Indebtedness and so long as such Lien
attaches only to the asset purchased or acquired and the proceeds thereof, (f)
Liens arising by operation of law in favor of warehousemen, landlords,
carriers, mechanics, materialmen, laborers, or suppliers, incurred in the
ordinary course of business and not in connection with the borrowing of money,
and which Liens either (i) are for sums not yet delinquent, or (ii) are the
subject of Permitted Protests, (g) Liens arising from deposits made in
connection with obtaining worker’s compensation or other unemployment
insurance, (h) Liens or deposits to secure performance of (i) bids or tenders,
(ii) letters of credit existing in an aggregate face amount not to exceed
$10,355,676, which amount shall automatically be reduced by the face amount of
any letter of credit existing as of the Closing Date upon the expiration of, or
draw under, such letter of credit (which may not be renewed without the prior
consent of the Required Lenders, specifically excluding that certain letter of
credit number M12870/1G in the amount of $1,847,500 issued by the International
Commercial Bank of China), or (iii) leases incurred in the ordinary course of
business and not in connection with the borrowing of money, (i) Liens granted
as security for surety, appeal bonds, performance bonds and other similar
obligations in connection with obtaining such bonds in the ordinary course of
business, which Liens shall secure only the aggregate face value of such bonds,
(j) Liens resulting from any judgment or award that is not an Event of Default
hereunder, (k) Liens with respect to the Real Property Collateral that are
exceptions to the commitments for title insurance issued in connection with the
Mortgages, as accepted by Agent, and any further zoning restrictions that do
not materially interfere with or impair the use or operation thereof, (l) with
respect to any Real Property that is not part of the Real Property Collateral,
easements, rights of way, and zoning restrictions that do not materially
interfere with or impair the use or operation thereof, (m) the non-exclusive
right granted to Boeing to use certain property of Borrower pursuant to that
certain letter agreement dated December 4, 2001 between Borrower and Boeing,
but only to the extent such right exists on the date hereof, (n) Liens granted
to the United States government pursuant to F.A.R. 52.232-16 and F.A.R.
52.245-5 on certain assets of Borrower specified in prime contracts between
Borrower and the United States Government or any United States Agency or as
specified in subcontracts to which Borrower is a party, (o) encumbrances on the
FCC Licenses pursuant to the Asset Purchase Agreement described in clause (f)
of the definition of Permitted Dispositions, as such agreement exists on the
date hereof or as amended with the consent of the Required Lenders, and (p) (i)
the subordinated Liens


25






 


granted to the Trustee pursuant to the provisions of
that certain Pledge and Security Agreement dated as of the First Amendment
Effective Date among Borrower, Orbital International, Inc. and Trustee, that
certain Deed of Trust and Security Agreement dated as of the First Amendment
Effective Date from the Borrower in favor of the Trustee and such other
agreements as may be required to be delivered pursuant to the New Indenture
from time to time, in each case, that are subject to the Intercreditor
Agreement and (ii) the lien granted in favor of the Trustee on the Escrow
Account.


               “Permitted Protest” means the right of Borrower or any Subsidiary of
Borrower to protest any Lien (other than any such Lien that secures the
Obligations), taxes (other than payroll taxes or taxes that are the subject of
a United States federal tax lien), or rental payment, provided that (a) a
reserve with respect to such obligation is established on the Books in such
amount as is required under GAAP, (b) any such protest is instituted promptly
and prosecuted diligently by Borrower or such Subsidiary, as applicable, in
good faith, and (c) Agent is satisfied that, while any such protest is pending,
there will be no impairment of the enforceability, validity, or priority of any
of the Agent’s Liens. It is understood that the requirements of clause (c) of
this definition of “Permitted Protest” have been satisfied with respect to
Borrower’s protest of the Internal Revenue Service assessment against Borrower,
as successor to ETI Technologies, Inc., in the amount of $241,288 for the tax
year 1994.


               “Permitted Purchase Money Indebtedness” means (a) Purchase Money
Indebtedness existing as of the Closing Date and (b) Purchase Money
Indebtedness incurred after the Closing Date; provided, however, (i) during the
fiscal year ending December 31, 2002, Borrower shall not incur in excess of
$12,000,000 in Purchase Money Indebtedness, (ii) during the fiscal year ending
December 31, 2003, Borrower shall not incur in excess of $13,000,000 in
Purchase Money Indebtedness and (iii) from the period beginning on January 1,
2004 until the Maturity Date, Borrower shall not incur in excess of $14,000,000
in Purchase Money Indebtedness; provided, however, that notwithstanding the
foregoing, at no time shall Purchase Money Indebtedness exceed the amount
permitted under the New Indenture (as it exists on the First Amendment
Effective Date or as amended with the consent of the Required Lenders).


               “Person” means natural persons, corporations, limited liability companies,
limited partnerships, general partnerships, limited liability partnerships,
joint ventures, trusts, land trusts, business trusts, or other organizations,
irrespective of whether they are legal entities, and governments and agencies
and political subdivisions thereof.


               “Personal Property Collateral” means all Collateral other than Real
Property.


               “Projections” means Borrower’s (including all divisions thereof)
forecasted (a) balance sheets, (b) profit and loss statements, and (c) cash
flow statements, all prepared on a basis consistent with Borrower’s historical
financial statements, together with appropriate supporting details and a
statement of underlying assumptions.


               “Pro Rata Share” means:


               (a)  with respect to a Lender’s obligation to make Advances and receive
payments of principal, interest, fees, costs, and expenses with respect
thereto, (x) prior to the date


26






 


the Revolver Commitments have been terminated or
permanently reduced to zero, the percentage obtained by dividing (i) such
Lender’s Revolver Commitment, by (ii) the aggregate Revolver Commitments of all
Lenders and (y) from and after the date the Revolver Commitments have been
terminated or permanently reduced to zero, the percentage obtained by dividing
(i) the aggregate unpaid principal amount of such Lender’s Advances, by (ii)
the aggregate unpaid principal amounts of all Advances,


               (b)  with respect to a Lender’s obligation to participate in Letters of
Credit, to reimburse the Issuing Lender, and to receive payments of fees with
respect thereto, (x) prior to the date the Revolver Commitments have been
terminated or permanently reduced to zero, the percentage obtained by dividing
(i) such Lender’s Revolver Commitment, by (ii) the aggregate Revolver
Commitments of all Lenders, and (y) from and after the date the Revolver
Commitments have been terminated or permanently reduced to zero, the percentage
obtained by dividing (i) the aggregate unpaid principal amount of such Lender’s
Advances, by (ii) the aggregate unpaid principal amounts of all Advances,


               (c)  [Intentionally omitted].


               (d)  with respect to all other matters (including the indemnification
obligations arising under Section 16.7) prior to the date the Commitments have
been terminated or permanently reduced to zero, the percentage obtained by
dividing (i) such Lender’s Total Commitment, by (ii) the aggregate amount of
Total Commitments of all Lenders and (y) from and after the date all
Commitments have been terminated or permanently reduced to zero, the percentage
obtained by dividing (i) the aggregate unpaid amount of such Lender’s
outstanding Obligations, by (ii) the aggregate unpaid amount of all outstanding
Obligations.


               “Purchase Money Indebtedness” means Indebtedness (other than the
Obligations, but including Capitalized Lease Obligations), incurred at the time
of, or within one hundred twenty (120) days after, the acquisition of any fixed
assets for the purpose of financing all or any part of the acquisition cost
thereof.


               “Real Property” means any estates or interests in real property now owned
or hereafter acquired by Borrower and the improvements thereto.


               “Real Property Collateral” means the parcel or parcels of Real Property
identified on Schedule R-1 and any Real Property hereafter acquired by
Borrower.


               “Record” means information that is inscribed on a tangible medium or that
is stored in an electronic or other medium and is retrievable in perceivable
form.


               “Register” has the meaning set forth in Section 14.1(h).



               “Registered Loan” has the meaning set forth in Section 2.16.


               “Registered Note” has the meaning set forth in Section 2.16.


               “Related Fund” has the meaning set forth in clause (d) of the definition
of Eligible Transferee.


27






 


               “Remedial Action” means all actions to (a) clean up, remove, remediate,
contain, treat, monitor, assess, evaluate, or in any way address Hazardous
Materials in the indoor or outdoor environment, (b) prevent or minimize a
release of Hazardous Materials so they do not migrate or endanger or threaten
to endanger public health or welfare or the indoor or outdoor environment, (c)
perform any pre-remedial studies, investigations, or post-remedial operation
and maintenance activities, or (d) conduct any other actions in the nature of
removal, remedial, or response actions as defined under 42 U.S.C. § 9601(23),
(24) and (25).


               “Replacement Lender” has the meaning set forth in Section 15.2(a).


               “Report” has the meaning set forth in Section 16.17.



               “Reportable Event” means any of the events described in Section 4043(c) of
ERISA or the regulations thereunder other than a Reportable Event as to which
the provision of thirty (30) days notice to the PBGC is waived under applicable
regulations.


               “Required Availability” means (a) Excess Availability plus (b)
unrestricted cash and Cash Equivalents minus (c) the aggregate amount of fees
and expenses incurred in connection with the closing of this Agreement and the
Loan Documents, in an amount of not less than $30,000,000.


               “Required Lenders” means, at any time, Lenders whose Pro Rata Shares
aggregate 51% of the Total Commitments, or if the Commitments have been
terminated irrevocably, 51% of the Obligations (other than Bank Product
Obligations) then outstanding.


               “Responsible Officer” means each of the following officers who shall have
been appointed by Borrower’s board of directors in accordance with Borrower’s
Governing Documents: the chairman of the board, president, any executive vice
president, the senior vice president of finance, the treasurer, any assistant
treasurer, Borrower’s chief financial officer, principal accounting officer
(or, if there is no such accounting officer, the controller), Borrower’s
principal legal officer, and any vice president/assistant general counsel.


               “Retiree Health Plan” means an “employee welfare benefit plan” within the
meaning of Section 3(1) of ERISA that provides benefits to individuals after
termination of their employment, other than as required by Section 601 of
ERISA.


               “Revolver Commitment” means, with respect to each Lender, its Revolver
Commitment, and, with respect to all Lenders, their Revolver Commitments, in
each case as such Dollar amounts are set forth beside such Lender’s name under
the applicable heading on Schedule C-1 or on the signature page of the
Assignment and Acceptance pursuant to which such Lender became a Lender
hereunder in accordance with the provisions of Section 14.1.


               “Revolver Usage” means, as of any date of determination, the sum of (a)
the then extant amount of outstanding Advances, plus (b) the then extant amount
of the Letter of Credit Usage.


               “Risk Participation Liability” means, as to each Letter of Credit, all
reimbursement obligations of Borrower to the Issuing Lender with respect to an
L/C


28






 


               Undertaking, consisting of (a) the amount available to be drawn or which
may become available to be drawn, (b) all amounts that have been paid by the
Issuing Lender to the Underlying Issuer to the extent not reimbursed by
Borrower, whether by the making of an Advance or otherwise, and (c) all accrued
and unpaid interest, fees, and expenses payable with respect thereto.


               “S&P” means Standard & Poor’s Rating Service, a division of The McGraw
Hill Companies, Inc., a New York corporation, and its successors.


               “SEC” means the United States Securities and Exchange Commission and any
successor thereto.


               “Second Amendment Effective Date” means the date on which the Second
Amendment to Loan and Security Agreement, dated as of October 4, 2002, shall
become effective pursuant to Section 3 of such agreement.


               “Securities Account” means a “securities account” as that term is defined
in the Code.


               “Settlement” has the meaning set forth in Section 2.3(f)(i).


               “Settlement Date” has the meaning set forth in Section 2.3(f)(i).


               “Solvent” means, with respect to any Person on a particular date, that
such Person is not insolvent (as such term is defined in the Uniform Fraudulent
Transfer Act).


               “Stock” means all shares, options, warrants, interests, participations, or
other equivalents (regardless of how designated) of or in a Person, whether
voting or nonvoting, including common stock, preferred stock, or any other
“equity security” (as such term is defined in Rule 3a11-1 of the General Rules
and Regulations promulgated by the SEC under the Exchange Act).


               “Stock Pledge Agreement” means that certain stock pledge agreement dated
as of even date herewith between Borrower and Agent with respect to the pledge
of the Stock of each Subsidiary owned by Borrower.


               “Subsidiary” of a Person means a corporation, partnership, limited
liability company, or other entity in which that Person directly or indirectly
owns or controls the shares of Stock having ordinary voting power to elect a
majority of the board of directors (or appoint other comparable managers) of
such corporation, partnership, limited liability company, or other entity.
Notwithstanding the foregoing, ORBIMAGE shall not be deemed to be a Subsidiary
of Borrower or its Subsidiaries for the purpose of this Agreement.


               “Supporting Obligation” means all of Borrower’s now owned or hereafter
acquired right, title and interest with respect to any “supporting obligation”
as that term is defined in the Code.


29






 


               “Swing Lender” means Foothill or any other Lender that, at the request of
Borrower and with the consent of Agent agrees, in such Lender’s sole
discretion, to become the Swing Lender hereunder.



               “Swing Loan” has the meaning set forth in Section 2.3(d)(i).



               “System Procurement Agreement” means that certain Amended and Restated
Orbimage System Procurement Agreement, dated February 26, 1998, as amended by
Amendment No. 1 dated December 31, 1998, as amended by Amendment No. 2 dated
September 15, 1999, as amended by Amendment No. 3 dated March 30, 2000, as
amended by Amendment No. 4 dated June 29, 2000 by and between Borrower and
ORBIMAGE, as such Agreement may be amended in accordance with the Agreement.



               “Taxes” has the meaning set forth in Section 16.11.



               “Third Amendment Effective Date” means the date on which the Third
Amendment to Loan and Security Agreement dated as of February 4, 2003, shall
become effective pursuant to Section 3 of such amendment.


               “TMS” means the Transportation Management Systems division of Borrower.


               “Total Commitment” means, with respect to each Lender, its Total
Commitment, and, with respect to all Lenders, their Total Commitments, in each
case as such Dollar amounts are set forth beside such Lender’s name under the
applicable heading on Schedule C-1 attached hereto or on the signature page of
the Assignment and Acceptance pursuant to which such Lender became a Lender
hereunder in accordance with the provisions of Section 14.1.


               “Trustee” means U.S. Bank, N.A., in its capacity as the Trustee under the
New Indenture.


               “Underlying Issuer” means a third Person that is the beneficiary of an L/C
Undertaking and that has issued a letter of credit at the request of the
Issuing Lender for the benefit of Borrower. Unless otherwise agreed between
Borrower and Agent, the Underlying Issuer shall be Wells Fargo.


               “Underlying Letter of Credit” means a letter of credit that has been
issued by an Underlying Issuer.


               “United States Agency” means any department, agency, public corporation or
instrumentality of the United States. For the avoidance of doubt, each branch
of the United States military shall be considered a separate United States
Agency for all purposes of this Agreement.


               “Voidable Transfer” has the meaning set forth in Section 17.7.


               “Wells Fargo” means Wells Fargo Bank, National Association, a national
banking association.


30






 


     1.2 Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP. When used herein, the term
“financial statements” shall include the notes and schedules thereto. Whenever
the term “Borrower” is used in respect of a financial covenant or a related
definition, it shall be understood to mean Borrower and its Subsidiaries on a
consolidated basis unless the context clearly requires otherwise.


     1.3 Code. Any terms used in this Agreement that are defined in the Code
shall be construed and defined as set forth in the Code unless otherwise
defined herein.


     1.4 Construction. Unless the context of this Agreement or any other Loan
Document clearly requires otherwise, references to the plural include the
singular, references to the singular include the plural, the term “including”
is not limiting, and the term “or” has, except where otherwise indicated, the
inclusive meaning represented by the phrase “and/or.” The words “hereof,”
“herein,” “hereby,” “hereunder,” and similar terms in this Agreement or any
other Loan Document refer to this Agreement or such other Loan Document, as the
case may be, as a whole and not to any particular provision of this Agreement
or such other Loan Document, as the case may be. Section, subsection, clause,
schedule, and exhibit references herein are to this Agreement unless otherwise
specified. Any reference in this Agreement or in the other Loan Documents to
any agreement, instrument, or document shall include all alterations,
amendments, changes, extensions, modifications, renewals, replacements,
substitutions, joinders, and supplements, thereto and thereof, as applicable
(subject to any restrictions on such alterations, amendments, changes,
extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements set forth herein). Any reference herein to any Person shall be
construed to include such Person’s successors and assigns. Any requirement of
a writing contained herein or in the other Loan Documents shall be satisfied by
the transmission of a Record and any Record transmitted shall constitute a
representation and warranty as to the accuracy and completeness of the
information contained therein.


     1.5 Schedules and Exhibits. All of the schedules and exhibits attached to
this Agreement shall be deemed incorporated herein by reference.


2.     LOAN AND TERMS OF PAYMENT.


     2.1 Revolver Advances.



               (a)  Subject to the terms and conditions of this Agreement, and during the
term of this Agreement, each Lender with a Revolver Commitment agrees
(severally, not jointly or jointly and severally) to make advances (“Advances”)
to Borrower in an amount at any one time outstanding not to exceed such
Lender’s Pro Rata Share of an amount equal to the lesser of (i) the Maximum
Revolver Amount less the sum of (A) the Letter of Credit Usage and (B) the
aggregate amount of the reserves established by Agent under Section 2.1(b), or
(ii) the Borrowing Base less the Letter of Credit Usage. For purposes of this
Agreement, “Borrowing Base,” as of any date of determination, shall mean the
result of:



	 	(x)	 	the lesser of



31






 





	 	(i)	 	the sum of (1) 85% of Eligible Domestic
Billed Accounts, plus (2) the least of (A) 50% of
Eligible Domestic Unbilled Accounts, (B)
$20,000,000, or (C) 150% of the Eligible Domestic
Billed Accounts, collectively less the amount, if
any, of the sum of the Dilution Reserve and the
ORBIMAGE Reserve, and
	 
	 	(ii)	 	an amount equal to Borrower’s
Collections with respect to Accounts for the
immediately preceding 75 day period, minus
	 
	 	(y)	 	the aggregate amount of
reserves established by Agent under Section
2.1(b).



               (b) 
Anything to the contrary in this Section 2.1 notwithstanding, Agent
shall have the right to establish reserves in such amounts, and with respect to
such matters, as Agent in its Permitted Discretion shall deem necessary or
appropriate, against the Borrowing Base, including the Bank Product Reserves,
the Baseline Reserve and additional reserves with respect to (i) sums that
Borrower is required to pay (such as taxes, assessments, insurance premiums,
or, in the case of leased assets, rents or other amounts payable under such
leases) and has failed to pay when due, or if no due date is provided, upon
demand, under any Section of this Agreement or any other Loan Document, and
(ii) amounts owing by Borrower to any Person to the extent secured by a Lien
on, or trust over, any of the Collateral (other than any existing Permitted
Lien set forth on Schedule P-1, and Permitted Liens under clause (p) of the
definition of Permitted Liens and any Lien arising after the date hereof that
secures Permitted Purchase Money Indebtedness), which Lien or trust, in the
Permitted Discretion of Agent likely would have a priority superior to the
Agent’s Liens (such as Liens or trusts in favor of landlords, warehousemen,
carriers, mechanics, materialmen, laborers, or suppliers, or Liens or trusts
for ad valorem, excise, sales, or other taxes where given priority under
applicable law) in and to such item of the Collateral; provided, however, that
in no event shall a reserve be created pursuant to this
Section 2.1(b)(ii) in
respect of Permitted Liens of the type described in clauses (b) (to the extent
the unpaid taxes are not delinquent), (h), and (i) of the definition of
Permitted Liens.


               (c)  The Lenders with Revolver Commitments shall have no obligation to make
additional Advances hereunder to the extent such additional Advances would
cause the Revolver Usage to exceed the Maximum Revolver Amount.


               (d)  Amounts borrowed pursuant to this Section may be repaid and, subject
to the terms and conditions of this Agreement, reborrowed at any time during
the term of this Agreement.


     2.2 Partial Prepayment of Revolver Usage and Reduction of Revolver
Commitment. Borrower may, with the consent of Required Lenders, and shall, to
the extent required by Section 7.3(c) or any consent or waiver issued with
respect to Section 7.3(c), prepay all or a portion of the outstanding Advances
(or, to the extent no Advances are outstanding, to cash collateralize all or a
portion of the outstanding Letters of Credit Usage in an amount up to 110% of
the then extant Letter of Credit Usage) from the Net Proceeds of Permitted


32






 


Dispositions. Any such prepayment by Borrower (i) shall result in a permanent,
pro rata reduction of Lenders’ Revolver Commitments, and (ii) shall be
accompanied by the payment by Borrower of the Applicable Partial Prepayment
Premium.


     2.3   Borrowing Procedures and Settlements.



               (a) 
Procedure for Borrowing. Each Borrowing shall be made by an
irrevocable written request by an Authorized Person delivered to Agent (which
notice must be received by Agent no later than 1:00 p.m. (Atlanta time) on the
Business Day prior to the date that is the requested Funding Date in the case
of a request for an Advance specifying (i) the amount of such Borrowing, and
(ii) the requested Funding Date, which shall be a Business Day; provided,
however, that in the case of a request for a Swing Loan in an amount of
$5,000,000, or less, such notice will be timely received if it is received by
Agent no later than 1:00 p.m. (Atlanta time) on the Business Day that is the
requested Funding Date) specifying (i) the amount of such Borrowing, and (ii)
the requested Funding Date, which shall be a Business Day. At Agent’s
election, in lieu of delivering the above-described written request, any
Authorized Person may give Agent telephonic notice of such request by the
required time, with such telephonic notice to be confirmed in writing within
twenty-four (24) hours of the giving of such notice.


               (b) 
Agent’s Election. Promptly after receipt of a request for a Borrowing
pursuant to Section 2.3(a), Agent shall elect, in its discretion, (i) to have
the terms of Section 2.3(c) apply to such requested Borrowing, or (ii) if the
Borrowing is for an Advance, to request Swing Lender to make a Swing Loan
pursuant to the terms of Section 2.3(d) in the amount of the requested
Borrowing; provided, however, that if Swing Lender declines in its sole
discretion to make a Swing Loan pursuant to Section 2.3(d), Agent shall elect
to have the terms of Section 2.3(c) apply to such requested Borrowing.


               (c) 
Making of Advances.



		
	 	     (i) In the event that Agent shall elect to have the terms of
this Section 2.3(c) apply to a requested Borrowing as described in
Section 2.3(b), then promptly after receipt of a request for a
Borrowing pursuant to Section 2.3(a), Agent shall notify the
Lenders, not later than 4:00 p.m. (Atlanta time) on the Business
Day immediately preceding the Funding Date applicable thereto, by
telecopy, telephone, or other similar form of transmission, of the
requested Borrowing. Each Lender shall make the amount of such
Lender’s Pro Rata Share of the requested Borrowing available to
Agent in immediately available funds, to Agent’s Account, not later
than 1:00 p.m. (Atlanta time) on the Funding Date applicable
thereto. After Agent’s receipt of the proceeds of such Advances,
upon satisfaction of the applicable conditions precedent set forth
in Section 3 hereof, Agent shall make the proceeds thereof
available to Borrower on the applicable Funding Date by
transferring immediately available funds equal to such proceeds
received by Agent to Borrower’s Designated Account; provided,
however, that, subject to the provisions of Sections 2.3(e) and
2.3(i), Agent shall not request any Lender to make, and no Lender
shall make, any Advance if Agent shall have actual knowledge that
(1) one or more of the applicable conditions precedent set forth in
Section 3 will not be satisfied on the requested Funding Date for
the



33






 







		
	 	applicable Borrowing unless such condition has been waived, or
(2) the requested Borrowing would exceed the Availability on such
Funding Date.




		
	 	     (ii) Unless Agent receives notice from a Lender on or prior to
the Closing Date or, with respect to any Borrowing after the
Closing Date, at least one (1) Business Day prior to the date of
such Borrowing, that such Lender will not make available as and
when required hereunder to Agent for the account of Borrower the
amount of that Lender’s Pro Rata Share of the Borrowing, Agent may
assume that each Lender has made or will make such amount available
to Agent in immediately available funds on the Funding Date and
Agent may (but shall not be so required), in reliance upon such
assumption, make available to Borrower on such date a corresponding
amount. If and to the extent any Lender shall not have made its
full amount available to Agent in immediately available funds and
Agent in such circumstances has made available to Borrower such
amount, that Lender shall on the Business Day following such
Funding Date make such amount available to Agent, together with
interest at the Defaulting Lender Rate for each day during such
period. A notice submitted by Agent to any Lender with respect to
amounts owing under this subsection shall be conclusive, absent
manifest error. If such amount is so made available, such payment
to Agent shall constitute such Lender’s Advance on the date of
Borrowing for all purposes of this Agreement. If such amount is
not made available to Agent on the Business Day following the
Funding Date, Agent will notify Borrower of such failure to fund
and, upon demand by Agent, Borrower shall pay such amount to Agent
for Agent’s account, together with interest thereon for each day
elapsed since the date of such Borrowing, at a rate per annum equal
to the interest rate applicable at the time to the Advances
composing such Borrowing. The failure of any Lender to make any
Advance on any Funding Date shall not relieve any other Lender of
any obligation hereunder to make an Advance on such Funding Date,
but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on any
Funding Date.




		
	 	     (iii) Agent shall not be obligated to transfer to a Defaulting
Lender any payments made by Borrower to Agent for the Defaulting
Lender’s benefit, and, in the absence of such transfer to the
Defaulting Lender, Agent shall transfer any such payments to each
other non-Defaulting Lender member of the Lender Group ratably in
accordance with their Commitments (but only to the extent that such
Defaulting Lender’s Advance was funded by the other members of the
Lender Group) or, if so directed by Borrower and if no Default or
Event of Default had occurred and is continuing (and to the extent
such Defaulting Lender’s Advance was not funded by the Lender
Group), retain same to be re-advanced to Borrower as if such
Defaulting Lender had made Advances to Borrower. Subject to the
foregoing, if Borrower does not so direct Agent (and to the extent
the Defaulting Lender’s Advance was not funded by the Lender
Group), Agent may hold and, in its Permitted Discretion, re-lend to
Borrower for the account of such Defaulting Lender the amount of
all such payments received and retained by it for the account of
such Defaulting Lender. Solely for the purposes of voting or
consenting to matters with respect to the Loan Documents, such
Defaulting



34






 






		
	 	Lender shall be deemed not to be a “Lender” and such
Lender’s Commitment shall be deemed to be zero. This Section shall
remain effective with respect to such Lender until (x) the
Obligations under this Agreement shall have been declared or shall
have become immediately due and payable, (y) the non-Defaulting
Lenders, Agent, and Borrower shall have waived such Defaulting
Lender’s default in writing, or (z) the Defaulting Lender makes its
Pro Rata Share of the applicable Advance and pays to Agent all
amounts owing by Defaulting Lender in respect thereof. The
operation of this Section shall not be construed to increase or
otherwise affect the Commitment of any Lender, to relieve or excuse
the performance by such Defaulting Lender or any other Lender of
its duties and obligations hereunder, or to relieve or excuse the
performance by Borrower of its duties and obligations hereunder to
Agent or to the Lenders other than such Defaulting Lender. Any
such failure to fund by any Defaulting Lender shall constitute a
material breach by such Defaulting Lender of this Agreement and
shall entitle Borrower at its option, upon written notice to Agent,
to arrange for a substitute Lender to assume the Commitment of such
Defaulting Lender, such substitute Lender to be acceptable to
Agent. In connection with the arrangement of such a substitute
Lender, the Defaulting Lender shall have no right to refuse to be
replaced hereunder, and agrees to execute and deliver a completed
form of Assignment and Acceptance Agreement in favor of the
substitute Lender (and agrees that it shall be deemed to have
executed and delivered such document if it fails to do so) subject
only to being repaid its share of the outstanding Obligations
(other than Bank Product Obligations) (including an assumption of
its Pro Rata Share of the Risk Participation Liability) without any
premium or penalty of any kind whatsoever; provided further,
however, that any such assumption of the Commitment of such
Defaulting Lender shall not be deemed to constitute a waiver of any
of the Lender Groups’ or Borrower’s rights or remedies against any
such Defaulting Lender arising out of or in relation to such
failure to fund.



               (d) 
Making of Swing Loans.



		
	 	     (i) In the event Agent shall elect, with the consent of Swing
Lender, as a Lender, to have the terms of this
Section 2.3(d) apply
to a requested Borrowing as described in Section 2.3(b), Swing
Lender as a Lender shall make such Advance in the amount of such
Borrowing (any such Advance made solely by Swing Lender as a Lender
pursuant to this Section 2.3(d) being referred to as a “Swing Loan”
and such Advances being referred to collectively as “Swing Loans”)
available to Borrower on the Funding Date applicable thereto by
transferring immediately available funds to Borrower’s Designated
Account. Each Swing Loan is an Advance hereunder and shall be
subject to all the terms and conditions applicable to other
Advances, except that all payments on any Swing Loan shall be
payable to Swing Lender as a Lender solely for its own account (and
for the account of the holder of any participation interest with
respect to such Swing Loan). Subject to the provisions of Section
2.3(i), Agent shall not request Swing Lender as a Lender to make,
and Swing Lender as a Lender shall not make, any Swing Loan if
Agent has actual knowledge that (i) one or more of the applicable
conditions precedent set forth in Section 3 will



35






 





		
	 	not be satisfied
on the requested Funding Date for the applicable Borrowing unless
such condition has been waived, or (ii) the requested Borrowing
would exceed the Availability on such Funding Date. Swing Lender
as a Lender shall not otherwise be required to determine whether
the applicable conditions precedent set forth in
Section 3 have
been satisfied on the Funding Date applicable thereto prior to
making, in its sole discretion, any Swing Loan.




		
	 	     (ii) The Swing Loans shall be secured by the Agent’s Liens,
shall constitute Advances and Obligations hereunder, and shall bear
interest at the rate applicable from time to time to Advances.



               (e) 
Agent Advances.



		
	 	     (i) Agent hereby is authorized by Borrower and the Lenders,
from time to time in Agent’s sole discretion, (1) after the
occurrence and during the continuance of a Default or an Event of
Default, or (2) at any time that any of the other applicable
conditions precedent set forth in Section 3 have not been
satisfied, to make Advances to Borrower on behalf of the Lenders
that Agent, in its Permitted Discretion deems necessary or
desirable (A) to preserve or protect the Collateral and any other
collateral securing the Obligations, or any portion thereof, (B) to
enhance the likelihood of repayment of the Obligations (other than
Bank Product Obligations), or (C) to pay any other amount
chargeable to Borrower pursuant to the terms of this Agreement,
including, without double counting, Lender Group Expenses and the
costs, fees, and expenses described in Section 10 (any of the
Advances described in this Section 2.3(e) shall be referred to as
“Agent Advances”); provided, that notwithstanding anything to the
contrary in this Section 2.3(e), the aggregate principal amount of
Agent Advances outstanding at any time, when taken together with
the aggregate principal amount of Overadvances in accordance with
Section 2.3(i) hereof outstanding at any time, shall not exceed an
amount equal to the lesser of (x) 10% of the Borrowing Base then in
effect and (y) $3,500,000. Each Agent Advance is an Advance
hereunder and shall be subject to all the terms and conditions
applicable to other Advances, except that all payments on any Agent
Advance shall be payable to Agent solely for its own account (and
for the account of the holder of any participation interest with
respect to such Agent Advance).




		
	 	     (ii) The Agent Advances shall be repayable by Borrower on
demand. All Agent Advances shall be secured by Agent’s Liens
granted to Agent under the Loan Documents, shall constitute
Advances and Obligations hereunder, and shall bear interest at the
rate applicable from time to time to Advances.



               (f) 
Settlement. It is agreed that each Lender’s funded portion of the
Advances is intended by the Lenders to equal, at all times, such Lender’s Pro
Rata Share of the outstanding Advances. Such agreement notwithstanding, Agent,
Swing Lender, and the other Lenders agree (which agreement shall not be for the
benefit of or enforceable by Borrower) that in order to facilitate the
administration of this Agreement and the other Loan Documents,


36






 


settlement among
them as to the Advances, the Swing Loans, and the Agent Advances shall take
place on a periodic basis in accordance with the following provisions:



		
	 	     (i) Agent shall request settlement (“Settlement”) with the
Lenders on a monthly basis, or on a more frequent basis if so
determined by Agent, (1) on behalf of Swing Lender, with respect to
each outstanding Swing Loan, (2) for itself, with respect to each
Agent Advance, and (3) with respect to Collections received, as to
each by notifying the Lenders by telecopy, telephone, or other
similar form of transmission, of such requested Settlement, no
later than 4:00 p.m. (Atlanta time) on the Business Day immediately
prior to the date of such requested Settlement (the date of such
requested Settlement being the “Settlement Date”). Such notice of
a Settlement Date shall include a summary statement of the amount
of outstanding Advances, Swing Loans, and Agent Advances for the
period since the prior Settlement Date. Subject to the terms and
conditions contained herein (including Section 2.3(c)(iii)): (y)
if a Lender’s balance of the Advances, Swing Loans, and Agent
Advances exceeds such Lender’s Pro Rata Share of the Advances,
Swing Loans, and Agent Advances as of a Settlement Date, then Agent
shall, by no later than 3:00 p.m. (Atlanta time) on the Settlement
Date, transfer in immediately available funds to the account of
such Lender as such Lender may designate, an amount such that each
such Lender shall, upon receipt of such amount, have as of the
Settlement Date, its Pro Rata Share of the Advances, Swing Loans,
and Agent Advances, and (z) if a Lender’s balance of the Advances,
Swing Loans, and Agent Advances is less than such Lender’s Pro Rata
Share of the Advances, Swing Loans, and the Agent Advances as of a
Settlement Date, such Lender shall no later than 3:00 p.m. (Atlanta
time) on the Settlement Date transfer in immediately available
funds to Agent’s Account, an amount such that each such Lender
shall, upon transfer of such amount, have as of the Settlement
Date, its Pro Rata Share of the Advances, Swing Loans, and Agent
Advances. Such amounts made available to Agent under clause (z) of
the immediately preceding sentence shall be applied against the
amounts of the applicable Swing Loan or Agent Advance and, together
with the portion of such Swing Loan or Agent Advance representing
Swing Lender’s Pro Rata Share thereof, shall constitute Advances of
such Lenders. If any such amount is not made available to Agent by
any Lender on the Settlement Date applicable thereto to the extent
required by the terms hereof, Agent shall be entitled to recover
for its account such amount on demand from such Lender together
with interest thereon at the Defaulting Lender Rate.




		
	 	     (ii) In determining whether a Lender’s balance of the
Advances, Swing Loans, and Agent Advances is less than, equal to,
or greater than such Lender’s Pro Rata Share of the Advances, Swing
Loans, and Agent Advances as of a Settlement Date, Agent shall, as
part of the relevant Settlement, apply to such balance the portion
of payments actually received in good funds by Agent with respect
to principal, interest and fees payable by Borrower and allocable
to the Lenders hereunder, and proceeds of Collateral and any other
collateral securing the Obligations. To the extent that a net
amount is owed to any such Lender after



37






 






		
	 	such application, such net
amount shall be distributed by Agent to that Lender as part of such
next Settlement.




		
	 	     (iii) Between Settlement Dates, Agent, to the extent no Agent
Advances or Swing Loans are outstanding, may pay over to Swing
Lender any payments received by Agent, that in accordance with the
terms of this Agreement would be applied to the reduction of the
Advances, for application to Swing Lender’s Pro Rata Share of the
Advances. If, as of any Settlement Date, Collections received
since the then immediately preceding Settlement Date have been
applied to Swing Lender’s Pro Rata Share of the Advances other than
to Swing Loans, as provided for in the previous sentence, Swing
Lender shall pay to Agent for the accounts of the Lenders, and
Agent shall pay to the Lenders, to be applied to the outstanding
Advances of such Lenders, an amount such that each Lender shall,
upon receipt of such amount, have, as of such Settlement Date, its
Pro Rata Share of the Advances. During the period between
Settlement Dates, Swing Lender with respect to Swing Loans, Agent
with respect to Agent Advances, and each Lender (subject to the
effect of letter agreements between Agent and individual Lenders)
with respect to the Advances other than Swing Loans and Agent
Advances, shall be entitled to interest at the applicable rate or
rates payable under this Agreement on the daily amount of funds
employed by Swing Lender, Agent, or the Lenders, as applicable.



               (g) 
Notation. Agent shall record on its books the principal amount of the
Advances owing to each Lender, including the Swing Loans owing to Swing Lender,
and Agent Advances owing to Agent, and the interests therein of each Lender,
from time to time. In addition, each Lender is authorized, at such Lender’s
option, to note the date and amount of each payment or prepayment of principal
of such Lender’s Advances in its books and records, including computer records,
such books and records constituting conclusive evidence, absent manifest error,
of the accuracy of the information contained therein.


               (h) 
Lenders’ Failure to Perform. All Advances (other than Swing Loans and
Agent Advances) shall be made by the Lenders contemporaneously and in
accordance with their Pro Rata Shares. It is understood that (i) no Lender
shall be responsible for any failure by any other Lender to perform its
obligation to make any Advance (or other extension of credit) hereunder, nor
shall any Commitment of any Lender be increased or decreased as a result of any
failure by any other Lender to perform its obligations hereunder, and (ii) no
failure by any Lender to perform its obligations hereunder shall excuse any
other Lender from its obligations hereunder.


               (i) 
Optional Overadvances.



		
	 	     (i) Any contrary provision of this Agreement notwithstanding,
the Lenders hereby authorize Agent or Swing Lender, as applicable,
and Agent or Swing Lender, as applicable, may, but is not obligated
to, knowingly and intentionally, continue to make Advances
(including Swing Loans) to Borrower notwithstanding that an
Overadvance exists or thereby would be created, so long as (A)
after giving effect to such Advances (including a Swing Loan),
together



38






 








		
	 	with the aggregate principal amount of Agent Advances in
accordance with Section 2.3(e) hereof outstanding at any time, the
outstanding Revolver Usage does not exceed the Borrowing Base by
more than an amount equal to the lesser of (x) 10% of the Borrowing
Base then in effect and (y) $3,500,000, (B) after giving effect to
such Advances (including any Swing Loan) the outstanding Revolver
Usage (except for and excluding amounts charged to the Loan Account
for interest, fees, or Lender Group Expenses) does not exceed the
Maximum Revolver Amount, and (C) at the time of the making of any
such Advance (including a Swing Loan), Agent does not believe, in
good faith, that the Overadvance created by such Advance will be
outstanding for more than ninety (90) days. The foregoing
provisions of this Section 2.3(i) are for the exclusive benefit of
Agent, Swing Lender, and the Lenders and are not intended to
benefit Borrower in any way. The Advances and Swing Loans, as
applicable, that are made pursuant to this Section 2.3(i) shall be
subject to the same terms and conditions as any other Advance or
Swing Loan, as applicable, except that the rate of interest
applicable thereto shall be the rate applicable to Advances under
Section 2.6(c) hereof without regard to the presence or absence of
a Default or Event of Default.




		
	 	     (ii) In the event Agent obtains actual knowledge that the
Revolver Usage exceeds the amounts permitted by the preceding
paragraph, regardless of the amount of, or reason for, such excess,
Agent shall notify Lenders as soon as practicable (and prior to
making any (or any additional) intentional Overadvances (except for
and excluding amounts charged to the Loan Account for interest,
fees, or Lender Group Expenses) unless Agent determines that prior
notice would result in imminent harm to the Collateral or any other
collateral securing the Obligations or their value), and the
Lenders with Revolver Commitments thereupon shall, together with
Agent, jointly determine the terms of arrangements that shall be
implemented with Borrower intended to reduce, within a reasonable
time, the outstanding principal amount of the Advances to Borrower
to an amount permitted by the preceding paragraph. In the event
Agent or any Lender disagrees over the terms of reduction or
repayment of any Overadvance, the terms of reduction or repayment
thereof shall be implemented according to the determination of the
Required Lenders.




		
	 	     (iii) Each Lender with a Revolver Commitment shall be
obligated to settle with Agent as provided in
Section 2.3(f) for
the amount of such Lender’s Pro Rata Share of any unintentional
Overadvances by Agent reported to such Lender, any intentional
Overadvances made as permitted under this Section 2.3(i), and any
Overadvances resulting from the charging to the Loan Account of
interest, fees, or Lender Group Expenses.



39






 





     2.4    Payments.


               (a)  Payments by Borrower.



		
	 	     (i) Except as otherwise expressly provided herein, all
payments by Borrower shall be made to Agent’s Account for the
account of the Lender Group and shall be made in immediately
available funds, no later than 2:00 p.m. (Atlanta time) on the date
specified herein. Any payment received by Agent later than 2:00
p.m. (Atlanta time) shall be deemed to have been received on the
following Business Day and any applicable interest or fee shall
continue to accrue until such following Business Day.




		
	 	     (ii) Unless Agent receives notice from Borrower prior to the
date on which any payment is due to the Lenders that Borrower will
not make such payment in full as and when required, Agent may
assume that Borrower has made (or will make) such payment in full
to Agent on such date in immediately available funds and Agent may
(but shall not be so required), in reliance upon such assumption,
distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent Borrower does
not make such payment in full to Agent on the date when due, each
Lender severally shall repay to Agent on demand such amount
distributed to such Lender, together with interest thereon at the
Defaulting Lender Rate for each day from the date such amount is
distributed to such Lender until the date repaid.



               (b) Apportionment
and Application of Payments.




		
	 	     (i) Except as otherwise provided with respect to Defaulting
Lenders and except as otherwise provided in the Loan Documents
(including letter agreements between Agent and individual Lenders),
aggregate principal and interest payments shall be apportioned
ratably among the Lenders (according to the unpaid principal
balance of the Obligations to which such payments relate held by
each Lender) and payments of fees and expenses (other than fees or
expenses that are for Agent’s separate account, after giving effect
to any letter agreements between Agent and individual Lenders)
shall be apportioned ratably among the Lenders having a Pro Rata
Share of the type of Commitment or Obligation to which a particular
fee relates. All payments shall be remitted to Agent and, subject
to Section 2.4(b)(iii), all such payments, and all proceeds of
Accounts or other Collateral received by Agent pursuant to Section
2.7(a) or other applicable provisions of this Agreement, shall be
applied on the applicable date required by Section 2.8 as follows:




		
	 	     (A) first, to pay any Lender Group Expenses then due to
Agent under the Loan Documents, until paid in full,




		
	 	     (B) second, to pay any Lender Group Expenses then due to
the Lenders under the Loan Documents, on a ratable basis,
until paid in full,



40






 








		
	 	     (C) third, to pay any fees then due to Agent (for its
separate accounts, after giving effect to any letter
agreements between Agent and the individual Lenders) under
the Loan Documents until paid in full,




		
	 	     (D) fourth, to pay any fees then due to any or all of
the Lenders (after giving effect to any letter agreements
between Agent and individual Lenders) under the Loan
Documents, on a ratable basis, until paid in full,




		
	 	     (E) fifth, to pay interest due in respect of all Agent
Advances, until paid in full,




		
	 	     (F) sixth, ratably to pay interest due in respect of the
Advances (other than Agent Advances) and the Swing Loans
until paid in full,




		
	 	     (G) seventh, so long as no Event of Default has occurred
and is continuing, to pay the principal of all Agent Advances
until paid in full,




		
	 	     (H) eighth, so long as no Event of Default has occurred
and is continuing, to pay the principal of all Swing Loans
until paid in full,




		
	 	     (I) ninth, so long as no Event of Default has occurred
and is continuing, and at Agent’s election (which election
Agent agrees will not be made if an Overadvance would be
created thereby), to pay amounts then due and owing by
Borrower or its Subsidiaries in respect of Bank Products,
until paid in full,




		
	 	     (J) tenth, so long as no Event of Default has occurred
and is continuing, to pay the principal of all Advances until
paid in full,





		
	 	     (K) eleventh, [Intentionally Omitted].








		
	 	     (L) twelfth, if an Event of Default has occurred and is
continuing, to pay the principal of all Agent Advances until
paid in full,




		
	 	     (M) thirteenth, if an Event of Default has occurred and
is continuing, to pay the principal of all Swing Loans until
paid in full,




		
	 	     (N) fourteenth, if an Event of Default has occurred and
is continuing, to Agent, to be held by Agent, for the benefit
of Wells Fargo or its Affiliates, as applicable, as cash
collateral in an amount up to the amount of the Bank Product
Reserves established prior to the occurrence of, and not in
contemplation of, the subject Event of Default until
Borrower’s and its Subsidiaries’ obligations in respect of
the then extant Bank Products have been paid in full or the
cash collateral amount has been exhausted,




		
	 	     (O) fifteenth, if an Event of Default has occurred and
is continuing to pay the principal of all Advances until paid
in full,



41






 






		
	 	     (P) sixteenth, if an Event of Default has occurred and
is continuing, to Agent, to be held by Agent, for the ratable
benefit of Issuing Lender and those Lenders having a Revolver
Commitment, as cash collateral in an amount up to 110% of the
then extant Letter of Credit Usage until paid in full,






		
	 	     (Q) seventeenth, [Intentionally Omitted].






		
	 	     (R) eighteenth, to pay any other Obligations due and
payable (including Bank Product Obligations) until paid in
full, and




		
	 	     (S) nineteenth, to Borrower (to be wired to the
Designated Account) or such other Person entitled thereto
under applicable law.




		
	 	     (ii) Agent promptly shall distribute to each Lender, pursuant
to the applicable wire instructions received from each Lender in
writing, such funds as it may be entitled to receive, subject to a
Settlement delay as provided in Section 2.3(f).




		
	 	     (iii) So long as no Event of Default has occurred and is
continuing, Section 2.4(b)(i) shall not apply to any payment by
Borrower specified by Borrower to be for the payment of specific
Obligations then due and payable (or prepayable) under any
provision of this Agreement.




		
	 	     (iv) For purposes of the foregoing, “paid in full” means
payment of all amounts owing under the Loan Documents according to
the terms thereof, including loan fees, service fees, professional
fees, interest (and specifically including interest accrued after
the commencement of any Insolvency Proceeding), default interest,
interest on interest, and expense reimbursements, in each case, to
the extent included in the Obligations, whether or not the same
would be or is allowed or disallowed in whole or in part in any
Insolvency Proceeding.




		
	 	     (v) In the event of a direct conflict between the priority
provisions of this Section 2.4 and other provisions contained in
any other Loan Document, it is the intention of the parties hereto
that such priority provisions in such documents shall be read
together and construed, to the fullest extent possible, to be in
concert with each other. In the event of any actual,
irreconcilable conflict that cannot be resolved as aforesaid, the
terms and provisions of this Section 2.4 shall control and govern.




42










 



     2.5    
Overadvances.   If, at any time or for any reason, the amount of
Obligations (other than Bank Product Obligations) owed by Borrower to the
Lender Group pursuant to Sections 2.1 and 2.12 is greater than either the
Dollar or percentage limitations set forth in
Sections 2.1 or 2.12, (an “Overadvance”), Borrower shall promptly, and in any event within two (2)
Business Days after the occurrence thereof, pay to Agent, in cash, the amount
of such excess, which amount shall be used by Agent to reduce the Obligations
in accordance with the priorities set forth in Section 2.4(b). In addition,
Borrower hereby promises to pay the Obligations (including principal, interest,
fees, costs, and expenses) in Dollars in full to the Lender Group as and when
due and payable under the terms of this Agreement and the other Loan Documents.


     2.6   
Interest Rates and Letter of Credit Fee: Rates, Payments, and
Calculations.




              (a)   Interest Rates.   Except as provided in clause (c) below, all
Obligations (except for undrawn Letters of Credit and except for Bank Product
Obligations) that have been charged to the Loan Account pursuant to the terms
hereof shall bear interest on the Daily Balance thereof at a per annum rate
equal to the Base Rate plus the Base Rate Revolving Loan Margin. The foregoing
notwithstanding, at no time shall any portion of the Obligations (other than
Bank Product Obligations) bear interest on the Daily Balance thereof at a per
annum rate less than 7%. To the extent that interest accrued hereunder at the
rate set forth herein would be less than the foregoing minimum daily rate, the
interest rate chargeable hereunder for such day automatically shall be deemed
increased to the minimum rate.



              (b)   Letter of Credit Fee.   Borrower shall pay Agent (for the ratable
benefit of the Lenders with a Revolver Commitment, subject to any letter
agreement between Agent and individual Lenders), a Letter of Credit fee (in
addition to the charges, commissions, fees, and costs set forth in Section
2.12(e)) which shall accrue on the Daily Balance of the undrawn amount of all
outstanding Letters of Credit at a rate equal to (i) prior to the First
Amendment Effective Date, 2.5% per annum, and (ii) commencing on the First
Amendment Effective Date, 3.5% per annum.


              (c)   Default Rate.   Upon the occurrence and during the continuation of an
Event of Default (and at the election of Agent or the Required Lenders),



		
	 	     (i)   all Obligations (except for undrawn Letters of Credit and
except for Bank Product Obligations) that have been charged to the
Loan Account pursuant to the terms hereof shall bear interest on
the Daily Balance thereof at a per annum rate equal to 4.0
percentage points above the per annum rate otherwise applicable
hereunder, and
	 
	 	     (ii)   the Letter of Credit fee provided for above shall be
increased by 4.0 percentage points above the per annum rate
otherwise applicable hereunder.



              (d)   Payment.   Interest, Letter of Credit fees, and all other fees payable
hereunder shall be due and payable, in arrears, on the first day of each month
at any time that Obligations or Commitments are outstanding. Borrower hereby
authorizes Agent, from time to time, without prior notice to Borrower, to
charge and, subject to the other provisions of this Agreement, prior to an
Event of Default and subject to the provisions of Section 2.3(i), Agent


43






 


agrees to charge such interest and fees, all Lender Group Expenses (as and when
incurred), the charges, commissions, fees, and costs provided for in Section
2.12(e) (as and when accrued or incurred), the fees and costs provided for in
Section 2.11 (as and when accrued or incurred), and all other payments as and
when due and payable under any Loan Document (including any amounts due and
payable to Wells Fargo or its Affiliates in respect of Bank Products up to the
amount of the then extant Bank Product Reserves) to Borrower’s Loan Account,
which amounts thereafter shall constitute Advances hereunder and shall accrue
interest at the rate then applicable to Advances hereunder. Any interest not
paid when due shall be charged to Borrower’s Loan Account and shall thereafter
constitute Advances hereunder and shall accrue interest at the rate then
applicable to Advances hereunder.


              (e)   Computation.   All interest and fees chargeable under the Loan
Documents shall be computed on the basis of a three hundred sixty (360) day
year for the actual number of days elapsed. In the event the Base Rate is
changed from time to time hereafter, the rates of interest hereunder based upon
the Base Rate automatically and immediately shall be increased or decreased by
an amount equal to such change in the Base Rate.


              (f)   Intent to Limit Charges to Maximum Lawful Rate.   In no event shall the
interest rate or rates payable under this Agreement, plus any other amounts
paid in connection herewith, exceed the highest rate permissible under any law
that a court of competent jurisdiction shall, in a final determination, deem
applicable. Borrower and the Lender Group, in executing and delivering this
Agreement, intend legally to agree upon the rate or rates of interest and
manner of payment stated within it; provided, however, that, anything contained
herein to the contrary notwithstanding, if said rate or rates of interest or
manner of payment exceeds the maximum allowable under applicable law, then,
ipso facto, as of the date of this Agreement, Borrower is and shall be liable
only for the payment of such maximum as allowed by law, and payment received
from Borrower in excess of such legal maximum, whenever received, shall be
applied to reduce the principal balance of the Obligations to the extent of
such excess.


     2.7    Cash Management.


              (a)   Borrower shall (i) establish and maintain cash management services of
a type and on terms satisfactory to Agent at one or more of the banks set forth
on Schedule 2.7(a) (each, a “Cash Management Bank”), and shall request in
writing and otherwise take such reasonable steps to ensure that all of its
Account Debtors forward payment of the amounts owed by them directly to a bank
account in Agent’s name (a “Cash Management Account”) at such Cash Management
Bank, and, (ii) deposit or cause to be deposited promptly, and in any event no
later than (1) the fifth Business Day after the receipt thereof with respect to
amounts in an aggregate amount of less than $100,000 or (2) the second Business
Day after the receipt thereof with respect to all other Collections (including
those sent directly by Account Debtors to a Cash Management Bank) into a Cash
Management Account; provided, however, that the portion of the proceeds
received by Borrower pursuant to the New Indenture to be applied to repay the
indebtedness of Borrower under the Indenture shall be deposited by Borrower
pursuant to Section 7.1(g).


              (b)   Each Cash Management Bank shall establish and maintain Cash Management
Agreements with Agent and Borrower, in form and substance acceptable to Agent


44






 


in its Permitted Discretion. Each such Cash Management Agreement shall
provide, among other things, that (i) all items of payment deposited in such
Cash Management Account and proceeds thereof are held by such Cash Management
Bank as agent or bailee-in-possession for Agent, (ii) the Cash Management Bank
has no rights of setoff or recoupment or any other claim against the applicable
Cash Management Account, other than for payment of its service fees and other
charges directly related to the administration of such Cash Management Account
and for returned checks or other items of payment, and (iii) it immediately
will forward by daily sweep all amounts in the applicable Cash Management
Account to the Agent’s Account.


              (c)   So long as no Default or Event of Default has occurred and is
continuing, Borrower may amend Schedule 2.7(a) to add or replace a Cash
Management Bank or Cash Management Account by delivering written notice to
Agent with reference to such Schedule 2.7(a); provided, however, that (i) such
prospective Cash Management Bank shall be reasonably satisfactory to Agent and
Agent shall have consented in writing in advance to the opening of such Cash
Management Account with the prospective Cash Management Bank, and (ii) prior to
the time of the opening of such Cash Management Account, Borrower and such
prospective Cash Management Bank shall have executed and delivered to Agent a
Cash Management Agreement. In the event Borrower receives notice from Agent
that (x) the creditworthiness of any Cash Management Bank is no longer
acceptable in Agent’s reasonable judgment, or (y) the operating performance,
funds transfer, or availability procedures or performance of the Cash
Management Bank with respect to Cash Management Accounts or Agent’s liability
under any Cash Management Agreement with such Cash Management Bank is no longer
acceptable in Agent’s reasonable judgment, Borrower shall (I) within thirty
(30) days of Borrower’s receipt of notice from Agent, request in writing and
otherwise take such reasonable steps to ensure that, within ninety (90) days
from the date thereof, all of Borrower’s Account Debtors that make payments
into such Cash Management Accounts make payments into (A) another existing Cash
Management Account that has not been determined by Agent to be unacceptable in
accordance with this Section 2.7(c) or (B) any new Cash Management Account
established in accordance with this Section 2.7(c), and (II) close its existing
Cash Management Accounts with the Cash Management Banks that are subject to
such notice from Agent within ninety (90) days from Borrower’s receipt thereof.


              (d)   The Cash Management Accounts shall be cash collateral accounts, with
all cash, checks and similar items of payment in such accounts securing payment
of the Obligations, and in which Borrower is hereby deemed to have granted a
Lien to Agent.


     2.8
   Crediting Payments; Float Charge.   (a) The receipt of any payment
item by Agent (whether from transfers to Agent by the Cash Management Banks
pursuant to the Cash Management Agreements or otherwise) shall not be
considered a payment on account unless such payment item is a wire transfer of
immediately available federal funds made to the Agent’s Account or unless and
until such payment item is honored when presented for payment. Should any
payment item not be honored when presented for payment, then Borrower shall be
deemed not to have made such payment and interest shall be calculated
accordingly. Anything to the contrary contained herein notwithstanding, any
payment item shall be deemed received by Agent only if it is received into the
Agent’s Account on a Business Day on or before 2:00 p.m. (Atlanta time). If
any payment item is received into the Agent’s Account on a non-Business Day or
after 2:00 p.m. (Atlanta time) on a Business Day, it shall be deemed to have
been received by Agent


45






 


as of the opening of business on the immediately
following Business Day. All payment items received by Agent on any Business
Day in accordance with this Section 2.8 shall be applied pursuant to Section
2.4(b) on such Business Day.



              (b)   From and after the Closing Date, Agent shall be entitled to charge
Borrower for two (2) Business Days of ‘clearance’ or ‘float’ at the rate
applicable to Advances under Section 2.6 on all Collections that are received
by Borrower (regardless of whether forwarded by the Cash Management Banks to
Agent); provided, however, that the “clearance” or “float” charge pursuant to
this Section 2.8(b) shall not be charged to Collections constituting (i)
proceeds from equity issuances or (ii) proceeds from the sale by Borrower of
TMS. The two (2) Business Day’s ‘clearance’ or ‘float’ charge applicable
pursuant to this Section 2.8(b) is acknowledged by the parties to constitute an
integral aspect of the pricing of the financing of Borrower and shall apply
irrespective of whether there are any outstanding monetary Obligations; the
effect of such clearance or float charge being the equivalent of charging two
(2) Business Days of interest on such Collections to which it is applicable, or
(iii) proceeds from the issuance of new second priority secured notes pursuant
to the provisions of the New Indenture. The parties acknowledge and agree that
the economic benefit of the foregoing provisions of this Section 2.8 shall be
for the exclusive benefit of Agent. For the avoidance of doubt, the
‘clearance’ or ‘float’ charge applicable to funds received into the Agent’s
Account pursuant to this Section 2.8 is solely for the purpose of computing
interest, and in no event shall such charge affect the date on which “collected
funds” received into the Agent’s Account are applied to the Loan Account or the
Obligations.


     2.9
   Designated Account.   Agent is authorized to make the Advances, and
Issuing Lender is authorized to issue the Letters of Credit, under this
Agreement based upon telephonic or other instructions received from anyone
purporting to be an Authorized Person, or without instructions if pursuant to
Section 2.6(d). Borrower agrees to establish and maintain the Designated
Account with the Designated Account Bank for the purpose of receiving (i) the
proceeds of the Advances requested by Borrower and made by Agent or the Lenders
hereunder and (ii) receiving the balance of any funds remaining in the Agent’s
Account after the application of the funds in the Agent’s Account pursuant to
Section 2.4(b). Unless otherwise agreed by Agent and Borrower, any Advance,
Agent Advance, or Swing Loan requested by Borrower and made by Agent or the
Lenders hereunder shall be made to the Designated Account.


     2.10    
Maintenance of Loan Account; Statements of Obligations.   Agent shall
maintain an account on its books in the name of Borrower (the “Loan Account”)
on which Borrower will be charged with all Advances (including Agent Advances
and Swing Loans) made by Agent, Swing Lender, or the Lenders to Borrower or for
Borrower’s account, the Letters of Credit issued by Issuing Lender for
Borrower’s account, and with all other payment Obligations hereunder or under
the other Loan Documents (except for Bank Product Obligations), including,
accrued interest, fees and expenses, and Lender Group Expenses. On each
Business Day, the Loan Account will be credited with all payments received and
collected into the Agent’s Account on or before 2:00 p.m. (Atlanta time) on
such day from Borrower or for Borrower’s account, including all amounts
received in the Agent’s Account from any Cash Management Bank. Agent shall
render statements regarding the Loan Account to Borrower, including principal,
interest, fees, and including an itemization of all charges and expenses
constituting


46






 


Lender Group Expenses owing, and such statements shall be
conclusively presumed, absent manifest error, to be correct and accurate and
constitute an account stated between Borrower and the Lender Group unless,
within sixty (60) days after receipt thereof by Borrower, Borrower shall
deliver to Agent written objection thereto describing the error or errors
contained in any such statements.


     2.11    Fees.   Borrower shall pay to Agent the following fees and charges,
which fees and charges shall be fully earned when due and non-refundable when
paid (irrespective of whether this Agreement is terminated thereafter) and
shall be apportioned among the Lenders in accordance with the terms of letter
agreements between Agent and individual Lenders:



              (a)   Unused Line Fee.   On the first day of each month during the term of
this Agreement, an unused line fee in an amount equal to 0.75% per annum times
the result of (a) the Maximum Revolver Amount, less (b) the sum of (i) the
average Daily Balance of Advances that were outstanding during the immediately
preceding month, plus (ii) the average Daily Balance of the Letter of Credit
Usage during the immediately preceding month, plus (iii) the amount of any Bank
Product Reserves established by the Agent with respect to Hedge Agreements,
plus (iv) the Baseline Reserve plus (v) the amount of any Advances requested by
Borrower but not advanced as a result of the failure of any Defaulting Lender
to make such Advance;


              (b)   Fee Letter Fees.   As and when due and payable under the terms of the
Fee Letter, Borrower shall pay to Agent and Lenders the fees set forth in the
Fee Letter; and


              (c)   Audit, Appraisal, and Valuation Charges.   For the separate account of
Agent, audit, appraisal, and valuation fees and charges as follows (i) a fee of
$850 per day, per auditor, plus out-of-pocket expenses for each financial audit
of Borrower performed by personnel employed by Agent (excluding routine
administration matters performed by an account executive) and (ii) the actual
charges paid or incurred by Agent if it elects to employ the services of one or
more third Persons to perform financial audits of Borrower, to appraise the
Collateral, or any portion thereof, or to assess Borrower’s business valuation.


     2.12
   Letters of Credit.



              (a)   Subject to the terms and conditions of this Agreement, the Issuing
Lender agrees to issue letters of credit for the account of Borrower (each, an
“L/C”), to purchase participations or execute indemnities or reimbursement
obligations (each such undertaking, an “L/C Undertaking”) with respect to
letters of credit issued by an Underlying Issuer or cause an Underlying Issuer
to issue Underlying Letters of Credit, in each case for the account of Borrower
in accordance with Borrower’s instructions. To request the issuance of an L/C,
an L/C Undertaking, or an Underlying Letter of Credit issued by the Underlying
Issuer (or the amendment, renewal, or extension of an outstanding L/C, L/C
Undertaking, or an Underlying Letter of Credit issued by the Underlying
Issuer), Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing
Lender) to the Issuing Lender and Agent (reasonably in advance of the requested
date of issuance, amendment, renewal, or extension) a notice requesting the
issuance of an L/C, L/C Undertaking, or an Underlying Letter of Credit issued
by the Underlying Issuer, or identifying the L/C, L/C Undertaking, or an
Underlying Letter of Credit issued by the Underlying Issuer to


47






 


be amended, renewed, or extended, the date of issuance, amendment, renewal, or extension,
the date on which such L/C, L/C Undertaking, or Underlying Letter of Credit
issued by the Underlying Issuer is to expire, the amount of such L/C, L/C
Undertaking, or Underlying Letter of Credit issued by the Underlying Issuer,
the name and address of the beneficiary thereof (or the beneficiary of the
Underlying Letter of Credit, as applicable), and such other information as
shall be necessary to prepare, amend, renew, or extend such L/C, L/C
Undertaking, or Underlying Letter of Credit issued by the Underlying Issuer.
If requested by the Issuing Lender, Borrower also shall be an applicant under
the application with respect to any Underlying Letter of Credit that is to be
the subject of an L/C Undertaking. The Issuing Lender shall have no obligation
to issue a Letter of Credit if any of the following would result after giving
effect to the requested Letter of Credit:



		
	 	     (i)    the Letter of Credit Usage would exceed the Borrowing Base
less the amount of outstanding Advances, or
	 
	 	     (ii)   the Letter of Credit Usage would exceed $25,000,000 or
	 
	 	     (iii)  the Letter of Credit Usage would exceed the Maximum
Revolver Amount less the then extant amount of outstanding
Advances.



              Each Letter of Credit (and corresponding Underlying Letter of Credit)
shall be in form and substance consistent with Borrower’s instructions and
acceptable to the Issuing Lender (in the exercise of its Permitted Discretion),
including the requirement that the amounts payable thereunder must be payable
in Dollars. If Issuing Lender is obligated to advance funds under a Letter of
Credit, Borrower immediately shall reimburse such L/C Disbursement to Issuing
Lender by paying to Agent an amount equal to such L/C Disbursement not later
than 2:00 p.m., Georgia time, on the date that such L/C Disbursement is made,
if Borrower shall have received written or telephonic notice of such L/C
Disbursement prior to 1:00 p.m., Georgia time, on such date, or, if such notice
has not been received by Borrower prior to such time on such date, then not
later than 11:00 a.m., Georgia time, on (i) the Business Day that Borrower
receives such notice, if such notice is received prior to 1:00 p.m., Georgia
time, on the date of receipt, and, in the absence of such reimbursement, the
L/C Disbursement immediately and automatically shall be deemed to be an Advance
hereunder and, thereafter, shall bear interest at the rate then applicable to
Advances under Section 2.6. To the extent an L/C Disbursement is deemed to be
an Advance hereunder, Borrower’s obligation to reimburse such L/C Disbursement
shall be discharged and replaced by the resulting Advance. Promptly following
receipt by Agent of any payment from Borrower pursuant to this paragraph, Agent
shall distribute such payment to the Issuing Lender or, to the extent that
Lenders have made payments pursuant to Section 2.12(c) to reimburse the Issuing
Lender, then to such Lenders and the Issuing Lender as their interest may
appear.



              (b)   Promptly following receipt of a notice of L/C Disbursement pursuant to
Section 2.12(a), each Lender with a Revolver Commitment agrees to fund its Pro
Rata Share of any Advance deemed made pursuant to the foregoing subsection on
the same terms and conditions as if Borrower had requested such Advance and
Agent shall promptly pay to Issuing Lender the amounts so received by it from
the Lenders. 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


48






 


on the part of the Issuing Lender or Lenders with Revolver Commitments, the
Issuing Lender shall be deemed to have granted to each Lender with a Revolver
Commitment, and each Lender with a Revolver Commitment shall be deemed to have
purchased, a participation in each Letter of Credit, in an amount equal to its
Pro Rata Share of the Risk Participation Liability of such Letter of Credit,
and each such Lender agrees to pay to Agent, for the account of the Issuing
Lender, such Lender’s Pro Rata Share of any payments made by the Issuing Lender
under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender with a Revolver Commitment hereby absolutely and
unconditionally agrees to pay to Agent, for the account of the Issuing Lender,
such Lender’s Pro Rata Share of each L/C Disbursement made by the Issuing
Lender and not reimbursed by Borrower on the date due as provided in clause (a)
of this Section, or of any reimbursement payment required to be refunded to
Borrower for any reason. Each Lender with a Revolver Commitment acknowledges
and agrees that its obligation to deliver to Agent, for the account of the
Issuing Lender, an amount equal to its respective Pro Rata Share pursuant to
this Section 2.12(b) shall be absolute and unconditional and such remittance
shall be made notwithstanding the occurrence or continuation of an Event of
Default or Default or the failure to satisfy any condition set forth in Section
3 hereof. If any such Lender fails to make available to Agent the amount of
such Lender’s Pro Rata Share of any payments made by the Issuing Lender in
respect of such Letter of Credit as provided in this Section, Agent (for the
account of the Issuing Lender) shall be entitled to recover such amount on
demand from such Lender together with interest thereon at the Defaulting Lender
Rate until paid in full.


              (c)   Borrower hereby agrees to indemnify, save, defend, and hold the Lender
Group harmless from any loss, cost, expense, or liability, and reasonable
attorneys fees incurred by the Lender Group arising out of or in connection
with any Letter of Credit; provided, however, that Borrower shall not be
obligated hereunder to indemnify for any loss, cost, expense, or liability that
is caused by the gross negligence or willful misconduct of the Issuing Lender,
the Underlying Issuer (if the Underlying Issuer is Wells Fargo) or any other
member of the Lender Group. Borrower agrees to be bound by the Underlying
Issuer’s regulations and interpretations of any Underlying Letter of Credit or
by Issuing Lender’s interpretations of any L/C issued by Issuing Lender to or
for Borrower’s account, even though this interpretation may be different from
Borrower’s own, and Borrower understands and agrees that the Lender Group shall
not be liable for any error, negligence, or mistake, whether of omission or
commission, in following Borrower’s instructions or those contained in the
Letter of Credit or any modifications, amendments, or supplements thereto
except for any error, negligence or mistake that is caused by the gross
negligence or willful misconduct of any member of the Lender Group or the
Underlying Issuer (if the Underlying Issuer is Wells Fargo). Borrower
understands that the L/C Undertakings may require Issuing Lender to indemnify
the Underlying Issuer for certain costs or liabilities arising out of claims by
Borrower against such Underlying Issuer. Borrower hereby agrees to indemnify,
save, defend, and hold the Lender Group harmless with respect to any loss,
cost, expense (including reasonable attorneys fees), or liability incurred by
the Lender Group under any L/C Undertaking as a result of the Lender Group’s
indemnification of any Underlying Issuer; provided, however, that Borrower
shall not be obligated hereunder to indemnify for any loss, cost, expense, or
liability that is caused by the gross negligence or willful misconduct of the
Issuing Lender, the Underlying Issuer (if such Underlying Issuer is Wells
Fargo) or any other member of the Lender Group.


49






 


              (d)   Borrower hereby authorizes and directs any Underlying Issuer to
deliver to the Issuing Lender all instruments, documents, and other writings
and property received by such Underlying Issuer pursuant to such Underlying
Letter of Credit and to accept and rely upon the Issuing Lender’s instructions
with respect to all matters arising in connection with such Underlying Letter
of Credit and the related application; provided, however, that the Issuing
Lender shall be liable to Borrower for any damages suffered by Borrower as a
result of any directions of Borrower concerning the Underlying Letter of Credit
being incorrectly communicated to the Underlying Issuer as a result of the
Issuing Lender’s gross negligence or willful misconduct.


              (e)   Any and all charges, commissions, fees, and costs incurred by the
Issuing Lender relating to Underlying Letters of Credit shall be Lender Group
Expenses for purposes of this Agreement and immediately shall be reimbursable
by Borrower to Agent for the account of the Issuing Lender; it being
acknowledged and agreed by Borrower that, as of the Closing Date, the issuance
charge imposed by the Underlying Issuer is .825% per annum times the face
amount of each Underlying Letter of Credit, that such issuance charge may be
changed from time to time upon thirty (30) days’ prior written notice to
Borrower, and that the Underlying Issuer also imposes a schedule of charges for
amendments, extensions, drawings, and renewals.


              (f)   If by reason of (i) any change in any applicable law, treaty, rule, or
regulation or any change in the interpretation or application thereof by any
Governmental Authority, or (ii) compliance by the Underlying Issuer or the
Lender Group with any direction, request, or requirement (irrespective of
whether having the force of law) of any Governmental Authority or monetary
authority including, Regulation D of the Federal Reserve Board as from time to
time in effect (and any successor thereto):



		
	 	     (i) any reserve, deposit, or similar requirement is or shall
be imposed or modified in respect of any Letter of Credit issued
hereunder, or
	 
	 	     (ii) there shall be imposed on the Underlying Issuer or the
Lender Group any other condition regarding any Underlying Letter of
Credit or any Letter of Credit issued pursuant hereto,



and the result of the foregoing is to increase, directly or indirectly, the
cost to the Lender Group of issuing, making, guaranteeing, or maintaining any
Letter of Credit or to reduce the amount receivable in respect thereof by the
Lender Group, then, and in any such case, Agent may, at any time within a
reasonable period after the additional cost is incurred or the amount received
is reduced, notify Borrower in reasonable detail of the circumstances giving
rise to such additional cost or reduced receipt, and Borrower shall pay on
demand such amounts as Agent may specify to be necessary to compensate the
Lender Group for such additional cost or reduced receipt, together with
interest on such amount from the date of such demand until payment in full
thereof at the rate then applicable to Advances. The determination by Agent of
any amount due pursuant to this Section, as set forth in a certificate setting
forth the calculation thereof in reasonable detail, shall, in the absence of
manifest or demonstrable error, be final and conclusive and binding on all of
the parties hereto.


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              (g)   As of the Closing Date, without further action by the parties hereto,
each letter of credit issued under the Letter of Credit Reimbursement Agreement
shall be deemed to be an L/C issued pursuant to this Agreement and each such
L/C shall be governed by the provisions hereof and, by its terms, the Letter of
Credit Reimbursement Agreement shall be terminated.


     2.13
   [Intentionally Omitted].


     2.14
   Capital Requirements.   If, after the date hereof, any Lender
determines that (i) the adoption of or change in any law, rule, regulation or
guideline regarding capital requirements for banks or bank holding companies,
or any change in the interpretation or application thereof by any Governmental
Authority charged with the administration thereof, or (ii) compliance by such
Lender or its parent bank holding company with any guideline, request or
directive of any such entity regarding capital adequacy (whether or not having
the force of law), has the effect of reducing the return on such Lender’s or
such holding company’s capital as a consequence of such Lender’s Commitments
hereunder to a level below that which such Lender or such holding company could
have achieved but for such adoption, change, or compliance (taking into
consideration such Lender’s or such holding company’s then existing policies
with respect to capital adequacy and assuming the full utilization of such
entity’s capital) by any amount deemed by such Lender to be material, then such
Lender may notify Borrower and Agent thereof. Following receipt of such
notice, Borrower agrees to pay such Lender on demand the amount of such
reduction of return of capital as and when such reduction becomes effective,
payable within ninety (90) days after presentation by such Lender of a
statement in the amount and setting forth in reasonable detail such Lender’s
calculation thereof and the assumptions upon which such calculation was based
(which statement shall be deemed true and correct absent manifest error);
provided that in no event shall Borrower be liable for any reduced return on
capital incurred prior to the date that is one hundred twenty (120) days prior
to the date of the delivery of such notice. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.



     2.15
   Designated Senior Indebtedness.   The Obligations shall constitute
Designated Senior Indebtedness for all purposes under the Indenture and the New
Indenture.



     2.16
   Registered Notes.   Agent agrees to record each Advance on the
Register referenced in Section 14.1(h). Each Advance recorded on the Register
(each a “Registered Loan”) may not be evidenced by promissory notes other than
Registered Notes (as defined below). Upon the registration of any Advance,
Borrower agrees at the request of any Lender, to execute and deliver to such
Lender a promissory note, in conformity with the terms of this Agreement, in
registered form to evidence such Registered Loan, in form and substance
reasonably satisfactory to such Lender, and registered as provided in Section
14.1(h) (a “Registered Note”), payable to the order of such Lender and
otherwise duly completed, provided that any Registered Note issued to evidence
Advances shall be issued in the principal amount of the applicable Lender’s
Revolver Commitment. Once recorded on the Register, each Advance may not be
removed from the Register so long as it or they remain outstanding, and a
Registered Note may not be exchanged for a promissory note that it is not a
Registered Note.


3.    CONDITIONS; TERM OF AGREEMENT.



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     3.1    
Conditions Precedent to the Initial Extension of Credit.   The
obligation of the Lender Group (or any member thereof) to make the initial
Advance (or otherwise to extend any credit provided for hereunder), is subject
to the fulfillment, to the satisfaction of Agent, of each of the conditions
precedent set forth below:


           (a)   the Closing Date shall occur on or before March 4, 2002;


           (b)   Agent shall have received all financing statements required by Agent,
duly authorized by Borrower or, as applicable, a Guarantor, and Agent shall
have received confirmations reflecting the filing of all such financing
statements;


           (c)   Agent shall have received each of the following documents, in form and
substance satisfactory to Agent, duly executed, and each such document shall be
in full force and effect:



		
	 	     (i)   the Cash Management Agreements, including, without
limitation, with respect to (A) lockbox account No. 0030134412 at
Bank of America, N.A., (B) lockbox account No. 2086827474 at Bank
of America, N.A., (C) Deposit Account No. 4113052459 at Bank of
America, N.A., (D) lockbox account No. 0015891942 at Allfirst Bank,
and (E) lockbox account Nos. 4950050062, 4950050070, 4950050054 at
Wells Fargo;
	 
	 	     (ii)   to the extent required pursuant to Section 7.13, the
Control Agreements;
	 
	 	     (iii)   the Intellectual Property Security Agreement;
	 
	 	     (iv)   the Disbursement Letter;
	 
	 	     (v)   the Due Diligence Letter;
	 
	 	     (vi)   the Fee Letter;
	 
	 	     (vii)   the Guaranty;
	 
	 	     (viii)   the Guarantor Security Agreement;
	 
	 	     (ix)   the Mortgages;
	 
	 	     (x)   the Officers’ Certificate;
	 
	 	     (xi)   the Stock Pledge Agreement, together with all
certificates representing the shares of Stock pledged thereunder,
as well as Stock powers with respect thereto endorsed in blank;
	 
	 	     (xii)   a Borrowing Base Certificate dated as of the Closing
Date; and
	 
	 	     (xiii)   a Compliance Certificate dated as of the Closing Date;



52






 



              (d)   Agent shall have received a certificate from the secretary or
assistant secretary of Borrower (i) attesting to the resolutions of Borrower’s
Board of Directors authorizing its execution, delivery, and performance of this
Agreement and the other Loan Documents to which Borrower is a party and
authorizing specific officers of Borrower to execute the same, and (ii)
certifying the names and true signatures of the officers of Borrower authorized
to sign each Loan Document;


              (e)   Agent shall have received copies of Borrower’s Governing Documents, as
amended, modified, or supplemented to the Closing Date, certified by the
secretary or assistant secretary of Borrower;


              (f)   Agent shall have received a certificate of status with respect to
Borrower, dated within ten (10) days of the Closing Date, such certificate to
be issued by the appropriate officer of the jurisdiction of organization of
Borrower, which certificate shall indicate that Borrower is in good standing in
such jurisdiction;


              (g)   Agent shall have received certificates of status with respect to
Borrower, each dated within thirty (30) days of the Closing Date, such
certificates to be issued by the appropriate officer of the jurisdictions
(other than the jurisdiction of organization of Borrower) in which its failure
to be duly qualified or licensed would constitute a Material Adverse Change,
which certificates shall indicate that Borrower is in good standing in such
jurisdictions;


              (h)   Agent shall have received a certificate from the secretary or
assistant secretary of each Guarantor attesting to the resolutions of such
Guarantor’s Board of Directors authorizing its execution, delivery, and
performance of the Loan Documents to which such Guarantor is a party and
authorizing specific officers of such Guarantor to execute the same;


              (i)   Agent shall have received copies of each Guarantor’s Governing
Documents, as amended, modified, or supplemented to the Closing Date, certified
by the secretary or assistant secretary of such Guarantor;


              (j)   Agent shall have received a certificate of status with respect to each
of its Subsidiaries extant as of the Closing Date, dated within ten (10) days
of the Closing Date, such certificate to be issued by the appropriate officer
of the jurisdiction of organization of such Subsidiary, which certificate shall
indicate that such Subsidiary is in good standing in such jurisdiction;


              (k)   Agent shall have received certificates of status with respect to each
Subsidiary extant as of the Closing Date, each dated within thirty (30) days of
the Closing Date, such certificates to be issued by the appropriate officer of
the jurisdictions (other than the jurisdiction of organization of such
Subsidiary) in which its failure to be duly qualified or licensed would
constitute a Material Adverse Change, which certificates shall indicate that
such Subsidiary is in good standing in such jurisdictions;


              (l)   Agent shall have received a certificate of insurance, together with
the endorsements thereto, as are required by Section 6.8, the form and
substance of which shall be satisfactory to Agent;


53






 


              (m)   Agent shall have received an opinion of Borrower’s counsel in form and
substance satisfactory to the Lenders, including, without limitation,
Borrower’s Virginia counsel;


              (n)   Agent shall have a certificate of the chief financial officer of
Borrower certifying that all tax returns required to be filed by Borrower have
been timely filed and all taxes upon Borrower or its properties, assets,
income, and franchises (including Real Property taxes and payroll taxes) have
been paid prior to delinquency, except such taxes that are the subject of a
Permitted Protest;


              (o)   Borrower shall have the Required Availability after giving effect to
the initial extensions of credit hereunder;


              (p)   Agent shall have completed its business, legal, and collateral due
diligence, including (i) a collateral audit and review of Borrower’s books and
records and verification of Borrower’s representations and warranties to the
Lender Group, the results of which shall be satisfactory to the Lenders in
their Permitted Discretion, and (ii) a lien search on Borrower and its
Subsidiaries, the results of which are satisfactory to Agent;


              (q)   Agent shall have received the unaudited financial statements for
Borrower as of December 31, 2001, which shall be in form and substance
satisfactory to the Lenders;


              (r)   The Lenders shall have completed their review of the final enterprise
valuation of Borrower calculated by Andersen, the results of which shall be
satisfactory to Lenders;


              (s)   The Lenders shall have received Borrower’s Closing Date Business Plan;


              (t)   Borrower shall pay, or shall have provided irrevocable directions to
pay from the loan proceeds, all Lender Group Expenses incurred in connection
with the transactions evidenced by this Agreement;



         
     (u)   Agent shall have received (i) appraisals of the Real Property
Collateral satisfactory to the Lenders, and (ii) mortgagee title insurance
policies pursuant to ALTA Lender’s Policies of Title Insurance (or marked
commitments to issue the same) for the Real Property Collateral issued by a
title insurance company satisfactory to Agent, together with any endorsements
thereto, (each a “Mortgage Policy” and, collectively, the
“Mortgage Policies”)
in amounts satisfactory to Agent assuring Agent that the Mortgages on such Real
Property Collateral are valid and enforceable first priority mortgage Liens on
such Real Property Collateral free and clear of all defects and encumbrances
except Permitted Liens, and the Mortgage Policies otherwise shall be in form
and substance satisfactory to Agent;



              (v)   Agent shall have received (i) a copy of the Phase-I environmental
report and a reliance letter issued to Agent for the benefit of the Lender
Group for the unimproved Real Property Collateral located at Steeplechase
Industrial Park, Lots 1-4, and (ii) an ALTA/ACSM survey certified to Agent for
the benefit of the Lender Group with respect to each parcel composing the Real
Property Collateral; the environmental consultants and surveyors retained for
such ALTA/ACSM survey, the scope of the reports or surveys, and the results of
both the survey and the Phase-I report shall be reasonably acceptable to Agent;


54






 


              (w)   Agent shall have received copies of each of (i) the Indenture, (ii)
the pay-off letter executed by JPMorgan, together with Uniform Commercial Code
termination statements and other documentation evidencing the termination by
JPMorgan of its Liens on and to the properties and assets of Borrower and its
Subsidiaries, (iii) the pay-off letter executed by MetLife, together with
Uniform Commercial Code termination statements and other documentation
evidencing the termination by MetLife of its Liens on and to the properties and
assets of Borrower and its Subsidiaries, except as in respect of any operating
lease between Borrower and MetLife or one of its Affiliates, and (iv)
termination statements for all other financing statements that have not
otherwise lapsed, naming Borrower or its Subsidiaries as “debtor”, excluding
the Permitted Liens;


              (x)   Borrower shall have received all licenses, approvals or evidence of
other actions required by any Governmental Authority in connection with the
execution and delivery by Borrower of this Agreement or any other Loan Document
or with the consummation of the transactions contemplated hereby and thereby;


              (y)   Agent shall have received evidence satisfactory to it that Borrower
has dissolved each of its Subsidiaries other than Orbital Communications,
Orbital Holdings, and Orbital International;


              (z)   Borrower shall have executed a final settlement agreement with
Indostar, the terms of which are substantially similar to the terms previously
provided to Agent;


              (aa)   Agent shall have received evidence satisfactory to it that Borrower
has prepared notices of assignment to be delivered to the relevant government
contracting officers (or other authorized parties) pursuant to the Assignment
of Claims Act and the applicable provisions of the F.A.R. with respect to all
Accounts existing as of the date hereof with a remaining billable contract
value equal to or greater than $2,000,000 after the Closing Date for which the
United States or any department, agency or instrumentality thereof is the
Account Debtor;


              (bb)   Borrower shall have established a cash management system satisfying
the requirements of Section 2.7 and
Section 7.13; provided, however, that the
Cash Management Accounts with Bank of America, N.A. referenced in Section
3.2(g) shall not be required to be in Agent’s name; and


              (cc)   all other documents and legal matters in connection with the
transactions contemplated by this Agreement shall have been delivered,
executed, or recorded and shall be in form and substance satisfactory to Agent.


     3.2
   Conditions Subsequent.   The obligation of the Lender Group (or any
member thereof) to continue to make Advances (or otherwise extend credit
hereunder) is subject to the fulfillment, on or before the date applicable
thereto, of each of the conditions subsequent set forth below (except as set
forth in Section 3.2(a), the failure by Borrower to so perform or cause to be
performed constituting an Event of Default):


              (a)   within ten (10) days of the Closing Date, Borrower shall deliver to
Agent evidence that Borrower is in good standing and qualified to do business
in the States of Virginia,


55






 



Arizona and California and that Orbital
Communications is in good standing and qualified to do business in the State of
Virginia.


              (b)   within ten (10) days of the date Agent delivers to Borrower executed
copies of the notices of assignment to be delivered to the relevant
governmental contracting officers (or other authorized parties) pursuant to the
Assignment of Claims Act and F.A.R. with respect to all Accounts existing as of
the Closing Date with a remaining billable Contract Value equal to or greater
than $2,000,000 after the Closing Date for which any United States Agency is
the Account Debtor, Borrower shall deliver to Agent evidence of the submission
of such notices to the relevant governmental contracting officers (or other
authorized parties).


              (c)   within fifteen (15) days (with respect to the properties listed in
clauses (i), (iii) and (iv) below) and within thirty (30) days (with respect to
the property listed in clause (ii) below) of the Closing Date, Borrower shall
deliver to Agent Collateral Access Agreements with respect to each of the
following properties;



		
	 	     (i) 21829, 21839 Atlantic Boulevard, Dulles, Virginia;
	 
	 	     (ii) 3380 South Price Road, Chandler, Arizona;
	 
	 	     (iii) 7170 Riverwood Drive, Columbia, Maryland; and
	 
	 	     (iv) 21700 Atlantic Boulevard, Dulles, Virginia;



provided, however, that, in the event Borrower fails to deliver to Agent a
fully executed Collateral Access Agreement with respect to any of the
above-referenced properties on or before the fifteenth day following the
Closing Date, no Default or Event of Default shall occur, however, Agent shall
establish a reserve against the Borrowing Base in an amount equal to the
aggregate amount of rent payable by Borrower during a three (3) month period
for the lease of each property described above for which no Collateral Access
Agreement is delivered to Agent, and provided further that such reserve with
respect to any such lease shall be released on the next succeeding Business Day
following the date on which Borrower delivers to Agent a fully executed
Collateral Access Agreement with respect to such lease;



              (d)   within thirty (30) days of the Closing Date, Borrower shall deliver to
Agent certified copies of the policies of insurance, together with the
endorsements thereto, as are required by Section 6.8, the form and substance of
which shall be satisfactory to Agent and its counsel;



              (e)   within thirty (30) days of the Closing Date, Borrower shall request in
writing and take all reasonable steps to ensure that all Account Debtors
forward payment of the amounts owed by them directly to a Cash Management
Account (other than accounts described in Section 3.2(g)) acceptable to Agent;


              (f)   within thirty (30) days of the Closing Date, Borrower shall deliver to
Agent evidence satisfactory to Agent that the public record in Montgomery
County, Maryland reflects that the judgment in favor of Thomas van der Heyden
has been satisfied or otherwise removed from the public record;


56






 


              (g)   within ninety (90) days of the Closing Date, Borrower shall deliver to
Agent evidence that Borrower has closed its existing lockbox account numbers
0030134412 and 2086827474 with Bank of America, N.A., and lockbox account
number 0015891942 with Allfirst Bank and deliver an updated Schedule 2.7(a),
reflecting the absence of such account at Bank of America, N.A. and Allfirst
Bank;


              (h)   within fifteen (15) days of the Closing Date, Borrower shall cause its
counsel or in-house counsel to deliver to Agent an opinion regarding the stock
pledged pursuant to the Stock Pledge Agreement, in form and substance
satisfactory to Agent; and


              (i)   on or before October 11, 2002, (i) Borrower shall have opened a
Deposit Account (the “New Deposit Account”) and delivered a fully executed
Control Agreement in favor of Agent with respect thereto, in form and substance
satisfactory to Agent, (ii) Borrower shall have delivered a fully executed
Control Agreement in favor of Trustee with respect to such New Deposit Account,
in form and substance satisfactory to the Trustee and Lender, and (iii)
Borrower shall take such actions as are necessary to ensure that funds in the
Designated Account (in excess of the amount necessary to cover outstanding
checks written on such account plus an amount not greater than $500,000) are
transferred to the New Deposit Account on a daily basis.


     3.3    
Conditions Precedent to all Extensions of Credit.   The obligation of
the Lender Group (or any member thereof) to make all Advances (or to extend any
other credit hereunder) shall be subject to the following conditions precedent:



              (a)   the representations and warranties contained in this Agreement and the
other Loan Documents shall be true and correct in all material respects on and
as of the date of such extension of credit, as though made on and as of such
date (except to the extent that such representations and warranties relate
solely to an earlier date),


              (b)   no Default or Event of Default shall have occurred and be continuing
on the date of such extension of credit, nor shall either result from the
making thereof,


              (c)   no injunction, writ, restraining order, or other order of any nature
prohibiting, directly or indirectly, the extending of such credit shall have
been issued and remain in force by any Governmental Authority against Borrower,
Agent, any Lender, or any of their Affiliates, and


              (d)   no Material Adverse Change shall have occurred.


The request by Borrower of an Advance (or other extension of credit) hereunder
shall be deemed to be a certification by Borrower that all of the requirements
set forth in this Section 3.3 have been satisfied.


     3.4    Term.
   This Agreement shall become effective upon the execution and
delivery hereof by Borrower, Agent, and the Lenders and, unless otherwise
terminated pursuant to this Agreement, shall continue in full force and effect
for a term ending on the third anniversary of the Closing Date (the “Maturity
Date”). The foregoing notwithstanding, the Lender Group, upon the election of
the Required Lenders, shall have the right to terminate its obligations under
this


57






 


Agreement immediately and without notice upon the occurrence and during
the continuation of an Event of Default.


     3.5    
Effect of Termination.   On the date of termination of this Agreement,
all Obligations (including contingent reimbursement obligations of Borrower
with respect to outstanding Letters of Credit and including all Bank Product
Obligations) immediately shall become due and payable without notice or demand
(including (a) either (i) providing cash collateral to be held by Agent for the
benefit of those Lenders with a Revolver Commitment in an amount equal to 110%
of the aggregate face amount of the then extant Letter of Credit Usage, (ii)
providing letters of credit, in form and substance and from issuing banks
acceptable to Agent, naming Agent as the beneficiary thereof and in an amount
equal to 110% of the aggregate face amount of the then extent Letter of Credit
Usage, or (iii) causing the original Letters of Credit to be returned to the
Issuing Lender, and (b) providing cash collateral to be held by Agent for the
benefit of Wells Fargo or its Affiliates with respect to the then extant Bank
Product Obligations). No termination of this Agreement, however, shall relieve
or discharge Borrower of its duties, Obligations, or covenants hereunder and
the Agent’s Liens in the Collateral shall remain in effect until all
Obligations have been fully and finally discharged and the Lender Group’s
obligations to provide additional credit hereunder have been terminated;
provided, however, that upon Borrower’s compliance with clauses (a) and (b) of
this Section or Section 3.6 and upon full and final payment of all Obligations
(other than contingent obligations in respect of outstanding Letters of Credit
and Bank Product Obligations described in clauses (a) and (b) of this Section
or Section 3.6) and the irrevocable termination of the Commitments, (1)
Borrower shall no longer have an obligation to comply with Section 2.7, Section
2.8, Article 6 and Article 7, Section 8.3, Section 8.4,
Section 8.5, Section
8.6, Section 8.7, Section 8.8, Section 8.9,
Section 8.10, Section 8.12 and
Section 8.13 (except as it relates to cash collateral or back up letters of
credit securing outstanding Letters of Credit or cash collateral securing Bank
Products Obligations) of this Agreement and (2) except with respect to cash
collateral or back up letters of credit provided pursuant to clauses (a) and
(b) of this Section, Agent will, at Borrower’s sole expense, execute and
deliver any termination statements to be filed pursuant to the Code, lien
releases, mortgage releases, re-assignments of intellectual property,
discharges of security interests, payoff letters and other similar discharge or
release documents (and, if applicable, in recordable form) as are reasonably
necessary to release, as of record, the Agent’s Liens and all notices of
security interests and liens previously filed by or on behalf of Agent with
respect to the Obligations. Any remaining cash collateral relating to Letter of
Credit Usage and Bank Product Obligations and any back up letter of credit with
an undrawn amount shall be returned to Borrower (a) in the case of any Letter
of Credit surrendered for termination, no later than three (3) Business Days
following such surrender to Agent or the Issuing Lender of such Letters of
Credit, (b) in the case of any Letter of Credit that expires, no later than
thirty (30) days of the expiration of such Letters of Credit, and (c) in the
case of the Bank Product Reserve, no later than ten (10) Business Days
following the termination of the Bank Product Obligations.


     3.6    
Early Termination by Borrower.   Borrower has the option, at any time
upon sixty (60) days prior written notice to Agent, to terminate this Agreement
by paying to Agent, for the benefit of the Lender Group, in cash, the
Obligations (including (a) either (i) providing cash collateral to be held by
Agent for the benefit of those Lenders with a Revolver Commitment in an amount
equal to 110% of the aggregate face amount of the then extant Letter of Credit
Usage, (ii) providing letters of credit, in form and substance and from issuing
banks acceptable to Agent,


58






 


naming Agent as the beneficiary thereof and in an
amount equal to 110% of the aggregate face amount of the then extent Letter of
Credit Usage, or (iii) causing the original Letters of Credit to be returned to
the Issuing Lender, and (b) providing cash collateral to be held by Agent for
the benefit of Wells Fargo or its Affiliates with respect to the then extant
Bank Products Obligations), in full, together with the Applicable Prepayment
Premium (to be allocated based upon letter agreements between Agent and
individual Lenders). Any remaining cash collateral relating to Letter of
Credit Usage and Bank Product Obligations and any back up letter of credit with
an undrawn amount shall be returned to Borrower (1) in the case of any Letter
of Credit surrendered for termination, no later than three (3) Business Days
following such surrender to Agent or the Issuing Lender of such Letters of
Credit, (2) in the case of any Letter of Credit that expires, no later than
thirty (30) days of the expiration of such Letters of Credit, and (3) in the
case of the Bank Product Reserve, no later than ten (10) Business Days
following the termination of the Bank Products Obligations. If Borrower has
sent a notice of termination pursuant to the provisions of this Section, then,
unless on or before the date fifteen (15) days prior to the termination date
set forth in such notice Borrower shall revoke such notice, the Commitments
shall terminate and Borrower shall be obligated to repay the Obligations
(including (a) either (i) providing cash collateral to be held by Agent for the
benefit of those Lenders with a Revolver Commitment in an amount equal to 110%
of the aggregate face amount of the then extant Letter of Credit Usage, or (ii)
causing the original Letters of Credit to be returned to the Issuing Lender,
and (b) providing cash collateral to be held by Agent for the benefit of Wells
Fargo or its Affiliates with respect to the then extant Bank Product
Obligations), in full, together with the Applicable Prepayment Premium, on the
date set forth as the date of termination of this Agreement in such notice. In
the event of the termination of this Agreement and repayment of the Obligations
at any time prior to the Maturity Date, for any other reason, including (I)
termination upon the election of the Required Lenders to terminate after the
occurrence of an Event of Default, (II) foreclosure and sale of Collateral,
(III) sale of the Collateral in any Insolvency Proceeding, or (IV) restructure,
reorganization or compromise of the Obligations by the confirmation of a plan
of reorganization, or any other plan of compromise, restructure, or arrangement
in any Insolvency Proceeding, then, in view of the impracticability and extreme
difficulty of ascertaining the actual amount of damages to the Lender Group or
profits lost by the Lender Group as a result of such early termination, and by
mutual agreement of the parties as to a reasonable estimation and calculation
of the lost profits or damages of the Lender Group, Borrower shall pay the
Applicable Prepayment Premium to Agent (to be allocated based upon letter
agreements between Agent and individual Lenders), measured as of the date of
such termination.


4.    CREATION OF SECURITY INTEREST.



     4.1    
Grant of Security Interest.   Borrower hereby grants to Agent, for the
benefit of the Lender Group, a continuing security interest in all of its
right, title, and interest in all currently existing and hereafter acquired or
arising Personal Property Collateral in order to secure prompt repayment of any
and all of the Obligations in accordance with the terms and conditions of the
Loan Documents and in order to secure prompt performance by Borrower of each of
its covenants and duties under the Loan Documents. The Agent’s Liens in and to
the Personal Property Collateral shall attach to all Personal Property
Collateral without further act on the part of Agent or Borrower. Anything
contained in this Agreement or any other Loan Document to the contrary
notwithstanding, except for Permitted Dispositions, Borrower has no


59






 


authority, express or implied, to dispose of any item or portion of the Collateral.
Borrower shall not, and shall not permit any of its Subsidiaries to, contest in
any manner the perfection or priority of Agent’s Lien on any partnership
interest or limited liability company interest included in the Collateral (as
defined herein and in the Guarantor Security Agreement).



     4.2    
Negotiable Collateral and Chattel Paper.   Borrower covenants and
agrees with the Lenders that from and after the date of this Agreement and
until the date of termination of this Agreement in accordance with Section 3.5
hereof:



              (a)   In the event that any Collateral, including proceeds, is evidenced by
or consists of Negotiable Collateral, and if and to the extent that perfection
or priority of Agent’s security interest is dependent on or enhanced by
possession, Borrower, immediately upon the request of Agent, shall endorse and
deliver physical possession of such Negotiable Collateral or Chattel Paper to
Agent.


              (b)   Borrower shall take all steps reasonably necessary to grant Agent
control of all electronic Chattel Paper in accordance with the Code and all
“transferable records” as defined in each of the Uniform Electronic Transaction
Act and the Electronic Signatures in Global and National Commerce Act; and


              (c)   if Borrower retains possession of any Chattel Paper or instruments
with Agent’s consent, such Chattel Paper and instruments shall be marked with
the following legend: “This writing and the obligations evidenced or secured
thereby are subject to the security interest of Foothill Capital Corporation,
as Agent.”



     4.3    
Collection of Accounts, General Intangibles, and Negotiable
Collateral.   At any time after the occurrence and during the continuation of an
Event of Default, Agent or Agent’s designee may (a) notify Account Debtors of
Borrower that the Accounts, Chattel Paper, or General Intangibles have been
assigned to Agent or that Agent has a security interest therein, or (b) collect
the Accounts, Chattel Paper, or General Intangibles directly and charge the
collection costs and expenses to the Loan Account. Borrower agrees that it
will hold in trust for the Lender Group, as the Lender Group’s trustee, any
Collections that it receives and immediately will deliver said Collections to
Agent or a Cash Management Bank in their original form as received by Borrower.



     4.4    
Delivery of Additional Documentation Required.   At any time upon the
request of Agent, Borrower shall execute (or cause to be executed) and deliver
to Agent, any and all financing statements, original financing statements in
lieu of continuation statements, fixture filings, security agreements, pledges,
assignments, endorsements of certificates of title, and all other documents
(the “Additional Documents”) upon which Borrower’s signature may be required
that Agent may request in its Permitted Discretion, in form and substance
satisfactory to Agent, to perfect and continue perfected or better perfect the
Agent’s Liens in the Collateral (whether now owned or hereafter arising or
acquired), to create and perfect Liens in favor of Agent in any Real Property
acquired after the Closing Date, and in order to fully consummate all of the
transactions contemplated hereby and under the other Loan Documents. To the
maximum extent permitted by applicable law, Borrower authorizes Agent to
execute any such Additional Documents in Borrower’s name and authorizes Agent
to file such executed Additional



60






 



Documents in any appropriate filing
office. In addition, on such periodic basis as Agent shall reasonably require, Borrower
shall (a) provide Agent with a report of all new trademark applications or
registrations, copyright registrations, or patent applications or issued
patents acquired or generated by Borrower during the prior period, (b) cause
all patents, copyrights, and trademarks acquired or generated by Borrower that
are material to Borrower’s business and that are not already the subject of a
registration with the appropriate filing office (or an application therefor
diligently prosecuted) to be registered with such appropriate filing office in
a manner sufficient to impart constructive notice of Borrower’s ownership
thereof, and (c) to the extent required by the Intellectual Property Security
Agreement, cause to be prepared, executed, and delivered to Agent supplemental
schedules to the applicable Loan Documents to identify such patents,
copyrights, and trademarks as being subject to the security interests created
thereunder. Borrower authorizes Agent to transmit, communicate or, as
applicable, file any financing statement under the Code, record, in-lieu
financing statement, amendment, correction statement, continuation statement,
termination statement or other instrument describing the Collateral as “all
personal property of Debtor” or “all assets of Debtor” or words of similar
effect, exclusive of the Excluded Collateral, in such jurisdictions and in such
filing offices as Agent may deem necessary or desirable in order to perfect any
security interest granted by Borrower under this Agreement and the other Loan
Documents without signature. Borrower hereby ratifies, to the extent
necessary, Agent’s authorization to file a financing statement or amendment
thereto, if such financing statement has been pre-filed by Agent prior to the
Closing Date. Prior to repayment in full and final discharge of the
Obligations, including Borrower’s delivery of cash collateral in an amount
equal to 110% of the aggregate face value of the then extant Letter of Credit
Usage to be held by Agent for the benefit of any Underlying Issuer with respect
to the then extant Letter of Credit Usage or return of the original Letters of
Credit to the Issuing Lender, Borrower shall not terminate, amend or file a
correction statement with respect to any Uniform Commercial Code financing
statements filed pursuant to this Section 4.4 without Agent’s prior written
consent.



     4.5    
Power of Attorney.   Borrower hereby irrevocably makes, constitutes,
and appoints Agent (and any of Agent’s officers, employees, or agents
designated by Agent) as Borrower’s true and lawful attorney, with power to (a)
if Borrower refuses to, or fails timely to execute and deliver any of the
documents described in Section 4.4, sign the name of Borrower on any of the
documents described in Section 4.4, (b) at any time that an Event of Default
has occurred and is continuing, sign Borrower’s name on any invoice or bill of
lading relating to the Collateral, drafts against Account Debtors, or notices
to Account Debtors, (c) (i) prior to the occurrence of an Event of Default, (A)
conduct verifications in coordination with Borrower pursuant to procedures
agreed upon by Agent, or (B) if Agent determines in its reasonable discretion
that Borrower is not cooperating in good faith with the efforts of Agent to
conduct verifications, Agent may communicate directly with Account Debtors to
conduct such verifications, and (ii) at any time that an Event of Default has
occurred and is continuing, send requests for verification of Accounts, (d)
endorse Borrower’s name on any Collection item that may come into the Lender
Group’s possession for deposit into any Cash Management Account or the Agent’s
Account, (e) at any time that an Event of Default has occurred and is
continuing, make, settle, and adjust all claims under Borrower’s policies of
insurance and make all determinations and decisions with respect to such
policies of insurance, and (f) at any time that an Event of Default has
occurred and is continuing, settle and adjust disputes and claims respecting
the Accounts, Chattel Paper, or General Intangibles directly with Account
Debtors,



61






 



for amounts and upon terms that Agent determines to be reasonable, and
Agent may cause to be executed and delivered any documents and releases that
Agent determines to be necessary. The appointment of Agent as Borrower’s
attorney, and each and every one of its rights and powers, being coupled with
an interest, is irrevocable until all of the Obligations have been fully and
finally repaid and performed and the Lender Group’s obligations to extend
credit hereunder are terminated.



     4.6    
Right to Inspect; Appraisals.   Subject to any confidentiality
obligations to which Borrower is subject with respect to information that has
been designated as classified by the United States government or other
applicable governmental authority:



         
     (a)   Collateral Audits.    Agent and each Lender (through any of their
respective officers, employees, or agents) shall have the right, from time to
time hereafter to inspect the Books and to check, test, and conduct audits of
the Collateral and any other collateral securing the Obligations in order to
verify Borrower’s and each Guarantor’s financial condition or the amount,
quality, value, condition of, or any other matter relating to, the Collateral
or any other collateral securing the Obligations; provided, however, so long as
no Event of Default has occurred and is continuing, Agent shall not conduct
audits and inspections at Borrower’s expense more than four (4) times per
calendar year, and


              (b)   Appraisals.    So long as no Event of Default has occurred and is
continuing, Agent shall have the right to conduct not more than one (1)
appraisal or valuation per year at Borrower’s expense. At any time an Event of
Default has occurred and is continuing, Agent shall have the right to conduct
appraisals and valuations in its Permitted Discretion at Borrower’s expense.



     4.7    
Control Agreements.   Borrower agrees that it will not transfer assets
out of any Securities Accounts other than as permitted under Section 7.13 and,
if to another securities intermediary, unless Borrower, Agent, and the
substitute securities intermediary have entered into a Control Agreement. No
arrangement contemplated hereby or by any Control Agreement in respect of any
Securities Accounts or other Investment Property shall be modified by Borrower
without the prior written consent of Agent. Upon the occurrence and during the
continuance of an Event of Default, Agent may notify any securities
intermediary to liquidate the applicable Securities Account or any related
Investment Property maintained or held thereby and remit the proceeds thereof
to the Agent’s Account.



     4.8    
Commercial Tort Claims.   Borrower shall promptly notify Agent in
writing upon incurring or otherwise obtaining a commercial tort claim, as that
term is defined in the Code, after the date hereof against any third party and,
upon request of Agent, promptly amend Schedule C-4 to this Agreement, authorize
the filing of additional or amendments to existing financing statements and do
such other acts or things deemed necessary or desirable by Agent to give Agent
a security interest in any such commercial tort claim.


62






 


5.    REPRESENTATIONS AND WARRANTIES.



              In order to induce the Lender Group to enter into this Agreement, Borrower
makes the following representations and warranties to the Lender Group, which
representations and warranties shall be true, correct, and complete, in all
material respects, as of the date hereof, and shall be true, correct, and
complete and deemed made, in all material respects, as of the Closing Date and
at and as of the date of the making of each Advance (or other extension of
credit) made thereafter, as though made on and as of the date of such Advance
(or other extension of credit) (except to the extent that such representations
and warranties relate solely to an earlier date) and such representations and
warranties shall survive the execution and delivery of this Agreement:



     5.1    
No Encumbrances.   Borrower has good and indefeasible title to the
Collateral and the Real Property, free and clear of Liens except for Permitted
Liens.


     5.2    
Eligible Accounts.   The Eligible Accounts are bona fide existing
payment obligations of Account Debtors created by the sale and delivery of
Inventory or the rendition of services to such Account Debtors in the ordinary
course of Borrower’s business, owed to Borrower without defenses,
counterclaims, or rights of return or cancellation. As to each Account that is
identified by Borrower as an Eligible Account in the most recent Borrowing Base
Certificate submitted to Agent, such Account is not excluded as ineligible by
virtue of one or more of the excluding criteria set forth in the definitions of
Eligible Domestic Accounts, Eligible Domestic Billed Accounts and Eligible
Domestic Unbilled Accounts, as applicable.



     5.3
   [Intentionally Omitted].



     5.4    
Equipment.   All of the Equipment is used or held for use in Borrower’s
business and is fit for such purposes.


     5.5
   Location of Inventory and Equipment.   The Inventory and Equipment are
not stored with a bailee, warehouseman, or similar party and are located only
at the locations identified on Schedule 5.5 or such other location as permitted
by Section 6.9.



     5.6    
Inventory Records.   Borrower keeps correct and accurate records
itemizing and describing the type, quality, and quantity of its Inventory and
the book value thereof.



     5.7    
Location of Chief Executive Office; FEIN; Organizational I.D. Number.   The
chief executive office of Borrower and each Guarantor is located at the
address indicated in Schedule 5.7 or at such other address as shall have been
disclosed to Agent in writing pursuant to Section 7.18 and Borrower’s and each
Guarantor’s FEIN and Organizational I.D. Number are identified in Schedule 5.7.



     5.8    
Due Organization and Qualification; Subsidiaries.



              
(a)   Borrower is duly organized and existing and in good standing under the
laws of the jurisdiction of its organization and qualified to do business in
any state where the failure to be so qualified reasonably could be expected to
have a Material Adverse Change.


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(b)   Set forth on Schedule 5.8(b) or as disclosed to Agent in writing from
time to time with reference to Schedule 5.8, is a complete and accurate
description of the authorized capital Stock of Borrower, by class, and, as of
the Closing Date, a description of the number of shares of each such class that
are issued and outstanding. Other than as described on Schedule 5.8(b) or as
disclosed to Agent in writing from time to time with reference to Schedule 5.8,
there are no subscriptions, options, warrants, or calls relating to any shares
of Borrower’s capital Stock, including any right of conversion or exchange
under any outstanding security or other instrument. Other than as described on
Schedule 5.8(b), Borrower is not subject to any obligation (contingent or
otherwise) to repurchase or otherwise acquire or retire any shares of its
capital Stock or any security convertible into or exchangeable for any of its
capital Stock.



              (c)   Set forth on Schedule 5.8(c) or as disclosed to Agent in writing from
time to time with reference to Schedule 5.8, is a complete and accurate list of
Borrower’s direct and indirect Subsidiaries, showing: (i) the jurisdiction of
their organization, (ii) the number of shares of each class of common and
preferred Stock authorized for each of such Subsidiaries, and (iii) the number
and the percentage of the outstanding shares of each such class owned directly
or indirectly by Borrower. All of the outstanding capital Stock of each such
Subsidiary has been validly issued and is fully paid and non-assessable.


              (d)   Except as set forth on Schedule 5.8(c) or as disclosed to Agent in
writing from time to time with reference to Schedule 5.8, there are no
subscriptions, options, warrants, or calls relating to any shares of Borrower’s
Subsidiaries’ capital Stock, including any right of conversion or exchange
under any outstanding security or other instrument. Neither Borrower nor any
of its respective Subsidiaries is subject to any obligation (contingent or
otherwise) to repurchase or otherwise acquire or retire any shares of
Borrower’s Subsidiaries’ capital Stock or any security convertible into or
exchangeable for any such capital Stock.


              (e)   Except for the FCC Licenses (to which neither Borrower nor Orbital
Communications ascribe any value), none of the Guarantors or Orbital Holdings
has assets with an aggregate value in excess of $10,000 or annual operating
expenses in excess of $10,000.



     5.9    
Due Authorization; No Conflict.



              (a)   The execution, delivery, and performance by Borrower of this Agreement
and the Loan Documents to which it is a party have been duly authorized by all
necessary action on the part of Borrower.


              (b)   The execution, delivery, and performance by Borrower of this Agreement
and the Loan Documents to which it is a party do not and will not (i) violate
any provision of federal, state, or local law or regulation applicable to
Borrower, the Governing Documents of Borrower, or any order, judgment, or
decree of any court or other Governmental Authority binding on Borrower, (ii)
conflict with, result in a breach of, or constitute (with due notice or lapse
of time or both) a default under any material contractual obligation of
Borrower, (iii) result in or require the creation or imposition of any Lien of
any nature whatsoever upon any properties or assets of Borrower, other than
Permitted Liens, or (iv) require any approval of Borrower’s interest holders or
any approval or consent of any Person under any material contractual obligation
of Borrower.


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              (c)   Other than the filing of financing statements, fixture filings,
notices under the Assignment of Claims Act, Intellectual Property Security
Agreement and Mortgages, the execution, delivery, and performance by Borrower
of this Agreement and the Loan Documents to which Borrower is a party do not
and will not require any registration with, consent, or approval of, or notice
to, or other action with or by, any Governmental Authority or other Person.


              (d)   This Agreement and the other Loan Documents to which Borrower is a
party, and all other documents contemplated hereby and thereby, when executed
and delivered by Borrower will be the legally valid and binding obligations of
Borrower, enforceable against Borrower in accordance with their respective
terms, except as enforcement may be limited by equitable principles or by
bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to
or limiting creditors’ rights generally.


              (e)   The Agent’s Liens are validly created, perfected, and first priority
Liens, subject only to Permitted Liens except with respect to satellites in
orbit owned by Borrower and existing as of the Closing Date, consisting of the
ORBVIEW-2 and the MUBLCOM satellites, as to which no representations and
warranties are given.


              (f)   The execution, delivery, and performance by each Guarantor of the Loan
Documents to which it is a party have been duly authorized by all necessary
action on the part of such Guarantor.


              (g)   The execution, delivery, and performance by each Guarantor of the Loan
Documents to which it is a party do not and will not (i) violate any provision
of federal, state, or local law or regulation applicable to such Guarantor, the
Governing Documents of such Guarantor, or any order, judgment, or decree of any
court or other Governmental Authority binding on such Guarantor, (ii) conflict
with, result in a breach of, or constitute (with due notice or lapse of time or
both) a default under any material contractual obligation of such Guarantor,
(iii) result in or require the creation or imposition of any Lien of any nature
whatsoever upon any properties or assets of such Guarantor, other than
Permitted Liens, or (iv) require any approval of such Guarantor’s interest
holders or any approval or consent of any Person under any material contractual
obligation of such Guarantor.


              (h)   The execution, delivery, and performance by each Guarantor of the Loan
Documents to which such Guarantor is a party do not and will not require any
registration with, consent, or approval of, or notice to, or other action with
or by, any Governmental Authority or other Person.


              (i)   The Loan Documents to which each Guarantor is a party, and all other
documents contemplated hereby and thereby, when executed and delivered by such
Guarantor will be the legally valid and binding obligations of such Guarantor,
enforceable against such Guarantor in accordance with their respective terms,
except as enforcement may be limited by equitable principles or by bankruptcy,
insolvency, reorganization, moratorium, or similar laws relating to or limiting
creditors’ rights generally.



     5.10    
Litigation.   Other than those matters disclosed on Schedule 5.10,
there are no actions, suits, or proceedings pending or, to the best knowledge
of Borrower, threatened against


65






 


Borrower, or any of its Subsidiaries, as
applicable, except for (a) matters that are fully covered by insurance (subject
to customary deductibles), and (b) matters arising after the Closing Date that,
if decided adversely to Borrower, or any of its Subsidiaries, as applicable,
reasonably could not be expected to result in a Material Adverse Change.



     5.11    
Financial Statements; No Material Adverse Change.   The unaudited
consolidated balance sheet of Borrower as of September 30, 2001 and the related
unaudited consolidated statements of operations and cash flows for the three
(3) months then ended, copies of which have been delivered to Agent, fairly
represent in all material respects, in conformity with GAAP, the consolidated
financial position of Borrower as of such date and its consolidated results of
operations and cash flows for such three (3) month period (subject to normal
year-end adjustments). Since the date of the most recent financial statements
included in Borrower’s reports filed with the SEC on Form 10-K and 10-Q, as
applicable, there has been no Material Adverse Change.



     5.12    
Fraudulent Transfer.



              (a)   Borrower and each Guarantor. taken as a whole, are Solvent.


              (b)   No transfer of property is being made by Borrower or any Guarantor and
no obligation is being incurred by Borrower or any Guarantor in connection with
the transactions contemplated by this Agreement or the other Loan Documents
with the intent to hinder, delay, or defraud either present or future creditors
of Borrower or such Guarantor.



     5.13    
Employee Benefits.   None of Borrower, any of its Subsidiaries, or any
of their ERISA Affiliates maintains or contributes to any Benefit Plan, other
than those listed on Schedule 5.13. Borrower, each of its Subsidiaries and
each of their ERISA Affiliates have satisfied the minimum funding standards of
ERISA and the IRC with respect to each Benefit Plan to which it is obligated to
contribute. No ERISA Event has occurred nor has any other event occurred that
may result in an ERISA Event that reasonably could be expected to result in a
Material Adverse Change. None of Borrower, any of its Subsidiaries, any of
their ERISA Affiliates, or, to their knowledge, any fiduciary of any Benefit
Plan is subject to any direct or indirect liability with respect to any Benefit
Plan under any applicable law, treaty, rule, regulation, or agreement. None of
Borrower, any of its Subsidiaries or any of their ERISA Affiliates is required
to provide security to any Benefit Plan under Section 401(a)(29) of the IRC.



     5.14    
Environmental Condition.   Except as set forth on Schedule 5.14, (a)
to Borrower’s knowledge, none of Borrower’s or any Subsidiary of Borrower’s
assets has ever been used by Borrower, any such Subsidiary or by previous
owners or operators in the disposal of, or to produce, store, handle, treat,
release, or transport, any Hazardous Materials, where such production, storage,
handling, treatment, release or transport was in violation, in any material
respect, of Environmental Law, (b) to Borrower’s knowledge, none of Borrower’s
or any Subsidiary of Borrower’s properties or assets has ever been designated
or identified in any manner pursuant to any Environmental Law as a Hazardous
Materials disposal site, (c) Borrower has not and, to


66






 


Borrower’s knowledge, no
Subsidiary of Borrower has received notice that a Lien arising under any
Environmental Law has attached to any revenues or to any Real Property owned or
operated by Borrower or any Subsidiary of Borrower, and (d) Borrower has not
and, to Borrower’s knowledge, no Subsidiary of Borrower has received a summons,
citation, notice, or directive from the Environmental Protection Agency or any
other federal or state governmental agency concerning any action or omission by
Borrower or any Subsidiary of Borrower resulting in the releasing or disposing
of Hazardous Materials into the environment in violation of the Environmental
Laws. Notwithstanding any other provision of this Agreement and except as
otherwise set forth in the Environmental Indemnity Agreement, this Section 5.14
sets forth Borrower’s sole and exclusive representation regarding Environmental
Matters, Environmental Laws and Hazardous Materials.



     5.15    
Brokerage Fees.   Borrower has not utilized the services of any broker
or finder in connection with Borrower’s obtaining financing from the Lender
Group under this Agreement and no brokerage commission or finders fee is
payable by Borrower in connection herewith.



     5.16    
Intellectual Property.   Borrower and each Subsidiary of Borrower
owns, or holds licenses in, all trademarks, trade names, copyrights, patents,
patent rights, and licenses that are necessary to the conduct of its business
as currently conducted. Attached hereto as Schedule 5.16 is a true, correct,
and complete listing of all material patents, patent applications, trademarks,
trademark applications, copyrights, and copyright registrations as to which
Borrower or any such Subsidiary is the owner or is an exclusive licensee. Upon
filing of the Intellectual Property Security Agreement with the United States
Copyright Office and the United States Patent and Trademark Office, as
applicable, and the filing of appropriate financing statements, all action
necessary to protect and perfect the Agent’s Lien on Borrower’s material
patents, patent applications, trademarks, trademark applications, copyrights,
and copyright registrations shall have been duly taken.



     5.17    
Leases.   Borrower and each Subsidiary of Borrower enjoys peaceful and
undisturbed possession under all leases material to the business of Borrower or
such Subsidiary, as applicable, and to which it is a party or under which it is
operating. All of such leases are valid and subsisting and no material default
by Borrower or any such Subsidiary exists under any of them.



     5.18    
DDAs.   Set forth on Schedule 2.7(a) (or as disclosed to Agent in
writing from time to time in accordance with and with reference to Schedule
2.7(a)) are all of Borrower’s and each Subsidiary of Borrower’s DDAs,
including, with respect to each depository (i) the name and address of such
depository, and (ii) the account numbers of the accounts maintained with such
depository.



     5.19    
Complete Disclosure.   Except as provided in the following sentence,
all factual information (taken as a whole) furnished by or on behalf of
Borrower or any Subsidiary of Borrower in writing to Agent or any Lender
(including all information contained in the Schedules hereto or in the other
Loan Documents) for purposes of or in connection with this Agreement, the other
Loan Documents, or any transaction contemplated herein or therein is, and all
other such factual information (taken as a whole) hereafter furnished by or on
behalf of Borrower or any Subsidiary of Borrower in writing to Agent or any
Lender will be, true and accurate, in all material respects, on the date as of
which such information is dated or certified and not incomplete by omitting to
state any fact necessary to make such information (taken as a whole) not
misleading in any material respect at such time in light of the circumstances
under


67






 


which such information was provided. On the Closing Date, the Closing
Date Business Plan represents, and as of the date on which any other
Projections are delivered to Agent, such additional Projections represent
Borrower’s good faith best estimate of its future performance for the periods
covered thereby (it being understood that the projections contained therein are
or will be based on assumptions of fact and opinion as to future events, and
are subject to significant uncertainties and contingencies, many of which are
beyond Borrower’s control, and no assurance can be given that such projections
will be realized in any manner).



     5.20    
Indebtedness.   Set forth on Schedule 5.20 is a true and complete list
of all material Indebtedness of Borrower and its Subsidiaries outstanding
immediately prior to the Closing Date that is to remain outstanding after the
Closing Date and such Schedule accurately reflects the aggregate principal
amount of such Indebtedness and a description of the documentation evidencing
such Indebtedness.



     5.21    
Regulation U.   Neither Borrower or any of its Subsidiaries is, nor
will be, engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulations T, U or
X of the Board of Governors of the Federal Reserve System), and no proceeds of
any Advance will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock.



     5.22    
Permits, Etc.   Borrower and each of its Subsidiaries has, and is in
compliance with, all permits, licenses, authorizations, approvals, entitlements
and accreditations required for such Person lawfully to own, lease, manage or
operate, or to acquire, each business and the Real Property currently owned,
leased, managed or operated, or to be acquired, by such Person except for such
permits, licenses, authorizations, approvals, entitlements and accreditations
the absence of which could not reasonably be expected to result in a Material
Adverse Change. To Borrower’s knowledge, no condition exists or event has
occurred that, in itself or with the giving of notice or lapse of time or both,
would result in the suspension, revocation, impairment, forfeiture or
non-renewal of any such permit, license, authorization, approval, entitlement
or accreditation, and, to Borrower’s knowledge, there is no claim that any
thereof is not in full force and effect.


6.    AFFIRMATIVE COVENANTS.



              Borrower covenants and agrees that, so long as any credit hereunder shall
be available and until full and final payment of the Obligations and the
termination of this Agreement, Borrower shall and shall, to the extent not
otherwise performed by Borrower on behalf of such Subsidiary, cause each of its
Subsidiaries to do all of the following; provided, however, that Borrower’s
non-operating Subsidiaries shall not be required to comply with Section 6.1,
Section 6.2, except with respect to financial statements of Borrower on a
consolidated basis with its Subsidiaries, Section 6.3(a) through (e), Section
6.5, Section 6.6 and Section 6.8:



     6.1    
Accounting System.   Maintain a system of accounting that enables
Borrower and its Subsidiaries to produce financial statements prepared in
accordance with GAAP and maintain records pertaining to the Collateral as may
be required to comply with their obligations set forth


68






 


in Section 6.2. Borrower and its Subsidiaries also shall keep an inventory reporting system
that shows all additions, sales, claims, returns, and allowances with respect
to the Inventory.



      6.2
   Collateral Reporting. Provide Agent (with copies for each Lender)
with the following documents at the following times in form satisfactory to
Agent:




	 	 	 
	

	Monthly (not later
than the 20th day of
each month, or to the
next succeeding
Business Day if the
20th day is not a
Business Day)	 	
(a) a detailed calculation of the Borrowing Base
(including detail regarding those Accounts that
are not billed or unbilled Eligible Accounts),
 

(b) a detailed aging, by total, of the Accounts,
together with a “roll-forward” of Accounts from
the prior month with supporting documentation to
include, without limitation, cash journals, sales
journals, debit memos, and credit memos (it being
understood that an aging of unbilled services
shall be required only upon the earlier of the
date forty-five (45) days following the Closing
Date or the date Agent has established a
methodology for calculating aging of unbilled
services in its Permitted Discretion in
consultation with Borrower),
 

(c) a summary aging, by vendor, of Borrower’s
vouchered and unvouchered accounts payable and any
book overdraft, and
 

(d) a calculation of Dilution for the prior month,
including any allowances made by Borrower for such
period,
	

	Quarterly (not later
than the 30th day
after the end of each
quarter, or to the
next succeeding
Business Day if the
30th day is not a
Business Day)	 	
(e) a detailed list of Borrower’s customers, and
 

(f) a report regarding Borrower’s and its
Subsidiaries’ accrued, but unpaid, ad valorem
taxes, or, if not applicable, a certification that
all such taxes have been paid,
	

	Within a reasonable

time after being

requested by Agent,

acting in its

Permitted Discretion	 	
(g) copies of invoices in connection with the
Accounts, credit memos, remittance advices,
deposit slips, shipping and delivery documents in
connection with the Accounts and, for Inventory
and Equipment acquired by Borrower, purchase
orders and invoices, and
 

(h) such other reports as to the Collateral or any
other collateral securing the Obligations, or the
financial condition of Borrower and its
Subsidiaries as Agent may request.
	




              In addition, Borrower agrees to cooperate with Agent to facilitate and
implement a system of electronic collateral reporting in order to provide
electronic reporting of each of the items set forth above.


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     6.3   
 Financial Statements, Reports, Certificates.   Deliver to Agent, with
copies to each Lender:


              (a)   as soon as available, but in any event within thirty (30) days
(forty-five (45) days in the case of a month that is the end of any fiscal
quarter in a fiscal year) after the end of each month during each of Borrower’s
fiscal years,



		
	 	     (i)   consolidated and consolidating balance sheets, statements
of operations, and statements of cash flow prepared by Borrower
covering the operations of Borrower, its Subsidiaries and all
divisions thereof during such month,
	 
	 	     (ii)   a company prepared forecast of collections and
disbursements for the next succeeding three (3) month period for
Borrower, its Subsidiaries and all divisions thereof,
	 
	 	     (iii)   a company prepared report of Baseline Contracts and a
comparison of monthly Current EAC Profit to Baseline EAC Profit,
	 
	 	     (iv)   a certificate signed by the chief financial officer or
chief accounting officer of Borrower to the effect that:




		
	 	     (A)   the financial statements delivered hereunder are
true and accurate based on good faith estimates of Borrower,
	 
	 	     (B)   the representations and warranties of Borrower and,
to the knowledge of Borrower, of each Subsidiary of Borrower
contained in this Agreement and the other Loan Documents are
true and correct in all material respects on and as of the
date of such certificate, as though made on and as of such
date (except to the extent that such representations and
warranties relate solely to an earlier date), and
	 
	 	     (C)   there does not exist any condition or event that
constitutes a Default or Event of Default (or, to the extent
of any non-compliance, describing such non-compliance as to
which he or she may have knowledge and what action Borrower
has taken, is taking, or proposes to take with respect
thereto),



              (b)   as soon as available, but in any event within forty-five (45) days
after the end of each of Borrower’s fiscal quarters, consolidated and
consolidating balance sheets, statements of operations, and statements of cash
flow covering the operations of Borrower, its Subsidiaries and all divisions
thereof for such quarter, in the form of financial statements delivered to
Agent prior to the Closing Date, all certified (subject to the lack of
footnotes and normal year-end adjustments) as to the fairness of presentation
in all material respects and in conformity with GAAP by the chief financial
officer or chief accounting officer of Borrower,


              (c)   for each period that is a date on which a financial covenant in
Section 7.20 is to be tested, as soon as available, but in any event within
forty-five (45) days after the end of such month, a Compliance Certificate
demonstrating, in reasonable detail, compliance at the end of


70






 


such period with the applicable financial covenants
contained in Section 7.20; provided,
however, that in the case of any Compliance Certificate delivered pursuant to
this Section 6.3(c) with respect to the last quarter of any fiscal year, the
certifications with respect to the financial covenants contained in Section
7.20(a) and (b) shall be certified as good faith preliminary estimates of
Borrower’s results to be reported pursuant to Section 6.3(d)(iii), and in no
event shall Borrower be required to update such Compliance Certificate until
the date of delivery of the final Compliance Certificate pursuant to Section
6.3(d)(iii) is due,


              (d)   as soon as available, but in any event within ninety (90) days after
the end of each of Borrower’s fiscal years,



		
	 	     (i)   consolidated and consolidating balance sheets, statements
of operations, and statements of cash flow covering the operations
of Borrower, its Subsidiaries and all divisions thereof for such
fiscal year, in the form currently prepared by Borrower, all such
consolidated and consolidating statements prepared in conformity
with GAAP and reported (without qualifications or explanatory
paragraph, including any “going concern” exception or qualification
except for a “going concern” qualification on the auditor’s report
for the financial statements of Borrower for the fiscal year ended
December 31, 2001) in a manner acceptable to the SEC by
PricewaterhouseCoopers or other independent public accountants of
nationally recognized standing,
	 
	 	     (ii)   a statement of such accountants whether anything has come
to their attention to cause them to believe that Borrower was not
in compliance with the requirements of Section 7.20 (other than
Section 7.20(a)(ii) and 7.20(c)) on the date of such financial
statements, and
	 
	 	     (iii)   a final compliance certificate meeting the requirements
of Section 6.3(c) with respect to the financial covenants set forth
in Section 7.20(a) and (b) in respect of the last quarter of the
previous fiscal year,



          
    (e)   as soon as available, but in any event within thirty (30) days after
to the start of each of Borrower’s fiscal years,



		
	 	     (i)   copies of Borrower’s Projections, in the form (including
as to scope and underlying assumptions) of the Closing Date
Business Plan, for the current and forthcoming two (2) years, year
by year, and for the current fiscal year, quarter by quarter, as
approved by Borrower’s Board of Directors,



          
    (f)     if and when filed by Borrower or any Subsidiary of Borrower,



		
	 	     (i)   copies of Form 10-Q quarterly reports, Form 10-K annual
reports, and Form 8-K current reports,
	 
	 	     (ii)   notice of (and, upon the request of Agent, copies of) any
other filings made by Borrower or any Subsidiary of Borrower with
the SEC, and



71






 








		
	 	     (iii)   notice of (and, upon the request of Agent, copies of)
any other information that is provided by Borrower to its
shareholders generally,



              (g)   upon request of Agent, if and when filed by Borrower, (i) copies of
Borrower’s and its Subsidiaries’ federal income tax returns, and any amendments
thereto, filed with the Internal Revenue Service, (ii) satisfactory evidence of
payment of applicable excise taxes in each jurisdiction (A) in which Borrower
or any such Subsidiary, as applicable, conducts business or is required to pay
any such excise tax, (B) where Borrower’s or any such Subsidiary’s, as
applicable, failure to pay any such applicable excise tax would result in a
Lien on the properties or assets of Borrower or any Subsidiary of Borrower, or
(C) where Borrower’s or any such Subsidiary’s, as applicable, failure to pay
any such applicable excise tax reasonably could be expected to result in a
Material Adverse Change,


              (h)   promptly after the commencement thereof, but in any event within ten
(10) days after the service of process with respect thereto on Borrower or any
of its Subsidiaries, notice of all actions, suits or proceedings brought by or
against Borrower before any Governmental Authority that, if determined
adversely to Borrower, could reasonably be expected to result in a Material
Adverse Change,


              (i)   within three (3) Business Days after any Responsible Officer of
Borrower has knowledge of any event or condition that constitutes a Default or
an Event of Default, notice thereof and a statement of the curative action that
Borrower proposes to take with respect thereto, and


              (j)   upon the request of Agent, any other report reasonably requested
relating to the financial condition of Borrower and its Subsidiaries.


              Borrower agrees that, upon prior notice to Borrower, Agent may communicate
with Borrower’s independent certified public accountants and that such
accountants are authorized to release to Agent whatever financial information
concerning Borrower Agent reasonably may request. Borrower agrees that Agent
may communicate directly with, and request financial information and documents
from, such accountants. Borrower waives the right to assert a confidential
relationship, if any, it may have with any accounting firm or service bureau in
connection with any information requested by Agent in accordance with this
Section 6.3.


     6.4    
[Intentionally Omitted].


     6.5    
Allowances.   Cause allowances as between Borrower and its Account
Debtors, to be on the same basis and in accordance with the usual customary
practices of Borrower, as they exist at the time of the execution and delivery
of this Agreement. If, at a time when an Event of Default has occurred and is
continuing, any Account Debtor requests an allowance from Borrower, Borrower
promptly shall determine the reason for such allowance and, if Agent consents
(which consent shall not be unreasonably withheld), issue a credit memorandum
(with a copy to be sent to Agent) in the appropriate amount to such Account
Debtor. For the avoidance of doubt, the consummation of the transactions
contemplated by the ORBIMAGE Settlement Plan Term Sheet shall not constitute
allowances in violation of this Section 6.5.


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     6.6
   Maintenance of Properties.   Maintain and preserve all of its
properties that are necessary and useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted, and comply at all
times with the provisions of all leases to which it is a party as lessee, so as
to prevent any loss or forfeiture thereof or thereunder.


     6.7   
 Taxes.   Cause all assessments and taxes, whether real, personal, or
otherwise, due or payable by, or imposed, levied, or assessed against Borrower,
any Subsidiary of Borrower, or any of assets of Borrower or such Subsidiary to
be paid in full, before delinquency or before the expiration of any extension
period, except to the extent that the validity of such assessment or tax shall
be the subject of a Permitted Protest. Borrower will, and will cause each of
its Subsidiaries to, make timely payment or deposit of all tax payments and
withholding taxes required of it by applicable laws, including those laws
concerning F.I.C.A., F.U.T.A., state disability, and local, state, and federal
income taxes, and will, upon request, furnish Agent with proof satisfactory to
Agent indicating that Borrower and each of its Subsidiaries have made such
payments or deposits.


     6.8 
   Insurance.


              (a)   At Borrower’s expense, maintain insurance respecting its assets
wherever located, covering loss or damage by fire, theft, explosion, and all
other hazards and risks as ordinarily are insured against by other Persons
engaged in the same or similar businesses. Borrower also shall maintain
business interruption, general liability, and product liability insurance, as
well as employee dishonesty insurance. All such policies of insurance shall be
in such amounts and with such insurance companies as are reasonably
satisfactory to Agent. Borrower shall also procure mission success insurance
(a “Mission Success Policy”) with respect to any launch or satellite mission
for which Borrower has reasonably determined that Borrower is at risk for
$500,000 or more, provided that such insurance is available on commercially
reasonably terms, if at all. Agent acknowledges that the policies and amounts
set forth in Schedule 6.8(a) are reasonably satisfactory to Agent as of the
date hereof. Borrower shall deliver copies of all such policies to Agent with
a lender’s loss payable endorsement reasonably satisfactory to Agent naming
Agent as loss payee or additional insured, as appropriate, on each insurance
policy required to be maintained pursuant to this Section 6.8, but excluding
any Mission Success Policy or portion thereof obtained by Borrower or a
Subsidiary on behalf of a customer as to which such customer is named loss
payee (such excluded policies, or portions thereof, the “Excluded Coverages,”
and the insurance policies required to be maintained by the Obligors pursuant
to this Section, other than the Excluded Coverages, the “Designated Insurance
Policies”).


              (b)   Borrower shall give Agent prompt notice of any loss greater than
$200,000 covered by such insurance. Borrower agrees that (i) all insurance
proceeds (other than any insurance proceeds with respect to any Mission Success
Policy) in excess of $1,000,000 per claim for which Agent is loss payee shall
be adjusted by Agent in accordance with the provisions of this Section 6.8, and
(ii) with respect to any claims on any Mission Success Policy in excess of
$1,000,000 per claim, Agent shall have the right to attend all scheduled
meetings and to participate in all teleconferences, to the extent practicable,
relating to the adjustment of any such claim and shall be provided with all
information relating to such claim provided by Borrower to the insurance
company with which such claim is being adjusted and any additional information


73






 


Agent may reasonably request relating to such claim. Each Designated Insurance
Policy shall include an endorsement whereby (A) all proceeds of any Designated
Insurance Policy shall be paid to Agent as loss payee, (B) to the extent such
policy is not a prepaid policy, the insurer shall notify Agent of any failure
by Borrower to pay any premiums or other amounts due on any insurance policy,
and (C) no cancellation or termination of such Designated Insurance Policy
shall be effective until at least thirty (30) days after receipt by Agent of
written notice thereof, provided that, solely with respect to any Mission
Success Policy, such Policy may provide that no cancellation or termination of
such Policy shall be effective until at least fifteen (15) days after receipt
by Agent of written notice thereof. Borrower agrees that it will (x) give
prior notice to Agent of any meeting referred to in clause (ii) of this
subsection, (y) to the extent practicable, promptly upon request, provide Agent
with all information referred to in clause (ii) of this subsection, and (z) not
agree to any adjustment with respect to any claim described in clause (ii) of
this subsection without the prior written consent of Agent, which consent shall
not be unreasonably withheld. Agent acknowledges that only United States
citizens or permanent residents will be entitled to participate in any
meetings/teleconferences referenced by clause (ii) above.


              (c)   Any monies received as payment for any loss under any insurance policy
mentioned above (other than liability insurance policies) or as payment of any
award or compensation for condemnation or taking by eminent domain, (i) so long
as no Event of Default shall have occurred and be continuing, shall be paid to
Agent to repay any outstanding Advances with the remaining proceeds, if any, to
be remitted to Borrower, or (ii) upon the occurrence and during the
continuation of an Event of Default, shall be paid over to Agent to be applied
at the option of the Required Lenders either to the prepayment of the
Obligations or to be disbursed to Borrower under staged payment terms
reasonably satisfactory to the Required Lenders for application to the cost of
repairs, replacements, or restorations. Any such repairs, replacements, or
restorations shall be effected with reasonable promptness and shall be of a
value at least equal to the value of the items of property destroyed prior to
such damage or destruction.


              (d)   Borrower will not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under
this Section 6.8, unless Agent is included thereon as additional insured with
the loss payable to Agent under a lender’s loss payable endorsement or its
equivalent. Borrower immediately shall notify Agent whenever such separate
insurance is taken out, specifying the insurer thereunder and full particulars
as to the policies evidencing the same, and copies of such policies promptly
shall be provided to Agent.


     6.9   
 Location of Inventory and Equipment.   Except for Inventory or
Equipment that is temporarily moved for the purpose of (a) testing, (b)
conducting the launches described on Schedule 6.9 (or, for a launch not
described on Schedule 6.9 otherwise described to Agent within thirty (30) days
prior to the relocation of any Inventory or Equipment for such launch), or (c)
otherwise fulfilling Borrower’s contractual obligations in the ordinary course
of business consistent with past practices, keep the Inventory and Equipment
only at the locations identified on Schedule 5.5 or at such other location as
shall be disclosed to Agent in writing from time to time with reference to
Schedule 5.5 not less than thirty (30) days prior to the date on which the
Inventory or Equipment is moved to such new location. If such new location is
outside the United States, Borrower agrees that it shall execute and deliver
all documentation that Agent, in


74






 


its Permitted Discretion, determines to be
necessary to perfect the Agent’s Liens in accordance with applicable law.
Borrower shall not, and shall not permit its Subsidiaries to, deliver any
Document (as defined in Article 9 of the Code) evidencing any Collateral
consisting of Equipment and Inventory to any Person other than the issuer of
such Document (as defined in Article 9 of the Code) to claim the goods
evidenced therefor or Agent or any other holder or representative of a holder
of a Permitted Lien. If any Equipment or Inventory is in possession or control
of any third party that is a bailee or warehouseman, Borrower shall, and shall
cause its Subsidiaries to, if reasonably requested by Agent, notify such third
party of Agent’s security interest and use its reasonable efforts in obtaining
an acknowledgment from the third party that it is holding the Equipment and
Inventory for the benefit of Agent and the other holders of Permitted Liens.


     6.10    
Compliance with Laws.   Comply with the requirements of all applicable
laws, rules, regulations, and orders of any Governmental Authority, including
the Fair Labor Standards Act and the Americans With Disabilities Act, other
than laws, rules, regulations, and orders the non-compliance with which,
individually or in the aggregate, would not result in and reasonably could not
be expected to result in a Material Adverse Change.


     6.11 
   Leases.   Pay when due (after giving effect to any cure period
applicable thereto) all rents and other amounts payable under leases to which
Borrower or any Subsidiary of Borrower is a party or by which Borrower’s or any
Subsidiary of Borrower’s properties and assets are bound, unless such payments
are the subject of a Permitted Protest.


     6.12 
   Brokerage Commissions.   Pay any and all brokerage commission or
finders’ fees incurred as a result of Borrower’s retention of any broker or
finder for obtaining financing from the Lender Group under this Agreement.
Borrower agrees and acknowledges that payment of all such brokerage commissions
or finders’ fees shall be the sole responsibility of Borrower, and Borrower
agrees to indemnify, defend, and hold Agent and the Lender Group harmless from
and against any claim of any broker or finder retained by Borrower arising out
of Borrower’s obtaining financing from the Lender Group under this Agreement.


     6.13 
   Existence.   At all times preserve and keep in full force and effect
Borrower’s and its Subsidiaries’ valid existence and good standing and any
rights and franchises material to Borrower’s and its Subsidiaries’ businesses;
provided that, upon prior written notice to Agent, Borrower shall be permitted
to dissolve any Subsidiary, the assets of which are transferred to Borrower.
Borrower agrees that it shall execute all Additional Documents pursuant to
Section 4.4 as Agent may deem necessary to perfect the Agent’s Lien in such
transferred assets.


     6.14    
Environmental.


       
       (a)   Keep any property either owned or operated by Borrower or any
Subsidiary of Borrower free of any Environmental Liens or post bonds or other
financial assurances sufficient to satisfy the obligations or liability
evidenced by such Environmental Liens, (b) comply, in all material respects,
with Environmental Laws and provide to Agent documentation of such compliance
which Agent reasonably requests, (c) promptly notify Agent of any release of a
Hazardous Material in any reportable quantity from or onto property owned or
operated by Borrower or any Subsidiary of Borrower and take any Remedial
Actions required by


75






 


Environmental Laws to abate said release or otherwise to
come into compliance with applicable Environmental Law, and (d) promptly
provide Agent with written notice within ten (10) days of the receipt of any of
the following: (i) notice that an Environmental Lien has been filed against
any of the real or personal property of Borrower or any Subsidiary of Borrower,
(ii) commencement of any Environmental Action against Borrower or any
Subsidiary of Borrower or notice that an Environmental Action will be filed
against Borrower or any Subsidiary of Borrower, and (iii) notice of a
violation, citation, or other administrative order issued to Borrower or any
Subsidiary of Borrower which reasonably could be expected to result in a
Material Adverse Change.


     6.15 
   Disclosure Updates.   Promptly and in no event later than five (5)
Business Days after a Responsible Officer of Borrower obtains knowledge
thereof, (a) notify Agent if any written information, exhibit, or report
furnished to the Lender Group pursuant to Section 6.2 or Section 6.3 (exclusive
of Section 6.2(h) or Section 6.3(j)) contained, at the time made, any untrue
statement of a material fact or omitted to state any material fact necessary to
make the statements contained therein not misleading in light of the
circumstances in which made, (b) notify Agent if any written material
information furnished to the Lender Group pursuant Section 6.2(h) or Section
6.3(j) taken as a whole with any other information at any time furnished to the
Lender Group contained, at the time made, any untrue statement of a material
fact or omitted to state any material fact necessary to make the statement
contained therein not misleading in light of the circumstances in which made,
and (c) correct any material defect or error that may be discovered in any Loan
Document or in the execution, acknowledgement, filing, or recordation thereof;
provided, however, that in no event shall the requirements of
this Section 6.15
apply to any projections, forecasts or other forward looking statements
provided to Agent or the Lender Group.


     6.16    
Employee Benefits.


              (a)   (i) Promptly deliver, and in any event within ten (10) Business Days
after Borrower or any Subsidiary of Borrower knows or should know that an ERISA
Event has occurred that reasonably could be expected to result in a Material
Adverse Change, a written statement of the chief financial officer of Borrower
describing such ERISA Event and any action that is being taking with respect
thereto by Borrower, any such Subsidiary or ERISA Affiliate, and any action
taken or threatened by the IRS, Department of Labor, or PBGC, and Borrower or
such Subsidiary, as applicable, shall be deemed to know all facts known by the
administrator of any Benefit Plan of which it is the plan sponsor, (ii)
promptly deliver, and in any event within three (3) Business Days after the
filing thereof with the IRS, a copy of each funding waiver request filed with
respect to any Benefit Plan and all communications received by Borrower, any
Subsidiary of Borrower or, to the knowledge of Borrower, any ERISA Affiliate
with respect to such request, and (iii) promptly deliver, and in any event
within three (3) Business Days after receipt by Borrower, any Subsidiary of
Borrower or, to the knowledge of Borrower, any ERISA Affiliate, of the PBGC’s
intention to terminate a Benefit Plan or to have a trustee appointed to
administer a Benefit Plan, copies of each such notice.


              (b)   Cause to be delivered to Lender, upon Lender’s request, each of the
following: (i) a copy of each Benefit Plan (or, where any such plan is not in
writing, complete description thereof) (and if applicable, related trust
agreements or other funding instruments) and


76






 


all amendments thereto, all written interpretations thereof and written descriptions thereof that have been
distributed to employees or former employees of Borrower or its Subsidiaries;
(ii) the most recent determination letter issued by the IRS with respect to
each Benefit Plan; (iii) for the three (3) most recent plan years, annual
reports on Form 5500 Series required to be filed with any governmental agency
for each Benefit Plan; (iv) all actuarial reports prepared for the last three
(3) plan years for each Benefit Plan; (v) a listing of all Multiemployer Plans,
with the aggregate amount of the most recent annual contributions required to
be made by Borrower, any Subsidiary of Borrower, or any ERISA Affiliate to each
such plan and copies of the collective bargaining agreements requiring such
contributions; (vi) any information that has been provided to Borrower, any
Subsidiary of Borrower or any ERISA Affiliate regarding withdrawal liability
under any Multiemployer Plan; and (vii) the aggregate amount of the most recent
annual payments made to former employees of Borrower or its Subsidiaries under
any Retiree Health Plan.


7.    NEGATIVE COVENANTS.



              Borrower covenants and agrees that, so long as any credit hereunder shall
be available and until full and final payment of the Obligations and the
termination of this Agreement, Borrower will not and will not permit any of its
Subsidiaries to do any of the following:


     7.1    
Indebtedness.   Create, incur, assume, permit, guarantee, or otherwise
become or remain, directly or indirectly, liable with respect to any
Indebtedness, except:


       
       (a)   Indebtedness evidenced by this Agreement and the other Loan Documents,
together with Indebtedness owed to Underlying Issuers with respect to
Underlying Letters of Credit,


      
        (b)   
Indebtedness set forth on Schedule 5.20,


        
      (c)   Permitted Purchase Money Indebtedness,


        
      (d)   refinancings, renewals, or extensions of Indebtedness permitted under
clauses (b) and (c) of this Section 7.1 (and continuance or renewal of any
Permitted Liens associated therewith) so long as: (i) the terms and conditions
of such refinancings, renewals, or extensions do not, in Agent’s Permitted
Discretion, materially impair the prospects of repayment of the Obligations by
Borrower or materially impair Borrower’s or any Subsidiary of Borrower’s
creditworthiness, (ii) such refinancings, renewals, or extensions do not result
in an increase in the principal amount of, or interest rate with respect to,
the Indebtedness so refinanced, renewed, or extended, (iii) such refinancings,
renewals, or extensions do not result in a shortening of the average weighted
maturity of the Indebtedness so refinanced, renewed, or extended, nor are they
on terms or conditions, that, taken as a whole, are materially more burdensome
or restrictive to Borrower and its Subsidiaries, and (iv) if the Indebtedness
that is refinanced, renewed, or extended was subordinated in right of payment
to the Obligations, then the terms and conditions of the refinancing, renewal,
or extension Indebtedness must include subordination terms and conditions that
are at least as favorable to the Lender Group as those that were applicable to
the


77






 


refinanced, renewed, or extended Indebtedness and such subordination terms
must be satisfactory to Agent in its Permitted Discretion;


              (e)   Indebtedness composing Permitted Investments;


              (f)   other Indebtedness in an amount not to exceed $1,000,000; and


              (g)   Indebtedness incurred pursuant to that certain Indenture dated as of
August 22, 2002 among Borrower, Orbital International, Inc. and Trustee for a
maximum principal amount of $135,000,000 of 12% Second Priority Secured Notes
due 2006 (the “New Indenture”), so long as the proceeds of the New Indenture
are used to prepay the Term Loan (as defined in this Agreement immediately
prior to the First Amendment Effective Date) and to repay or repurchase, on or
before October 1, 2002, the Indebtedness incurred pursuant to the Indenture;
provided, on or prior to October 1, 2002 such portion of the proceeds to be
applied to repay or repurchase such Indebtedness under the Indenture shall be
held in that certain account number 3343500 maintained in the name of “Orbital
Sciences Notes and Warrant Account” at U.S. Bank, N.A. (the “Escrow Account”)
and promptly after the repayment or repurchase of all such Indebtedness, which
repayment or repurchase shall occur on or prior to October 1, 2002, (i) all
remaining funds, if any, in the Escrow Account shall be transferred to a Cash
Management Account and (ii) the Escrow Account shall be closed, in each case
under clauses (i) and (ii) above, on or prior to October 10, 2002.


     7.2    
Liens.   Create, incur, assume, or permit to exist, directly or
indirectly, any Lien on or with respect to any of its assets, of any kind,
whether now owned or hereafter acquired, or any income or profits therefrom,
except for Permitted Liens (including Liens that are replacements of Permitted
Liens to the extent that the original Indebtedness is refinanced, renewed, or
extended under Section 7.1(d) and so long as the replacement Liens only
encumber those assets that secured the refinanced, renewed, or extended
Indebtedness). Borrower shall not enter into any “advance payment” arrangement
with respect to any of its contracts with a United States Agency without the
prior written consent of Lenders.


     7.3    
Restrictions on Fundamental Changes; Disposal of Assets.


              (a)   Enter into any merger, consolidation, reorganization, or
recapitalization, or reclassification of its Stock.


          
    (b)   Except as permitted pursuant
to Section 6.13, liquidate, wind up, or
dissolve itself (or suffer any liquidation or dissolution).


              (c)   Except for Permitted Dispositions, convey, sell, lease, license,
assign, transfer, or otherwise dispose of any of its assets;
provided, however, that (i) prior to the consummation of any sale of any real estate under clause
(g) the definition of Permitted Disposition, the Borrower must have obtained a
written consent from the Required Lenders with respect to the use of the Net
Proceeds with respect thereto, and (ii) Net Proceeds for Permitted Dispositions
(other than Permitted Dispositions under clause (g) of the definition of
Permitted Disposition) may not be used to reduce Indebtedness under the New
Indenture without the prior written consent of the Required Lenders and shall
otherwise be used for a purpose permitted under the New Indenture (as it exists
on the First Amendment Effective Date or as amended with


78






 


the consent of the Required Lenders); provided further, however, that if an Event of Default has
occurred and is continuing, the Net Proceeds from all Permitted Dispositions
shall be applied to permanently reduce Revolver Usage and the Revolver
Commitment. Upon the consummation of any Permitted Disposition, Agent shall
release its Lien on such assets sold or otherwise disposed of in accordance
with Section 16.12 upon (A) receipt by Agent of a certificate of Borrower
certifying that such disposition constitutes a Permitted Disposition and that
the applicable conditions contained in this clause have been satisfied or will
be contemporaneously satisfied upon such release, and (B) if required by the
Required Lenders pursuant to clause (i) above or if consented to by the
Required Lenders pursuant to Section 2.2 in connection with a voluntary
prepayment to be made by Borrower upon the consummation of such Permitted
Disposition, receipt by Agent of the applicable amount of Net Proceeds
therefrom and the Applicable Partial Prepayment Premium.


              (d)   Create any Subsidiary of Borrower on or after the Closing Date;
provided that Borrower shall be permitted to create any direct Subsidiary so
long as Borrower provides to Agent thirty (30) days’ prior written notice of
the creation of such Subsidiary, such Subsidiary becomes a Guarantor under this
Agreement and becomes an acknowledging party to the Intercreditor Agreement,
and such Subsidiary executes such Additional Documents as Agent may require to
perfect the Agent’s Liens in the assets of such Subsidiary and the Agent’s Lien
in the Stock of such Subsidiary held by Borrower.


        
      (e)   Except for Permitted Dispositions, change the principal nature of its
business or suspend or got out of a substantial portion of its business.


     7.4    [Intentionally Omitted].


     7.5    
Change Name.   Change Borrower’s or any Subsidiary of Borrower’s name,
FEIN, or identity, add any new fictitious name; or reincorporate or reorganize
itself under the laws of any jurisdiction other than the jurisdiction in which
it is incorporated or organized as of the date hereof; provided, however, that
Borrower or any of its Subsidiaries may change its name upon at least thirty
(30) days’ prior written notice to Agent of such change and so long as, at the
time of such written notification, Borrower or any such Subsidiary, as
applicable, provides or authorizes the filing of any financing statements or
fixture filings necessary to perfect and continue perfected the Agent’s Liens.


     7.6 Guarantee.   Guarantee or otherwise become in any way liable with
respect to the obligations of any third Person except (a) with respect to any
Guarantor, pursuant to the Loan Documents or the New Indenture, (b) by
endorsement of instruments or items of payment for deposit to the account of
Borrower or which are transmitted or turned over to Agent, or (c) as otherwise
set forth in Section 7.1(b).


     7.7    [Intentionally Omitted].


    
7.8    Prepayments and Amendments.


       
       (a)   Except in
connection with a refinancing permitted by Section 7.1(d),
prepay, redeem, defease, purchase, or otherwise acquire any Indebtedness of
Borrower or any Subsidiary of Borrower, other than the Obligations in
accordance with this Agreement, Provide,


79






 


however, that Borrower may repurchase
the Indebtedness under the Indenture on or before October 1, 2002 so long as
the purchase price therefor does not exceed 100% of the face value thereof,
plus any accrued and unpaid interest thereon, and the notes evidencing such
Indebtedness purchased are cancelled, and


        
      (b)   Except in connection with a
refinancing permitted by Section 7.1(d),
directly or indirectly, amend, modify, alter, increase, or change any of the
terms or conditions of any agreement, instrument, document, indenture, or other
writing evidencing or concerning Indebtedness permitted under Sections 7.1(b)
or (c) that (i) increases the principal amount of such Indebtedness, (ii)
increases the interest rate with respect to such Indebtedness, (iii) increases
the frequency or amount or shortens the maturity of any payments of principal
or interest thereof, or (iv) makes such agreement, instrument, document,
indenture or other writing materially more restrictive on Borrower or any
Subsidiary of Borrower or adversely affects in any material respect (x)
Borrower’s, any Subsidiary of Borrower’s, Agent’s, or any Lender’s rights or
interest thereunder or hereunder or under the Loan Documents in any material
respect or (y) Borrower’s ability to fulfill its obligations hereunder or under
the Loan Documents.


              (c)   Directly or indirectly amend, modify, alter, increase or change any of
the terms or conditions of any of the following documents in any manner adverse
to Borrower, any Subsidiary of Borrower, Agent or Lenders:



		
	 	     (i)   that certain Asset Purchase Agreement dated as of April
23, 2001 between Orbital Communications, OGLP Acquisition Sub LLC
and OGLP Acquisition Sub II Corp.,
	 
	 	     (ii)   that certain letter agreement dated December 4, 2001
between Borrower and Boeing,
	 
	 	     (iii)   that certain letter agreement dated as of April 12, 2001
among Borrower, Orbital Holdings (f/k/a MDA Holdings Corporation),
and the purchasers and optionholders party thereto concerning
Borrower’s sale of its stock in MacDonald, Dettwiler and Associates
Ltd.,
	 
	 	     (iv)   that certain Amended and Restated Registration Rights
Agreement dated as of May 30, 2001 among Borrower, Orbital Holdings
(f/k/a MDA Holdings Corporation), and the purchasers and
optionholders party thereto concerning Borrower’s sale of its stock
in MacDonald, Dettwiler and Associates Ltd., and
	 
	 	     (v)   that certain Option and Ancillary Rights Agreement dated
as of May 30, 2001 among Borrower, Orbital Holdings (f/k/a MDA
Holdings Corporation), and the purchasers and optionholders party
thereto concerning Borrower’s sale of its stock in MacDonald,
Dettwiler and Associates Ltd.



     7.9  
  Change of Control.   Cause, permit, or suffer, directly or indirectly,
any Change of Control.


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     7.10 
   Conditional Sales.   Sell any Inventory on bill and hold, sale or
return, sale on approval, or other conditional terms of sale.


     7.11    
Distributions.   Make any distribution or declare or pay any dividends
(in cash or other property, other than common Stock) on, or purchase, acquire,
redeem, or, except as provided on Schedule 7.11, retire any of Borrower’s
Stock, of any class, whether now or hereafter outstanding.


     7.12 
   Accounting Methods.   Modify or change its method of accounting (other
than as may be required or permitted in conformity with GAAP).


     7.13 
   Investments.   Except for Permitted Investments, directly or
indirectly, make or acquire any Investment or incur any liabilities (including
contingent obligations) for or in connection with any Investment;
provided, however, that Borrower and its Subsidiaries shall not have Permitted
Investments (other than in the Cash Management Accounts) in deposit accounts or
Securities Accounts in excess of $500,000 outstanding at any one time in the
aggregate (excluding the Excluded Collateral) unless Borrower or its
Subsidiary, as applicable, and the applicable securities intermediary or bank
have entered into Control Agreements governing such Permitted Investments, that
are satisfactory to Agent in its Permitted Discretion, to perfect (and further
establish) the Agent’s Liens in such Permitted Investments. Notwithstanding
the foregoing, Borrower shall be permitted to purchase accounts (the “ORBIMAGE
Accounts”) for the aggregate purchase price not to exceed $10,000,000 pursuant
to the ORBIMAGE Purchase Agreement, as such agreement exists on the date hereof
or as amended with the consent of the Required Lenders or as amended in a
manner that is not adverse to Borrower, any Subsidiary of Borrower, Agent or
any Lender, if all of the following conditions are satisfied on each date on
which Borrower purchases such accounts:


              (a)   effective as of the closing date of any purchase of ORBIMAGE Accounts,
Agent, for the benefit of the Lender Group, shall have received a valid first
priority Lien upon such ORBIMAGE Accounts purchased by Borrower on such closing
date; and


              (b)   Agent shall have completed an audit of the ORBIMAGE Accounts, which
audit Agent agrees to complete within thirty (30) days following Borrower’s
request, and pursuant to the results of such audit, Agent shall have
established the ORBIMAGE Reserve; provided, however that if Agent has not
completed its audit at the time the purchase is to be consummated, the
condition set forth in this clause (b) shall be deemed to be satisfied by the
establishment of the ORBIMAGE Reserve at the maximum amount of $10,000,000,
which amount shall be adjusted upon completion by Agent of its audit.


     7.14    
Transactions with Affiliates.   Directly or indirectly enter into any
or permit to exist any transaction with any Affiliate of Borrower unless (i)
such transaction is in the ordinary course of Borrower’s business and is fully
disclosed to Agent, (ii) the terms of such transaction are fair and reasonable
to Borrower, and no less favorable to Borrower than could have been obtained in
an arm’s length transaction with a non-Affiliate, (iii) if involving
consideration to either party of $5,000,000 or more, such transaction(s) has
been approved by a majority of the members of Borrower’s


81






 


Board of Directors that are disinterested in such transaction, and (iv) if involving consideration
to either party of $10,000,000 or more (or if no members of Borrower’s Board of
Directors are disinterested in such transaction), Borrower and/or its
applicable Subsidiaries, prior to the consummation thereof, obtain (and furnish
to Agent a copy thereof) a written favorable opinion as to the fairness of such
transaction to Borrower from a financial point of view from an independent
investment banking firm of national reputation in the United States or, if
pertaining to a matter for which such investment banking firms do not
customarily render such opinions, an appraisal or valuation firm of national
reputation in the United States.


     7.15  
  [Intentionally Omitted].


     7.16 
   Compensation.   Increase the annual fee or per-meeting fees paid to
the members of its Board of Directors during any year by more than 15% over the
prior year; pay or accrue total cash compensation other than compensation
earned pursuant to any agreement described on Schedule 7.16, during any year,
to an Executive Officer in an aggregate amount in excess of 150% of that paid
or accrued in the prior calendar year with respect to such Executive Officer
unless Borrower achieves 125% of the cumulative EBITDA amounts set forth in
Section 7.20(a)(i) for such prior calendar year. For the purposes of the
immediately preceding sentence, the total cash compensation for Garrett E.
Pierce for fiscal years 2002 and 2003 shall not include any “special cash
bonus”, “temporary housing” expenses or “relocation expenses” that may be paid
by Borrower to Garrett E. Pierce during such fiscal years pursuant to the
provisions of that certain Supplemental Employment Agreement dated as of July
19, 2002 between Borrower and Garrett E. Pierce.


     7.17  
  Use of Proceeds.   Use the proceeds of the Advances for any purpose
other than (a) on the Closing Date, to pay transactional fees, costs, and
expenses incurred in connection with this Agreement, the other Loan Documents,
and the transactions contemplated hereby and thereby, and (b) consistent with
the terms and conditions hereof, for its general corporate and working capital
purposes, including, without limitation, payments to subcontractors, capital
expenditures, litigation and settlement expenses and letters of credit. The
foregoing notwithstanding, Borrower shall not, without the prior consent of the
Required Lenders, which consent shall not be unreasonably withheld, use the
proceeds of the Advances and the Term Loan to repay, in full or in part, any of
the principal amount of the bonds issued under the Indenture or the New
Indenture or to cause the issuance of an L/C to support the repayment of any
obligation of Borrower under either the Indenture or the New Indenture.


     7.18    
Change in Location of Chief Executive Office; Inventory and Equipment
with Bailees; Book and Records.   Relocate its chief executive office to a new
location without providing thirty (30) days’ prior written notification thereof
to Agent and so long as, at the time of such written notification, Borrower or
any Subsidiary of Borrower, as applicable, provides any financing statements or
fixture filings, or authorization to file such financing statements or fixture
filings, necessary to perfect and continue perfected Agent’s Liens and also
provides to Agent a Collateral Access Agreement with respect to such new
location. Agent may, after the date hereof and in its Permitted Discretion,
require Borrower to use its commercially reasonable efforts to obtain a
Collateral Access Agreement with respect to any Inventory and Equipment that
may now or hereafter be stored with a bailee, warehouseman, or similar party.


     7.19 
   [Intentionally Omitted].


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     7.20    
Financial Covenants.


              (a)   Fail to maintain:



		
	 	     (i)   Minimum EBITDA.   EBITDA, measured on a fiscal quarter-end
basis, of not less than the required amount set forth in the
following table for the applicable period set forth opposite
thereto;




	 	 	 	 	 	 	 
	Applicable Amount	 	Applicable Amount	 	 
	(if Borrower has	 	(if Borrower has	 	 
	not consummated the	 	consummated the	 	 
	sale of TMS)	 	sale of TMS)	 	Applicable Period
	
	 	
	 	

	$7,475,000	 	 	
$6,139,000
	 	 	For the 3 month period ending 03/31/02
	$16,457,000	 	 	
$13,785,000
	 	 	For the 6 month period ending 06/30/02
	$25,531,000	 	 	
$21,523,000
	 	 	For the 9 month period ending 09/30/02
	$34,755,000	 	 	
$29,411,000
	 	 	For the 12 month period ending 12/31/02
	$37,348,000	 	 	
$32,004,000
	 	 	For the 12 month period ending 03/31/03
	$38,434,000	 	 	
$33,090,000
	 	 	For the 12 month period ending 06/30/03
	$39,428,000	 	 	
$34,084,000
	 	 	For the 12 month period ending 09/30/03
	$40,272,000	 	 	
$34,928,000
	 	 	For the 12 month period ending 12/31/03
	$42,794,000	 	 	
$37,450,000
	 	 	For the 12 month period ending 3/31/04
	$45,315,000	 	 	
$39,971,000
	 	 	For the 12 month period ending 06/30/04
	$47,837,000	 	 	
$42,493,000
	 	 	For the 12 month period ending 09/30/04
	$50,358,000	 	 	
$45,014,000
	 	 	For the 12 month period ending 12/31/04




		
	 	     (ii)   Minimum Backlog.   A minimum backlog of Firm Contracts,
measured on a fiscal quarter-end basis, sufficient to support:




		
	 	     (A)   for the period commencing on the Closing Date until
the first Anniversary of the Closing Date, at least 80% of
the projected revenues of Borrower for the next succeeding
four fiscal quarters, as set forth in the Closing Date
Business Plan for such period;



83






 








		
	 	     (B)   for the period commencing with and including the
first anniversary of the Closing Date until the second
anniversary of the Closing Date, at least 75% of the
projected revenues of Borrower for the next succeeding four
fiscal quarters, as set forth in the Closing Date Business
Plan for such period; and
	 
	 	     (C)   for the period commencing with and including the
second anniversary of the Closing Date until the Maturity
Date, at least 70% of the projected revenues of Borrower for
the next succeeding four fiscal quarters, as set forth in the
Closing Date Business Plan for such period.



         
     For the purpose of making the calculations under this
Section 7.20 for any
fiscal quarter occurring during 2002 or 2003, the projected revenues for such
fiscal quarter shall be deemed to be 25% of the projected revenues for the
fiscal year in which such fiscal quarter occurs.


              (b)   Make:



		
	 	     (i)   Capital Expenditures.   Capital Expenditures in any fiscal
year in excess of the amount set forth in the following table for
the applicable period:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Fiscal Year 2002	 	Fiscal Year 2003	 	Fiscal Year 2004
	 	 	
	 	
	 	

	Applicable Amount
(if Borrower has
not consummated the
sale of TMS)
	 	$	16,920,000	 	 	$	17,640,000	 	 	$	20,160,000	 
	Applicable Amount
(if Borrower has
consummated the
sale of TMS)
	 	$	16,080,000	 	 	$	16,800,000	 	 	$	19,320,000	 



              (c)   Fail to maintain:



		
	 	     (i)   Current EAC Profit. Current EAC Profit, measured on a
fiscal month-end basis, of not less than 80% of the Baseline EAC
Profit (it being understood that any Baseline Contracts that were
terminated or completed during the calendar year shall be excluded
from the calculations of Current EAC Profit and Baseline EAC
Profit).
	 
	 	     (ii)   Cash.    At all times, unrestricted cash and Cash
Equivalents of not less than $8,100,000.



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     7.21   
 No Prohibited Transactions Under ERISA. Directly or indirectly:


              (a)   engage, or permit any Subsidiary of Borrower to engage, in any
prohibited transaction which is reasonably likely to result in a civil penalty
or excise tax described in Sections 406 of ERISA or 4975 of the IRC for which a
statutory or class exemption is not available or a private exemption has not
been previously obtained from the Department of Labor;


              (b)   permit to exist with respect to any Benefit Plan any accumulated
funding deficiency (as defined in Sections 302 of ERISA and 412 of the IRC),
whether or not waived;


              (c)   fail, or permit any Subsidiary of Borrower to fail, to pay timely
required contributions or annual installments due with respect to any waived
funding deficiency to any Benefit Plan;


              (d)   terminate, or permit any Subsidiary of Borrower to terminate, any
Benefit Plan where such event would result in any liability of Borrower, any
Subsidiary of Borrower or any ERISA Affiliate under Title IV of ERISA;


              (e)   fail, or permit any Subsidiary of Borrower to fail, to make any
required contribution or payment to any Multiemployer Plan;


              (f)   fail, or permit any Subsidiary of Borrower to fail, to pay any
required installment or any other payment required under Section 412 of the IRC
on or before the due date for such installment or other payment;


     (g)   amend, or permit any Subsidiary of Borrower to amend, a Benefit Plan
resulting in an increase in current liability for the plan year such that any
of Borrower, any Subsidiaries of Borrower or ERISA Affiliates is required to
provide security to such Plan under Section 401(a)(29) of the IRC; or


     (h)   withdraw, or permit any Subsidiary of Borrower to withdraw, from any
Multiemployer Plan where such withdrawal is reasonably likely to result in any
liability of any such entity under Title IV of ERISA;


     that, individually or in the aggregate, results in or reasonably would be
expected to result in a claim against or liability of Borrower, any Subsidiary
of Borrower or any ERISA Affiliate in excess of $25,000.


8.    EVENTS OF DEFAULT.



              Any one or more of the following events shall constitute an event of
default (each, an “Event of Default”) under this Agreement:


     8.1    Borrower fails to pay when due and payable, or when declared due and
payable, all or any portion of the Obligations (whether of principal, interest
(including any interest which, but for the provisions of the Bankruptcy Code,
would have accrued on such amounts), fees and charges due the Lender Group,
reimbursement of Lender Group Expenses, or other amounts constituting
Obligations);


85






 


     8.2    (a) If Borrower or any Guarantor, as applicable, fails to perform,
keep, or observe any term, provision, condition, covenant, or agreement
contained in Sections 2.7 (Cash Management), 6.8 (a), (c) and (d)
(Insurance),
6.13 (Existence) (except with respect to maintaining good standing in a State
other than its State of formation), 6.14 (a) and (b) (Environmental), 6.15,
(Disclosure Updates), and (7) (Negative Covenants) (except for Section 7.18
(Change in Location of Chief Executive Office; Inventory and Equipment with
Bailees; Books and Records)), (b) if Borrower or any Guarantor, as applicable,
fails to perform, keep, or observe any term, provision, condition, covenant, or
agreement contained in Sections 6.2 (Collateral Reporting), 6.3 (Financial
Statements, Reports, Certificates), 6.7 (Taxes), 6.9 (Location of Inventory and
Equipment), 6.10 (Compliance with Laws), or 6.11 (Leases) of this Agreement,
and such failure continues for a period of five (5) Business Days; (c) if
Borrower fails to perform, keep, or observe any term, provision, condition,
covenant, or agreement contained in Sections 6.1 (Accounting System), 6.5
(Allowances), or 6.6 (Maintenance of Properties) of this Agreement, and such
failure continues for a period of fifteen (15) Business Days; or (d) if
Borrower or any Guarantor fails to perform, keep, or observe any other term,
provision, condition, covenant, or agreement contained in this Agreement, in
any of the Loan Documents, or in any other present or future agreement between
Borrower or any Guarantor and Agent or any Lender and such failure continues
for a period of five (5) Business Days; in each case, other than any such term,
provision, condition, covenant, or agreement that is the subject of another
provision of this Article 8, in which event such other provision of this
Article 8 shall govern; provided, that during any period of time that any such
failure or non-performance of Borrower or any Guarantor referred to in this
paragraph exists, even if such failure or non-performance is not yet an Event
of Default by virtue of the existence of a grace or cure period or the
pre-condition of the giving of a notice, at the option of Lender, Lender shall
not be required during such period to make Advances to Borrower;


     8.3    If any material portion of Borrower’s or any of its Subsidiaries’
assets, taken as a whole, is attached, seized, subjected to a writ or distress
warrant, or comes into the possession of any third Person;


     8.4    If an Insolvency Proceeding is commenced by any Borrower or any of its
Subsidiaries;


     8.5    If an Insolvency Proceeding is commenced against Borrower, or any of
its Subsidiaries, and any of the following events occur: (a) Borrower or the
Subsidiary consents to the institution of such Insolvency Proceeding against
it, (b) the petition commencing the Insolvency Proceeding is not timely
controverted, (c) the petition commencing the Insolvency Proceeding is not
dismissed within sixty (60) calendar days of the date of the filing thereof;
provided, however, that, during the pendency of such period, Agent (including
any successor agent) and each other member of the Lender Group shall be
relieved of its obligations to extend credit hereunder, (d) an interim trustee
is appointed to take possession of all or any substantial portion of the
properties or assets of, or to operate all or any substantial portion of the
business of, Borrower or any of its Subsidiaries, or (e) an order for relief
shall have been entered therein;


     8.6    If Borrower or any of its Subsidiaries is enjoined, restrained, or in
any way prevented by court order from continuing to conduct all or any material
part of its business affairs;


86






 


     8.7    (i) If a notice of Lien, levy, or assessment in respect of a claim in
excess of $250,000, individually or in the aggregate, is filed of record with
respect to any of Borrower’s or any of its Subsidiaries’ assets, taken as a
whole, by the United States, or any department, agency, or instrumentality
thereof, or by any state, county, municipal, or governmental agency, or (ii) if
any taxes or debts in excess of $250,000, individually or in the aggregate,
owing at any time hereafter to any one or more of such entities becomes a Lien
other than a Permitted Lien of the type described in Section (b)(i) of the
definition thereof or a Lien subject to a Permitted Protest, whether choate or
otherwise, upon any of Borrower’s or any of its Subsidiaries’ assets and the
same is not paid before such payment is delinquent;


     8.8    (i) If a judgment (other than a money judgment to the extent the
amount of such judgment is covered by a valid and binding policy of insurance
between the defendant and the insurer covering full payment therefor and such
insurer has acknowledged coverage) in excess of $2,000,000 is entered against
Borrower or any of its Subsidiaries, and such judgment remains undischarged,
unvacated, unbonded or unstayed for a period of ten (10) Business Days; or (ii)
if any judgment or other claim in excess of $500,000, individually or in the
aggregate, becomes a Lien or encumbrance upon any material portion of any of
Borrower’s or any of its Subsidiaries’ assets, taken as a whole, and such
judgment remains undischarged, unvacated, unbonded or unstayed for a period of
ten (10) Business Days;


     8.9    If there is a default under any agreement relating to Indebtedness to
which Borrower or any of its Subsidiaries is a party and such default (a) (i)
occurs at the final maturity of the obligations thereunder, or (ii) results in
a right by the other party thereto, irrespective of whether exercised, to
accelerate the maturity of Borrower’s or its Subsidiaries’ obligations
thereunder, to terminate such agreement, or to refuse to renew such agreement
pursuant to an automatic renewal right therein, and (b) involves Indebtedness
in an aggregate amount in excess of $500,000;


     8.10    If any Borrower or any of its Subsidiaries makes any payment on
account of Indebtedness that has been contractually subordinated in right of
payment to the payment of the Obligations, except to the extent such payment is
permitted by the terms of the subordination provisions applicable to such
Indebtedness;


     8.11    If any misstatement or misrepresentation (or, with respect to any
statement or representation that is not otherwise qualified by a materiality
standard, any material misstatement or misrepresentation) exists now or
hereafter in any written warranty, representation, statement, or Record when
made or deemed made to the Lender Group by Borrower, its Subsidiaries, or any
Responsible Officer of Borrower or any of its Subsidiaries;


     8.12    If the obligation of any Guarantor under the Guaranty is limited or
terminated by operation of law or by such Guarantor thereunder;
provided, however, that the termination of a Guaranty in connection with the dissolution
of a Guarantor in accordance with Section 6.13 shall not constitute an Event of
Default;


     8.13    If this Agreement or any other Loan Document that purports to create
a Lien, shall, for any reason, fail or cease to create a valid and perfected
and, except to the extent


87






 


permitted by the terms hereof or thereof, first
priority Lien on or security interest in the Collateral covered hereby or
thereby; or


     8.14    Any provision of any Loan Document shall at any time for any reason
be declared to be null and void, or the validity or enforceability thereof
shall be contested by Borrower or any Guarantor, or a proceeding shall be
commenced by Borrower, any Guarantor or by any Governmental Authority having
jurisdiction over Borrower or any Guarantor, seeking to establish the
invalidity or unenforceability thereof, or Borrower or any Guarantor shall deny
that Borrower or such Guarantor has any liability or obligation purported to be
created under any Loan Document.


9.    THE LENDER GROUP’S RIGHTS AND REMEDIES.



     9.1   
 Rights and Remedies.   Upon the occurrence, and during the
continuation, of an Event of Default, the Required Lenders (at their election
but without notice of their election and without demand) may authorize and
instruct Agent to do any one or more of the following on behalf of the Lender
Group (and Agent, acting upon the instructions of the Required Lenders, shall
do the same on behalf of the Lender Group), all of which are authorized by
Borrower:


              (a)   Declare all Obligations, whether evidenced by this Agreement, by any
of the other Loan Documents, or otherwise, immediately due and payable;


              (b)   Cease advancing money or extending credit to or for the benefit of
Borrower under this Agreement, under any of the Loan Documents, or under any
other agreement between Borrower and the Lender Group;


              (c)   Terminate this Agreement and any of the other Loan Documents as to any
future liability or obligation of the Lender Group to make Advances or issue
Letters of Credit, but without affecting any of the Agent’s Liens in the
Collateral and without affecting the other Obligations;


              (d)   To the extent allowed by applicable law, settle or adjust disputes and
claims directly with Account Debtors for amounts and upon terms which Agent
considers advisable, and in such cases, Agent will credit Borrower’s Loan
Account with only the net amounts received by Agent in payment of such disputed
Accounts after deducting all Lender Group Expenses incurred or expended in
connection therewith;


              (e)   Cause Borrower to hold all returned Inventory in trust for the Lender
Group, segregate all returned Inventory from all other assets of Borrower or in
Borrower’s possession and conspicuously label said returned Inventory as the
property of the Lender Group;


              (f)   Without notice to or demand upon Borrower or Guarantor, make such
payments and do such acts as Agent considers necessary or reasonable to protect
its security interests in the Collateral or any other collateral securing the
Obligations. Borrower agrees to assemble the Personal Property Collateral if
Agent so requires, and to make the Personal Property Collateral available to
Agent at a place that Agent may designate which is reasonably convenient to
both parties. Borrower authorizes Agent to enter the premises where the
Personal Property Collateral is located, to take and maintain possession of the
Personal Property


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Collateral, or any part of it, and to pay, purchase, contest,
or compromise any Lien that in Agent’s determination appears to conflict with
the Agent’s Liens and to pay all expenses incurred in connection therewith and
to charge Borrower’s Loan Account therefor. With respect to any of Borrower’s
owned or leased premises, Borrower hereby grants Agent a license to enter into
possession of such premises and to occupy the same, without charge, in order to
exercise any of the Lender Group’s rights or remedies provided herein, at law,
in equity, or otherwise;


              (g)   Without notice to Borrower (such notice being expressly waived), and
without constituting a retention of any collateral in satisfaction of an
obligation (within the meaning of the Code), set off and apply to the
Obligations any and all (i) balances and deposits of Borrower held by the
Lender Group (including any amounts received in the Cash Management Accounts),
or (ii) Indebtedness at any time owing to or for the credit or the account of
Borrower held by the Lender Group;


              (h)   Hold, as cash collateral, any and all balances and deposits of
Borrower held by the Lender Group, and any amounts received in the Cash
Management Accounts, to secure the full and final repayment of all of the
Obligations;


              (i)   Ship, reclaim, recover, store, finish, maintain, repair, prepare for
sale, advertise for sale, and sell (in the manner provided for herein) the
Personal Property Collateral. Borrower hereby grants to Agent a license or
other right to use, without charge, Borrower’s labels, patents, copyrights,
trade secrets, trade names, trademarks, service marks, and advertising matter,
or any property of a similar nature, as it pertains to the Personal Property
Collateral, in completing production of, advertising for sale, and selling any
Personal Property Collateral and Borrower’s rights under all licenses and all
franchise agreements shall inure to the Lender Group’s benefit;


              (j)   Sell the Personal Property Collateral at either a public or private
sale, or both, by way of one or more contracts or transactions, for cash or on
terms, in such manner and at such places (including Borrower’s premises) as
Agent determines is commercially reasonable in accordance with applicable law.
It is not necessary that the Personal Property Collateral be present at any
such sale;


              (k)   Agent shall give notice of the disposition of the Personal Property
Collateral as follows:



		
	 	     (i)   Agent shall give Borrower a notice in writing of the time
and place of public sale, or, if the sale is a private sale or some
other disposition other than a public sale is to be made of the
Personal Property Collateral, the time on or after which the
private sale or other disposition is to be made; and
	 
	 	     (ii)   The notice shall be personally delivered or mailed,
postage prepaid, to Borrower as provided in Section 12, at least
ten (10) days before the earliest time of disposition set forth in
the notice; no notice needs to be given prior to the disposition of
any portion of the Personal Property Collateral that is perishable
or threatens to decline speedily in value or that is of a type
customarily sold on a recognized market;



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              (l)   Agent, on behalf of the Lender Group, may credit bid and purchase at
any public sale; and


              (m)   Agent may seek the appointment of a receiver or keeper to take
possession of all or any portion of the Collateral, all or any portion of other
collateral securing the Obligations or to operate same and, to the maximum
extent permitted by law, may seek the appointment of such a receiver without
the requirement of prior notice or a hearing;


              (n)   The Lender Group shall have all other rights and remedies available at
law or in equity or pursuant to any other Loan Document; and


              (o)   Any deficiency that exists after disposition of the Personal Property
Collateral as provided above will be paid immediately by Borrower. Any excess
will be returned, without interest and subject to the rights of third Persons,
by Agent to Borrower.


     Borrower agrees for itself and on behalf of each of its Subsidiaries that
it would not be commercially unreasonable for Agent to dispose of the
Collateral (as defined herein and in the Guarantor Security Agreement) or any
portion thereof by using Internet sites that provide for the auction of assets
of the types included in such Collateral (as defined herein and in the
Guarantor Security Agreement) or that have the reasonable capability of doing
so, or that match buyers and sellers.


     9.2    
Remedies Cumulative.   The rights and remedies of the Lender Group
under this Agreement, the other Loan Documents, and all other agreements shall
be cumulative. The Lender Group shall have all other rights and remedies not
inconsistent herewith as provided under the Code, by law, or in equity. No
exercise by the Lender Group of one right or remedy shall be deemed an
election, and no waiver by the Lender Group of any Event of Default shall be
deemed a continuing waiver. No delay by the Lender Group shall constitute a
waiver, election, or acquiescence by it.


10.    TAXES AND EXPENSES



              If Borrower or any Subsidiary of Borrower fails to pay any monies (whether
taxes, assessments, insurance premiums, or, in the case of leased properties or
assets, rents or other amounts payable under such leases) due to third Persons,
or fails to make any deposits or furnish any required proof of payment or
deposit, all as required under the terms of this Agreement, then, Agent, in its
Permitted Discretion and upon notice to Borrower or any such Subsidiary, may do
any or all of the following: (a) make payment of the same or any part thereof,
(b) set up such reserves in Borrower’s Loan Account as Agent deems necessary in
its Permitted Discretion to protect the Lender Group from the exposure created
by such failure, or (c) in the case of the failure to comply with
Section 6.8 hereof, obtain and maintain insurance policies of the type described
in Section 6.8 and take any action with respect to such policies as Agent deems prudent.
Any such amounts paid by Agent shall constitute Lender Group Expenses and any
such payments shall not constitute an agreement by the Lender Group to make
similar payments in the future or a waiver by the Lender Group of any Event of
Default under this Agreement. Agent need not inquire as to, or contest the
validity of, any such expense, tax, or


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Lien and the receipt of the usual
official notice for the payment thereof shall be conclusive evidence that the
same was validly due and owing.


11.    WAIVERS; INDEMNIFICATION



     
11.1    Demand; Protest; etc.   Borrower waives demand, protest, notice of
protest, notice of default or dishonor, notice of payment and nonpayment,
nonpayment at maturity, release, compromise, settlement, extension, or renewal
of documents, instruments, Chattel Paper, and guarantees at any time held by
the Lender Group on which Borrower may in any way be liable.


     11.2  
  The Lender Group’s Liability for Collateral.   Borrower hereby agrees
that: (a) so long as Agent complies with its obligations, if any, under the
Code, the Lender Group shall not in any way or manner be liable or responsible
for: (i) the safekeeping of the Collateral, (ii) any loss or damage thereto
occurring or arising in any manner or fashion from any cause, (iii) any
diminution in the value thereof, or (iv) any act or default of any carrier,
warehouseman, bailee, forwarding agency, or other Person, and (b) all risk of
loss, damage, or destruction of the Collateral shall be borne by Borrower.


     11.3 
   Indemnification.   Borrower shall pay, indemnify, defend, and hold the
Agent-Related Persons, the Lender-Related Persons with respect to each Lender,
each Participant, and each of their respective officers, directors, employees,
agents, and attorneys-in-fact (each, an “Indemnified Person”) harmless (to the
fullest extent permitted by law) from and against any and all claims, demands,
suits, actions, investigations, proceedings, and damages, and all reasonable
attorneys fees and disbursements and other costs and expenses actually incurred
in connection therewith (as and when they are incurred and irrespective of
whether suit is brought), at any time asserted against, imposed upon, or
incurred by any of them (a) in connection with or as a result of or related to
the execution, delivery, enforcement, performance, or administration of this
Agreement, any of the other Loan Documents, or the transactions contemplated
hereby or thereby, and (b) with respect to any investigation, litigation, or
proceeding related to this Agreement, any other Loan Document, or the use of
the proceeds of the credit provided hereunder (irrespective of whether any
Indemnified Person is a party thereto), or any act, omission, event, or
circumstance in any manner related thereto (all the foregoing, collectively,
the “Indemnified Liabilities”). The foregoing to the contrary notwithstanding,
Borrower shall have no obligation to any Indemnified Person under this Section
11.3 with respect to any Indemnified Liability that a court of competent
jurisdiction finally determines to have resulted from the gross negligence or
willful misconduct of such Indemnified Person. This provision shall survive
the termination of this Agreement and the repayment of the Obligations. If any
Indemnified Person makes any payment to any other Indemnified Person with
respect to an Indemnified Liability as to which Borrower was required to
indemnify the Indemnified Person receiving such payment, the Indemnified Person
making such payment is entitled to be indemnified and reimbursed by Borrower
with respect thereto, but only to the extent of Borrower’s obligations to such
other Indemnified Person for the Indemnified Liabilities. WITHOUT LIMITATION,
THE FOREGOING INDEMNITY SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO
INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PART CAUSED BY OR ARISE OUT OF ANY
NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY OTHER PERSON.


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12.    NOTICES



              Unless otherwise provided in this Agreement, all notices or demands by
Borrower or Agent to the other relating to this Agreement or any other Loan
Document shall be in writing and (except for financial statements and other
informational documents which may be sent by first-class mail, postage prepaid)
shall be personally delivered or sent by registered or certified mail (postage
prepaid, return receipt requested), overnight courier, electronic mail (at such
email addresses as Borrower or Agent, as applicable, may designate to each
other in accordance herewith), or telefacsimile to Borrower or Agent, as the
case may be, at its address set forth below:



	 	 	 
	If to Borrower:	 	
ORBITAL SCIENCES CORPORATION

21839 Atlantic Boulevard

Dulles, Virginia 20166

Attn:  Mr. Michael R. Williams

Fax No.  (703) 406-3502
	 
	with copies to:	 	
ORBITAL SCIENCES CORPORATION

21839 Atlantic Boulevard

Dulles, Virginia 20166

Attn:  General Counsel

Fax No.  (703) 406-5572
	 
	with copies to:	 	
HOGAN & HARTSON LLP

555 13th Street, N.W.

Washington, D.C. 20004

Attn:  Ben Hammond, Esq.

Fax No.  (202) 637-5910
	 
	If to Agent:	 	
FOOTHILL CAPITAL CORPORATION

1000 Abernathy Rd., N.E., Suite 1450

Atlanta, Georgia 30328

Attn:  Business Finance Division Manager

Fax No.:  (770) 508-1374
	 
	with copies to:	 	
FOOTHILL CAPITAL CORPORATION

2450 Colorado Avenue

Suite 3000 West

Santa Monica, California  90404

Attn: Business Finance Division Manager

Fax No. (310) 459-7413
	 
	and with copies to:	 	
PAUL, HASTINGS, JANOFSKY & WALKER LLP

600 Peachtree Street, N.E., Suite 2400

Atlanta, Georgia 30308

Attn:  Jesse H. Austin, III, Esq.

Fax No. (404) 815-2424



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	If to Ableco:	 	
ABLECO FINANCE LLC

450 Park Avenue, 28th Floor

New York, New York  10022

Attn:  Mr. Ken J. Kohrs

Fax No. (212) 909-1421
	 
	with copies to:	 	
ABLECO FINANCE LLC

450 Park Avenue, 28th Floor

New York, New York  10022

Attn:  Mr. Kevin Genda

Fax No. (212) 909-1421
	 
	with copies to:	 	
SCHULTE ROTH & ZABEL LLP

919 Third Avenue

New York, New York  10022

Attn:  Frederic L. Ragucci, Esq.

Fax No.: (212) 593-5955



              Agent and Borrower may change the address at which they are to receive
notices hereunder, by notice in writing in the foregoing manner given to the
other party. All notices or demands sent in accordance with this Section 12,
other than notices by Agent in connection with enforcement rights against the
Collateral under the provisions of the Code, shall be deemed received on the
earlier of the date of actual receipt or three (3) Business Days after the
deposit thereof in the mail. Borrower acknowledges and agrees that notices
sent by the Lender Group in connection with the exercise of enforcement rights
against Collateral under the provisions of the Code shall be deemed sent when
deposited in the mail or personally delivered, or, where permitted by law,
transmitted by telefacsimile or any other method set forth above.


13.    CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER



              (a)   THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS
EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH
OTHER LOAN DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF
AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO
ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO SHALL
BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.


              (b)   THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND
LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW
YORK, STATE OF NEW YORK, PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE


93






 


BROUGHT, AT AGENT’S OPTION, IN
THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE
FOUND. BORROWER AND THE LENDER GROUP WAIVE, TO THE EXTENT PERMITTED UNDER
APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON
CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN
ACCORDANCE WITH THIS Section 13(b).


              (c)   BORROWER AND THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY
OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW OR STATUTORY CLAIMS. BORROWER AND THE LENDER GROUP REPRESENT THAT
EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.


14.    ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS



     14.1   
 Assignments and Participations.


        
      (a)   Any Lender may, with the written consent of Agent (provided that no
written consent of Agent shall be required in connection with any assignment
and delegation by a Lender to an Eligible Transferee, assign and delegate to
one or more assignees (each an “Assignee”) all, or any ratable part of all, of
the Obligations, the Commitments and the other rights and obligations of such
Lender hereunder and under the other Loan Documents, in a minimum amount of
$5,000,000 (except that such minimum amount shall not apply to an Affiliate of
a Lender or to be a Related Fund); provided, however, that Borrower and Agent
may continue to deal solely and directly with such Lender in connection with
the interest so assigned to an Assignee until (i) written notice of such
assignment, together with payment instructions, addresses, and related
information with respect to the Assignee, have been given to Borrower and Agent
by such Lender and the Assignee, (ii) such Lender and its Assignee have
delivered to Borrower and Agent an Assignment and Acceptance in form and
substance satisfactory to Agent, and (iii) the assignor Lender or Assignee has
paid to Agent for Agent’s separate account a processing fee in the amount of
$5,000. Anything contained herein to the contrary notwithstanding, the consent
of Agent shall not be required (and payment of any fees shall not be required)
if (x) such assignment is in connection with any merger, consolidation, sale,
transfer, or other disposition of all or any substantial portion of the
business or loan portfolio of such Lender or (y) the assignee is an Affiliate
(other than individual(s)) of a Lender or a Related Fund.


              (b)   From and after the date that Agent notifies the assignor Lender (with
a copy to Borrower) that it has received an executed Assignment and Acceptance
and payment (if applicable) of the above-referenced processing fee, (i) the
Assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, shall have the rights and obligations of a Lender under the Loan
Documents, and (ii) the assignor Lender shall, to the extent that rights and
obligations hereunder and under the other Loan Documents have been assigned by
it pursuant


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to such Assignment and Acceptance, relinquish its rights (except
with respect to Section 11.3 hereof) and be released from its obligations under
this Agreement (and in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender’s rights and obligations under
this Agreement and the other Loan Documents, such Lender shall cease to be a
party hereto and thereto), and such assignment shall effect a novation between
Borrower and the Assignee.


              (c)   By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the Assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (1) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document furnished
pursuant hereto, (2) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of
Borrower or the performance or observance by Borrower of any of its obligations
under this Agreement or any other Loan Document furnished pursuant hereto, (3)
such Assignee confirms that it has received a copy of this Agreement, together
with such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance, (4) such Assignee will, independently and without reliance upon
Agent, such assigning Lender or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement, (5)
such Assignee appoints and authorizes Agent to take such actions and to
exercise such powers under this Agreement as are delegated to Agent, by the
terms hereof, together with such powers as are reasonably incidental thereto,
and (6) such Assignee agrees that it will perform all of the obligations which
by the terms of this Agreement are required to be performed by it as a Lender.


              (d)   Immediately upon each Assignee’s making its processing fee payment
under the Assignment and Acceptance and receipt and acknowledgment by Agent of
such fully executed Assignment and Acceptance, this Agreement shall be deemed
to be amended to the extent, but only to the extent, necessary to reflect the
addition of the Assignee and the resulting adjustment of the Commitments
arising therefrom. The Commitment allocated to each Assignee shall reduce such
Commitments of the assigning Lender pro tanto.


              (e)   Any Lender may at any time sell to one or more commercial banks,
financial institutions, or other Persons not Affiliates of such Lender (a
“Participant”) participating interests in its Obligations, the Commitment, and
the other rights and interests of that Lender (the “Originating Lender”)
hereunder and under the other Loan Documents; provided, however, that (i) the
Originating Lender shall remain a “Lender” for all purposes of this Agreement
and the other Loan Documents and the Participant receiving the participating
interest in the Obligations, the Commitments, and the other rights and
interests of the Originating Lender hereunder shall not constitute a “Lender”
hereunder or under the other Loan Documents and the Originating Lender’s
obligations under this Agreement shall remain unchanged, (ii) the


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Originating Lender shall remain solely responsible for the performance of such obligations,
(iii) Borrower, Agent, and the Lenders shall continue to deal solely and
directly with the Originating Lender in connection with the Originating
Lender’s rights and obligations under this Agreement and the other Loan
Documents, (iv) no Lender shall transfer or grant any participating interest
under which the Participant has the right to approve any amendment to, or any
consent or waiver with respect to, this Agreement or any other Loan Document,
except to the extent such amendment to, or consent or waiver with respect to
this Agreement or of any other Loan Document would (A) extend the final
maturity date of the Obligations hereunder in which such Participant is
participating, (B) reduce the interest rate applicable to the Obligations
hereunder in which such Participant is participating, (C) release all or a
material portion of the Collateral or guaranties (except to the extent
expressly provided herein or in any of the Loan Documents) supporting the
Obligations hereunder in which such Participant is participating, (D) postpone
the payment of, or reduce the amount of, the interest or fees payable to such
Participant through such Lender, (E) change the amount or due dates of
scheduled principal repayments or prepayments or premiums, or (F) subordinate
the Liens of Agent for the benefit of the Lender Group on all or substantially
all of the Collateral to the Liens of any other creditor of Borrower, and (v)
all amounts payable by Borrower hereunder shall be determined as if such Lender
had not sold such participation, except that, if amounts outstanding under this
Agreement are due and unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each Participant
shall be deemed to have the right of set-off in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as a Lender
under this Agreement. The rights of any Participant only shall be derivative
through the Originating Lender with whom such Participant participates and no
Participant shall have any rights under this Agreement or the other Loan
Documents or any direct rights as to the other Lenders, Agent, Borrower, the
Collections, the Collateral, or otherwise in respect of the Obligations. No
Participant shall have the right to participate directly in the making of
decisions by the Lenders among themselves. The provisions of this Section
14.1(e) are solely for the benefit of the Lender Group, and Borrower shall have
no rights as a third party beneficiary of such provisions.


              (f)   In connection with any such assignment or participation or proposed
assignment or participation, a Lender may disclose to a third party all
documents and information which it now or hereafter may have relating to
Borrower or Borrower’s business, provided that such Lender shall obtain from
assignees or participants confidentiality covenants substantially equivalent to
those contained in Section 16.17(d).


              (g)   Any other provision in this Agreement notwithstanding, any Lender may
at any time create a security interest in, or pledge, all or any portion of its
rights under and interest in this Agreement in favor of any Federal Reserve
Bank in accordance with Regulation A of the Federal Reserve Bank or United
States Treasury Regulation 31 CFR § 203.14, and such Federal Reserve Bank may
enforce such pledge or security interest in any manner permitted under
applicable law.


         
     (h)   Subject to the last sentence of this
Section 14.1(h), Borrower shall
maintain, or cause to be maintained, a register (the “Register”) on which it
enters the name of a Lender as the registered owner of each Advance, as the
case may be, held by such Lender. A Registered Loan (and the Registered Note,
if any, evidencing the same) may be assigned or


96






 


sold in whole or in part only
by registration of such assignment or sale on the Register (and each Registered
Note shall expressly so provide). Subject to the last sentence of this Section
14.1(h), any assignment or sale of all or part of such Registered Loan (and the
Registered Note, if any, evidencing the same) may be effected only by
registration of such assignment or sale on the Register, together with the
surrender of the Registered Note, if any, evidencing the same duly endorsed by
(or accompanied by a written instrument of assignment or sale duly executed by)
the holder of such Registered Note, whereupon, at the request of the designated
assignee(s) or transferee(s), one or more new Registered Notes in the same
aggregate principal amount shall be issued to the designated assignee(s) or
transferee(s). Prior to the registration of an assignment or sale of any
Registered Loan (and the Registered Note, if any, evidencing the same),
Borrower and Agent shall treat the Person in whose name such Registered Loan
(and the Registered Note, if any, evidencing the same) is registered as the
owner thereof for the purpose of receiving all payments thereon and for all
other purposes, notwithstanding notice to the contrary. In the case of an
assignment or delegation covered by Section 14.1(a)(y), the assigning Lender
shall maintain a register comparable to the Register on behalf of Agent.


              (i)   In the event that a Lender sells participations in a Registered Loan,
such Lender shall maintain a register on which it enters the name of all
participants in the Registered Loans held by it (the “Participant Register”).
A Registered Loan (and the Registered Note, if any, evidencing the same) may be
participated in whole or in part only by registration of such participation on
the Participant Register (and each Registered Note shall expressly so provide).
Any participation of such Registered Loan (and the Registered Note, if any,
evidencing the same) may be effected only by the registration of such
participation on the Participant Register.


     14.2    
Successors.   This Agreement shall bind and inure to the benefit of
the respective successors and assigns of each of the parties hereto;
provided, however, that Borrower may not assign this Agreement or any rights or duties
hereunder without the Lenders’ prior written consent and any prohibited
assignment shall be absolutely void ab initio. No consent to assignment by the
Lenders shall release Borrower from its Obligations. A Lender may assign this
Agreement and the other Loan Documents and its rights and duties hereunder and
thereunder pursuant to Section 14.1 hereof and, except as expressly required
pursuant to Section 14.1 hereof, no consent or approval by Borrower is required
in connection with any such assignment.


15.    AMENDMENTS; WAIVERS



     15.1  
  Amendments and Waivers.   No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by Borrower therefrom, shall be effective unless the same shall be in
writing and signed by the Required Lenders (or by Agent with the written
consent of the Required Lenders) and Borrower and then any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such waiver, amendment, or
consent shall, unless in writing and signed by all of the Lenders affected
thereby and Borrower, do any of the following:



         
(a)    increase or extend any Commitment of any Lender,


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              (b)   postpone or delay any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees, or other amounts due
hereunder or under any other Loan Document,


              (c)   reduce the principal of, or the rate of interest on, any loan or other
extension of credit hereunder, or reduce any fees or other amounts payable
hereunder or under any other Loan Document,


              (d)   change the percentage of the Commitments that is required to take any
action hereunder,


              (e)   amend, modify or waive this Section or any provision of the Agreement
providing for consent or other action by all Lenders,


         
    (f)   release Collateral other than as
permitted by Section 16.12,


          
   (g)   change the definition of “Required Lenders” or “Pro Rata Share”,


              (h)   contractually subordinate any of the Agent’s Liens,


              (i)   release Borrower or any Guarantor from any obligation for the payment
of money,


     
        (j)   increase
the advance rates with respect to Advances (except for the
restoration of an advance rate after the prior reduction thereof),


              (k)   change the definition of Borrowing Base or the definitions of Eligible
Accounts, Eligible Domestic Billed Accounts, Eligible Domestic Unbilled
Accounts, Maximum Revolver Amount, or change, modify or waive Section 2.1(b) or
Section 2.4(b), or


         
    (l)   amend, modify or waive any of the
provisions of Section 16 or Section
2.1(a) or Section 2.3(i).


and, provided further, however, that no amendment,
waiver or consent shall,
unless in writing and signed by Agent, Issuing Lender, or Swing Lender, as
applicable, affect the rights or duties of Agent, Issuing Lender, or Swing
Lender, as applicable, under this Agreement or any other Loan Document. The
foregoing notwithstanding, any amendment, modification, waiver, consent,
termination, or release of, or with respect to, any provision of this Agreement
or any other Loan Document that relates only to the relationship of the Lender
Group among themselves, and that does not affect the rights or obligations of
Borrower, shall not require consent by or the agreement of Borrower.


              Agent and Lenders (other than Lenders with a Term Loan Commitment), on the
one hand, and Lenders with a Term Loan Commitment, on the other hand, have
executed a letter agreement on the Closing Date. The rights and duties of
Agent and Lenders are subject to such agreement.


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     15.2    
Replacement of Holdout Lender.


              (a)   If any action to be taken by the Lender Group or Agent hereunder
requires the unanimous consent, authorization, or agreement of all Lenders, and
a Lender (“Holdout Lender”) fails to give its consent, authorization, or
agreement, then Agent, upon at least five (5) Business Days prior irrevocable
notice to the Holdout Lender, may permanently replace the Holdout Lender with
one or more substitute Lenders (each, a “Replacement Lender”), and the Holdout
Lender shall have no right to refuse to be replaced hereunder. Such notice to
replace the Holdout Lender shall specify an effective date for such
replacement, which date shall not be later than fifteen (15) Business Days
after the date such notice is given.


              b)   Prior to the effective date of such replacement, the Holdout Lender
and each Replacement Lender shall execute and deliver an Assignment and
Acceptance Agreement, subject only to the Holdout Lender’s being repaid its
share of the outstanding Obligations (including an assumption of its Pro Rata
Share of the Risk Participation Liability) without any premium or penalty of
any kind whatsoever. If the Holdout Lender shall refuse or fail to execute and
deliver any such Assignment and Acceptance Agreement prior to the effective
date of such replacement, the Holdout Lender shall be deemed to have executed
and delivered such Assignment and Acceptance Agreement. The replacement of any
Holdout Lender shall be made in accordance with the terms of
Section 14.1. Until such time as the Replacement Lenders shall have acquired all of the
Obligations, the Commitments, and the other rights and obligations of the
Holdout Lender hereunder and under the other Loan Documents, the Holdout Lender
shall remain obligated to make the Holdout Lender’s Pro Rata Share of Advances
and to purchase a participation in each Letter of Credit, in an amount equal to
its Pro Rata Share of the Risk Participation Liability of such Letter of
Credit.


     15.3 
   No Waivers; Cumulative Remedies.   No failure by Agent or any Lender
to exercise any right, remedy, or option under this Agreement or, any other
Loan Document, or delay by Agent or any Lender in exercising the same, will
operate as a waiver thereof. No waiver by Agent or any Lender will be
effective unless it is in writing, and then only to the extent specifically
stated. No waiver by Agent or any Lender on any occasion shall affect or
diminish Agent’s and each Lender’s rights thereafter to require strict
performance by Borrower of any provision of this Agreement. Agent’s and each
Lender’s rights under this Agreement and the other Loan Documents will be
cumulative and not exclusive of any other right or remedy Agent or any Lender
may have.


16.    AGENT; THE LENDER GROUP



     16.1  
  Appointment and Authorization of Agent.   Each Lender hereby
designates and appoints Foothill as its representative under this Agreement and
the other Loan Documents and each Lender hereby irrevocably authorizes Agent to
take such action on its behalf under the provisions of this Agreement and each
other Loan Document and to exercise such powers and perform such duties as are
expressly delegated to Agent by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Agent agrees to act as such on the express conditions contained in this Section
16. The provisions of this Section 16 are solely for the benefit of Agent, and
the Lenders, and Borrower shall have no rights as a third party beneficiary of
any of the provisions contained herein. Any provision to the


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contrary contained elsewhere in this Agreement or in any other Loan Document
notwithstanding, Agent shall not have any duties or responsibilities, except
those expressly set forth herein, nor shall Agent have or be deemed to have any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against Agent; it being
expressly understood and agreed that the use of the word “Agent” is for
convenience only, that Foothill is merely the representative of the Lenders,
and only has the contractual duties set forth herein. Except as expressly
otherwise provided in this Agreement, Agent shall have and may use its sole
discretion with respect to exercising or refraining from exercising any
discretionary rights or taking or refraining from taking any actions that Agent
expressly is entitled to take or assert under or pursuant to this Agreement and
the other Loan Documents. Without limiting the generality of the foregoing, or
of any other provision of the Loan Documents that provides rights or powers to
Agent, Lenders agree that Agent shall have the right to exercise the following
powers as long as this Agreement remains in effect: (a) maintain, in
accordance with its customary business practices, ledgers and records
reflecting the status of the Obligations, the Collateral, the Collections, and
related matters, (b) execute or file any and all financing or similar
statements or notices, amendments, renewals, supplements, documents,
instruments, proofs of claim, notices and other written agreements with respect
to the Loan Documents, (c) make Advances, for itself or on behalf of Lenders as
provided in the Loan Documents, (d) exclusively receive, apply, and distribute
the Collections as provided in the Loan Documents, (e) open and maintain such
bank accounts and cash management arrangements as Agent deems necessary and
appropriate in accordance with the Loan Documents for the foregoing purposes
with respect to the Collateral and the Collections, (f) perform, exercise, and
enforce any and all other rights and remedies of the Lender Group with respect
to Borrower, the Obligations, the Collateral, the Collections, or otherwise
related to any of same as provided in the Loan Documents, and (g) incur and pay
such Lender Group Expenses as Agent may deem necessary or appropriate for the
performance and fulfillment of its functions and powers pursuant to the Loan
Documents.


     16.2   
 Delegation of Duties.   Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects as
long as such selection was made without gross negligence or willful misconduct.


     16.3   
 Liability of Agent.   None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of the Lenders for any
recital, statement, representation or warranty made by Borrower or any
Subsidiary or Affiliate of Borrower, or any officer or director thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for
in, or received by Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document, or
for any failure of Borrower or any other party to any Loan Document to perform
its obligations hereunder or thereunder. No Agent-Related Person shall be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other


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Loan Document, or to inspect the Books or
properties of Borrower or the books or records or properties of any of
Borrower’s Subsidiaries or Affiliates.


     16.4   
 Reliance by Agent.   Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent, or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to Borrower or counsel to any Lender), independent accountants and other
experts selected by Agent. Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Loan Document
unless Agent shall first receive such advice or concurrence of the Lenders as
it deems appropriate and until such instructions are received, Agent shall act,
or refrain from acting, as it deems advisable. If Agent so requests, it shall
first be indemnified to its reasonable satisfaction by Lenders against any and
all liability and expense that may be incurred by it by reason of taking or
continuing to take any such action. Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Lenders and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all of the Lenders.


     16.5  
  Notice of Default or Event of Default.   Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest, fees,
and expenses required to be paid to Agent for the account of the Lenders,
except with respect to Defaults and Events of Default of which Agent has actual
knowledge, unless Agent shall have received written notice from a Lender or
Borrower referring to this Agreement, describing such Default or Event of
Default, and stating that such notice is a “notice of default.” Agent promptly
will notify the Lenders of its receipt of any such notice or of any Event of
Default of which Agent has actual knowledge. If any Lender obtains actual
knowledge of any Event of Default, such Lender promptly shall notify the other
Lenders and Agent of such Event of Default. Each Lender shall be solely
responsible for giving any notices to its Participants, if any. Subject to
Section 16.4, Agent shall take such action with respect to such Default or
Event of Default as may be requested by the Required Lenders in accordance with
Section 9; provided, however, that unless and until Agent has received any such
request, Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Default or Event of Default as it
shall deem advisable.


     16.6   
 Credit Decision.   Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that
no act by Agent hereinafter taken, including any review of the affairs of
Borrower and its Subsidiaries or Affiliates, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information


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as it has deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of Borrower and any other Person (other than the Lender Group)
party to a Loan Document, and all applicable bank regulatory laws relating to
the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to Borrower. Each Lender also represents
that it will, independently and without reliance upon any Agent-Related Person
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and other condition
and creditworthiness of Borrower and any other Person (other than the Lender
Group) party to a Loan Document. Except for notices, reports, and other
documents expressly herein required to be furnished to the Lenders by Agent,
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of Borrower and any
other Person party to a Loan Document that may come into the possession of any
of the Agent-Related Persons.


     16.7 
   Costs and Expenses; Indemnification.   Agent may incur and pay Lender
Group Expenses to the extent Agent reasonably deems necessary or appropriate
for the performance and fulfillment of its functions, powers, and obligations
pursuant to the Loan Documents, including court costs, reasonable attorneys’
fees and expenses, costs of collection by outside collection agencies and
auctioneer fees and costs of security guards or insurance premiums paid to
maintain the Collateral or any other collateral securing the Obligations,
whether or not Borrower is obligated to reimburse Agent or Lenders for such
expenses pursuant to the Loan Agreement or otherwise. Agent is authorized and
directed to deduct and retain sufficient amounts from Collections received by
Agent to reimburse Agent for such out-of-pocket costs and expenses prior to the
distribution of any amounts to Lenders. In the event Agent is not reimbursed
for such costs and expenses from Collections received by Agent, each Lender
hereby agrees that it is and shall be obligated to pay to or reimburse Agent
for the amount of such Lender’s Pro Rata Share thereof. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand the Agent-Related Persons (to the extent not reimbursed by or on
behalf of Borrower and without limiting the obligation of Borrower to do so),
according to their Pro Rata Shares, from and against any and all Indemnified
Liabilities; provided, however, that no Lender shall be liable for the payment
to any Agent-Related Person of any portion of such Indemnified Liabilities
resulting solely from such Person’s gross negligence or willful misconduct nor
shall any Lender be liable for the obligations of any Defaulting Lender in
failing to make an Advance or other extension of credit hereunder. Without
limitation of the foregoing, each Lender shall reimburse Agent upon demand for
such Lender’s ratable share of any costs or out-of-pocket expenses (including
attorneys fees and expenses) incurred by Agent in connection with the
preparation, execution, delivery, administration, modification, amendment, or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Loan Document, or any document contemplated by or referred to herein,
to the extent that Agent is not reimbursed for such expenses by or on behalf of
Borrower. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of Agent.



     16.8  
  Agent in Individual Capacity.   Foothill and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in, and generally engage in any kind of banking,
lending, trust, financial advisory, underwriting, or other business with
Borrower and its Subsidiaries and Affiliates and any other Person (other than
the Lender Group) party to any Loan Documents as though Foothill were not Agent
hereunder, and, in each case, without notice to or consent of the other members
of the Lender Group. The other members of the Lender Group acknowledge that,
pursuant to such activities, Foothill or its


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Affiliates may receive information
regarding Borrower or its Affiliates and any other Person (other than the
Lender Group) party to any Loan Documents that is subject to confidentiality
obligations in favor of Borrower or such other Person and that prohibit the
disclosure of such information to the Lenders, and the Lenders acknowledge
that, in such circumstances (and in the absence of a waiver of such
confidentiality obligations, which waiver Agent will use its reasonable best
efforts to obtain), Agent shall not be under any obligation to provide such
information to them. The terms “Lender” and “Lenders” include Foothill in its
individual capacity.


     16.9  
  Successor Agent.   Agent may resign as Agent upon forty-five (45)
days’ notice to the Lenders. If Agent resigns under this Agreement, the
Required Lenders shall appoint a successor Agent for the Lenders. If no
successor Agent is appointed prior to the effective date of the resignation of
Agent, Agent may appoint, after consulting with the Lenders, a successor Agent.
If Agent has materially breached or failed to perform any material provision
of this Agreement or of applicable law, the Required Lenders may agree in
writing to remove and replace Agent with a successor Agent from among the
Lenders. In any such event, upon the acceptance of its appointment as
successor Agent hereunder, such successor Agent shall succeed to all the
rights, powers, and duties of the retiring Agent and the term “Agent” shall
mean such successor Agent and the retiring Agent’s appointment, powers, and
duties as Agent shall be terminated. After any retiring Agent’s resignation
hereunder as Agent, the provisions of this Section 16 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no successor Agent has accepted appointment as Agent
by the date which is forty-five (45) days following a retiring Agent’s notice
of resignation, the retiring Agent’s resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of Agent
hereunder until such time, if any, as the Lenders appoint a successor Agent as
provided for above.


     16.10 
   Lender in Individual Capacity.   Any Lender and its respective
Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
Borrower and its Subsidiaries and Affiliates and any other Person (other than
the Lender Group) party to any Loan Documents as though such Lender were not a
Lender hereunder without notice to or consent of the other members of the
Lender Group. The other members of the Lender Group acknowledge that, pursuant
to such activities, such Lender and its respective Affiliates may receive
information regarding Borrower or its Affiliates and any other Person (other
than the Lender Group) party to any Loan Documents that is subject to
confidentiality obligations in favor of Borrower or such other Person and that
prohibit the disclosure of such information to the Lenders, and the Lenders
acknowledge that, in such circumstances (and in the absence of a waiver of such
confidentiality obligations, which waiver such Lender will use its reasonable
best efforts to obtain), such Lender not shall be under any obligation to
provide such information to them. With respect to the Swing Loans and Agent
Advances, Swing Lender shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not
the sub-agent of Agent.


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     16.11    
Withholding Taxes.



              (a)   If any Lender is a “foreign corporation, partnership or trust” within
the meaning of the IRC and such Lender claims exemption from, or a reduction
of, United States withholding tax under Sections 1441 or 1442 of the IRC, such
Lender agrees with and in favor of Agent and Borrower, to deliver to Agent and
Borrower:



		
	 	     (i)   if such Lender claims an exemption from withholding tax
pursuant to its portfolio interest exception, (a) a statement of
the Lender, signed under penalty of perjury, that it is not a (1) a
“bank” as described in Section 881(c)(3) (A) of the IRC, (2) a 10%
shareholder (within the meaning of Section 881(c)(3)(B) of the
IRC), or (3) a controlled foreign corporation described in Section
881(c)(3)(C) of the IRC, and (b) a properly completed IRS Form
W-8BEN, before the first payment of any interest under this
Agreement and at any other time reasonably requested by Agent or
Borrower;
	 
	 	     (ii)   if such Lender claims an exemption from, or a reduction
of, withholding tax under a United States tax treaty, properly
completed IRS Form W-8BEN before the first payment of any interest
under this Agreement and at any other time reasonably requested by
Agent or Borrower;
	 
	 	     (iii)   if such Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it
is effectively connected with a United States trade or business of
such Lender, two properly completed and executed copies of IRS Form
W-8ECI before the first payment of any interest is due under this
Agreement and at any other time reasonably requested by Agent or
Borrower; and
	 
	 	     (iv)   such other form or forms as may be required under the IRC
or other laws of the United States as a condition to exemption
from, or reduction of, United States withholding tax.




Such Lender agrees promptly to notify Agent and Borrower of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.


              (b)   If any Lender claims exemption from, or reduction of, withholding tax
under a United States tax treaty by providing IRS Form W-8BEN and such Lender
sells, assigns, grants a participation in, or otherwise transfers all or part
of the Obligations of Borrower to such Lender, such Lender agrees to notify
Agent of the percentage amount in which it is no longer the beneficial owner of
Obligations of Borrower to such Lender. To the extent of such percentage
amount, Agent will treat such Lender’s IRS Form W-8BEN as no longer valid.


              (c)   If any Lender is entitled to a reduction in the applicable withholding
tax, Agent may withhold from any interest payment to such Lender an amount
equivalent to the applicable withholding tax after taking into account such
reduction. If the forms or other documentation required by subSection (a) of
this Section are not delivered to Agent, then Agent


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may withhold from any
interest payment to such Lender not providing such forms or other documentation
an amount equivalent to the applicable withholding tax.


              (d)   If the IRS or any other Governmental Authority of the United States or
other jurisdiction asserts a claim that Agent did not properly withhold tax
from amounts paid to or for the account of any Lender (because the appropriate
form was not delivered, was not properly executed, or because such Lender
failed to notify Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any other
reason) such Lender shall indemnify and hold Agent harmless for all amounts
paid, directly or indirectly, by Agent as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the
amounts payable to Agent under this Section, together with all costs and
expenses (including attorneys fees and expenses). The obligation of the
Lenders under this subsection shall survive the payment of all Obligations and
the resignation or replacement of Agent.



              (e)   All payments made by Borrower hereunder or under any note will be made
without setoff, counterclaim, or other defense, except as required by
applicable law other than for Taxes (as defined below). All such payments will
be made free and clear of, and without deduction or withholding for, any
present or future taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature now or hereafter imposed by any jurisdiction (other
than the United States) or by any political subdivision or taxing authority
thereof or therein (other than of the United States) with respect to such
payments (but excluding, any tax imposed by any jurisdiction or by any
political subdivision or taxing authority thereof or therein (i) measured by or
based on the net income or net profits of a Lender, or (ii) to the extent that
such tax results from a change in the circumstances of the Lender, including a
change in the residence, place of organization, or principal place of business
of the Lender, or a change in the branch or lending office of the Lender
participating in the transactions set forth herein) and all interest, penalties
or similar liabilities with respect thereto (all such non-excluded taxes,
levies, imposts, duties, fees, assessments or other charges being referred to
collectively as “Taxes”). If any Taxes are so levied or imposed, Borrower
agrees to pay the full amount of such Taxes, and such additional amounts as may
be necessary so that every payment of all amounts due under this Agreement or
under any note, including any amount paid pursuant to this Section 16.11(e)
after withholding or deduction for or on account of any Taxes, will not be less
than the amount provided for herein; provided, however, that Borrower shall not
be required to increase any such amounts payable to Agent or any Lender (i)
that is not organized under the laws of the United States, if such Person fails
to comply with the other requirements of this
Section 16.11, or (ii) if the
increase in such amount payable results from Agent’s or such Lender’s own
willful misconduct or gross negligence. Borrower will furnish to Agent as
promptly as possible after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by
Borrower.



     16.12    
Collateral Matters.


              (a)   The Lenders hereby irrevocably authorize Agent, at its option and in
its sole discretion, to release any Lien on any Collateral or other collateral
securing the Obligations (i) upon the termination of the Commitments and
payment and satisfaction in full by Borrower of all Obligations, (ii)
constituting property being sold or disposed of if a release is required or


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desirable in connection therewith and if Borrower certifies to Agent that the
sale or disposition is permitted under Section 7.4 of this Agreement or the
other Loan Documents (and Agent may rely conclusively on any such certificate,
without further inquiry), (iii) constituting property in which Borrower owned
no interest at the time the security interest was granted or at any time
thereafter, or (iv) constituting property leased to Borrower under a lease that
has expired or is terminated in a transaction permitted under this Agreement.
Except as provided above, Agent will not execute and deliver a release of any
Lien on any Collateral or other collateral securing the Obligations without the
prior written authorization of (y) if the release is of all or substantially
all of the Collateral or other collateral securing the Obligations, all
Lenders, or (z) otherwise, the Required Lenders. Upon request by Agent or
Borrower at any time, the Lenders will confirm in writing Agent’s authority to
release any such Liens on particular types or items of Collateral or other
collateral securing the Obligations pursuant to this
Section 16.12; provided,
however, that (1) Agent shall not be required to execute any document necessary
to evidence such release on terms that, in Agent’s opinion, would expose Agent
to liability or create any obligation or entail any consequence other than the
release of such Lien without recourse, representation, or warranty, and (2)
such release shall not in any manner discharge, affect, or impair the
Obligations or any Liens (other than those expressly being released) upon (or
obligations of Borrower in respect of) all interests retained by Borrower,
including, the proceeds of any sale, all of which shall continue to constitute
part of the Collateral or the other collateral securing the Obligations.


              (b)   Agent shall have no obligation whatsoever to any of the Lenders to
assure that the Collateral or other collateral securing the Obligations exists
or is owned by Borrower or a Guarantor or is cared for, protected, or insured
or has been encumbered, or that the Agent’s Liens have been properly or
sufficiently or lawfully created, perfected, protected, or enforced or are
entitled to any particular priority, or to exercise at all or in any particular
manner or under any duty of care, disclosure or fidelity, or to continue
exercising, any of the rights, authorities and powers granted or available to
Agent pursuant to any of the Loan Documents, it being understood and agreed
that in respect of the Collateral or other collateral securing the Obligations,
or any act, omission, or event related thereto, subject to the terms and
conditions contained herein, Agent may act in any manner it may deem
appropriate, absent Agent’s gross negligence or willful misconduct, in its sole
discretion given Agent’s own interest in the Collateral or other collateral
securing the Obligations in its capacity as one of the Lenders and that Agent
shall have no other duty or liability whatsoever to any Lender as to any of the
foregoing, except as otherwise provided herein.



     16.13    
Restrictions on Actions by Lenders; Sharing of Payments.



              (a)   Each of the Lenders agrees that it shall not, without the express
consent of Agent, and that it shall, to the extent it is lawfully entitled to
do so, upon the request of Agent, set-off against the Obligations, any amounts
owing by such Lender to Borrower or any deposit accounts of Borrower now or
hereafter maintained with such Lender. Each of the Lenders further agrees that
it shall not, unless specifically requested to do so by Agent, take or cause to
be taken any action, including, the commencement of any legal or equitable
proceedings, to foreclose any Lien on, or otherwise enforce any security
interest in, any of the Collateral the purpose of which is, or could be, to
give such Lender any preference or priority against the other Lenders with
respect to the Collateral.


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              (b)   If, at any time or times any Lender shall receive (i) by payment,
foreclosure, setoff, or otherwise, any proceeds of Collateral or any payments
with respect to the Obligations arising under, or relating to, this Agreement
or the other Loan Documents, except for any such proceeds or payments received
by such Lender from Agent pursuant to the terms of this Agreement, or (ii)
payments from Agent in excess of such Lender’s Pro Rata Share of all such
distributions by Agent, such Lender promptly shall (1) turn the same over to
Agent, in kind, and with such endorsements as may be required to negotiate the
same to Agent, or in immediately available funds, as applicable, for the
account of all of the Lenders and for application to the Obligations in
accordance with the applicable provisions of this Agreement, or (2) purchase,
without recourse or warranty, an undivided interest and participation in the
Obligations owed to the other Lenders so that such excess payment received
shall be applied ratably as among the Lenders in accordance with their Pro Rata
Shares; provided, however, that if all or part of such excess payment received
by the purchasing party is thereafter recovered from it, those purchases of
participations shall be rescinded in whole or in part, as applicable, and the
applicable portion of the purchase price paid therefor shall be returned to
such purchasing party, but without interest except to the extent that such
purchasing party is required to pay interest in connection with the recovery of
the excess payment.



     16.14    
Agency for Perfection.   Agent hereby appoints each other Lender as
its agent (and each Lender hereby accepts such appointment) for the purpose of
perfecting the Agent’s Liens in assets which, in accordance with Article 9 of
the Code can be perfected only by possession. Should any Lender obtain
possession of any such Collateral or other collateral securing the Obligations,
such Lender shall notify Agent thereof, and, promptly upon Agent’s request
therefor shall deliver such Collateral or other collateral securing the
Obligations to Agent or in accordance with Agent’s instructions.



     16.15    
Payments by Agent to the Lenders.   All payments to be made by Agent
to the Lenders shall be made by bank wire transfer or internal transfer of
immediately available funds pursuant to such wire transfer instructions as each
party may designate for itself by written notice to Agent. Concurrently with
each such payment, Agent shall identify whether such payment (or any portion
thereof) represents principal, premium, or interest of the Obligations.



     16.16    
Concerning the Collateral and Related Loan Documents.   Each member
of the Lender Group authorizes and directs Agent to enter into this Agreement
and the other Loan Documents relating to the Collateral and the other
collateral securing the Obligations, for the benefit of the Lender Group. Each
member of the Lender Group agrees that any action taken by Agent in accordance
with the terms of this Agreement or the other Loan Documents relating to the
Collateral and the other collateral securing the Obligations and the exercise
by Agent of its powers set forth therein or herein, together with such other
powers that are reasonably incidental thereto, shall be binding upon all of the
Lenders.



     16.17    
Field Audits and Examination Reports; Confidentiality; Disclaimers
by Lenders; Other Reports and Information.   By becoming a party to this
Agreement, each Lender:



              (a)   is deemed to have requested that Agent furnish such Lender, promptly
after it becomes available, a copy of each field audit or examination report
(each a “Report” and


107






 


collectively, “Reports”) prepared by or at the request of
Agent, and Agent shall so furnish each Lender with such Reports,



              (b)   expressly agrees and acknowledges that Agent does not (i) make any
representation or warranty as to the accuracy of any Report, and (ii) shall not
be liable for any information contained in any Report,


              (c)   expressly agrees and acknowledges that the Reports are not
comprehensive audits or examinations, that Agent or other party performing any
audit or examination will inspect only specific information regarding Borrower
and will rely significantly upon the Books, as well as on representations of
Borrower’s personnel,


              (d)   agrees to keep all Reports and other material, non-public information
regarding Borrower and its Subsidiaries and their operations, assets, and
existing and contemplated business plans in a confidential manner; it being
understood and agreed by Borrower that in any event such Lender may make
disclosures (i) to counsel for and other advisors, accountants, and auditors to
such Lender, (ii) reasonably required by any bona fide potential or actual
Assignee or Participant in connection with any contemplated or actual
assignment or transfer by such Lender of an interest herein or any
participation interest in such Lender’s rights hereunder, (iii) of information
that has become public by disclosures made by Persons other than such Lender,
its Affiliates, assignees, transferees, or Participants, or (iv) as required or
requested by any court, governmental or administrative agency, pursuant to any
subpoena or other legal process, or by any law, statute, regulation, or court
order; provided, however, that, unless prohibited by applicable law, statute,
regulation, or court order, such Lender shall notify Borrower of any request by
any court, governmental or administrative agency, or pursuant to any subpoena
or other legal process for disclosure of any such non-public material
information concurrent with, or where practicable, prior to the disclosure
thereof; provided further, that any disclosures pursuant to the preceding
clauses (i) and (ii) shall be made subject to the recipient of the disclosures
agreeing to be bound by the confidentiality provisions hereof; and provided
further that, notwithstanding any other provisions in this Agreement to the
contrary, Borrower is an intended third-party beneficiary to, and Agent shall
be bound by, this Section 16.17(d), and



              (e)   without limiting the generality of any other indemnification provision
contained in this Agreement, agrees: (i) to hold Agent and any other Lender
preparing a Report harmless from any action the indemnifying Lender may take or
conclusion the indemnifying Lender may reach or draw from any Report in
connection with any loans or other credit accommodations that the indemnifying
Lender has made or may make to Borrower, or the indemnifying Lender’s
participation in, or the indemnifying Lender’s purchase of, a loan or loans of
Borrower, and (ii) to pay and protect, and indemnify, defend and hold Agent,
and any such other Lender preparing a Report harmless from and against, the
claims, actions, proceedings, damages, costs, expenses, and other amounts
(including, attorneys fees and costs) incurred by Agent and any such other
Lender preparing a Report as the direct or indirect result of any third parties
who might obtain all or part of any Report through the indemnifying Lender.


In addition to the foregoing:  (x) any Lender may from time to time request in
writing that Agent provide to such Lender a copy of any report or document
provided by Borrower to Agent that


108






 


has not been contemporaneously provided by
Borrower to such Lender, and, upon receipt of such request, Agent shall provide
a copy of same to such Lender, (y) to the extent that Agent is entitled, under
any provision of the Loan Documents, to request additional reports or
information from Borrower, any Lender may, from time to time, reasonably
request Agent to exercise such right as specified in such Lender’s notice to
Agent, whereupon Agent promptly shall request of Borrower the additional
reports or information reasonably specified by such Lender, and, upon receipt
thereof from Borrower, Agent promptly shall provide a copy of same to such
Lender, and (z) any time that Agent renders to Borrower a statement regarding
the Loan Account, Agent shall send a copy of such statement to each Lender.


     16.18    
Several Obligations; No Liability.   Notwithstanding that certain of
the Loan Documents now or hereafter may have been or will be executed only by
or in favor of Agent in its capacity as such, and not by or in favor of the
Lenders, any and all obligations on the part of the Lenders to make any credit
available hereunder shall constitute the several (and not joint) obligations of
the respective Lenders on a ratable basis, according to their respective
Commitments, to make an amount of such credit not to exceed, in principal
amount, at any one time outstanding, the amount of their respective
Commitments. Nothing contained herein shall confer upon any Lender any
interest in, or subject any Lender to any liability for, or in respect of, the
business, assets, profits, losses, or liabilities of any other Lender. Each
Lender shall be solely responsible for notifying its Participants of any
matters relating to the Loan Documents to the extent any such notice may be
required, and no Lender shall have any obligation, duty, or liability to any
Participant of any other Lender. Except as provided in Section 16.7, no member
of the Lender Group shall have any liability for the acts or any other member
of the Lender Group. No Lender shall be responsible to any Borrower or any
other Person for any failure by any other Lender to fulfill its obligations to
make credit available hereunder, nor to advance for it or on its behalf in
connection with its Commitment, nor to take any other action on its behalf
hereunder or in connection with the financing contemplated herein.



     16.19    
Legal Representation of Agent.   In connection with the negotiation,
drafting, and execution of this Agreement and the other Loan Documents, or in
connection with future legal representation relating to loan administration,
amendments, modifications, waivers, or enforcement of remedies, Paul, Hastings,
Janofsky & Walker LLP (“Paul Hastings”) only has represented and only shall
represent Foothill in its capacity as Agent and as a Lender. Each other Lender
hereby acknowledges that Paul Hastings does not represent it in connection with
any such matters.



17.    GENERAL PROVISIONS



     17.1    
Effectiveness.   This Agreement shall be binding and deemed effective
when executed by Borrower, Agent, and each Lender whose signature is provided
for on the signature pages hereof.



     17.2    
Section Headings.   Headings and numbers have been set forth herein
for convenience only. Unless the contrary is compelled by the context,
everything contained in each Section applies equally to this entire Agreement.


109






 


     17.3    
Interpretation.   Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed against the Lender Group or Borrower,
whether under any rule of construction or otherwise. On the contrary, this
Agreement has been reviewed by all parties and shall be construed and
interpreted according to the ordinary meaning of the words used so as to
accomplish fairly the purposes and intentions of all parties hereto.



     17.4    
Severability of Provisions.   Each provision of this Agreement shall
be severable from every other provision of this Agreement for the purpose of
determining the legal enforceability of any specific provision.



     17.5    
Amendments in Writing.   This Agreement only can be amended by a
writing signed by Agent (on behalf of the requisite Lenders) and Borrower.



     17.6    
Counterparts; Telefacsimile Execution.   This Agreement may be
executed in any number of counterparts and by different parties on separate
counterparts, each of which, when executed and delivered, shall be deemed to be
an original, and all of which, when taken together, shall constitute but one
and the same Agreement. Delivery of an executed counterpart of this Agreement
by telefacsimile shall be equally as effective as delivery of an original
executed counterpart of this Agreement. Any party delivering an executed
counterpart of this Agreement by telefacsimile also shall deliver an original
executed counterpart of this Agreement but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability, and binding
effect of this Agreement. The foregoing shall apply to each other Loan
Document mutatis mutandis.



     17.7    
Revival and Reinstatement of Obligations.   If the incurrence or
payment of the Obligations by Borrower or any Guarantor or the transfer to the
Lender Group of any property should for any reason subsequently be declared to
be void or voidable under any state or federal law relating to creditors’
rights, including provisions of the Bankruptcy Code relating to fraudulent
conveyances, preferences, or other voidable or recoverable payments of money or
transfers of property (collectively, a “Voidable Transfer”), and if the Lender
Group is required to repay or restore, in whole or in part, any such Voidable
Transfer, or elects to do so upon the reasonable advice of its counsel, then,
as to any such Voidable Transfer, or the amount thereof that the Lender Group
is required or elects to repay or restore, and as to all reasonable costs,
expenses, and attorneys fees of the Lender Group related thereto, the liability
of Borrower [or Guarantor] automatically shall be revived, reinstated, and
restored and shall exist as though such Voidable Transfer had never been made.



     17.8    
Integration.   This Agreement, together with the other Loan Documents,
reflects the entire understanding of the parties with respect to the
transactions contemplated hereby and shall not be contradicted or qualified by
any other agreement, oral or written, before the date hereof.


[Signature page to follow]


110






 


     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.



	 	ORBITAL SCIENCES CORPORATION,

a Delaware corporation, as Borrower




	 	
By:_____________________________

Title:____________________________




	 	FOOTHILL CAPITAL CORPORATION,

a California corporation, as Agent

and as a Lender




	 	By:_____________________________

Title:____________________________





	 	ABLECO FINANCE LLC, a

Delaware limited liability company,

as a Lender




	 	By:_____________________________

Title:____________________________



 






 


TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 	 	 	 	 	 	 	 	

	 	1.
	 	 	DEFINITIONS AND CONSTRUCTION
	 	 	
1	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	1.1
	 	Definitions	 	 	
1	 
	 
	 	 
	 	 	1.2
	 	Accounting Terms	 	 	
31	 
	 
	 	 
	 	 	1.3
	 	Code	 	 	
31	 
	 
	 	 
	 	 	1.4
	 	Construction	 	 	
31	 
	 
	 	
	 	 	1.5
	 	Schedules and Exhibits	 	 	
31	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	2.
	 	 	LOAN AND TERMS OF PAYMENT
	 	 	
31	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	2.1
	 	Revolver Advances	 	 	
31	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	2.2
	 	Partial Prepayment of Revolver Usage and Reduction of
Revolver Commitment	 	 	
32	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	2.3
	 	Borrowing Procedures and Settlements	 	 	
33	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	2.4
	 	Payments	 	 	
40	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	2.5
	 	Overadvances	 	 	
43	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	2.6
	 	Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations	 	 	
43	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	2.7
	 	Cash Management	 	 	
44	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	2.8
	 	Crediting Payments; Float Charge	 	 	
45	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	2.9
	 	Designated Account	 	 	
46	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	2.10
	 	Maintenance of Loan Account; Statements of Obligations	 	 	
46	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	2.11
	 	Fees	 	 	
47	 
	 
	 	
	 	 	2.12
	 	Letters of Credit	 	 	
47	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	2.13
	 	[Intentionally Omitted]	 	 	
51	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	2.14
	 	Capital Requirements	 	 	
51	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	2.15
	 	Designated Senior Indebtedness	 	 	
51	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	2.16
	 	Registered Notes	 	 	
51	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	3.
	 	 	CONDITIONS; TERM
OF AGREEMENT
	 	 	
51	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	3.1
	 	Conditions Precedent to the Initial Extension of Credit	 	 	
52	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	3.2
	 	Conditions Subsequent	 	 	
55	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	3.3
	 	Conditions Precedent to all Extensions of Credit	 	 	
57	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	3.4
	 	Term	 	 	
57	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	3.5
	 	Effect of Termination	 	 	
58	 



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	 	 	3.6
	 	Early Termination by Borrower	 	 	
58	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	4.
	 	 	CREATION OF SECURITY INTEREST
	 	 	
59	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	4.1
	 	Grant of Security Interest	 	 	
59	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	4.2
	 	Negotiable Collateral and Chattel Paper	 	 	
60	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	4.3
	 	Collection of Accounts, General Intangibles, and Negotiable Collateral	 	 	
60	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	4.4
	 	Delivery of Additional Documentation Required	 	 	
60	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	4.5
	 	Power of Attorney	 	 	
61	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	4.6
	 	Right to Inspect; Appraisals	 	 	
62	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	4.7
	 	Control Agreements	 	 	
62	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	4.8
	 	Commercial Tort Claims	 	 	
62	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	5.
	 	 	REPRESENTATIONS AND WARRANTIES
	 	 	
63	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.1
	 	No Encumbrances	 	 	
63	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.2
	 	Eligible Accounts	 	 	
63	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.3
	 	[Intentionally Omitted]	 	 	
63	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.4
	 	Equipment	 	 	
63	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.5
	 	Location of Inventory and Equipment	 	 	
63	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.6
	 	Inventory Records	 	 	
63	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.7
	 	Location of Chief Executive Office; FEIN; Organizational I.D. Number	 	 	
63	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.8
	 	Due Organization and Qualification; Subsidiaries	 	 	
63	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.9
	 	Due Authorization; No Conflict	 	 	
64	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.10
	 	Litigation	 	 	
65	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.11
	 	Financial Statements; No Material Adverse Change	 	 	
66	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.12
	 	Fraudulent Transfer	 	 	
66	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.13
	 	Employee Benefits	 	 	
66	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.14
	 	Environmental Condition	 	 	
66	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.15
	 	Brokerage Fees	 	 	
67	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.16
	 	Intellectual Property	 	 	
67	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.17
	 	Leases	 	 	
67	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.18
	 	DDAs	 	 	
67	 



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	 	 	5.19
	 	Complete Disclosure	 	 	
67	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.20
	 	Indebtedness	 	 	
68	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.21
	 	Regulation U	 	 	
68	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	5.22
	 	Permits, Etc	 	 	
68	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	6.
	 	 	AFFIRMATIVE COVENANTS
	 	 	
68	 
	 
	 	
	 	 	6.1
	 	Accounting System	 	 	
68	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	6.2
	 	Collateral Reporting	 	 	
69	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	6.3
	 	Financial Statements, Reports, Certificates	 	 	
70	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	6.4
	 	[Intentionally Omitted]	 	 	
72	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	6.5
	 	Allowances	 	 	
72	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	6.6
	 	Maintenance of Properties	 	 	
73	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	6.7
	 	Taxes	 	 	
73	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	6.8
	 	Insurance	 	 	
73	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	6.9
	 	Location of Inventory and Equipment	 	 	
74	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	6.10
	 	Compliance with Laws	 	 	
75	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	6.11
	 	Leases	 	 	
75	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	6.12
	 	Brokerage Commissions	 	 	
75	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	6.13
	 	Existence	 	 	
75	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	6.14
	 	Environmental	 	 	
75	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	6.15
	 	Disclosure Updates	 	 	
76	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	6.16
	 	Employee Benefits	 	 	
76	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	7.
	 	 	NEGATIVE COVENANTS
	 	 	
77	 
	 
	 	
	 	 	7.1
	 	Indebtedness	 	 	
77	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.2
	 	Liens	 	 	
78	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.3
	 	Restrictions on Fundamental Changes; Disposal of Assets	 	 	
78	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.4
	 	[Intentionally Omitted]	 	 	
79	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.5
	 	Change Name	 	 	
79	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.6
	 	Guarantee	 	 	
79	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.7
	 	[Intentionally Omitted]	 	 	
79	 



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	 	 	 	 	 	 	 	 	Page
	 	 	 	 	 	 	 	 	

	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.8
	 	Prepayments and Amendments	 	 	
79	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.9
	 	Change of Control	 	 	
80	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.10
	 	Conditional Sales	 	 	
81	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.11
	 	Distributions	 	 	
81	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.12
	 	Accounting Methods	 	 	
81	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.13
	 	Investments	 	 	
81	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.14
	 	Transactions with Affiliates	 	 	
81	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.15
	 	[Intentionally Omitted]	 	 	
82	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.16
	 	Compensation	 	 	
82	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.17
	 	Use of Proceeds	 	 	
82	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.18
	 	Change in Location of Chief Executive Office;
Inventory and Equipment with Bailees; Book and Records	 	 	
82	 
	 
	 	
	 	 	7.19
	 	[Intentionally Omitted]	 	 	
82	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.20
	 	Financial Covenants	 	 	
83	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	7.21
	 	No Prohibited Transactions Under ERISA	 	 	
85	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	8.
	 	 	EVENTS OF DEFAULT
	 	 	
85	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	9.
	 	 	THE LENDER GROUP’S
RIGHTS AND
REMEDIES
	 	 	
88	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	9.1
	 	Rights and Remedies	 	 	
88	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	9.2
	 	Remedies Cumulative	 	 	
90	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	10.
	 	 	TAXES
AND EXPENSES
	 	 	
90	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	11.
	 	 	WAIVERS;
INDEMNIFICATION
	 	 	
91	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	11.1
	 	Demand; Protest; etc	 	 	
91	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	11.2
	 	The Lender Group’s Liability for Collateral	 	 	
91	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	11.3
	 	Indemnification	 	 	
91	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	12.
	 	 	NOTICES
	 	 	
92	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	13.
	 	 	CHOICE OF LAW
AND VENUE; JURY
TRIAL WAIVER
	 	 	
93	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	14.
	 	 	ASSIGNMENTS AND
PARTICIPATIONS;
SUCCESSORS
	 	 	
94	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	14.1
	 	Assignments and Participations	 	 	
94	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	14.2
	 	Successors	 	 	
97	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	15.
	 	 	AMENDMENTS;
WAIVERS
	 	 	
97	 



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	 	 	 	 	 	 	 	 	Page
	 	 	 	 	 	 	 	 	

	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	15.1
	 	Amendments and Waivers	 	 	
97	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	15.2
	 	Replacement of Holdout Lender	 	 	
99	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	15.3
	 	No Waivers; Cumulative Remedies	 	 	
99	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	16.
	 	 	AGENT; THE
LENDER GROUP
	 	 	
99	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.1
	 	Appointment and Authorization of Agent	 	 	
99	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.2
	 	Delegation of Duties	 	 	
100	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.3
	 	Liability of Agent	 	 	
100	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.4
	 	Reliance by Agent	 	 	
101	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.5
	 	Notice of Default or Event of Default	 	 	
101	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.6
	 	Credit Decision	 	 	
101	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.7
	 	Costs and Expenses; Indemnification	 	 	
102	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.8
	 	Agent in Individual Capacity	 	 	
102	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.9
	 	Successor Agent	 	 	
103	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.10
	 	Lender in Individual Capacity	 	 	
103	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.11
	 	Withholding Taxes	 	 	
104	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.12
	 	Collateral Matters	 	 	
105	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.13
	 	Restrictions on Actions by Lenders; Sharing of Payments	 	 	
106	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.14
	 	Agency for Perfection	 	 	
107	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.15
	 	Payments by Agent to the Lenders	 	 	
107	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.16
	 	Concerning the Collateral and Related Loan Documents	 	 	
107	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.17
	 	Field Audits and Examination Reports;
Confidentiality; Disclaimers by Lenders; Other Reports and
Information	 	 	 107	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.18
	 	Several Obligations; No Liability	 	 	
109	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	16.19
	 	Legal Representation of Agent	 	 	
109	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	17.
	 	 	GENERAL PROVISIONS
	 	 	
109	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	17.1
	 	Effectiveness	 	 	
109	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	17.2
	 	Section Headings	 	 	
109	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	17.3
	 	Interpretation	 	 	
110	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	17.4
	 	Severability of Provisions	 	 	
110	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	17.5
	 	Amendments in Writing	 	 	
110	 



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	 	 	17.6
	 	Counterparts; Telefacsimile Execution	 	 	
110	 
	 
	 	
	 	 	17.7
	 	Revival and Reinstatement of Obligations	 	 	
110	 
	 	 
	 	 	 	 	 	 	 	 	 
	 	
	 	 	17.8
	 	Integration	 	 	
110	 




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