Exhibit 10.1


 




 





 


EXECUTION COPY


 


Published CUSIP Number                  


 


SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated as of October 7, 2010


 


among


 


ALLIANT TECHSYSTEMS INC.,

as the Borrower,


 


BANK OF AMERICA, N.A.,

as Administrative Agent


 


and


 


The Lenders Party Hereto


 


THE ROYAL BANK OF SCOTLAND PLC


U.S. BANK NATIONAL ASSOCIATION, 

WELLS FARGO BANK, NATIONAL ASSOCIATION

SUNTRUST BANK

as Co-Syndication Agents


 


BANC OF AMERICA SECURITIES LLC

RBS SECURITIES INC.

U.S. BANK NATIONAL ASSOCIATION

WELLS FARGO SECURITIES, LLC

SUNTRUST ROBINSON HUMPHREY, INC.

as Joint Lead Arrangers


 


BANC OF AMERICA SECURITIES LLC,

as Sole Bookrunning Manager


 




 





 

















 


* * *


 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I

  DEFINITIONS AND ACCOUNTING TERMS

  
	
   

  	
   

  	
   

  
	
  1.01

  	
  Defined Terms

  	
   

  	
  2

  
	
  1.02

  	
  Other Interpretive Provisions

  	
   

  	
  36

  
	
  1.03

  	
  Accounting Terms

  	
   

  	
  37

  
	
  1.04

  	
  Rounding

  	
   

  	
  37

  
	
  1.05

  	
  References to Agreements and Laws

  	
   

  	
  37

  
	
  1.06

  	
  Times of Day

  	
   

  	
  37

  
	
  1.07

  	
  Letter of Credit Amounts

  	
   

  	
  37

  
	
  1.08

  	
  Currency Equivalents Generally

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
  THE COMMITMENTS AND CREDIT EXTENSIONS

  
	
   

  	
   

  	
   

  	
   

  
	
  2.01

  	
  The Loans

  	
   

  	
  38

  
	
  2.02

  	
  Borrowings, Conversions and Continuations of Loans

  	
   

  	
  39

  
	
  2.03

  	
  Letters of Credit

  	
   

  	
  41

  
	
  2.04

  	
  Swing Line Loans

  	
   

  	
  50

  
	
  2.05

  	
  Prepayments

  	
   

  	
  53

  
	
  2.06

  	
  Termination or Reduction of Commitments

  	
   

  	
  55

  
	
  2.07

  	
  Repayment of Loans

  	
   

  	
  56

  
	
  2.08

  	
  Interest

  	
   

  	
  57

  
	
  2.09

  	
  Fees

  	
   

  	
  58

  
	
  2.10

  	
  Computation of Interest and Fees

  	
   

  	
  59

  
	
  2.11

  	
  Evidence of Indebtedness

  	
   

  	
  59

  
	
  2.12

  	
  Payments Generally

  	
   

  	
  60

  
	
  2.13

  	
  Sharing of Payments

  	
   

  	
  62

  
	
  2.14

  	
  Increase in Revolving Commitments

  	
   

  	
  63

  
	
  2.15

  	
  Increase in Term Loan Commitments

  	
   

  	
  64

  
	
  2.16

  	
  Cash  Collateral

  	
   

  	
  65

  
	
  2.17

  	
  Defaulting  Lenders

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
  TAXES, YIELD PROTECTION AND ILLEGALITY

  
	
   

  	
   

  	
   

  	
   

  
	
  3.01

  	
  Taxes

  	
   

  	
  68

  
	
  3.02

  	
  Illegality

  	
   

  	
  70

  
	
  3.03

  	
  Inability to Determine Rates

  	
   

  	
  70

  
	
  3.04

  	
  Increased Cost and Reduced Return; Capital Adequacy;
  Reserves on Eurodollar Rate Loans

  	
   

  	
  71

  
	
  3.05

  	
  Compensation for Losses

  	
   

  	
  72

  



 

















 


	
  3.06

  	
  Matters Applicable to all Requests for Compensation

  	
   

  	
  73

  
	
  3.07

  	
  Survival

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  
	
   

  	
   

  	
   

  	
   

  
	
  4.01

  	
  Conditions of Restatement

  	
   

  	
  73

  
	
  4.02

  	
  Conditions to all Credit Extensions

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
  REPRESENTATIONS AND WARRANTIES

  
	
   

  	
   

  	
   

  	
   

  
	
  5.01

  	
  Existence, Qualification and Power; Compliance with Laws

  	
   

  	
  78

  
	
  5.02

  	
  Authorization; No Contravention

  	
   

  	
  79

  
	
  5.03

  	
  Governmental Authorization; Other Consents

  	
   

  	
  79

  
	
  5.04

  	
  Binding Effect

  	
   

  	
  79

  
	
  5.05

  	
  Financial Statements; No Material Adverse Effect

  	
   

  	
  79

  
	
  5.06

  	
  Litigation

  	
   

  	
  80

  
	
  5.07

  	
  No Default

  	
   

  	
  80

  
	
  5.08

  	
  Ownership of Property; Liens; Investments

  	
   

  	
  80

  
	
  5.09

  	
  Environmental Matters

  	
   

  	
  81

  
	
  5.10

  	
  Insurance

  	
   

  	
  82

  
	
  5.11

  	
  Taxes

  	
   

  	
  82

  
	
  5.12

  	
  ERISA Compliance

  	
   

  	
  82

  
	
  5.13

  	
  Subsidiaries; Equity Interests

  	
   

  	
  83

  
	
  5.14

  	
  Margin Regulations; Investment Company Act

  	
   

  	
  83

  
	
  5.15

  	
  Disclosure

  	
   

  	
  84

  
	
  5.16

  	
  Compliance with Laws

  	
   

  	
  84

  
	
  5.17

  	
  Intellectual Property; Licenses, Etc.

  	
   

  	
  84

  
	
  5.18

  	
  Solvency

  	
   

  	
  84

  
	
  5.19

  	
  Casualty, Etc.

  	
   

  	
  84

  
	
  5.20

  	
  Perfection, Etc.

  	
   

  	
  85

  
	
  5.21

  	
  Designated Senior Indebtedness

  	
   

  	
  85

  
	
  5.22

  	
  Loan Parties Consolidated Assets

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
  AFFIRMATIVE COVENANTS

  
	
   

  	
   

  	
   

  	
   

  
	
  6.01

  	
  Financial Statements

  	
   

  	
  85

  
	
  6.02

  	
  Certificates; Other Information

  	
   

  	
  86

  
	
  6.03

  	
  Notices

  	
   

  	
  89

  
	
  6.04

  	
  Payment of Obligations

  	
   

  	
  90

  
	
  6.05

  	
  Preservation of Existence, Etc.

  	
   

  	
  90

  
	
  6.06

  	
  Maintenance of Properties

  	
   

  	
  90

  
	
  6.07

  	
  Maintenance of Insurance

  	
   

  	
  90

  
	
  6.08

  	
  Compliance with Laws

  	
   

  	
  90

  
	
  6.09

  	
  Books and Records

  	
   

  	
  91

  



 


ii

















 


	
  6.10

  	
  Inspection Rights

  	
   

  	
  91

  
	
  6.11

  	
  Use of Proceeds

  	
   

  	
  91

  
	
  6.12

  	
  Covenant to Guarantee Obligations and Give Security

  	
   

  	
  91

  
	
  6.13

  	
  Further Assurances

  	
   

  	
  93

  
	
  6.14

  	
  Material Contracts

  	
   

  	
  93

  
	
  6.15

  	
  [Conditions Subsequent to the Restatement Closing Date

  	
   

  	
  94

  
	
  6.16

  	
  Assignable Government Contract Claims

  	
   

  	
  94

  
	
  6.17

  	
  Preparation of Environmental Reports

  	
   

  	
  94

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
  NEGATIVE COVENANTS

  
	
   

  	
   

  	
   

  	
   

  
	
  7.01

  	
  Liens

  	
   

  	
  95

  
	
  7.02

  	
  Indebtedness

  	
   

  	
  97

  
	
  7.03

  	
  Investments

  	
   

  	
  99

  
	
  7.04

  	
  Fundamental Changes

  	
   

  	
  101

  
	
  7.05

  	
  Dispositions

  	
   

  	
  101

  
	
  7.06

  	
  Restricted Payments

  	
   

  	
  103

  
	
  7.07

  	
  Change in Nature of Business

  	
   

  	
  104

  
	
  7.08

  	
  Transactions with Affiliates

  	
   

  	
  104

  
	
  7.09

  	
  Burdensome Agreements

  	
   

  	
  104

  
	
  7.10

  	
  Financial Covenants

  	
   

  	
  105

  
	
  7.11

  	
  Loan Parties Consolidated Assets

  	
   

  	
  105

  
	
  7.12

  	
  Amendments of Organization Documents

  	
   

  	
  105

  
	
  7.13

  	
  Accounting Changes

  	
   

  	
  105

  
	
  7.14

  	
  Prepayments, Etc. of Indebtedness

  	
   

  	
  105

  
	
  7.15

  	
  Amendment, Etc. of Related Documents

  	
   

  	
  105

  
	
  7.16

  	
  Speculative Transactions

  	
   

  	
  106

  
	
  7.17

  	
  Material Contracts

  	
   

  	
  106

  
	
  7.18

  	
  No Other Designated Senior Indebtedness

  	
   

  	
  106

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
  EVENTS OF DEFAULT AND REMEDIES

  
	
   

  	
   

  	
   

  	
   

  
	
  8.01

  	
  Events of Default

  	
   

  	
  106

  
	
  8.02

  	
  Remedies upon Event of Default

  	
   

  	
  108

  
	
  8.03

  	
  Application of Funds

  	
   

  	
  109

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
  ADMINISTRATIVE AGENT AND OTHER AGENTS

  
	
   

  	
   

  	
   

  	
   

  
	
  9.01

  	
  Appointment and Authority

  	
   

  	
  110

  
	
  9.02

  	
  Rights as a Lender

  	
   

  	
  110

  
	
  9.03

  	
  Exculpatory Provisions

  	
   

  	
  111

  
	
  9.04

  	
  Reliance by Administrative Agent

  	
   

  	
  111

  
	
  9.05

  	
  Delegation of Duties

  	
   

  	
  112

  
	
  9.06

  	
  Resignation of Administrative Agent

  	
   

  	
  112

  



 


iii

















 


	
  9.07

  	
  Non-Reliance on Administrative Agent and Other Lenders

  	
   

  	
  113

  
	
  9.08

  	
  Administrative Agent May File Proofs of Claim

  	
   

  	
  113

  
	
  9.09

  	
  Collateral and Guaranty Matters

  	
   

  	
  114

  
	
  9.10

  	
  Other Agents; Arrangers and Managers

  	
   

  	
  115

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  	
   

  
	
  10.01

  	
  Amendments, Etc.

  	
   

  	
  115

  
	
  10.02

  	
  Notices and Other Communications; Facsimile Copies

  	
   

  	
  117

  
	
  10.03

  	
  No Waiver; Cumulative Remedies

  	
   

  	
  119

  
	
  10.04

  	
  Expenses; Indemnity; Damage Waiver

  	
   

  	
  120

  
	
  10.05

  	
  Payments Set Aside

  	
   

  	
  122

  
	
  10.06

  	
  Successors and Assigns

  	
   

  	
  122

  
	
  10.07

  	
  Confidentiality

  	
   

  	
  128

  
	
  10.08

  	
  Setoff

  	
   

  	
  129

  
	
  10.09

  	
  Interest Rate Limitation

  	
   

  	
  130

  
	
  10.10

  	
  Counterparts

  	
   

  	
  130

  
	
  10.11

  	
  Integration

  	
   

  	
  130

  
	
  10.12

  	
  Survival of Representations and Warranties

  	
   

  	
  130

  
	
  10.13

  	
  Severability

  	
   

  	
  130

  
	
  10.14

  	
  Tax Forms

  	
   

  	
  131

  
	
  10.15

  	
  No Advisory or Fiduciary Responsibility

  	
   

  	
  134

  
	
  10.16

  	
  Replacement of Lenders

  	
   

  	
  134

  
	
  10.17

  	
  Governing Law

  	
   

  	
  135

  
	
  10.18

  	
  Waiver of Right to Trial by Jury

  	
   

  	
  135

  
	
  10.19

  	
  Binding Effect

  	
   

  	
  135

  
	
  10.20

  	
  USA PATRIOT Act Notice

  	
   

  	
  135

  
	
   

  	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
   

  	
  S-1

  



 


iv

















 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  1

  	
  Guarantors

  
	
  1.01

  	
  Existing
  Letters of Credit

  
	
  2.01

  	
  Commitments
  and Pro Rata Shares

  
	
  5.03

  	
  Certain
  Authorizations

  
	
  5.05

  	
  Material
  Debt and Liabilities

  
	
  5.08(c)

  	
  Owned
  Real Property

  
	
  5.09(c)

  	
  Treatment,
  Storage and Disposal Facilities

  
	
  5.13

  	
  Subsidiaries
  and Other Equity Investments

  
	
  7.01(b)

  	
  Existing
  Liens

  
	
  7.02(e)

  	
  Existing
  Indebtedness

  
	
  7.03(d)

  	
  Existing
  Investments

  
	
  10.02

  	
  Administrative
  Agent’s Office, Certain Addresses for Notices

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Form of

  
	
   

  	
   

  
	
  A

  	
  Committed
  Loan Notice

  
	
  B

  	
  Swing
  Line Loan Notice

  
	
  C-1

  	
  Term
  Note

  
	
  C-2

  	
  Revolving
  Credit Note

  
	
  D

  	
  Compliance
  Certificate

  
	
  E

  	
  Assignment
  and Assumption

  
	
  F

  	
  Guaranty

  
	
  G

  	
  Security
  Agreement

  
	
  H

  	
  [RESERVED]

  
	
  I

  	
  Solvency
  Certificate

  
	
  J-1

  	
  Opinion
  Matters — Counsel to Loan Parties

  
	
  J-2

  	
  Opinion
  Matters — Local Counsel to Loan Parties

  
	
  J-3

  	
  Opinion
  Matters — General Counsel to Borrower

  
	
  K

  	
  Incremental
  Term Facility Supplement

  
	
  L

  	
  Joinder
  Agreement

  



 


v

















 


SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


This
SECOND AMENDED AND RESTATED CREDIT AGREEMENT (as amended, amended and restated,
supplemented or otherwise modified from time to time, this “Agreement”) is entered into as of October     ,
2010, among Alliant Techsystems Inc., a Delaware corporation (the “Borrower”), each lender from time to
time party hereto (collectively, the “Lenders”
and, individually, a “Lender”),
each Swing Line Lender (as hereinafter defined) party hereto, each L/C Issuer
(as hereinafter defined) party hereto, BANK OF AMERICA, N.A., as Administrative
Agent (as hereinafter defined), THE ROYAL BANK OF SCOTLAND PLC, U.S. BANK
NATIONAL ASSOCIATION, WELLS FARGO BANK, NATIONAL ASSOCIATION and SUNTRUST BANK,
as Co- Syndication Agents, BANC OF AMERICA SECURITIES LLC (“BAS”), RBS SECURITIES
INC., U.S. BANK NATIONAL ASSOCIATION, WELLS FARGO SECURITIES, LLC and SUNTRUST
ROBINSON HUMPHREY, INC., as Joint Lead Arrangers, and BAS, as Sole
Bookrunning Manager.


 


PRELIMINARY STATEMENTS:


 


The
Borrower has entered into the Amended and Restated Credit Agreement, dated as
of March 29, 2007 (the “Existing Credit Agreement”) with Bank of America, N.A.,
as administrative agent, with the lenders named therein (the “Existing Lenders”) and the other
parties thereto.


 


In
order to finance its ongoing working capital and general corporate purposes,
the Borrower has requested, and the Lenders have agreed, to further amend and
restate the Existing Credit Agreement in order to permit the Lenders to extend
credit subject to the conditions set forth herein in the form of (a) Term
Loans to the Borrower as provided herein and (b) Revolving Credit Loans to
the Borrower as provided herein and ending on the Maturity Date of which, at
any time, not more than (i) $300,000,000 in aggregate principal, notional
or stated amount may be in the form of L/C Credit Extensions provided by the
L/C Issuers, and (ii) $40,000,000 in aggregate principal amount may be in
the form of Swing Line Loans provided by the Swing Line Lenders.


 


By
execution of this Agreement, each of the Lenders shall be deemed to have
assumed from each of the Existing Lenders, as of the Restatement Closing Date,
an undivided interest in all of the rights and obligations of the Existing
Lenders under the Existing Credit Agreement such that, after giving effect to
such sale and assignment as of the Restatement Closing Date, the Commitments of
and the amount of Borrowings owing to each of the Lenders will be set forth on
Schedule 2.01.


 


In
consideration of the mutual covenants and agreements herein contained and
subject to the satisfaction of the conditions set forth in Section 4.01,
the parties hereto agree to amend and restate the Existing Credit Agreement, in
its entirety, as follows:


 


1

















 


ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS


 


1.01         Defined
Terms.  As used in this Agreement, the
following terms shall have the meanings set forth below:


 


“Acquisition” means,
as to any Person, the purchase or other acquisition (in one transaction or a
series of transactions, including through a merger) of all of the Equity
Interests of another Person or all or substantially all of the property, assets
or business of another Person or of the assets constituting a business unit,
line of business or division of another Person.


 


“Additional Revolving Credit Lender”
means any Eligible Assignee who agrees to provide Revolving Credit Commitments
in accordance with the provisions of Section 2.14 in connection
with a request for a Revolving Credit Commitment Increase.


 


“Additional Term Loan Lender” means any
Eligible Assignee who agrees to provide Term Commitments in respect of one of
the Term Facilities in accordance with the provisions of Section 2.15
in connection with a request for a Term Commitment Increase.


 


“Administrative Agent” means Bank of
America in its capacity as administrative agent under any of the Loan
Documents, or any successor administrative agent.


 


“Administrative Agent’s Office” means
the Administrative Agent’s address and, as appropriate, account as set forth on
Schedule 10.02, or such other address or account as the
Administrative Agent may from time to time notify to the Borrower and the
Lenders.


 


“Administrative Questionnaire” means
an administrative questionnaire in a form supplied by the Administrative Agent.


 


“Affiliate” means, with respect to
any Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the Person specified.  “Control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings
correlative thereto.  Without limiting
the generality of the foregoing, a Person shall be deemed to be Controlled by
another Person if such other Person possesses, directly or indirectly, power to
vote 10% or more of the securities having ordinary voting power for the
election of directors, managing general partners or the equivalent.


 


“Agents” means, collectively, the
Administrative Agent, the Syndication Agent, the Co-Documentation Agents and
any other “collateral agent”
appointed pursuant to Section 9.01(b) and for purposes of the
Mortgages, any “supplemental collateral
agent”.


 


“Aggregate Commitments” means the
Commitments of all the Lenders.


 


“Agreement” has the meaning specified
in the introductory paragraph hereto.


 


2

















 


“Alternative Currency” means each of
Euro, Sterling, Yen and any other currency that is readily available and freely
transferable and convertible into Dollars that is approved by the
Administrative Agent (such approval not to be unreasonably withheld or delayed)
and the applicable L/C Issuer.


 


“Applicable Rate” means for any day,
(a) in case of the Revolving Credit Loans and the Term A Loans, with
respect to Base Rate Loans and Eurodollar Rate Loans, and the commitment fee
payable in respect of the unutilized portion of the Revolving Credit Facility,
the applicable rate per annum set forth below in the grid captioned “Revolving
Credit Facility and Term A Facility — Applicable Rate”, under the captions “Base
Rate Percentage”, “Eurodollar Percentage” or “Commitment Fee” cited therein, as
the case may be, based upon the Senior Secured Credit Rating and (b) in
the case of any Incremental Term Loans, the applicable rate per annum set forth
in the applicable Incremental Term Facility Supplement for Base Rate Loans and
Eurodollar Rate Loans:


 


Revolving Credit Facility and Term A Facility — Applicable Rate


 


	
  Pricing

  Level

  	
   

  	
  Senior Secured Credit

  Ratings

  (Moody’s/S&P/Fitch)

  	
   

  	
  Commitment

  Fee

  	
   

  	
  Eurodollar

  Percentage

  	
   

  	
  Base Rate

  Percentage

  	
   

  
	
  1

  	
   

  	
  Baa2
  / BBB / BBB or higher

  	
   

  	
  0.30

  	
  %

  	
  2.00

  	
  %

  	
  1.00

  	
  %

  
	
  2

  	
   

  	
  Baa3
  / BBB- / BBB-

  	
   

  	
  0.35

  	
  %

  	
  2.25

  	
  %

  	
  1.25

  	
  %

  
	
  3

  	
   

  	
  Ba1
  / BB+ / BB+

  	
   

  	
  0.40

  	
  %

  	
  2.50

  	
  %

  	
  1.50

  	
  %

  
	
  4

  	
   

  	
  Ba2
  / BB / BB

  	
   

  	
  0.40

  	
  %

  	
  2.75

  	
  %

  	
  1.75

  	
  %

  
	
  5

  	
   

  	
  Ba3
  / BB- / BB- or lower or no Senior Secured Credit Rating

  	
   

  	
  0.50

  	
  %

  	
  3.00

  	
  %

  	
  2.00

  	
  %

  



 


Any
increase or decrease in the Applicable Rate resulting from a change in the
Senior Secured Credit Rating shall become effective as of the first Business
Day immediately following the date of such change in Senior Secured Credit
Rating.


 


“Appropriate Lender” means, at
any time, (a) with respect to any Term Facility or the Revolving
Credit Facility, a Lender that has a Commitment with respect to such Facility
at such time, (b) with respect to the Letter of Credit Sublimit,
(i) the appropriate L/C Issuer and (ii) if any Letters of Credit have
been issued pursuant to Section 2.03(a), the Revolving Credit
Lenders and (c) with respect to the Swing Line Facility, (i) the
appropriate Swing Line Lender and (ii) if any Swing Line Loans are
outstanding pursuant to Section 2.04(a), the Revolving Credit
Lenders.


 


“Approved Fund” has
the meaning specified in Section 10.06(g).


 


“Arrangers” means, collectively,
(a) BAS, in its capacity as joint lead arranger and sole bookrunning
manager and (b) each of RBS Securities Inc., U.S. Bank, Wells Fargo
Securities, LLC and SunTrust Robinson Humphrey, Inc. in its capacity as
joint lead arranger.


 


3

















 


“Assignable Government Contract Claims”
means any Government Contract Claims that may be assignable pursuant to the
Assignment of Claims Act and Assignment of Claims Regulations.


 


“Assigned Government Contract Claims”
means any Assignable Government Contract Claims, with respect to which the
applicable Loan Party shall have duly complied with the provisions of Section 4(c) of
the Security Agreement.


 


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


 


Assignment and Assumption” means an
Assignment and Assumption entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section 10.06(b),
and accepted by the Administrative Agent substantially in the form of Exhibit E
or any other form approved by the Administrative Agent and consented to by the
Borrower, which consent shall not be unreasonably withheld or delayed.


 


“Assignment of Claims Act”
means the Assignment of Claims Act of 1940, as amended, 31 U.S.C. § 3727 and 41
U.S.C. § 15, each as may be amended, modified or superseded from time to time.


 


“Assignment of Claims Regulations”
means 48 C.F.R. subpart 32.8, the supplemental provisions with respect to any
Governmental Party contained in the Federal Acquisition Regulation and each
other provision of the Federal Acquisition Regulation that may be applicable to
48 C.F.R. subpart 32.8, each as may be amended, modified or superseded from
time to time.


 


“Assignment of Government Contract Claims”
has the meaning specified in the Security Agreement.


 


“Attorney Costs” means and includes
all reasonable and documented fees, expenses and disbursements of any law firm
or other external counsel and all out-of-pocket expenses and disbursements of
internal counsel.


 


“Attributable Indebtedness” means, on
any date, (a) in respect of any Capitalized Lease of any Person, the
capitalized amount of all obligations of such Person in respect thereof that
would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP, (b) in respect of any Synthetic Lease, the
capitalized amount of the remaining Synthetic Lease Obligations in respect of
such Synthetic Lease that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP if such Synthetic Lease were
accounted for as a Capitalized Lease and (c) in respect of any
Securitization Transaction of any Person, the outstanding principal amount of
such financing, after taking into account reserve accounts.


 


“Audited Financial Statements” means
the audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries for the fiscal year ended March 31, 2010, and the


 


4






 












 


related
consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal year of the Borrower and its consolidated Subsidiaries,
including the notes thereto.


 


“Auto-Extension Letter of Credit” has
the meaning specified in Section 2.03(b)(iii).


 


“Availability Period” means, in the
case of the Revolving Credit Facility, the period from and including the
Restatement Closing Date to the earliest of (a) the Maturity Date for the
Revolving Credit Facility, (b) the date of termination of the Revolving
Credit Commitments pursuant to Section 2.06, and (c) the date
of termination of the commitment of each Revolving Credit Lender to make
Revolving Credit Loans and of the obligations of the L/C Issuers to make L/C
Credit Extensions pursuant to Section 8.02.


 


“Bank of America” means Bank of
America, N.A. and its successors.


 


“BAS” means Banc of America
Securities LLC and its successors.


 


“Base Rate” means for any day a
fluctuating rate per annum equal to the highest of (a) the Federal Funds
Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as
publicly announced from time to time by Bank of America as its “prime rate,”
and (c) the Eurodollar Rate plus 1.00%. 
The “prime rate” is a rate set by Bank of America based upon various
factors including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate.  Any change in such prime rate announced by
Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.


 


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


 


“Borrower” has the meaning specified
in the introductory paragraph hereto.


 


“Borrower Materials” has the meaning
specified in Section 6.02.


 


“Borrowing” means a Revolving Credit
Borrowing, a Swing Line Borrowing or a Term Borrowing, as the context may
require.


 


“Business Day” means any day other
than a Saturday, Sunday or other day on which commercial banks are authorized
or required to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and under the Laws of the
State of New York and, if such day relates to any Eurodollar Rate Loan, means
any such day that is also a London Banking Day.


 


“Capitalized Leases”
means, with respect to any Person, all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases, on the balance sheet of
such Person.


 


“Cash Collateralize” means to pledge
and deposit with or deliver to the Administrative Agent, for the benefit of the
Administrative Agent, the L/C Issuers or the Swing 


 


5

















 


Line
Lenders (as applicable) and the Lenders, as collateral for L/C Obligations,
Obligations in respect of Swing Line Loans, or obligations of Lenders to fund
participations in respect of either thereof (as the context may require), cash
or deposit account balances or, if the L/C Issuers or the Swing Line Lenders
benefiting from such collateral shall agree in its sole discretion, other
credit support, in each case pursuant to documentation in form and substance
satisfactory to (a) the Administrative Agent and (b) the L/C Issuers
or the Swing Line Lenders (as applicable). “Cash Collateral” shall have a
meaning correlative to the foregoing and shall include the proceeds of such
cash collateral and other credit support.


 


“Cash Equivalents” means any
of the following types of Investments, to the extent owned by the Borrower or
any of its Subsidiaries free and clear of all Liens (other than Liens created
under the Collateral Documents and Specified Statutory Liens and, solely for
purposes of Investments under Section 7.03(a), any other Permitted
Liens):


 


(a)                                  readily marketable obligations issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality
thereof having maturities of not more than 360 days from the date of
acquisition thereof; provided
that the full faith and credit of the United States of America is pledged in
support thereof;


 


(b)                                 readily marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after the date
of acquisition thereof and having, at the time of the acquisition thereof, a
rating of at least P-1 from Moody’s or at least A-1 from S&P;


 


(c)                                  time deposits with, or insured certificates of deposit or bankers’
acceptances of, any commercial bank or trust company that (i) (A) is
a Lender, (B) is organized under the laws of the United States of America,
any state thereof or the District of Columbia or is the principal banking
subsidiary of a bank holding company organized under the laws of the United
States of America, any state thereof or the District of Columbia, and is a
member of the Federal Reserve System, or (C) any branch of a commercial
bank that is organized in a jurisdiction outside of the United States so long
as such branch is a licensed “bank” under the laws of the United States, any
state thereof or the District of Columbia and is a member of the Federal
Reserve System, (ii) issues (or the parent of which issues) commercial
paper rated as described in clause (d) of this definition and
(iii) has combined capital and surplus of at least $500,000,000, in each
case with maturities of not more than 360 days from the date of acquisition
thereof;


 


(d)                                 commercial paper issued by any Person organized under the laws of any
state of the United States of America and rated at least “Prime-1” (or the then
equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade)
by S&P, in each case with maturities of not more than 360 days from the
date of acquisition thereof; and


 


(e)                                  Investments, classified in accordance with GAAP as current assets of the
Borrower or any of its Subsidiaries, in money market investment programs or
mutual funds registered under the Investment Company Act of 1940, which are
administered by financial institutions that have the highest rating obtainable
from either Moody’s or S&P, 


 


6

















 


and
substantially all the assets of which are Investments of the character, quality
and maturity described in clauses (a), (b), (c) and (d) of this
definition;


 


(f)                                    repurchase obligations entered into with any commercial bank or trust
company meeting the criteria specified in clause (c) above, covering the
securities of the type described in clauses (a) and (b) above; and


 


(g)                                 tax exempted instruments including, without limitation, municipal bonds,
auction rate preferred stock and variable rate demand obligations with the
highest short-term ratings by either Moody’s or S&P or a long-term rating
of Aaa by Moody’s or AAA by S&P maturing within 360 days after the
acquisition thereof.


 


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


 


“Cash Management Bank” means any Person that is a Lender or
an Affiliate of a Lender, in its capacity as a party to a Secured Cash
Management Agreement.


 


“CERCLA” means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980.


 


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


 


“Change of Control” means, an event
or series of events by which:


 


(a)                                  any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all securities that
such person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time (such right, an “option right”)), directly or
indirectly, of 35% or more of the equity securities of the Borrower entitled to
vote for members of the board of directors or equivalent governing body of the
Borrower on a fully-diluted basis (and taking into account all such securities
that such person or group has the right to acquire pursuant to any option
right); or


 


(b)                                 during any period of 12  consecutive
calendar months, a majority of the members of the board of directors or other
equivalent governing body of the Borrower cease to be composed of individuals
(i) who were members of that board or equivalent governing body on the
first day of such period, (ii) whose election or nomination to that board
or equivalent governing body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of
that board or equivalent governing body or (iii) whose election or
nomination to that board or 


 


7

















 


other
equivalent governing body was approved by individuals referred to in clauses (i) and
(ii) above constituting at the time of such election or nomination at
least a majority of that board or equivalent governing body; or


 


(c)                                  a “change of control” in the Senior Subordinated Notes Indenture, “fundamental
change” in the Convertible Notes Indenture and any such term or any comparable
term defined or used in, or comparable event described under, any Material Debt
Documents shall have occurred in respect of the Borrower.


 


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


 


“Collateral” means all of the “Collateral” and “Mortgaged Property”
referred to in the Collateral Documents and all of the other property and
assets that are or are intended under the express terms of the Collateral
Documents to be subject to Liens in favor of the Administrative Agent for the
benefit of the Secured Parties.


 


“Collateral Account”
has the meaning specified in the Security Agreement.


 


“Collateral Documents” means, collectively,
the Security Agreement, the Intellectual Property Security Agreement, the
Mortgages, Mortgage Modifications, Security Agreement Supplements, IP
Security Agreement Supplements, and any other mortgages, security agreements,
pledge agreements, collateral assignments or other similar agreements delivered
to the Administrative Agent or otherwise for the benefit of the Lenders
pursuant to Section 6.12, and each of the other agreements,
instruments or documents that creates or purports to create a Lien in favor of
the Administrative Agent for the benefit of the Secured Parties.


 


“Commitment” means a Term Commitment
or a Revolving Credit Commitment, as the context may require.


 


“Committed Loan Notice” means a
notice of (a) a Term Loan Borrowing, (b) a Revolving Credit
Borrowing, (c) a conversion (which shall not constitute a new Borrowing)
of Loans from one Type to the other, or (d) a continuation (which shall
not constitute a new Borrowing) of Eurodollar Rate Loans, pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit A.


 


“Company Stock” means the capital stock of the
Borrower other than any Disqualified Equity Interests.


 


“Compensation Period” has the meaning
specified in Section 2.12(c)(ii).


 


“Compliance Certificate” means a
certificate substantially in the form of Exhibit D.


 


“Consolidated EBITDA” means, for any
period, for the Borrower and its Subsidiaries on a consolidated basis, an
amount equal to Consolidated Net Income for such period plus the
following to the extent deducted in calculating such Consolidated Net
Income:  (i) Consolidated Interest
Charges for such period, (ii) income tax expense for such period,
(iii) depreciation and amortization for such period,
(iv) non-recurring, unusual or extraordinary 


 


8

















 


expenses
which do not represent a cash item in such period (provided that any cash
payments made in any subsequent period in respect of such noncash expenses
shall be treated as cash charges in such subsequent period), (v) write off
of deferred financing costs, (vi) non-cash charges related to stock-based
employee compensation, (vii) charges associated with the mark-to-market of
non-qualifying Swap Contracts and (viii) impairment charges or write-offs
with respect to goodwill and other intangible assets, and minus net
income of all SPV Subsidiaries that has not been distributed to the Borrower or
any of its other Subsidiaries and the Indebtedness of which has been excluded
from Consolidated Funded Indebtedness pursuant to clause (h) of the
definition of “Consolidated Funded Indebtedness”.


 


“Consolidated Funded Indebtedness”
means, as of any date of determination, for the Borrower and its Subsidiaries
on a consolidated basis, without duplication, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations hereunder) and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments, (b) the outstanding principal amount of all purchase money
Indebtedness, (c) all direct or contingent obligations arising under
Financial Letters of Credit, Financial Surety Bonds, bankers’ acceptances, bank
guaranties and similar instruments at such time, (d) all obligations in
respect of the deferred purchase price of property or services (other than
trade accounts payable in the ordinary course of business),
(e) Attributable Indebtedness, (f) all obligations in respect of
Disqualified Equity Interests, (g) without duplication, all Guarantees
(other than Performance Guarantees) with respect to outstanding Indebtedness of
the types specified in clauses (a) through (f) above of Persons other
than the Borrower or any Subsidiary, and (h) all Indebtedness of the types
referred to in clauses (a) through (g) above of any partnership or
joint venture (other than a joint venture that is itself a corporation or
limited liability company or other legal entity in respect of which the equity
holders are not liable for the obligations of such entity as a matter of law)
in which the Borrower or a Subsidiary (other than a SPV Subsidiary, provided
that Indebtedness under this clause (h) of SPV Subsidiaries shall be
excluded from the calculation in this clause (h) only to the extent that
the aggregate principal amount of such Indebtedness does not exceed
$100,000,000) is a general partner or joint venturer, unless such Indebtedness
is expressly made non-recourse to the Borrower or such Subsidiary (subject to
customary exceptions).


 


“Consolidated Interest Charges”
means, for any period, for the Borrower and its Subsidiaries on a consolidated
basis, the sum of (a) all interest, premium payments, debt discount, fees,
charges and related expenses (but not amortization or write-off of the costs of
issuance) of the Borrower and its Subsidiaries in connection with borrowed
money (including capitalized interest) or in connection with the deferred
purchase price of assets, in each case to the extent treated as interest in
accordance with GAAP and (b) the portion of rent expense of the Borrower
and its Subsidiaries on a consolidated basis with respect to such period under
Capitalized Leases that is treated as interest in accordance with GAAP.


 


“Consolidated Interest Coverage Ratio”
means, as of any date of determination, the ratio of (a) Consolidated
EBITDA for the period of the four prior fiscal quarters ending on such date to (b) Consolidated Interest
Charges to the extent paid in cash during such period;  provided that Consolidated EBITDA
and Consolidated Interest Charges for such four fiscal quarter period or other
applicable period shall be determined on a pro
forma basis with respect to any Subject Disposition or any
Acquisition (together with any related transactions, including, 


 


9

















 


without
limitation, the incurrence, assumption, refinancing or repayment of any
Indebtedness) as if such Disposition or Acquisition had occurred in the first
day of such period.


 


“Consolidated Leverage Ratio” means,
as of any date of determination, the ratio of (a) Consolidated Funded
Indebtedness as of such date  to (b) Consolidated EBITDA for the most recent four fiscal
quarter period ended as of the last fiscal period for which financial
statements were required to have been delivered pursuant to Section 6.01;
provided that Consolidated EBITDA and Consolidated Funded Indebtedness
for such four fiscal quarter period or other applicable period shall be
determined on a pro forma basis
with respect to any Subject Disposition or any Acquisition (together with any
related transactions, including, without limitation, the incurrence,
assumption, refinancing or repayment of any Indebtedness) as if such
Disposition or Acquisition had occurred in the first day of such period.


 


“Consolidated Net Income” means, for
any period, for the Borrower and its Subsidiaries on a consolidated basis, the
net income of the Borrower and its Subsidiaries (excluding (i) all
extraordinary noncash gains and (ii) extraordinary noncash losses).


 


“Consolidated Senior Secured Leverage
Ratio” means, as of any date of determination, the ratio of
(a) Consolidated Funded Indebtedness, which constitutes Senior Secured
Debt, as of such date  to  (b) Consolidated
EBITDA for the four fiscal quarter period ended as of the last fiscal period
for which financial statements were required to have been delivered pursuant to
Section 6.01; provided that Consolidated EBITDA and
Consolidated Funded Indebtedness, which constitutes Senior Secured Debt for
such four fiscal quarter period or other applicable period shall be determined
on a pro forma basis with respect
to any Subject Disposition or any Acquisition (together with any related
transactions, including, without limitation, the incurrence, assumption,
refinancing or repayment of any Indebtedness) as if such Disposition or
Acquisition had occurred in the first day of such period.


 


“Contractual Obligation” means, as to
any Person, any provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its property is bound.


 


“Control” has the meaning specified
in the definition of “Affiliate.”


 


“Convertible Notes”
means (a) the 2.75% convertible senior subordinated notes due February 15,
2024 in an aggregate original principal amount of $280,000,000, (b) the
2.75% convertible senior subordinated notes due September 15, 2011 in an
aggregate principal amount of $300,000,000, and (c) the 3.00% convertible
senior subordinated notes due August 15, 2024 in an aggregate original
principal amount of $200,000,000.


 


“Convertible Notes Documents”
means the Convertible Notes Indenture, the Convertible Notes and all other
agreements, instruments and other documents pursuant to which the Convertible
Notes have been issued or otherwise setting forth the terms of the Convertible
Notes, in each case as such agreement, instrument or other document may be
amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof, but to the extent permitted under the terms of the Loan
Documents.


 


10

















 


“Convertible Notes Indenture”
means (i) the indenture dated as of February 19, 2004, among the
Borrower, certain Subsidiaries of the Borrower party thereto, as guarantors,
and BNY Midwest Trust Company, as trustee, (ii) the indenture dated as of August 13,
2004, among the Borrower, certain Subsidiaries of the Borrower party thereto,
as guarantors, and BNY Midwest Trust Company, as trustee; and (iii) the
indenture dated as of September 12, 2006, among the Borrower, certain
Subsidiaries of the Borrower party thereto, as guarantors, and The Bank of New
York Trust Company N.A., as trustee, as each such Indenture may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof, but to the extent permitted under the terms of the Loan
Documents.


 


“Co-Syndication Agent” means each of The
Royal Bank of Scotland plc, U.S. Bank National Association, Wells Fargo Bank, National
Association and SunTrust Bank, in its capacity as a co-syndication agent under
any of the Loan Documents, or any successor syndication agent.


 


“Credit Extension” means each of the
following: (a) a Borrowing and (b) an L/C Credit Extension.


 


“Debtor Relief Laws” means the
Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors generally.


 


“Default” means any event or
condition that constitutes an Event of Default or that, with the giving of any
notice, the passage of time, or both, would be an Event of Default (it being
understood that if any default is cured or waived prior to becoming an Event of
Default, such default shall no longer constitute a Default).


 


“Default Rate” means
(a) when used with respect to Obligations other than Letter of Credit
Fees, an interest rate equal to (i) the Base Rate plus
(ii) the Applicable Rate, if any, applicable to Base Rate Loans plus
(iii) 2.0% per annum; provided, however, that with respect
to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to
the interest rate (including any Applicable Rate) otherwise applicable to such
Loan plus 2.0% per annum and (b) when used with respect to Letter of
Credit Fees, a rate equal to the applicable Letter of Credit Fee plus 2% per
annum, in all cases to the fullest extent permitted by applicable Laws.


 


“Defaulting Lender” means, subject to Section 2.17(b),
any Lender that, as reasonably determined by the Administrative Agent (which
determination shall, upon reasonable request by the Borrower, be made promptly
by the Administrative Agent if the Administrative Agent reasonably determines
the conditions set forth below apply), (a) has
failed to perform any of its funding obligations hereunder, including in
respect of its Loans or participations in respect of Letters of Credit or Swing
Line Loans, within three Business Days of the date required to be funded by it
hereunder, unless, in the case of a funding of Loans, such failure is the
result of a good faith determination by such Lender that one or more conditions
precedent to funding have not been met, (b) has notified the Borrower, or
the Administrative Agent that it does not intend to comply with its funding
obligations or has made a public statement to that effect with respect 


 


11

















 


to its funding obligations hereunder (unless, in the
case of a funding of Loans, such failure is the result of a good faith
determination by such Lender that one
or more conditions precedent to funding have not been met) or generally under
other agreements in which it commits to extend credit, (c) has failed,
within three Business Days after request by the Administrative Agent, to
confirm in a manner satisfactory to the Administrative Agent that it will
comply with its funding obligations (which request the Administrative
Agent shall make if reasonably requested by the Borrower) unless, in the case of a funding of Loans,
such failure is the result of a good faith determination by such Lender that one
or more conditions precedent to funding have not been met, or (d) has, or
has a direct or indirect parent company that has, (i) become the subject
of a proceeding under any Debtor Relief Law, (ii) had a receiver,
conservator, trustee, administrator, assignee for the benefit of creditors or
similar Person charged with reorganization or liquidation of its business or a
custodian appointed for it, or (iii) taken any action in furtherance of,
or indicated its consent to, approval of or acquiescence in any such proceeding
or appointment (unless, in each case, such Revolving Lender has
confirmed it will comply with its obligations hereunder and the Borrower, the
Administrative Agent and each L/C Issuer is reasonably satisfied that such
Revolving Lender is able to continue to perform its obligations hereunder); provided that a Lender shall not be a
Defaulting Lender solely by virtue of the ownership or acquisition of any
equity interest in that Lender or any direct or indirect parent company thereof
by a Governmental Authority or the exercise of control over such Lender or any
direct or indirect parent thereof by a Governmental Authority.


 


“Disposition” or “Dispose” means the sale, transfer,
license, lease or other disposition (including any sale and leaseback transaction)
of any property by any Person (or the granting of any option or other right to
do any of the foregoing), including any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith.


 


“Disqualified Equity Interests”
means, as to any Person, any Equity Interests of such Person or any other
Person which, pursuant to the certificate of designation, or other corporate
document or other agreement governing the terms thereof, such Person is
obligated to purchase, redeem, retire, defease or otherwise acquire for value
such Equity Interests or any warrants, rights or options to acquire such Equity
Interests, on or prior to the date that is 91 days after (x) the latest
scheduled Maturity Date of any Term Facility or (y) if later, or if no
Term Facility is in effect, the scheduled Maturity Date of the Revolving Credit
Facility; the amount of the obligation to purchase, redeem, retire, defease or
acquire any of the foregoing shall be with respect to (a) preferred Equity
Interests, the liquidation preference or value of all shares, units or
interests (including all accrued, accreted and paid-in-kind amounts as of any
date of determination) in respect of such Disqualified Equity Interests, and (b) all
other Equity Interests, the aggregate amount of all such obligations in respect
of such Disqualified Equity Interests as of any date of determination.


 


“Documentary Letter of Credit”
means any Letter of Credit that is a documentary letter of credit.


 


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


 


12

















 


“Domestic Subsidiary” means any
Subsidiary that is organized under the laws of any political subdivision of the
United States, for the avoidance of doubt, not including Puerto Rico or any
other territory of the United States.


 


“Eligible Assignee” has the meaning
specified in Section 10.06(g).


 


“Environmental Action”
means any claim, order, notice of violation, or notice of potential liability,
issued against the Borrower or any of its Subsidiaries, or any proceeding or
governmental investigation, instituted with respect to the Borrower or any of
its Subsidiaries, under or pursuant to any Environmental Law.


 


“Environmental Laws” means any and
all Federal, state, local, and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the
environment, including those related to Hazardous Materials or wastes, air
emissions and discharges to waste or public systems.


 


“Environmental Liability” means any
liability, contingent or otherwise (including any liability for damages, costs
of environmental remediation, fines, penalties or indemnities), of the
Borrower, any other Loan Party or any of their respective Subsidiaries directly
or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to
any Hazardous Materials, (d) the Release or threatened Release of any
Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.


 


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


 


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


 


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


 


“ERISA” means the Employee Retirement
Income Security Act of 1974.


 


13

















 


“ERISA Affiliate” means any trade or
business (whether or not incorporated) under common control with any Loan Party
within the meaning of Section 414(b) or (c) of the Code
(and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).


 


“ERISA Event” means (a) a
Reportable Event with respect to a Pension Plan; (b) a withdrawal by any
Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as defined
in Section 4001(a)(2) of ERISA) or a cessation of operations
that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan
is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Pension Plan or a Multiemployer Plan amendment as a
termination under Sections 4041 or 4041A of ERISA, or the commencement
of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan;
(e) an event or condition which constitutes grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to administer,
any Pension Plan or Multiemployer Plan; (g) the determination that any
Pension Plan or Multiemployer Plan is considered an at-risk plan or a plan in
endangered or critical status within the meaning of Sections 430, 431 and 432
of the Code or Sections 303, 304 and 305 of ERISA; (h) the imposition of
any material liability under Title IV of ERISA, other than for PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon any Loan
Party or any ERISA Affiliate; or (i) the conditions for imposition of a
lien (within the meaning of Section 430(l) of the Code or Section 303(k) of
ERISA) are satisfied.


 


“Euro” or “€”
means lawful money of the European Union.


 


“Eurodollar Rate” means for any
Interest Period with respect to a Eurodollar Rate Loan:


 


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


 


(b)                                 for any interest calculation with respect to a Base Rate Loan on any
date, the rate per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m.,
London time


 


14






 












 


determined
two London Banking Days prior to such date for Dollar deposits being delivered
in the London interbank market for a term of one month commencing that day or (ii) if
such published rate is not available at such time for any reason, the rate per annum
determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the date of determination in same day funds in the
approximate amount of the Base Rate Loan being made or maintained and with a
term equal to one month would be offered by Bank of America’s London Branch to
major banks in the London interbank Eurodollar market at their request at the
date and time of determination.


 


“Eurodollar Rate Loan” means a Loan
that bears interest at a rate based on clause (a) of the definition of “Eurodollar
Rate”.


 


“Event of Default” has the meaning
specified in Section 8.01.


 


“Excluded Joint Venture”
means (a) any Person described in clause (a) of the definition
of Joint Venture or (b) any other Joint Venture that is entered into in
accordance with Section 7.03(g) and designated as an Excluded
Joint Venture by the Borrower and certified by the Borrower as being entered
into in compliance with Section 7.03(g).


 


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


 


“Existing Letters of Credit” means
the letters of credit described on Schedule 1.01 hereto.


 


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


 


“Existing Mortgages” means each
Mortgage previously delivered under the Existing Credit Agreement.


 


“Extraordinary Receipt” means any
cash received by or paid to or for the account of any Person from proceeds of
casualty insurance and condemnation awards (and payments in lieu thereof).


 


“Facility” means the Term Facilities, the
Revolving Credit Facility, the Swing Line Sublimit or the Letter of Credit
Sublimit, as the context may require.


 


“FATCA” means Sections 1471 though
1474 of the Code, as in effect on the date hereof.


 


“Federal Acquisition Regulation”
means the Federal Acquisition Regulation, Title 48 of the Code of Federal
Regulations, as amended, modified and supplemented from time to time.


 


“Federal Funds Rate” means, for any
day, the rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the 


 


15

















 


Federal
Reserve Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate (rounded upward, if
necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.


 


“Fee Letters” means, collectively, (a) the
letter agreement, dated September 3, 2010, among the Borrower, BAS and
Bank of America, (b) the letter agreement dated September 3, 2010
among the Borrower, RBS Securities Inc. and The Royal Bank of Scotland plc, (c) the
letter agreement, dated September 3, 2010, between the Borrower and U.S.
Bank and (d) the letter agreement dated September 3, 2010 among the
Borrower, Wells Fargo Securities, LLC and Wells Fargo Bank, National Association
and (e) the letter agreement dated September 3, 2010 between the
Borrower and SunTrust Bank.


 


“Financial Letter of Credit”
means any Letter of Credit that is not a Performance Letter of Credit or
Documentary Letter of Credit.


 


“Financial Surety Bond”
means any surety bond that does not serve the same or similar purpose as a
Performance Letter of Credit.


 


“Fitch” means Fitch Ratings and any
successor thereto.


 


“Foreign Government Scheme or
Arrangement” has the meaning specified in Section 5.12(d).


 


“Foreign Lender” has the meaning
specified in Section 10.14(a)(i).


 


“Foreign Subsidiary” means any
Subsidiary that is not a Domestic Subsidiary.


 


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


 


“Fronting Exposure” means, at any
time there is a Defaulting Lender that is a Revolving Lender, (a) with
respect to each L/C Issuer, such Defaulting Lender’s Pro Rata Share of the
outstanding L/C Obligations issued by such L/C Issuer, other than L/C
Obligations in respect of Letters of Credit and as to which such Defaulting
Lender’s participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof, and (b) with respect
to each Swing Line Lender, such Defaulting Lender’s Pro Rata Share of Swing
Line Loans made by such Swing Line Lender, other than Swing Line Loans as to
which such Defaulting Lender’s participation obligation has been reallocated to
other Lenders or Cash Collateralized in accordance with the terms hereof.


 


“Fund” has the meaning specified in Section 10.06(g).


 


“GAAP” means generally accepted
accounting principles in the United States set forth in the opinions and
pronouncements of the Accounting Principles Board and the American 


 


16

















 


Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board consistently applied.


 


“Government Contract”
means any contract (as that term is defined in 48 C.F.R. § 2.101) between any
Person and any Governmental Party; provided, that unless otherwise
specified, all references to “Government Contract” or to “Government Contracts”
shall refer to such contracts between any Loan Party and any Governmental
Party.


 


“Government Contract Claim” means any
claims for or right to the payment of moneys due or to become due under any
Government Contract.


 


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


 


“Governmental Party”
means the United States Government (as used in 31 U.S.C. § 3727), the
Government (as used in 48 C.F.R. subpart 32.8), the United States of America,
the executive branch of the United States of America or any department or
agency of any of the foregoing.


 


“Governmental Requirement”
means all Laws, judgments, orders, writs, injunctions, opinions, decrees,
awards, tariff requirements, franchises, permits, certificates, licenses,
authorizations, interpretations and the like and any other requirements of any
Governmental Authority.


 


“Granting Lender” has
the meaning specified in Section 10.06(h).


 


“Guarantee” means, as to any Person,
(a) any obligation, contingent or otherwise, of such Person guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and
including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into
for the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or
other obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien); provided, however,
that the term Guarantee shall not include endorsements of instruments for
deposit or collection in the ordinary course of business.  The amount of any Guarantee shall be deemed
to be an amount equal to the lesser of (A) the stated or determinable
amount of the related primary obligation and 


 


17

















 


(ii) the
portion thereof expressly stated to be so guaranteed, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith.  The term “Guarantee” as a verb has a
corresponding meaning.


 


“Guarantors” means, collectively, the
Subsidiaries of the Borrower listed on Schedule 1 and each other
Subsidiary (other than ATK Insurance Company, COI Ceramics, Inc. and, to
the extent permitted by Section 7.11, any Excluded Joint Ventures)
of the Borrower that shall be required to execute and deliver a guaranty or
guaranty supplement pursuant to Section 6.12.


 


“Guaranty” means, collectively, the
Subsidiary Guaranty made by the Guarantors in favor of the Administrative Agent
on behalf of the Lenders, substantially in the form of Exhibit F,
together with each other guaranty and guaranty supplement delivered pursuant to
Section 6.12.


 


“Hazardous Materials” means all
explosive or radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental Law.


 


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


 


“Honor Date” has the meaning
specified in Section 2.03(c)(i).


 


“Increase Effective Date”
has the meaning specified in Section 2.14(b).


 


“Incremental Effective Date”
has the meaning specified in Section 2.15(c).


 


“Incremental Term Borrowing”
means, in respect of any Incremental Term Facility, a borrowing consisting of
simultaneous Incremental Term Loans of the same Type and, in the case of Eurodollar
Rate Loans, having the same Interest Period made by each of the applicable
Incremental Term Lenders in accordance with the provisions of Section 2.01(b) and
Section 2.15.


 


“Incremental Term Commitment”
means, as to each Incremental Term Lender in respect of an Incremental Term
Facility, its obligation to make Incremental Term Loans to the Borrower
pursuant to the applicable Incremental Term Facility Supplement and Section 2.01(b) in
an aggregate principal amount at any one time outstanding not to exceed the
amount set forth opposite such Lender’s name on Schedule 1 to such
Incremental Term Facility Supplement under the caption “Incremental Term
Commitment” in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be increased pursuant
to Section 2.15 hereof or as such amount may be otherwise adjusted
from time to time in accordance with this Agreement.


 


“Incremental Term Facility”
has the meaning set forth in Section 2.15(a).


 


18

















 


“Incremental Term Facility Closing
Date” means in respect of an Incremental Term Facility any date
on which all of the conditions to funding of the Incremental Term Loans under
such Incremental Term Facility are satisfied and the applicable Lenders advance
Incremental Term Loans.


 


“Incremental Term Facility Supplement”
means a supplement to this Agreement, in substantially the form of Exhibit K
hereto, delivered pursuant to Section 2.15(a).


 


“Incremental Term Loan”
means an advance made by any Incremental Term Lender under an Incremental Term
Loan Facility.


 


“Incremental Term Loan Lender”
means each Lender (including any Additional Term Loan Lender) having an
Incremental Term Loan.


 


“Indebtedness” means, as to any Person
at a particular time, without duplication, all of the following, whether or not
included as indebtedness or liabilities in accordance with GAAP:


 


(a)                                  all obligations of such Person for borrowed money and all obligations of
such Person evidenced by bonds, debentures, notes, loan agreements or other
similar instruments;


 


(b)                                 the maximum amount of all direct or contingent obligations of such Person
arising under letters of credit (including standby and commercial), bankers’
acceptances, bank guaranties, surety bonds and similar instruments;


 


(c)                                  solely for purposes of any determination under Section 8.01,
the Swap Termination Value of any Swap Contract of such Person;


 


(d)                                 all obligations of such Person to pay the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course
of business);


 


(e)                                  Indebtedness of the type described in clauses (a) through (d) above
and clauses (f) through (h) below (excluding prepaid interest
thereon) of others secured by a Lien on property owned by such Person
(including obligations arising under conditional sales or other title retention
agreements), whether or not such Indebtedness shall have been assumed by such
Person or is limited in recourse (the amount of such Indebtedness being the
lesser of (i) the principal amount of such Indebtedness and (ii) the
book value of any assets subject to such Lien);


 


(f)                                    all Attributable Indebtedness of such Person;


 


(g)                                 all obligations of such Person in respect of Disqualified Equity
Interests; and


 


(h)                                 all Guarantees (other than Performance Guarantees) of such Person in
respect of any of the foregoing.


 


19

















 


For
all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company or other legal entity
in respect of which the equity holders are not liable for the obligations of
such entity as a matter of law) in which such Person is a general partner or a
joint venturer, unless such Indebtedness is expressly made non-recourse to such
Person.


 


“Indemnified Liabilities” has the
meaning specified in Section 10.04(b).


 


“Indemnitees” has the meaning
specified in Section 10.04(b).


 


“Information” has the meaning
specified in Section 10.07.


 


Intellectual Property Security Agreement” has the meaning specified
in Section 15(F) of the Security Agreement together with each
other intellectual property security agreement and IP Security Agreement
Supplement delivered pursuant to Section 6.12, in each case as
amended.


 


“Interest Payment Date” means
(a) as to any Eurodollar Rate Loan, the last day of each Interest Period
applicable to such Loan and the Maturity Date of the Facility under which such
Loan was made; provided, however, that if any Interest Period for
a Eurodollar Rate Loan exceeds three months, the respective dates that fall
every three months after the beginning of such Interest Period shall also be
Interest Payment Dates; and (b) as to any Base Rate Loan (including a
Swing Line Loan), the last Business Day of each March, June, September and
December and the Maturity Date of the Facility under which such Loan was
made.


 


“Interest Period” means, as to each
Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate
Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and
ending on the date one, two, three or six months thereafter, as selected by the
Borrower in its Committed Loan Notice or nine or twelve months if requested by
the Borrower and available from the Appropriate Lenders; provided that:


 


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


 


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


 


(iii)                               no Interest Period shall extend beyond the
Maturity Date of the Facility under which such Loan was made.


 


“Investment” means, as to any Person,
any direct or indirect investment by such Person, including, without
limitation, (a) the purchase or other acquisition of Equity Interests or
debt of another Person, (b) a loan, advance or capital contribution to,
Guarantee or assumption of 


 


20

















 


debt
of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture
interest in such other Person and any arrangement pursuant to which the
investor incurs debt of the type referred to in clause (h) of
the definition of “Indebtedness” set forth in this Section 1.01 in
respect of such Person, or (c) the purchase or other acquisition, in
one transaction or a series of transactions, of assets of another Person that
constitute a business unit or all or a substantial part of the business of such
Person or any other Acquisition.  For
purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment but net of proceeds, payments and
other returns thereon.


 


“IP Rights” has the meaning specified
in Section 5.17.


 


“IP Security Agreement Supplement” has the
meaning specified in Section 15(g) of the Security Agreement.


 


“IRS” means the United States
Internal Revenue Service.


 


“ISDA Master Agreement” means the
Master Agreement (Multicurrency-Cross Border) published by the International
Swap and Derivatives Association, Inc., as in effect from time to time.


 


“ISP” means, with
respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice, Inc.
(or such later version thereof as may be in effect at the time of issuance).


 


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


 


“Joinder Agreement”
means a joinder agreement, in substantially the form of Exhibit L
hereto, pursuant to which an Eligible Assignee becomes a Revolving Credit
Lender pursuant to Section 2.14 or a Term Lender under a Term Loan
Facility pursuant to Section 2.15.


 


“Joint Venture” means
(a) (i) any corporation, partnership, limited liability company or
other business entity (any such Person, a “Business Entity”) in which the Borrower
beneficially owns at least 20%  but
less than a majority of the shares of securities or other interests having
ordinary voting power for the election of directors or other governing body of
such Business Entity or (ii) any Business Entity in which the Borrower
beneficially owns at least 20% of the economic Equity Interests and directly or
indirectly controls through one or more intermediaries at least 20% but less
than a majority of the management of such Business Entity, or (b) any
Subsidiary of the Borrower at least 40% of the shares of securities or other
interests having ordinary voting power for the election of directors or other
governing body is beneficially owned by, or the management of which is at least
40% is controlled, directly or indirectly, through one or more intermediaries,
by one or more Business Entities other than the Borrower or any of its
Subsidiaries engaged in substantially one or more of the businesses in which
the Borrower and its Subsidiaries are engaged.


 


21

















 


“Laws” means, collectively, all
international, foreign, Federal, state and local statutes, treaties, rules,
guidelines, regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or administration
thereof by any Governmental Authority charged with the enforcement,
interpretation or administration thereof, and all applicable administrative
orders, directed duties, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authority, in each case whether or not having
the force of law.


 


“L/C Advance” means, with respect to
each Revolving Credit Lender, such Lender’s funding of its participation in any
L/C Borrowing in accordance with its Pro Rata Share.


 


“L/C Borrowing” means an extension of
credit resulting from a drawing under any Letter of Credit which has neither
been reimbursed on the date when made nor refinanced as a Revolving Credit
Borrowing.


 


“L/C Credit Extension” means, with
respect to any Letter of Credit, the issuance thereof or extension of the
expiry date thereof, or the increase of the amount thereof.


 


“L/C Issuers” means (a) Bank of
America, U.S. Bank and Wells Fargo Bank, N.A., each in its capacity as issuer
of Letters of Credit hereunder, any other Lender approved by the Administrative
Agent and the Borrower that agrees to perform the duties of an L/C Issuer
hereunder or any successor issuer of Letters of Credit hereunder and
(b) with respect to the Existing Letters of Credit, Bank of America and
U.S. Bank.


 


“L/C Obligations” means, as at any
date of determination, the aggregate undrawn amount of all outstanding Letters
of Credit (determined, in the case of Letters of Credit denominated in an
Alternative Currency, by reference to the Spot Rate on such date of
determination) plus the aggregate of all Unreimbursed Amounts,
including, without duplication, all L/C Borrowings.  For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of
Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding”
in the amount so remaining available to be drawn.


 


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


 


“Lending Office” means, as to any
Lender, the office or offices of such Lender described as such in such Lender’s
Administrative Questionnaire, or such other office or offices as a Lender may
from time to time notify the Borrower and the Administrative Agent.


 


“Letter of Credit” means any letter
of credit issued hereunder and shall include the Existing Letters of
Credit.  A Letter of Credit may be a
documentary letter of credit or a standby letter of credit.


 


22

















 


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


 


“Letter of Credit Expiration Date”
means the day that is seven days prior to the Maturity Date then in effect for
the Revolving Credit Facility (or, if such day is not a Business Day, the next
preceding Business Day).


 


“Letter of Credit Fee”
has the meaning specified in Section 2.03(h).


 


“Letter of Credit Sublimit” means an
aggregate amount equal to $300,000,000. 
The Letter of Credit Sublimit is part of, and not in addition to, the
Revolving Credit Facility.


 


“Lien” means any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge, or preference, priority or other security interest or
preferential arrangement in the nature of a security interest of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any easement, right of way or other encumbrance on title to real
property, and any financing lease having substantially the same economic effect
as any of the foregoing).


 


“Loan” means an extension of credit
by a Lender to the Borrower under Article II in the form of a Term
Loan, a Revolving Credit Loan or a Swing Line Loan.


 


“Loan Documents” means, collectively,
(a) for purposes of this Agreement and the Notes and any amendment,
supplement or other modification hereof or thereof and for all other purposes
other than for purposes of the Guaranty and the Collateral Documents,
(i) this Agreement, (ii) the Notes, (iii) the Guaranty,
(iv) the Collateral Documents, (v) the Fee Letters, (vi) each
Issuer Document and (vii) each Incremental Term Facility Supplement and
(b) for purposes of the Guaranty and the Collateral Documents (including,
for the avoidance of doubt and without limitation, the definition of “Secured
Obligations” contained in Section 2 of the Security Agreement),
(i) this Agreement, (ii) the Notes, (iii) the Guaranty,
(iv) the Collateral Documents, (v) each Issuer Document,
(vi) the Fee Letters, (vii) each Incremental Term Facility
Supplement, (viii) each Secured Hedge Agreement and (ix) each Secured
Cash Management Agreement.


 


“Loan Parties” means, collectively,
the Borrower and each Guarantor.


 


“London Banking Day” means any day on
which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.


 


“Material Adverse Effect” means
(a) a material adverse change in, or a material adverse effect upon, the
operations, business, properties, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole; (b) a
material impairment of the rights and remedies of any Agent or any Lender under
any Loan Document, or of the ability of any Loan Party to perform its
obligations under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which it is a
party.


 


23

















 


“Material Contract”
means, with respect to any Person, each contract (a) to which such Person
is a party involving aggregate consideration payable to or by such Person in an
amount at least equal to 10% of the consolidated revenues of the Borrower in
any year or (b) which is otherwise material to the business, condition
(financial or otherwise), operations, performance, properties or prospects of
the Borrower and its Subsidiaries, taken as a whole.


 


“Material Debt” means
any Indebtedness (other than under the Loan Documents) having an aggregate
principal amount equal to or greater than $50,000,000, including, without
limitation, the Senior Subordinated Notes and the Convertible Notes; provided,
that, except for purposes of determining the Threshold Amount (which shall
include all Material Debt), Material Debt shall not include Indebtedness of the
type described under Section 7.02(g) or Guarantees in respect
of the foregoing.


 


“Material Debt Documents”
means, collectively, (a) the Senior Subordinated Notes Documents, (b) the
Convertible Notes Documents, and (c) any agreements, instruments and other
documents in respect of any Material Debt, as such agreement, instrument or
other document may be amended, supplemented or otherwise modified from time to
time in accordance with the terms thereof, but to the extent permitted under
the terms of the Loan Documents.


 


“Maturity Date” means (a) with respect
to the Revolving Credit Facility (including the Letter of Credit Sublimit and
Swing Line Sublimit thereunder), the earlier of (i) the fifth anniversary
of the Restatement Closing Date (or in the case of any Letter of Credit or
request for L/C Credit Extension, the Letter of Credit Expiration Date) and
(ii) the date of termination in whole of the Revolving Credit Commitments,
pursuant to Section 2.06 or 8.02, (b) with respect to the
Term A Facility, the earlier of (i) the fifth anniversary date of the
Restatement Closing Date and (ii) the date of acceleration of the
Term A Facility pursuant to Section 8.02 and (c) with
respect to any Incremental Term Facility, the earlier of (i) the final
maturity specified in the applicable Incremental Facility Term Supplement and
(ii) the date of acceleration of the Incremental Term Facility pursuant to
Section 8.02.


 


“Maximum Rate” has the meaning
specified in Section 10.09.


 


“Moody’s” means Moody’s Investors
Service, Inc. and any successor thereto.


 


“Mortgage” means each Existing Mortgage, as
modified by the related Mortgage Modification, and each other deed of trust,
trust deed, deed to secure debt and mortgage delivered pursuant to Section 6.12,
in each case as amended.


 


“Mortgage Modification” means each
amendment, amendment and restatement, supplement or modification in respect of
each Existing Mortgage reasonably satisfactory to the Administrative Agent
delivered pursuant to Section 4.01(b)(iv) or Section 6.15.


 


“Mortgaged Properties”
means the properties indicated on Schedule 5.08(c) hereto.


 


“Mortgage Policy” has the
meaning specified in Section 4.01(b)(iv)(B).


 


24






 












 


“Multiemployer Plan” means any
employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five plan years, has made or been
obligated to make contributions.


 


“Net Cash Proceeds” means, with
respect to any Extraordinary Receipt received by or paid to the account of the
Borrower or any of its Subsidiaries, the excess, if any, of (i) the sum of
the cash and Cash Equivalents received in connection therewith over (ii) the
sum of (A) all payments required to repay any Indebtedness that is secured
by the asset that is the subject of such Extraordinary Receipt (other than
Indebtedness under the Loan Documents), (B) the out-of-pocket fees, costs
and other expenses incurred by the Borrower or such Subsidiary in connection
with such Extraordinary Receipt, and (C) income and other taxes paid or
reasonably estimated to be actually payable within two years of the date of
such Extraordinary Receipt as a result of any gain recognized in connection
therewith.


 


“Note” means a Term Note or a
Revolving Credit Note, as the context may require.


 


“Notice of Assignment of Government
Contract Claims” has the meaning specified in the Security
Agreement.


 


“Obligations” means all advances to,
and debts, liabilities, obligations, covenants and duties of, any Loan Party
arising under any Loan Document (including, for purposes of the Guaranty, the
Collateral Documents, and Section 8.03, any Secured Hedge Agreement
or Secured Cash Management Agreement) or otherwise with respect to any Loan or
Letter of Credit, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after the
commencement by or against any Loan Party or any of its Subsidiaries thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding. Without limiting the generality of the foregoing,
the Obligations of the Loan Parties under the Loan Documents include
(a) the obligation to pay principal, interest, Letter of Credit
commissions, charges, expenses, fees, attorneys’ fees and disbursements,
indemnities and other amounts payable by any Loan Party under any Loan Document
and (b) the obligation of any Loan Party to reimburse any amount in
respect of any of the foregoing that any Lender, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.


 


“Offering Memorandum”
means the offering memorandum dated September 2010 used by the Arranger in
connection with the syndication of the Commitments.


 


“Organization Documents” means
(a) with respect to any corporation, the certificate or articles of
incorporation and the bylaws (or equivalent or comparable constitutive
documents with respect to any non-U.S. jurisdiction); (b) with respect to
any limited liability company, the certificate or articles of formation or
organization and operating agreement; and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or organization
and any agreement, instrument, filing or notice with respect thereto filed in
connection with its formation 


 


25

















 


or
organization with the applicable Governmental Authority in the jurisdiction of
its formation or organization and, if applicable, any certificate or articles
of formation or organization of such entity.


 


“Other Taxes” has the meaning
specified in Section 3.01(b).


 


“Outstanding Amount” means
(i) with respect to Term Loans, Revolving Credit Loans and Swing Line
Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of Term Loans,
Revolving Credit Loans and Swing Line Loans, as the case may be, occurring on
such date; and (ii) with respect to any L/C Obligations on any date, the
amount of such L/C Obligations on such date after giving effect to any L/C
Credit Extension occurring on such date and any other changes in the aggregate
amount of the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of Credit or
any reductions in the maximum amount available for drawing under Letters of
Credit taking effect on such date.


 


“Participant” has the meaning
specified in Section 10.06(d).


 


“PBGC” means the Pension Benefit
Guaranty Corporation.


 


“Pension Plan” means any “employee
pension benefit plan” (as such term is defined in Section 3(2) of
ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA
and is sponsored or maintained by any Loan Party or any ERISA Affiliate or to
which any Loan Party or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of
ERISA, has made contributions at any time during the immediately preceding five
plan years.


 


“Performance Guarantee”
means any guarantee by any Person of the performance of the obligations of
another Person (other than obligations in respect of payments, indebtedness or
other monetary obligations of any kind) under contracts of such other Person to
design, develop, manufacture, construct or produce products or production
facilities (and related nonmonetary obligations) or to provide services related
to any of the foregoing in the aerospace, defense or commercial ammunition
industries.


 


“Performance Letter of Credit”
means any standby letter of credit that:


 


(a) (x)(i) supports the performance of the obligations of
another Person under contracts of such other Person to design, develop,
manufacture, construct or produce products or production facilities (and
related nonmonetary obligations) or to provide services related to any of the
foregoing in the aerospace, defense or commercial ammunition industries or any
warranty obligations arising out of any of the foregoing contracts, and (ii) does
not permit any payment or drawing thereunder for failure of the account party
to make a payment in respect of indebtedness, monetary contractual obligation or
other financial obligations of any kind other than to support performance or
return payment where a customer has made advance payments in respect of the
purchase of products, goods and services or, (y) any letter of credit
substantially comparable to the foregoing;


 


26

















 


(b) would be considered to be a “performance standby letter of
credit” pursuant to each Governmental Requirement or any other rule,
regulation, examination manual or other guidelines of any Governmental
Authority or other regulatory authority, central bank or comparable agency that
(i) governs any reserve, special deposit or similar requirement against
letters of credit, (ii) regulates the amount of capital required or
expected to be maintained or funded against letters of credit or any
participation obligation thereunder, or (iii) determines the
classification, risk-weighing, reporting, or capital treatment of or with
respect to letters of credit or participation obligations therein; and


 


(c) the issuer thereof, or any Person having a participation
obligation therein, is or would be permitted, in compliance with the matters
described in clause (b) of this definition, to convert its
obligation thereunder to an on-balance sheet credit equivalent amount at 50% or
less of the maximum amount thereof.


 


“Permitted Encumbrances” has the
meaning specified in the Mortgages.


 


“Permitted Liens”
means any Liens permitted under Section 7.01 hereof.


 


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


 


“Plan” means any “employee benefit
plan” (as such term is defined in Section 3(3) of ERISA)
established by any Loan Party or, with respect to any such plan that is subject
to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.


 


“Platform” has the meaning specified
in Section 6.02.


 


“Pledged Debt” has the meaning specified in Section 1(d)(iv) of
the Security Agreement.


 


“Pledged Equity” has the
meaning specified in Section 1(d)(iii) of the Security
Agreement.


 


“Pro Rata Share” means, with respect
to each Lender at any time, a fraction (expressed as a percentage, carried out
to the ninth decimal place), the numerator of which is the amount of the
Commitment(s) of such Lender under the applicable Facility or Facilities
at such time and the denominator of which is the amount of the Aggregate
Commitments under the applicable Facility or Facilities at such time, subject
to adjustment as provided in Section 2.17; provided that if
the commitment of each Lender to make Loans and the obligation of each L/C
Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02,
then the Pro Rata Share of each Lender shall be determined based on the Pro
Rata Share of such Lender immediately prior to such termination and after
giving effect to any subsequent assignments made pursuant to the terms
hereof.  The initial Pro Rata Share of
each Lender is set forth opposite the name of such Lender on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable.


 


“Public Lender” has the meaning
specified in Section 6.02.


 


27

















 


“Register” has the meaning specified
in Section 10.06(c).


 


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


 


“Release” shall have
the meaning ascribed to it in Section 101(22) of the Comprehensive
Environmental Response, Compensation and Liability Act, 42. U.S.C. § 9601 et.
seq. or any other Environmental Law.


 


“Remedial Action”
shall have the meaning ascribed to it in Section 101(24) of the
Comprehensive Environmental Response, Compensation and Liability Act, 42.
U.S.C. § 9601 et. seq. or any other Environmental Law.


 


“Reportable Event” means any of the
events set forth in Section 4043(c) of ERISA, other than
events for which the 30 day notice period has been waived.


 


“Request for Credit Extension” means
(a) with respect to a Borrowing, conversion or continuation of Term Loans
or Revolving Credit Loans, a Committed Loan Notice, (b) with respect to an
L/C Credit Extension, a Letter of Credit Application, and (c) with respect
to a Swing Line Loan, a Swing Line Loan Notice.


 


“Required Lenders” means, as of any
date of determination, Lenders having more than 50% of the sum of the
(a) Total Outstandings (with the aggregate amount of each Lender’s risk
participation and funded participation in L/C Obligations and Swing Line Loans
being deemed “held” by such Lender for purposes of this definition),
(b) aggregate unused Term Commitments and (c) aggregate unused
Revolving Credit Commitments; provided that the unused Term Commitment,
unused Revolving Credit Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded
for purposes of making a determination of Required Lenders.


 


“Required Principal Payments” means,
with respect to any Person for any period, the sum of all regularly scheduled
principal payments or redemptions of outstanding Indebtedness made during such
period.


 


“Required Revolving Credit Lenders”
means Revolving Credit Lenders holding more than 50% of the Aggregate
Commitments under the Revolving Credit Facility or, if such Commitments have
expired or terminated, more than 50% of the Total Outstandings under the
Revolving Credit Facility.


 


“Required Term Lenders”
means, in respect of a Term Facility, Term Lenders holding more than 50% of the
Aggregate Commitments under such Term Facility or, if such Commitments have
expired or terminated, more than 50% of the Total Outstandings under such Term
Facility.


 


“Responsible Officer” means the chief
executive officer, president, chief financial officer, treasurer, assistant
treasurer or secretary of a Loan Party. 
Any document delivered hereunder that is signed by a Responsible Officer
of a Loan Party shall be conclusively presumed 


 


28

















 


to
have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.


 


“Restatement Closing Date” has the
meaning specified in Section 4.01.


 


“Restricted Payment” means (a) any
dividend or other distribution (whether in cash, securities or other property)
with respect to any capital stock or other Equity Interest of the Borrower or
any Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, defeasance, acquisition, cancellation or termination of
any such Equity Interest, or on account of any return of capital to the
Borrower’s stockholders, partners or members (or the equivalent Persons
thereof), or any option, warrant or other right to acquire any such dividend or
other distribution or payment; provided, however, that no such
dividend, distribution, payment or return of capital shall constitute a “Restricted
Payment” to the extent made solely with the common Equity Interests of the
Borrower, (b) any payment (excluding (x) scheduled payments of
principal and interest, (y) any contingent interest payable under its
2.75% or 3.00% Convertible Notes due in 2024 and (z) payments of accrued
interest in connection with a prepayment, redemption or purchase of
Indebtedness otherwise permitted by this Agreement, in each case not in
violation of any applicable subordination provisions, but including additional
interest payable upon any registration default under its Convertible Notes due
2011), prepayment, redemption (whether at the option of the holder or
otherwise), purchase, defeasance, distribution involving cash, acquisition or
other retirement for value in respect of any subordinated Indebtedness or any
convertible debt securities or instruments, in each case, of the Borrower or
any Subsidiary or (c) any voluntary prepayment, redemption, purchase,
defeasance, distribution involving cash, acquisition or other retirement for
value, in each prior to the scheduled maturity thereof, in respect of any
unsecured Senior Debt of the Borrower or any Subsidiary issued under Section 7.02(d) or,
to the extent that the Indebtedness issued thereunder is evidenced by bonds,
debentures or notes, Section 7.02(i).


 


“Revaluation Date” means, with
respect to any Letter of Credit, each of the following: (i) each date of
issuance of a Letter of Credit denominated in an Alternative Currency; (ii) each
date of issuance of an amendment of any such Letter of Credit having the effect
of increasing the amount thereof (solely with respect to the increased amount),
(iii) each date of any payment by the applicable L/C Issuer under any
Letter of Credit denominated in an Alternative Currency, and (iv) such
additional dates as the Administrative Agent or the applicable L/C Issuer shall
determine or the Required Lenders shall require.


 


“Revolving Credit Borrowing” means a
borrowing consisting of simultaneous Revolving Credit Loans of the same Type
and, in the case of Eurodollar Rate Loans, having the same Interest Period made
by each of the Revolving Credit Lenders pursuant to Section 2.01(a).


 


“Revolving Credit Commitment” means,
as to each Revolving Credit Lender, its obligation to (a) make Revolving
Credit Loans to the Borrower pursuant to Section 2.01(a),
(b) purchase participations in L/C Obligations, and (c) purchase
participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed, initially, the amount set forth opposite such
Lender’s name on Schedule 2.01 under the caption “Revolving 


 


29

















 


Credit
Commitment” or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable, as such amount may be increased pursuant
to Section 2.14(b) hereof and as may be otherwise adjusted
from time to time in accordance with this Agreement.


 


“Revolving Credit Commitment Increase”
has the meaning specified in Section 2.14(a).


 


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


 


“Revolving Credit Lender” means, at
any time, any Lender (including any Additional Revolving Credit Lender) that
has a Revolving Credit Commitment at such time.


 


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


 


“Revolving Credit Note” means a
promissory note of the Borrower payable to the order of any Revolving Credit
Lender, in substantially the form of Exhibit C-2 hereto, evidencing
the aggregate indebtedness of the Borrower to such Revolving Credit Lender
resulting from the Revolving Credit Loans made by such Revolving Credit Lender.


 


“S&P” means Standard &
Poor’s Financial Services LLC and any successor thereto.


 


“SEC” means the Securities and
Exchange Commission, or any Governmental Authority succeeding to any of its
principal functions.


 


“Secured Cash Management Agreement”
means any Cash Management Agreement that is entered into between the Borrower
and any Cash Management Bank and that the Borrower and such Cash Management
Bank agree, and notify the Administrative Agent in writing, shall be treated as
a Secured Cash Management Agreement under the Loan Documents.


 


“Secured Hedge Agreement” means any
interest rate, foreign exchange and commodities Swap Contract permitted under Article VI
or VII that is entered into by and between the Borrower and any Hedge Bank
including, without limitation, each of the Swap Contracts listed under Schedule
7.02(e).


 


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


 


“Secured Parties” means,
collectively, the Administrative Agent, the Lenders, the Hedge Banks, the Cash
Management Banks, each co-agent or sub-agent appointed by the Administrative
Agent from time to time pursuant to Section 9.01(c), and the other
Persons the Obligations owing to which are or are purported to be secured by
the Collateral under the terms of the Collateral Documents.


 


“Securitization Transaction” means
any financing transaction or series of financing transactions (including
factoring arrangements) pursuant to which the Borrower or any 


 


30

















 


Subsidiary
may sell, convey or otherwise transfer, or grant a security interest in,
accounts, payments, receivables, rights to future lease payments or residuals
or similar rights to payment to a special purpose Subsidiary or Affiliate of
the Borrower.


 


“Security Agreement” has the
meaning specified in Section 4.01(b)(iii).


 


“Security Agreement Supplement” has the
meaning specified in Section 26(b) of the Security Agreement.


 


“Senior Debt” means
Indebtedness that is not subordinated in right of payment to the Obligations.


 


“Senior Secured Credit Rating”
means, as of any date of determination, the ratings of the Borrower’s long-term
senior secured debt as determined by Moody’s, Fitch and S&P; provided
that (i) if such ratings from Moody’s, Fitch and S&P differ and (x) the
rating from two such agencies are in the same Pricing Level (as set forth in
the definition of “Applicable Rate”), the Senior Secured Credit Rating of those
two agencies shall apply for purposes of determining the Applicable Rate or (y) if
the Senior Secured Credit Ratings of the three agencies fall within three
different Pricing Levels, the Applicable Rate shall be determined with respect
to the Senior Secured Credit Rating that is neither the lowest nor highest of
such Senior Secured Credit Ratings (it being understood that Pricing Level I is
the highest Pricing Level), (ii) if any of S&P, Fitch or Moody’s shall
change the basis on which ratings are established by it, each reference to the
Senior Secured Credit Rating announced by S&P, Fitch or Moody’s shall refer
to the then equivalent rating by S&P, or Fitch or Moody’s, as the case may
be, (iii) if only one of S&P or Moody’s has a Senior Secured Credit
Rating, the rating of such agency shall apply for purposes of determining the
Applicable Rate, (iv) if both S&P and Moody’s have Senior Secured
Credit Ratings and those are the only ratings in effect, then the Applicable
Rate shall be determined by reference to the higher of such ratings and (v) if
neither  S&P nor Moody’s shall have a
Senior Secured Credit Rating, the Applicable Rate shall be set in accordance
with Pricing Level 5.


 


“Senior Secured Debt”
means Senior Debt that is secured by Liens on any property or assets of the
Borrower or any of its Subsidiaries.


 


“Senior Subordinated Notes”
means (a) the 6.75% senior subordinated notes of the Borrower due April 1,
2016 in an aggregate original principal amount of $400,000,000 and (b) the
6.875% senior subordinated notes of the Borrower due September 15, 2020 in
an aggregate original principal amount of $350,000,000.


 


“Senior Subordinated Notes Documents” means the
Senior Subordinated Indenture, the Senior Subordinated Notes and all other
agreements, instruments and other documents pursuant to which the Senior
Subordinated Notes have been or will be issued or otherwise setting forth the
terms of the Senior Subordinated Notes, in each case as such agreement,
instrument or other document may be amended, supplemented or otherwise modified
prior to the Restatement Closing Date and as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof, but to the extent permitted under the terms of the Loan
Documents.


 


31

















 


“Senior Subordinated Notes Indenture”
means the indenture dated as of March 15, 2006, between the Borrower, as
issuer, and The Bank of New York Trust Company, N.A., as trustee, providing for
the issuance of the Senior Subordinated Notes, as amended, supplemented or
otherwise modified prior to the Restatement Closing Date and as such indenture
may be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof, but to the extent permitted under the terms
of the Loan Documents.


 


“Shareholders’ Equity” means, as of
any date of determination, consolidated shareholders’ equity of the Borrower
and its Subsidiaries as of that date determined in accordance with GAAP.


 


“Solvent” and “Solvency” mean,
with respect to any Person on any date of determination, that on such date
(a) the fair value of the property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (b) the present fair salable value of the
assets of such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person’s ability to pay such debts
and liabilities as they mature and (d) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person’s property would constitute an unreasonably
small capital.  The amount of contingent
liabilities at any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability; provided,
that if the context in which “Solvent” or “Solvency” is used refers to a Person
together with its Subsidiaries, Person as used above shall be deemed to be a
reference to such Person together with its Subsidiaries.


 


“SPC” has the meaning
specified in Section 10.06(h).


 


“Specified Default”
means any Default under Section 8.01 (f) or (g) or any
Event of Default.


 


“Specified Statutory Liens”
means any Liens permitted under Section 7.01(c) or (d) with
respect to any Collateral that, strictly by the operation of applicable statute
or law, would have priority over any Liens granted to or in favor of the
Administrative Agent under any Collateral Document.


 


“Spot Rate” for any Alternative
Currency means the rate determined by the Administrative Agent or an L/C Issuer
as applicable, to be the rate quoted by the Person acting in such capacity as
the spot rate for the purchase by such Person of such Alternative Currency with
Dollars through its principal foreign exchange trading office at approximately
11:00 a.m. on the date two Business Days prior to the date as of which the
foreign exchange computation is made; provided that the Administrative
Agent or an L/C Issuer may obtain such spot rate from another financial
institution designated by the Administrative Agent or such L/C Issuer if the
Person acting in such capacity does not have as of the date of determination a
spot buying rate for any such currency; and provided  further that
an L/C Issuer may use such spot rate quoted on the date as of which the foreign
exchange computation is made in the case of any Letter of Credit denominated in
an Alternative Currency.


 


32

















 


“SPV Subsidiary” means a Subsidiary
of the Borrower substantially all of whose assets consist of its general
partnership interest or equity interest in a joint venture.


 


“Sterling” or “£”
means lawful money of the United Kingdom of Great Britain and Northern Ireland.


 


“Subject Disposition” means any
Disposition of property or assets other than any Disposition permitted by Section 7.05(a)(i),
(b), (d), (e), (f), (g) or (h).


 


“Subject Subsidiaries”
means all Subsidiaries of the Borrower other than ATK Insurance Company and COI
Ceramics, Inc. and, in each case, their respective Subsidiaries and, to
the extent permitted under Section 7.11, any Excluded Joint
Ventures.


 


“Subsidiary” means, with respect to
any Person, any corporation, partnership, joint venture, limited liability
company or other business entity the accounts of which would be consolidated
with those of such Person in such Person’s consolidated financial statements if
such financial statements were prepared in accordance with GAAP as of such
date, as well as any other corporation, partnership, joint venture, limited
liability company or other business entity (a) of which Equity Interests
representing more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date,
otherwise controlled, directly or indirectly, including through one or more
Subsidiaries of such Person, in each case in clause (a) and (b) above,
by such Person.  Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries”
shall refer to a Subsidiary or Subsidiaries of the Borrower.


 


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


 


“Swap Termination Value” means, in
respect of any one or more Swap Contracts, after taking into account the effect
of any legally enforceable netting agreement relating to such Swap Contracts,
(a) for any date on or after the date such Swap Contracts have been closed
out and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced in
clause (a), the amount(s) determined as the mark-to-market value(s) for
such Swap Contracts, as determined based upon one or more 


 


33

















 


mid-market
or other readily available quotations provided by any recognized dealer in such
Swap Contracts (which may include a Lender or any Affiliate of a Lender).


 


“Swing Line Borrowing” means a
borrowing of a Swing Line Loan pursuant to Section 2.04.


 


“Swing Line Facility” means the
revolving credit facility made available by the Swing Line Lenders pursuant to Section 2.04.


 


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


 


“Swing Line Loan” has the meaning
specified in Section 2.04(a).


 


“Swing Line Loan Notice” means a
notice of a Swing Line Borrowing pursuant to Section 2.04(b),
which, if in writing, shall be substantially in the form of Exhibit B.


 


“Swing Line Sublimit” means an amount
equal to the lesser of (a) $40,000,000 and (b) the Revolving Credit
Commitments.  The Swing Line Sublimit is
part of, and not in addition to, the Revolving Credit Facility Commitments.


 


“Synthetic Lease”
means, as to any Person, (a) any lease (including leases that may be
terminated by the lessee at any time) of any property (whether real, personal
or mixed) that is not a Capitalized Lease in respect of which such Person is
the lessee and retains or obtains ownership of the property so leased for
federal income tax purposes, or (b) any so-called synthetic, off-balance
sheet or tax retention lease or any other lease or similar arrangement for the
use or possession of property creating obligations that do not appear on the
balance sheet of such Person but which, upon the insolvency or bankruptcy of
such Person or otherwise upon application of any Debtor Relief Law to such
Person, would be characterized as the indebtedness of such Person (without
regard to accounting treatment).


 


“Synthetic Lease Obligation” means
the monetary obligation of a Person under a Synthetic Lease.


 


“Taxes” has the meaning specified in Section 3.01(a).


 


“Term A Borrowing” means a borrowing
pursuant to Section 2.01(c) consisting of simultaneous Term A
Loans of the same Type and, in the case of Eurodollar Rate Loans, having the
same Interest Period made by each of the Term A Lenders pursuant to Section 2.01(c).


 


“Term A Commitment” means, as to each Term A
Lender at any time, its obligation to make Term A Loans to the Borrower
pursuant to Section 2.01(c) or Section 2.15 in an
aggregate principal amount at any one time outstanding not to exceed,
initially, the amount set forth opposite such Term A Lender’s name on Schedule
2.01 under the caption “Term A Commitment” or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable,
as such amount may be increased pursuant to Section 2.15 or as may


 


34






 












 


be
otherwise adjusted from time to time in accordance with this Agreement.  The aggregate Commitment of all Term A
Lenders shall be $400,000,000 on the Restatement Closing Date.


 


“Term A Facility”
means, at any time, (a) prior to the making of Term A Loans, the aggregate
Term A Commitments of all Term A Lenders at such time, and (b) thereafter,
the Outstanding Amount of Term A Loans of all Term A Lenders at such time.


 


“Term A Lender” means,
at any time, any Lender (including any Additional Term Loan Lender) that has a
Term A Commitment or a Term A Loan at such time.


 


“Term A Loan” means an advance made by
any Term A Lender under the Term A Facility pursuant to Section 2.01(c).


 


“Term A Note” means a
promissory note of the Borrower payable to the order of any Term A Lender, in
substantially the form of Exhibit C-1, evidencing the aggregate
indebtedness of the Borrower to such Term A Lender resulting from the Term A
Loans made or held by such Term A Lender.


 


“Term Borrowing” means either any
Term A Borrowing or Incremental Term Borrowing, as applicable.


 


“Term Commitment” means any Term A
Commitment or Incremental Term Commitment, as applicable.


 


“Term Commitment Increase”
has the meaning specified in Section 2.15(a).


 


“Term Facilities”
means, at any time, the aggregate Term A Facility and the Incremental Term
Facilities of all Lenders at such time.


 


“Term Lender” means, at any time, any
Lender that has a Term Commitment or Term Loan, as applicable, at such time.


 


“Term Loan” means any Term A Loan or
Incremental Term Loan, as applicable.


 


“Term Note” means any Term A Note or a
promissory note of the Borrower payable to the order of any Incremental Term
Loan Lender, in substantially the form of Exhibit C-1 hereto,
evidencing the aggregate Indebtedness of the Borrower to such Incremental Term
Loan Lender resulting from the Incremental Term Loans made by such Incremental
Term Loan Lender.


 


“Threshold Amount” means $50,000,000.


 


“Total Outstandings” means the
aggregate Outstanding Amount of all Loans and all L/C Obligations.


 


“Transaction” means, collectively,
(a) the entering into by the Loan Parties of the Loan Documents to which
they are or are intended to be a party, (b) the refinancing or replacement
hereunder of certain outstanding Indebtedness under the Existing Credit
Agreement 


 


35

















 


and
(c) the payment of the fees and expenses incurred in connection with the
consummation of the foregoing.


 


“Treasury Regulations”
means the Treasury Regulations promulgated under the Code.


 


“Type” means, with respect to a Loan,
its character as a Base Rate Loan or a Eurodollar Rate Loan.


 


“United States” and “U.S.” mean the United States of
America.


 


“Unreimbursed Amount” has the meaning
specified in Section 2.03(c)(i).


 


“U.S. Bank” means U.S. Bank National
Association and its successors.


 


“Yen” or “¥”
mean lawful money of Japan.


 


1.02                           Other Interpretive
Provisions.  With
reference to this Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:


 


(a)                                  The meanings of defined terms are, unless the context otherwise requires,
equally applicable to the singular and plural forms of the defined terms.


 


(b)                                 (i)  The words “herein,” “hereto,” “hereof” and
“hereunder” and words of similar import when used in any Loan Document
shall refer to such Loan Document as a whole and not to any particular
provision thereof.


 


(ii)                                  Article, Section, Exhibit and Schedule
references are to the Articles, Sections, Exhibits and Schedules of the Loan
Document in which such reference appears.


 


(iii)                               The term “including” is by way of
example and not limitation.


 


(iv)                              The term “documents” includes any and
all instruments, documents, agreements, certificates, notices, reports,
financial statements and other writings, however evidenced, whether in physical
or electronic form.


 


(c)                                  In the computation of periods of time from a specified date to a later
specified date, the word “from” means “from and including;” the
words “to”, “ending on”, and “until” each mean “to but
excluding;” and the word “through” means “to and including.”


 


(d)                                 Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.


 


36

















 


1.03                           Accounting Terms.


 


(a)                                  All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed
herein.


 


(b)                                 If at any time any change in GAAP would affect
the computation of any financial ratio or requirement, including a negative
covenant “basket,” set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders
and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that,
until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.


 


1.04                           Rounding.  Any financial ratios required to be
maintained by the Borrower pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).


 


1.05                           References to
Agreements and Laws.  Unless
otherwise expressly provided herein, (a) references to Organization
Documents, agreements (including the Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document; and (b) references
to any Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.


 


1.06                           Times of Day.  Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).


 


1.07                           Letter of Credit
Amounts.  Unless otherwise specified,
all references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit after giving
effect to all increases thereof contemplated by such Letter of Credit or the
Issuer Documents related thereto therefor, whether or not such maximum face
amount is in effect at such time (except for purposes of calculating
Consolidated Funded Indebtedness).


 


37

















 


1.08                           Currency
Equivalents Generally.  Any
amount specified in this Agreement (other than in Articles II, IX
and X) or any of the other Loan Documents to be in Dollars shall also
include the equivalent of such amount in any currency other than Dollars, such
equivalent amount, except as otherwise provided herein, to be determined at the
rate of exchange quoted by Bank of America in New York at the close of business
on the Business Day immediately preceding any date of determination thereof, to
prime banks in New York, New York for the spot purchase in the New York foreign
exchange market of such amount in U.S. dollars with such other currency.


 


ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01                           The Loans.


 


(a)                                  The Revolving Credit Borrowings. 
Subject to the terms and conditions set forth herein, each Revolving
Credit Lender severally agrees to make loans (each such loan, a “Revolving Credit Loan”) to
the Borrower from time to time, on any Business Day during the Availability
Period, in an aggregate amount outstanding not to exceed at any time the amount
of such Lender’s Revolving Credit Commitment; provided, however,
that, after giving effect to any Revolving Credit Borrowing, (i) the Total
Outstandings shall not exceed the Aggregate Commitments and (ii) the
aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus
such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender’s Revolving Credit Commitment.  Within the limits of each Lender’s Revolving
Credit Commitment, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.01(a), prepay under Section 2.05,
and reborrow under this Section 2.01(a).  Revolving Credit Loans may be Base Rate Loans
or Eurodollar Rate Loans, as further provided herein.


 


(b)                                 The Incremental Term Borrowings. 
Subject to the terms and conditions set forth herein, each Incremental
Term Loan Lender under the relevant Incremental Term Facility severally agrees
to make a single loan consisting of an Incremental Term Loan pursuant to such
Incremental Term Facility in an amount equal to its Pro Rata Share of such
Incremental Term Facility to the Borrower on the applicable Incremental Term
Loan Closing Date.  The applicable
Incremental Term Borrowing shall consist of Incremental Term Loans made
simultaneously by the applicable Incremental Term Lenders in accordance with
their respective Pro Rata Share of such Incremental Term Facility.  If the Borrower requests a Term Commitment
Increase in respect of an Incremental Term Facility in accordance with the
provisions of Section 2.15, then subject to the terms and
conditions set forth herein, each Incremental Term Lender agreeing to provide
an additional Incremental Term Loan in accordance with the provisions of Section 2.15
shall make a single loan in an amount equal to its committed amount in respect
of such additional Incremental Term Loans to the Borrower on the applicable
Incremental Term Loan Closing Date. 
Amounts borrowed under this Section 2.01(b) and repaid
or prepaid may not be reborrowed. 
Incremental Term Loans may be Base Rate Loans or Eurodollar Rate Loans
as further provided herein.


 


38

















 


(c)                                  Term A Borrowings. 
Subject to the terms and conditions set forth herein, each Term A Lender
severally agrees to make on the Restatement Closing Date a single loan
consisting of a Term A Loan pursuant to the Term A Facility in an amount equal
to its Pro Rata Share of the Term A Facility on the Restatement Closing Date to
the Borrower.  The Term A Borrowing shall
consist of Term A Loans made simultaneously by the Term A Lenders in accordance
with their respective Pro Rata Share of the applicable Term A Facility.  If the Borrower requests a Term Commitment
Increase in respect of the Term A Facility in accordance with the provisions of
Section 2.15, then subject to the terms and conditions set forth
herein, each Term A Lender agreeing to provide an additional Term A Loan in accordance
with the provisions of Section 2.15, shall make a single loan in an
amount equal to its committed amount in respect of such additional Term A Loans
to the Borrower on the applicable Incremental Term Loan Closing Date.  Amounts borrowed under this Section 2.01(c) and
repaid or prepaid may not be reborrowed. 
Term A Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.


 


2.02                           Borrowings,
Conversions and Continuations of Loans.


 


(a)                                  Each Term Borrowing, each Revolving Credit
Borrowing, each conversion of Term Loans or Revolving Credit Loans from one
Type to the other, and each continuation of Eurodollar Rate Loans shall be made
upon the Borrower’s irrevocable written notice to the Administrative Agent
appropriately completed and signed by a Responsible Officer of the
Borrower.  Each such notice must be
received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing
of Base Rate Loans; provided, however, that if the Borrower
wishes to request Eurodollar Rate Loans having an Interest Period other than
one, two, three or six months in duration as provided in the definition of “Interest
Period,” the applicable notice must be received by the Administrative Agent not
later than 11:00 a.m. four Business Days prior to the requested date of
such Borrowing, conversion or continuation, whereupon the Administrative Agent
shall give prompt notice to the Appropriate Lenders of such request and
determine whether the requested Interest Period is acceptable to all of such
Appropriate Lenders.  Not later than 11:00 a.m.,
three Business Days before the requested date of such Borrowing, conversion or
continuation, the Administrative Agent shall notify the Borrower (which notice
may be by telephone) whether or not the requested Interest Period has been
consented to by all of the Appropriate Lenders. 
Each Borrowing of, conversion to or continuation of Eurodollar Rate
Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof.  Except as
provided in Sections 2.03(c) and 2.04(c), each Borrowing of or
conversion to Base Rate Loans shall be in a principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof. 
Each Committed Loan Notice shall specify (i) whether the Borrower
is requesting a Term Loan Borrowing, a Revolving Credit Borrowing, a conversion
of Term Loans or Revolving Credit Loans from one Type to the other, or a
continuation of Eurodollar Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued, (iv) the Type of Loans to be borrowed or to which
existing Term Loans or Revolving Credit Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of 


 


39

















 


Loan
in a Committed Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Term Loans or
Revolving Credit Loans shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Committed
Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.


 


(b)                                 Following receipt of a Committed Loan Notice,
the Administrative Agent shall promptly notify each Lender of the amount of its
Pro Rata Share of the applicable Term Loans or Revolving Credit Loans, and if
no timely notice of a conversion or continuation is provided by the Borrower,
the Administrative Agent shall notify each Lender of the details of any
automatic conversion to Base Rate Loans described in Section 2.02(a).  In the case of a Term Loan Borrowing or a
Revolving Credit Borrowing, each Appropriate Lender shall make the amount of
its Loan available to the Administrative Agent in immediately available funds
at the Administrative Agent’s Office not later than 1:00 p.m. on the
Business Day specified in the applicable Committed Loan Notice.  Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the
initial Credit Extension, Section 4.01), the Administrative Agent
shall make all funds so received available to the Borrower in like funds as
received by the Administrative Agent either by (i) crediting the account
of the Borrower on the books of Bank of America with the amount of such funds
or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date
the Committed Loan Notice with respect to such Borrowing is given by the
Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing
first shall be applied to the payment in full of any such outstanding
L/C Borrowings and second, shall be made available to the Borrower as
provided above.


 


(c)                                  Except as otherwise provided herein, a
Eurodollar Rate Loan may be continued or converted only on the last day of an
Interest Period for such Eurodollar Rate Loan. 
During the existence of a Default, no Loans may be requested as,
converted to or continued as Eurodollar Rate Loans without the consent of the
Required Lenders.


 


(d)                                 The Administrative Agent shall promptly notify
the Borrower and the Lenders of the interest rate applicable to any Interest
Period for Eurodollar Rate Loans upon determination of such interest rate.  The determination of the Eurodollar Rate by
the Administrative Agent shall be conclusive in the absence of manifest
error.  At any time that Base Rate Loans
are outstanding, the Administrative Agent shall notify the Borrower and the
Lenders of any change in Bank of America’s prime rate used in determining the
Base Rate promptly following the public announcement of such change.


 


(e)                                  After giving effect to all Term Borrowings,
all Revolving Credit Borrowings, all conversions of Term Loans or Revolving
Credit Loans from one Type to the other, and all continuations of Term Loans or
Revolving Credit Loans as the same Type, there shall not be more than ten
Interest Periods in effect.


 


40

















 


(f)                                    The failure of any Lender to make the Loan to
be made by it as part of any Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its Loan on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Loan to be made by such other Lender on the date of any Borrowing.


 


2.03                           Letters of Credit.


 


(a)                                  The Letter of Credit Commitment.


 


(i)                                     Subject to the terms and conditions set forth
herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the
other Revolving Credit Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Restatement Closing
Date until the Letter of Credit Expiration Date, to issue Letters of Credit for
the account of the Borrower or any Subsidiary, and to amend or extend Letters
of Credit previously issued by it, in accordance with Section 2.03(b),
and (2) to honor drawings under the Letters of Credit, and (B) the
Revolving Credit Lenders severally agree to participate in Letters of Credit
issued for the account of the Borrower or any Subsidiary and any drawings
thereunder; provided that on the date of any L/C Credit Extension with
respect to any Letter of Credit and after giving effect thereto (w) the
Total Outstandings shall not exceed the Aggregate Commitments, (x) the
aggregate Outstanding Amount of the Loans of any Lender, plus such
Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender’s Revolving Credit Commitment, (y) the
Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit and (z) the Outstanding Amount of L/C Obligations denominated in
any Alternative Currency shall not exceed $100,000,000.  Each request by the Borrower for the issuance
or amendment of a Letter of Credit shall be deemed to be a representation by
the Borrower that the L/C Credit Extension so requested complies with the
conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed.  All Existing Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the Restatement
Closing Date shall be subject to and governed by the terms and conditions hereof.


 


(ii)                                  No L/C Issuer shall issue any Letter of Credit
if the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Lenders have approved such
expiry date;


 


(iii)                               No L/C Issuer shall be under any obligation to
issue any Letter of Credit if:


 


(A)                              any order,
judgment or decree of any Governmental Authority or arbitrator shall by its
terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of
Credit, or any Law applicable to such L/C Issuer or any request or directive
(whether or not having the force of law) from any 


 


41

















 


Governmental Authority with
jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer
refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon such L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which
such L/C Issuer is not otherwise compensated hereunder) not in effect on the
Restatement Closing Date, or shall impose upon such L/C Issuer any unreimbursed
loss, cost or expense which was not applicable on the Restatement Closing Date
and which such L/C Issuer in good faith deems material to it;


 


(B)                                the issuance of
such Letter of Credit would violate any Laws or one or more policies of such
L/C Issuer (including policies as to the form, substance and beneficiary of
such Letter of Credit); or


 


(C)                                except as
otherwise agreed by the Administrative Agent and such L/C Issuer (such
agreement not to be unreasonably withheld or delayed), such Letter of Credit is
in an initial face amount less than $50,000, in the case of a Documentary
Letter of Credit, or $50,000, in the case of a standby Letter of Credit
(including a performance Letter of Credit);


 


(D)                               such Letter of
Credit is to be denominated in a currency other than Dollars or an Alternative
Currency;


 


(E)                                 such Letter of
Credit contains any provisions for automatic reinstatement of the stated amount
after any drawing thereunder; or


 


(F)                                 any Revolving
Lender is at that time a Defaulting Lender, unless the applicable L/C Issuer
has entered into arrangements, including the delivery of Cash Collateral,
satisfactory to such L/C Issuer in its sole discretion (it being agreed that
with respect to Letters of Credit denominated in Dollars, Cash Collateral in an
aggregate amount equal to 105% of the amount of L/C Obligations associated with
such Letters of Credit shall be satisfactory) with the Borrower or such Lender
to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after
giving effect to Section 2.17(a)(iv)) with respect to the
Defaulting Lender arising from either the Letter of Credit then proposed to be
issued or that Letter of Credit and all other L/C Obligations as to which such
L/C Issuer has actual or potential Fronting Exposure, as it may elect in its
sole discretion.


 


(iv)                              No L/C Issuer shall amend any Letter of Credit
if such L/C Issuer would not be permitted at such time to issue such Letter of
Credit in its amended form under the terms hereof.


 


(v)                                 No L/C Issuer shall be under any obligation to
amend any Letter of Credit if (A) such L/C Issuer would have no obligation
at such time to issue such Letter of Credit in its amended form under the terms
hereof, or (B) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit.


 


42

















 


(vi)                              Each L/C Issuer shall act on behalf of the Lenders
with respect to any Letters of Credit issued by it and the documents associated
therewith, and each L/C Issuer shall have all of the benefits and immunities
(A) provided to the Administrative Agent in Article IX with
respect to any acts taken or omissions suffered by such L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it
and Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article IX included such L/C
Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to such L/C Issuer.


 


(b)                                 Procedures for Issuance and Amendment of
Letters of Credit; Auto-Extension Letters of Credit.


 


(i)                                     Each Letter of Credit shall be issued or
amended, as the case may be, upon the request of the Borrower delivered to the
applicable L/C Issuer (with a copy to the Administrative Agent) in the form of
a Letter of Credit Application, appropriately completed and signed by a
Responsible Officer of the Borrower. 
Such Letter of Credit Application must be received by the applicable L/C
Issuer and the Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the Administrative Agent and such
L/C Issuer may agree in a particular instance in their sole discretion) prior
to the proposed issuance date or date of amendment, as the case may be.  In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify
in form and detail satisfactory to the applicable L/C Issuer:  (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount
and currency thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented by
such beneficiary in case of any drawing thereunder; (F) the full text of
any certificate to be presented by such beneficiary in case of any drawing
thereunder; (G) the purpose and nature of the requested Letter of Credit;
and (H) such other matters as such L/C Issuer may require.  In the case of a request for an amendment of
any outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the applicable L/C Issuer (A) the
Letter of Credit to be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the proposed amendment;
and (D) such other matters as such L/C Issuer may require.  Additionally, the Borrower shall furnish to
the applicable L/C Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the applicable L/C Issuer or the
Administrative Agent may require.


 


(ii)                                  Promptly after receipt of any Letter of Credit
Application, the applicable L/C Issuer will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has received a
copy of such Letter of Credit Application from the Borrower and, if not, the
applicable L/C Issuer will provide the Administrative Agent with a copy
thereof.  Unless the applicable L/C
Issuer has received written notice from any Lender, the Administrative Agent or
any Loan Party, at least one Business Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article IV shall not then be satisfied,
then, 


 


43

















 


subject to the terms and conditions hereof, the
applicable L/C Issuer shall, on the requested date, issue a Letter of Credit
for the account of the Borrower or enter into the applicable amendment, as the
case may be, in each case in accordance with such L/C Issuer’s usual and
customary business practices. 
Immediately upon the issuance of each Letter of Credit, each Revolving
Credit Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the applicable L/C Issuer a risk participation in such
Letter of Credit in an amount equal to the product of such Lender’s Pro Rata
Share times the amount of such Letter of Credit.


 


(iii)                               If the Borrower so requests in any applicable
Letter of Credit Application, the applicable L/C Issuer may, in its sole and
absolute discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an “Auto-Extension Letter of
Credit”);
provided that any such Auto-Extension Letter of Credit must permit the
applicable L/C Issuer to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such Letter of
Credit) by giving prior notice to the beneficiary thereof not later than a
specified date (the “Non Extension Notice Date”) in each such twelve-month period to be
agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the applicable
L/C Issuer, the Borrower shall not be required to make a specific request to
the applicable L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not
require) the applicable L/C Issuer to permit the extension of such Letter of
Credit at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that the applicable L/C
Issuer shall not permit any such extension if (A) such L/C Issuer has
determined that it would not be permitted, or would have no obligation at such
time to issue such Letter of Credit in its revised form (as extended) under the
terms hereof (by reason of the provisions of clauses (ii) or (iii) of
Section 2.03(a) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is
seven Business Days before the Non Extension Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to permit such
extension or (2) from the Administrative Agent, any Revolving Credit Lender
or any Loan Party that one or more of the applicable conditions specified in Section 4.02
is not then satisfied, and in each such case directing such L/C Issuer not to
permit such extension.


 


(iv)                              Promptly after its delivery of any Letter of
Credit or any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the applicable L/C Issuer will also
deliver to the Borrower and the Administrative Agent a true and complete copy
of such Letter of Credit or amendment.


 


(c)                                  Drawings and Reimbursements; Funding of
Participations.


 


(i)                                     Upon receipt from the beneficiary of any
Letter of Credit of any notice of a drawing under such Letter of Credit, the
applicable L/C Issuer shall notify the Borrower and the Administrative Agent
thereof.  In the case of a Letter of
Credit denominated in an Alternative Currency, the Borrower shall reimburse the
applicable L/C Issuer in such Alternative Currency, unless (A) such L/C
Issuer (at its option) shall have specified in such notice that it will require
reimbursement in Dollars, or (B) in the absence of any


 


44
















 


such requirement for reimbursement in Dollars, the
Borrower shall have notified such L/C Issuer promptly following receipt of the
notice of drawing that the Borrower will reimburse the L/C Issuer in
Dollars.  In the case of any such reimbursement in Dollars of a drawing
under a Letter of Credit denominated in an Alternative Currency, the applicable
L/C Issuer shall notify the Borrower of the amount of the drawing (converted
into Dollars at the Spot Rate) promptly following the determination thereof. 
If the Borrower shall have received notice of such drawing, (A) prior to
12:00 Noon on the date of any payment by the applicable L/C Issuer under a
Letter of Credit (each such date, an “Honor Date”), the Borrower shall reimburse
such L/C Issuer through the Administrative Agent by not later than 3:00 p.m.
on the Honor Date, and (B) after 12:00 Noon on the Honor Date, the
Borrower shall reimburse such L/C Issuer through the Administrative Agent in an
amount equal to the amount of such drawing by not later than 3:00 p.m. on
the Business Day after the Honor Date.  If the Borrower fails to so reimburse such L/C
Issuer by such time, the Administrative Agent shall promptly notify each
Revolving Credit Lender of the Honor Date, the amount of the unreimbursed
drawing (calculated, in the case of any drawing under a Letter of Credit
denominated in any Alternative Currency at the Spot Rate) (the “Unreimbursed Amount”),
and the amount of such Revolving Credit Lender’s Pro Rata Share thereof.  In such event, the Borrower shall be deemed
to have requested a Revolving Credit Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02
for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Revolving Credit Commitments and the conditions set
forth in Section 4.02 (other than the delivery of a Committed Loan
Notice).  Any notice given by an L/C
Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.


 


(ii)                                  Each Revolving Credit Lender (including the
Lender acting as the applicable L/C Issuer) shall upon any notice pursuant to Section 2.03(c)(i) make
funds available (and the Administrative Agent may apply Cash Collateral
provided for this purpose) for the account of the applicable L/C Issuer at the
Administrative Agent’s Office in an amount equal to its Pro Rata Share of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified
in such notice by the Administrative Agent (in the case of any Letter of Credit
denominated in an Alternative Currency, in the equivalent in Dollars calculated
at the Spot Rate as notified by the applicable L/C Issuer promptly following
the determination thereof), whereupon, subject to the provisions of Section 2.03(c)(iii),
each Revolving Credit Lender that so makes funds available shall be deemed to
have made a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the
funds so received to the applicable L/C Issuer.


 


(iii)                               With respect to any Unreimbursed Amount that
is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans
because the conditions set forth in Section 4.02 cannot be
satisfied or for any other reason, the Borrower shall be deemed to have
incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due
and 


 


45

















 


payable on demand (together with interest) and
shall bear interest at the Default Rate. 
In such event, each Revolving Credit Lender’s payment to the
Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(ii) shall
be deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.


 


(iv)                              Until each Revolving Credit Lender funds its
Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the applicable L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s Pro Rata Share of such amount
shall be solely for the account of the applicable L/C Issuer.


 


(v)                                 Each Revolving Credit Lender’s obligation to
make Revolving Credit Loans or L/C Advances to reimburse the applicable L/C
Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right which such Lender may have against such L/C Issuer, the Borrower
or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however,
that each Revolving Credit Lender’s obligation to make Revolving Credit Loans
pursuant to this Section 2.03(c) is subject to the conditions
set forth in Section 4.02 (other than delivery by the Borrower of a
Committed Loan Notice ).  No such making
of an L/C Advance shall relieve or otherwise impair the obligation of the
Borrower to reimburse the applicable L/C Issuer for the amount of any payment
made by such L/C Issuer under any Letter of Credit, together with interest as
provided herein.


 


(vi)                              If any Revolving Credit Lender fails to make
available to the Administrative Agent for the account of the applicable L/C
Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
then, without limiting the other provisions of this Agreement, such L/C Issuer
shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the
date such payment is required to the date on which such payment is immediately
available to the applicable L/C Issuer at a rate per annum equal to the greater
of the Federal Funds Rate and a rate determined by such L/C Issuer in
accordance with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by such L/C
Issuer in connection with the foregoing. 
If such Revolving Credit Lender pays such amount (with interest and fees
as aforesaid), the amount so paid shall constitute such Lender’s Revolving
Credit Loan included in the relevant Revolving Credit Borrowing.  A certificate of the applicable L/C Issuer submitted
to any Revolving Credit Lender (through the Administrative Agent) with respect
to any amounts owing under this Section 2.03(c)(vi) shall be
conclusive absent manifest error.


 


46

















 


(d)                                 Repayment of Participations.


 


(i)                                     At any time after the applicable L/C Issuer
has made a payment under any Letter of Credit and has received from any
Revolving Credit Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent
receives for the account of such L/C Issuer any payment in respect of the
related Unreimbursed Amount or interest thereon (whether directly from the
Borrower or otherwise, including proceeds of Cash Collateral applied thereto by
the Administrative Agent), the Administrative Agent will distribute to such
Lender its Pro Rata Share thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s L/C
Advance was outstanding) in the same funds as those received by the
Administrative Agent.


 


(ii)                                  If any payment received by the Administrative
Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by such L/C Issuer in its
discretion), each Revolving Credit Lender shall pay to the Administrative Agent
for the account of such L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect. 
The obligations of the Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.


 


(e)                                  Obligations Absolute.  The
obligation of the Borrower to reimburse the applicable L/C Issuer for each
drawing under each Letter of Credit and to repay each L/C Borrowing shall be
absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including
the following:


 


(i)                                     any lack of validity or enforceability of such
Letter of Credit, this Agreement, or any other Loan Document;


 


(ii)                                  the existence of any claim, counterclaim,
setoff, defense or other right that the Borrower or any Subsidiary may have at
any time against any beneficiary or any transferee of such Letter of Credit (or
any Person for whom any such beneficiary or any such transferee may be acting),
such L/C Issuer or any other Person, whether in connection with this Agreement,
the transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;


 


(iii)                               any draft, demand, certificate or other
document presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under such Letter of Credit;


 


(iv)                              any payment by such L/C Issuer under such
Letter of Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such 


 


47

















 


Letter of Credit; or any payment made by such L/C
Issuer under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law;


 


(v)                                 any exchange, release or nonperfection of any
Collateral, or any release or amendment or waiver of or consent to departure
from the Guaranty or any other guarantee, for all or any of the Obligations of
the Borrower or any Subsidiary in respect of such Letter of Credit; or


 


(vi)                              any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower.


 


The
Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower’s instructions or other irregularity, the
Borrower will immediately notify the applicable L/C Issuer.  The Borrower shall be conclusively deemed to
have waived any such claim against the applicable L/C Issuer and its
correspondents unless such notice is given as aforesaid.


 


(f)                                    Role of L/C Issuer.  Each
Lender and the Borrower agree that, in paying any drawing under a Letter of
Credit, no L/C Issuer shall have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering any
such document.  None of the applicable
L/C Issuer, the Administrative Agent, any of their respective Related Parties
nor any correspondents, participants or assignees of such L/C Issuer shall be
liable to any Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Letter of Credit Application.  The Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; provided, however, that this assumption is
not intended to, and shall not, preclude the Borrower’s pursuing such rights
and remedies as it may have against the beneficiary or transferee at law or
under any other agreement.  None of the
L/C Issuers, the Administrative Agent, any of their respective Related Parties
nor any correspondents, participants or assignees of the L/C Issuers, shall be
liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.03(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have
a claim against the applicable L/C Issuer, and the applicable L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the Borrower
which the Borrower proves were caused by such L/C Issuer’s willful misconduct
or gross negligence or such L/C Issuer’s willful failure to pay under any
Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions
of a Letter of Credit.  In 


 


48

















 


furtherance
and not in limitation of the foregoing, the applicable L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and such L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.


 


(g)                                 Applicability of ISP98 and UCP. 
Unless otherwise expressly agreed by the applicable L/C Issuer and the
Borrower when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), (i) the rules of the ISP
shall apply to each standby Letter of Credit, and (ii) the rules of
the Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce at the time of issuance
shall apply to each commercial Letter of Credit.


 


(h)                                 Letter of Credit Fees.  The
Borrower shall pay to the Administrative Agent for the account of each
Revolving Credit Lender in accordance with its Pro Rata Share, a Letter of
Credit Fee (the “Letter of
Credit Fee”)
for each Letter of Credit in an amount equal to (i) in the case of any
Financial Letter of Credit, (A) a rate per annum equal to the Eurodollar
Percentage for Revolving Credit Loans in effect from time to time for each day
during the applicable calculation period as set forth in the grid in the
definition of “Applicable Rate” times (B) the daily maximum amount
available to be drawn under such Letter of Credit (whether or not such maximum
amount is then in effect under such Letter of Credit and determined, in the
case of any Letter of Credit denominated in an Alternative Currency, at the
Spot Rate as of the most recent Revaluation Date) or (ii) in the case of
any Performance Letter of Credit or Documentary Letter of Credit, (A) a
rate per annum equal to 75% of the Eurodollar Percentage for Revolving Credit
Loans in effect from time to time for each day during the applicable
calculation period as set forth in the grid in the definition of “Applicable
Rate” times (B) the daily maximum amount available to be drawn
under such Letter of Credit and determined, in the case of any Letter of Credit
denominated in an Alternative Currency, at the Spot Rate as of the most recent
Revaluation Date (whether or not such maximum amount is then in effect under
such Letter of Credit); provided, however, any Letter of Credit Fees
otherwise payable for the account of a Defaulting Lender with respect to any
Letter of Credit as to which such Defaulting Lender has not provided Cash
Collateral satisfactory to the applicable L/C Issuer pursuant to Section 2.16
shall be payable, to the maximum extent permitted by applicable Law, to the
other Lenders in accordance with the upward adjustments in their respective Pro
Rata Shares allocable to such Letter of Credit pursuant to Section 2.17(a)(iv),
with the balance of such fee, if any, payable to such L/C Issuer for its own
account.  Letter of Credit Fees shall be
computed on a quarterly basis in arrears and due and payable on the last
Business Day of each March, June, September and December, commencing with
the first such date to occur after the issuance of a Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand.  If there is any change in the Applicable Rate
during any quarter, the daily amount available to be drawn under each Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary
contained herein, while any Event of Default under Section 8.01(a),
Section 8.01(f) or Section 8.01(g) exists,
all Letter of Credit Fees shall accrue at the Default Rate.


 


49

















 


(i)                                     Fronting Fee and Documentary and Processing
Charges Payable to L/C Issuers.  The
Borrower shall pay directly to the applicable L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit issued by such L/C Issuer in
the amount specified in the Fee Letter to which the Borrower and such L/C
Issuer (or its Affiliate) is a party, payable on the daily maximum amount
available to be drawn under such Letter of Credit (whether or not such maximum
amount is then in effect under such Letter of Credit) determined, in the case
of any Letter of Credit denominated in an Alternative Currency, at the Spot
Rate.  Such fronting fee shall be due and
payable (i) in the case of any Financial Letter of Credit or Performance
Letter of Credit, on the last Business Day of such March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter
on demand and (ii) in the case of any Documentary Letter of Credit, on the
date of issuance of any such Letter of Credit. 
In addition, the Borrower shall pay directly to each L/C Issuer for its
own account the customary issuance, presentation, amendment and other
processing fees, correspondent bank fees, and other standard costs and charges,
of such L/C Issuer relating to letters of credit as from time to time in
effect.  Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.


 


(j)                                     Conflict with Issuer Documents.  In
the event of any conflict between the terms hereof and the terms of any Issuer
Document, the terms hereof shall control.


 


(k)                                  Monthly L/C Issuer Report.  On
the fifth Business Day of each month, each L/C Issuer shall deliver a report to
the Administrative Agent identifying (i) each Letter of Credit and the
type and currency of such Letter of Credit issued by it during the prior month,
and (ii) with respect to each Letter of Credit issued by it that remains
outstanding, (A) the face amount thereof as of the end of the prior month
and the maximum potential face amount thereof, (B) the amount thereof that
was drawn in the prior month, and (C) the amount thereof that remains
undrawn as of the last Business Day of the prior month.


 


(l)                                     Letters of Credit Issued for Subsidiaries. 
Notwithstanding that a Letter of Credit issued or outstanding hereunder
is in support of any obligations of, or is for the account of, a Subsidiary,
the Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder
for any and all drawings under such Letter of Credit.  The Borrower hereby acknowledges that the
issuance of Letters of Credit for the account of Subsidiaries inures to the
benefit of the Borrower, and that the Borrower’s business derives substantial
benefits from the businesses of such Subsidiaries.


 


2.04                           Swing Line Loans.


 


(a)                                  The Swing Line.  Subject to
the terms and conditions set forth herein and in reliance upon the agreements
of the other Lenders set forth in this Section 2.04, each Swing
Line Lender may, in its sole discretion, make loans (each such loan, a “Swing Line Loan”) to the
Borrower from time to time on any Business Day during the Availability Period
in an aggregate amount not to exceed at any time outstanding the amount of the
Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when
aggregated with the Pro Rata Share of the Outstanding Amount of Loans and L/C
Obligations of the applicable Lender acting as Swing Line Lender, may exceed
the amount of such Lender’s Commitment; provided, however, 


 


50

















 


that
after giving effect to any Swing Line Loan, (i) the Total Outstandings
shall not exceed the Aggregate Commitments, (ii) the aggregate Outstanding
Amount of the Revolving Credit Loans of any Lender, plus such Lender’s
Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus
such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender’s Revolving Credit Commitment and (iii) the
aggregate Outstanding Amount of the Swing Line Loans shall not exceed the Swing
Line Sublimit, and provided  further that the Borrower shall not
use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line
Loan.  Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.04, prepay under Section 2.05, and
reborrow under this Section 2.04. 
Each Swing Line Loan shall be a Base Rate Loan.  Immediately upon the making of a Swing Line
Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the applicable Swing Line Lender a
risk participation in such Swing Line Loan in an amount equal to the product of
such Lender’s Pro Rata Share times the amount of such Swing Line Loan.


 


(b)                                 Borrowing Procedures.  Each
Swing Line Borrowing shall be made upon the Borrower’s irrevocable written
notice to the applicable Swing Line Lender and the Administrative Agent appropriately
completed and signed by a Responsible Officer of the Borrower.  Each such notice must be received by the
applicable Swing Line Lender and the Administrative Agent not later than 1:00 p.m.
on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $500,000, and (ii) the requested
borrowing date, which shall be a Business Day. 
Promptly after receipt by such Swing Line Lender of any Swing Line Loan
Notice, such Swing Line Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also received such
Swing Line Loan Notice and, if not, such Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the applicable Swing Line Lender has
received notice (by telephone or in writing) from the Administrative Agent
(including at the request of any Revolving Credit Lender) prior to 2:00 p.m.
on the date of the proposed Swing Line Borrowing (A) directing such Swing
Line Lender not to make such Swing Line Loan as a result of the limitations set
forth in the first proviso to the first sentence of Section 2.04(a),
or (B) that one or more of the applicable conditions specified in Article IV
is not then satisfied, then, subject to the terms and conditions hereof, such
Swing Line Lender will, not later than 3:00 p.m. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the Borrower at its office by crediting the account of the
Borrower on the books of such Swing Line Lender in immediately available funds.


 


(c)                                  Refinancing of Swing Line Loans.


 


(i)                                     Each Swing Line Lender at any time in its sole
and absolute discretion may request, on behalf of the Borrower (which hereby
irrevocably authorizes each Swing Line Lender to so request on its behalf),
that each Revolving Credit Lender make a Base Rate Loan in an amount equal to
such Lender’s Pro Rata Share of the amount of Swing Line Loans made by such Swing
Line Lender then outstanding.  Such
request shall be made in writing (which written request shall be deemed to be a
Committed Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and multiples
specified therein for the principal amount of Base Rate Loans, but subject to
the unutilized portion of the Aggregate Revolving Credit 


 


51

















 


Commitments and the conditions set forth in Section 4.02.
 The applicable Swing Line Lender shall
furnish the Borrower with a copy of the applicable Committed Loan Notice
promptly after delivering such notice to the Administrative Agent.  Each Revolving Credit Lender shall make an
amount equal to its Pro Rata Share of the amount specified in such Committed
Loan Notice available to the Administrative Agent in immediately available
funds (and the Administrative Agent may apply Cash Collateral available with
respect to the applicable Swing Line Loan) for the account of the applicable
Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m.
on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Revolving Credit Lender that so makes funds available shall be deemed to
have made a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the
funds so received to such Swing Line Lender.


 


(ii)                                  If for any reason any Swing Line Loan cannot
be refinanced by such a Revolving Credit Borrowing in accordance with Section 2.04(c)(i),
the request for Base Rate Loans submitted by any Swing Line Lender as set forth
herein shall be deemed to be a request by such Swing Line Lender that each of
the Revolving Credit Lenders fund its risk participation in the relevant Swing
Line Loan and each Revolving Credit Lender’s payment to the Administrative
Agent for the account of such Swing Line Lender pursuant to Section 2.04(c)(i) shall
be deemed payment in respect of such participation.


 


(iii)                               If any Revolving Credit Lender fails to make
available to the Administrative Agent for the account of the applicable Swing
Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time
specified in Section 2.04(c)(i), such Swing Line Lender shall be
entitled to recover from such Lender (acting through the Administrative Agent),
on demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available
to such Swing Line Lender at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by such Swing Line Lender in
accordance with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by such Swing
Line Lender in connection with the foregoing. 
If such Revolving Credit Lender pays such amount (with interest and fees
as aforesaid), the amount so paid shall constitute such Lender’s Revolving
Credit Loan included in the relevant Revolving Credit Borrowing or funded
participation in the relevant Swing Line Loan, as the case may be.  A certificate of the applicable Swing Line
Lender submitted to any Lender (through the Administrative Agent) with respect
to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.


 


(iv)                              Each Revolving Credit Lender’s obligation to
make Revolving Credit Loans or to purchase and fund risk participations in
Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against any Swing Line Lender, the Borrower or any
other Person for any reason whatsoever, (B) the occurrence or continuance
of a Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided, however, that each
Revolving Credit Lender’s obligation to make Revolving


 


52

















 


Credit Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02.  No such funding of risk participations shall
relieve or otherwise impair the obligation of the Borrower to repay Swing Line
Loans, together with interest as provided herein.


 


(d)                                 Repayment of Participations.


 


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


 


(ii)                                  If any payment received by any Swing Line
Lender in respect of principal or interest on any Swing Line Loan is required
to be returned by such Swing Line Lender under any of the circumstances
described in Section 10.05 (including pursuant to any settlement
entered into by such Swing Line Lender in its discretion), each Revolving
Credit Lender shall pay to such Swing Line Lender its Pro Rata Share thereof on
demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned, at a rate per annum equal to the
Federal Funds Rate.  The Administrative
Agent will make such demand upon the request of the applicable Swing Line
Lender.  The obligations of the Lenders
under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.


 


(e)                                  Interest for Account of Swing Line Lender.  Each
Swing Line Lender shall be responsible for invoicing the Borrower for interest
on the Swing Line Loans made by it. 
Until each Revolving Credit Lender funds its Base Rate Loan or risk
participation pursuant to this Section 2.04 to refinance such
Lender’s Pro Rata Share of any Swing Line Loan, interest in respect of such Pro
Rata Share shall be solely for the account of the applicable Swing Line Lender.


 


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


 


2.05                           Prepayments.


 


(a)                                  Optional. 
(i)  The Borrower may, upon notice to the Administrative
Agent, at any time or from time to time voluntarily prepay Loans in whole or in
part without premium or penalty; provided that (1) such notice must
be received by the Administrative Agent not later than 11:00 a.m. (A) three
Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on
the date of prepayment of Base Rate Loans; (2) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (3) any prepayment of Base
Rate Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding.  Each such
notice shall specify the date and amount of such prepayment and the Type(s) of
Loans to be prepaid.  The Administrative
Agent 


 


53

















 


will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender’s Pro Rata Share of such prepayment.  If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05.  Each prepayment of the outstanding Term Loans
pursuant to this Section 2.05(a) shall be applied (i) ratably
to the Term A Facility and, if applicable, any Incremental Term Facilities and (ii) to
the principal repayment installments thereof on a pro rata basis and
each such prepayment shall be paid to the Lenders in accordance with their
respective Pro Rata Shares.  Subject to Section 2.17,
each prepayment of the outstanding Revolving Credit Loans shall be applied to
the Revolving Credit Loans of the Lenders in accordance with their respective
Pro Rata Shares.


 


(ii)                                  The Borrower may, upon notice to the
applicable Swing Line Lender (with a copy to the Administrative Agent), at any
time or from time to time, voluntarily prepay Swing Line Loans made by such
Swing Line Lender in whole or in part without premium or penalty; provided
that (1) such notice must be received by the applicable Swing Line Lender
and the Administrative Agent not later than 1:00 p.m. on the date of the
prepayment, and (2) any such prepayment shall be in a minimum principal
amount of $500,000.  Each such notice
shall specify the date and amount of such prepayment.  If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.


 


(b)                                 Mandatory. 
(i)  Upon any Extraordinary Receipt received by or paid to or
for the account of the Borrower or any of its Subject Subsidiaries in respect
of its property or assets, after the first $30,000,000 of Net Cash Proceeds
relating to any Extraordinary Receipt and thereafter any amount in excess of
$5,000,000 for any one event or series of related events, the Borrower shall
prepay an aggregate principal amount of Loans equal to 100% of all Net Cash
Proceeds received therefrom within three Business Days after the date of
receipt thereof by the Borrower or such Subsidiary subject to the provisions of
Section 2.05(b)(iv); provided that so long as no Default
shall have occurred and be continuing, (A) if the Borrower intends to
reinvest the Net Cash Proceeds thereof in capital assets used or useful in the
business which may (but are not required to) be a replacement, restoration or
repair of the assets or property in respect of which the Extraordinary Receipt
was received, it shall deliver written notice of such intention to the
Administrative Agent on or prior to the fifth Business Day immediately
following the date on which Borrower receives such Net Cash Proceeds, (B) if
the Borrower shall have delivered such notice, the Net Cash Proceeds thereof
may be reinvested so long as within 12 months after the receipt of such Net Cash
Proceeds such reinvestment shall have begun and so long as such reinvestment
has not been terminated, abandoned or unreasonably delayed, and is
substantially completed within 24 months after the date of receipt of such Net
Cash Proceeds (provided that if the relevant project is not substantially
completed within 24 months after such date of receipt, the Borrower shall have
up to an additional 12 months to complete such project so long as it certifies
in a written notice to the Administrative Agent delivered prior to the
expiration of such 24-month period that it reasonably expects completion to
occur within such additional 12-month period and attaching a budget and
schedule for the remaining portion of the construction that evidences the
same), and (C) within 10 days of the date the Borrower consummates such
restoration, repair or


 


54
















 


replacement
or purchase, it shall deliver a certificate of a Responsible Officer to the
Administrative Agent certifying that all, or, subject to the immediately
succeeding proviso, part of, such Net Cash Proceeds have been reinvested in
accordance with the proviso of this Section 2.05(b)(i) and, as
a result, no mandatory prepayments are required under this Section 2.05(b)(i);
provided  further that any Net Cash Proceeds not so reinvested at
the end of such period shall be immediately applied to the prepayment of the
Loans as set forth in this Section 2.05.


 


(ii)                                  Each prepayment of Loans pursuant to this Section 2.05(b) shall
be applied, first, ratably to the Term A Facility and, if applicable,
the Incremental Term Facilities and to the principal repayment installments
thereof on a pro rata basis and, thereafter, to the Revolving Credit
Facility in the manner set forth in clause (iii) of this Section 2.05(b).


 


(iii)                               Prepayments of the Revolving Credit Facility
made pursuant to clause (i) of this Section 2.05(b), first, shall be applied to prepay L/C Borrowings
outstanding at such time until all such L/C Borrowings are paid in full, second, shall be applied to prepay Swing Line Loans
outstanding at such time until all such Swing Line Loans are paid in full, and,
third, shall be applied to prepay Revolving Credit Loans
outstanding at such time until all such Revolving Credit Loans are paid in
full; and, in the case of prepayments of the Revolving Credit Facility required
pursuant to clause (i) of this Section 2.05(b), the amount
remaining, if any, after the prepayment in full of all Loans and L/C Borrowings
outstanding at such time, may be retained by the Borrower for use in the
ordinary course of its business.  Upon
the drawing of any Letter of Credit, which has been Cash Collateralized, such
funds shall be applied (without any further action by or notice to or from the
Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the
Revolving Credit Lenders, as applicable.


 


(iv)                              Notwithstanding the provisions of Section 2.05(b)(i),
if any mandatory prepayments under Section 2.05(b)(i) would
result in the Borrower incurring any obligation (as determined in the
reasonable judgment of the Borrower) under Section 3.05 as a result
of any such mandatory prepayment of Eurodollar Loans prior to the last day of
an Interest Period, so long as no Default has occurred and is continuing, the
Borrower may defer the making of such mandatory prepayment until the earlier of
(A) the last day of such Interest Period and (B) the date thirty days
after the date on which such mandatory prepayment would otherwise have been
required to be made.


 


(c)                                  If for any reason the Total Outstandings at
any time exceed the Aggregate Commitments then in effect, the Borrower shall
immediately prepay Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount equal to such excess; provided, however, that
the Borrower shall not be required to Cash Collateralize the L/C Obligations
pursuant to this Section 2.05(c) unless after the prepayment
in full of the Revolving Credit Loans and Swing Line Loans the Total
Outstandings exceed the Aggregate Commitments then in effect.


 


2.06                           Termination or
Reduction of Commitments.


 


(a)                                  Optional.  The Borrower may, upon notice to the
Administrative Agent, terminate the unused portions of the Term Commitments,
the Letter of Credit Sublimit, or the unused Revolving Credit Commitments, or
from time to time permanently reduce the unused portions of the Term
Commitments, the Letter of Credit Sublimit, or the unused Revolving 


 


55

















 


Credit
Commitments; provided that (i) any such notice shall be received by
the Administrative Agent not later than 11:00 a.m. five Business Days
prior to the date of termination or reduction, (ii) any such partial
reduction shall be in an aggregate amount of $10,000,000 or any whole multiple
of $1,000,000 in excess thereof and (iii) the Borrower shall not terminate
or reduce the unused portions of the Term Commitments, the Letter of Credit
Sublimit, or the unused Revolving Credit Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Outstandings
would exceed the Aggregate Commitments.


 


(b)                                 Mandatory.  (i)  The aggregate Term Commitments
under any Term Facility shall be
automatically and permanently reduced to zero on the date of a Term Borrowing
under such Term Facility (after giving effect to such Term Borrowing).


 


(ii)                                  If after giving effect to any reduction or
termination of unused Revolving Credit Commitments under this Section 2.06,
the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of
the Aggregate Revolving Credit Commitments, such Sublimit shall be
automatically reduced by the amount of such excess.


 


(c)                                  Application of Commitment Reductions; Payment
of Fees.  The Administrative Agent will promptly notify
the Lenders of any termination or reduction of unused portions of the Term
Commitment, the Letter of Credit Sublimit, or the unused Revolving Credit Commitment
under this Section 2.06. 
Each reduction of the unused portion of the Term Commitments pursuant to
Section 2.06(a) shall be applied ratably to the Term A
Facility and, if applicable, the Incremental Term Facilities and to the
principal repayment installments thereof on a pro rata basis.  Upon any reduction of unused Commitments
under a Facility, the Commitment of each Lender under such Facility shall be
reduced by such Lender’s Pro Rata Share of the amount by which such Facility is
reduced.  All fees accrued until the
effective date of any termination of the Aggregate Commitments shall be paid on
the effective date of such termination.


 


(d)                                 Scheduled Reduction of Incremental Term
Commitments.  With respect to any Incremental Term
Facility, any reduction in the Incremental Term Commitments under such
Incremental Term Facility shall be set forth in the applicable Incremental Term
Facility Supplement.


 


2.07                           Repayment of Loans.


 


(a)                                  Term A Loans.  The
Borrower shall repay to the Administrative Agent for the ratable account of the
Term A Lenders the aggregate principal amount of all Term A Loans outstanding
on the following dates in the respective amounts set forth opposite such dates
(which amounts shall be reduced as a result of the application of prepayments
in accordance with the order of priority set forth in Section 2.05):


 


56

















 


	
  Date

  	
   

  	
  Amount

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  March 31, 2011

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  September 30, 2011

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  December 30, 2011

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  March 29, 2012

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  June 30, 2012

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  September 30, 2012

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  December 30, 2012

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  March 29, 2013

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  June 30, 2013

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  September 30, 2013

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  December 30, 2013

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  March 29, 2014

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  June 30, 2014

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  September 30, 2014

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  December 30, 2014

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  March 29, 2015

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  June 30, 2015

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  September 30, 2015

  	
   

  	
  $

  	
  10,000,000

  	
   

  



 


provided, however,
that the final principal repayment installment of the Term A Loans shall be
repaid on the Maturity Date for the Term A Facility under which such Term A
Loans were made and in any event shall be in an amount equal to the aggregate
principal amount of all Term A Loans outstanding on such date.


 


(b)                                 Revolving Credit Loans.  The
Borrower shall repay to the Administrative Agent for the ratable account of the
Revolving Credit Lenders on the Maturity Date for the Revolving Credit Facility
the aggregate principal amount of all Revolving Credit Advances outstanding on
such date.


 


(c)                                  Swing Line Loans.  The
Borrower shall repay each Swing Line Loan on the earlier to occur of
(i) the date thirty days after such Loan is made and (ii) the
Maturity Date.


 


(d)                                 Incremental Term Loans.  The
Borrower shall repay to the Administrative Agent for the ratable account of the
Term Lenders the aggregate principal amount of all Incremental Term Loans under
any applicable Incremental Term Facility outstanding on the dates in the
respective amounts on such dates (which amounts shall be reduced as a result of
the application of prepayments in accordance with the order of priority set
forth in Section 2.05) as may be set forth in the applicable
Incremental Term Facility Supplement:  provided,
however, that the final principal repayment installment of the
applicable Incremental Term Loans shall be repaid on the Maturity Date for the
applicable Incremental Term Facility under which such Incremental Loans were
made and in any event shall be in an amount equal to the aggregate principal
amount of all applicable Incremental Term Loans outstanding on such date.


 


2.08                           Interest


 


(a)                                  Subject to the provisions of Section 2.08(b),
(i) each Eurodollar Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurodollar Rate for such Interest Period plus the Applicable Rate; 


 


57

















 


(ii) each
Base Rate Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate; and (iii) each Swing Line Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at
a fluctuating rate per annum equal to the “prime rate” as referred to in the
definition of Base Rate.


 


(b)                                 (i)  During all times that an Event of
Default under Section 8.01(a), Section 8.01(f) or Section 8.01(g) shall
have occurred and be continuing, the Borrower shall pay interest on the
principal amount of all outstanding Obligations hereunder at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.


 


(ii)                                  Accrued and unpaid interest on past due
amounts (including interest on past due interest) shall be due and payable upon
demand.


 


(c)                                  Interest on each Loan shall be due and payable
in arrears on each Interest Payment Date applicable thereto and at such other
times as may be specified herein. 
Interest hereunder shall be due and payable in accordance with the terms
hereof before and after judgment, and before and after the commencement of any proceeding
under any Debtor Relief Law.


 


2.09                           Fees.  In addition to certain fees described in Sections
2.03(h) and (i):


 


(a)                                  Commitment Fee.  The
Borrower shall pay to the Administrative Agent for the account of each
Revolving Credit Lender in accordance with its Pro Rata Share, a commitment fee
equal to the Applicable Rate times the actual daily amount by which the
aggregate Revolving Credit Commitments exceed the sum of (A) the
Outstanding Amount of Revolving Credit Loans and (B) the Outstanding
Amount of L/C Obligations, subject to adjustment as provided in Section 2.17.  The commitment fee shall accrue at all times
during the Availability Period, including at any time during which one or more
of the conditions in Article IV is not met, and shall be due and
payable quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Restatement
Closing Date, and on the Maturity Date. 
The commitment fee shall be calculated quarterly in arrears, and if
there is any change in the Applicable Rate during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect.


 


(b)                                 Other Fees. 
(i)  The Borrower shall pay to the Arrangers and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letter to which the Borrower and such Person
are parties.  Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.


 


(ii)                                  The Borrower shall pay to the Administrative
Agent such fees as shall have been separately agreed upon in writing in the
amounts and at the times so specified. 
Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.


 


58

















 


2.10                           Computation of
Interest and Fees.  All
computations of interest for Base Rate Loans (including Base Rate Loans
determined by reference to the Eurodollar Rate) shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on
the basis of a 365-day year).  Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on the same day
on which it is made shall, subject to Section 2.12(a), bear
interest for one day.  Each determination
by the Administrative Agent of an interest rate or fee hereunder shall be
conclusive and binding for all purposes, absent manifest error.


 


2.11                           Evidence of
Indebtedness.


 


(a)                                  The Credit Extensions made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Credit Extensions made by the Lenders to the Borrower and
the interest and payments thereon.  Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower hereunder to pay any amount
owing with respect to the Obligations. 
In the event of any conflict between the accounts and records maintained
by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent
shall control in the absence of manifest error. 
Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Note, which shall evidence such Lender’s Loans in
addition to such accounts or records. 
Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Loans and payments with
respect thereto.


 


(b)                                 In addition to the accounts and records
referred to in Section 2.11(a), each Lender and the Administrative
Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters
of Credit and Swing Line Loans.  In the
event of any conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Lender in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error.


 


(c)                                  Entries made in good faith by the
Administrative Agent in the Register pursuant to Section 2.11(b),
and by each Lender in its account or accounts pursuant to Section 2.11(a),
shall be prima facie evidence of
the amount of principal and interest due and payable or to become due and
payable from the Borrower to, in the case of the Register, each Lender and, in
the case of such account or accounts, such Lender, under this Agreement and the
other Loan Documents, absent manifest error; provided that the failure
of the Administrative Agent or such Lender to make an entry, or any finding
that an entry is incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of the Borrower under this
Agreement and the other Loan Documents.


 


59

















 


2.12                           Payments Generally.


 


(a)                                  All payments to be made by the Borrower shall
be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.  Except as
otherwise expressly provided herein, all payments by the Borrower hereunder shall
be made to the Administrative Agent, for the account of the respective Lenders
to which such payment is owed, at the Administrative Agent’s Office in Dollars
and in immediately available funds not later than 2:00 p.m. on the date
specified herein.  The Administrative
Agent will promptly distribute to each Lender its Pro Rata Share (or other
applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative
Agent after 2:00 p.m. shall be deemed received on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue.


 


(b)                                 If any payment to be made by the Borrower
shall come due on a day other than a Business Day, payment shall be made on the
next following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be; provided, however,
that, if such extension would cause payment of interest on or principal of
Eurodollar Rate Loans to be made in the next succeeding calendar month, such
payment shall be made on the immediately preceding Business Day.


 


(c)                                  Unless the Borrower or any Lender has notified
the Administrative Agent, prior to the date any payment is required to be made
by it to the Administrative Agent hereunder, that the Borrower or such Lender,
as the case may be, will not make such payment, the Administrative Agent may
assume that the Borrower or such Lender, as the case may be, has timely made
such payment and may (but shall not be so required to), in reliance thereon,
make available a corresponding amount to the Person entitled thereto.  If and to the extent that such payment was
not in fact made to the Administrative Agent in immediately available funds,
then:


 


(i)                                     if the Borrower failed to make such payment,
each Lender shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect of each
day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the
Administrative Agent in immediately available funds at a rate per annum equal
to the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the
foregoing; and


 


(ii)                                  if any Lender failed to make such payment,
such Lender shall forthwith on demand pay to the Administrative Agent the
amount thereof in immediately available funds, together with interest thereon
for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is recovered by
the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the
greater of the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation,
plus any administrative, processing or similar fees customarily charged by 


 


60

















 


the Administrative Agent in connection with the
foregoing.  If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender’s Loan included in the applicable Borrowing.  If such Lender does not pay such amount
forthwith upon the Administrative Agent’s demand therefor, the Administrative
Agent may make a demand therefor upon the Borrower, and the Borrower shall pay
such amount to the Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Borrowing. 
Nothing herein shall be deemed to relieve any Lender from its obligation
to fulfill its Commitment or to prejudice any rights, which the Administrative
Agent or the Borrower may have against any Lender as a result of any default by
such Lender hereunder.


 


A
notice of the Administrative Agent to any Lender or the Borrower with respect
to any amount owing under this Section 2.12(c) shall be
conclusive, absent manifest error.


 


(d)                                 If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided
in the foregoing provisions of this Article II, and such funds are
not made available to the Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article IV
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.


 


(e)                                  The obligations of the Lenders hereunder to
make Loans and to fund participations in Letters of Credit and Swing Line Loans
and to make payments pursuant to Section 10.04(c) are several
and not joint.  The failure of any Lender
to make any Loan, to fund any such participation or to make any payment under Section 10.04(c) on
any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan, to
purchase its participation or to make its payment under Section 10.04(c).


 


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


 


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


 


(h)                                 Whenever any payment received by the
Administrative Agent under this Agreement or any of the other Loan Documents is
insufficient to pay in full all amounts due and payable to the Agents and the
Lenders under or in respect of this Agreement and the other Loan Documents on
any date, such payment shall be distributed by the Administrative Agent and
applied by the Agents and the Lenders in the order of priority set forth in Section 8.03.  If the Administrative Agent receives funds
for application to the Obligations of the Loan Parties under or in respect of
the Loan Documents under circumstances for which the Loan Documents do not
specify the manner in which such funds are to be applied, the Administrative
Agent may, but 


 


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shall
not be obligated to, elect to distribute such funds to each of the Lenders in
accordance with such Lender’s Pro Rata Share of the sum of (A) the
Outstanding Amount of all Loans outstanding at such time and (b) the
Outstanding Amount of all L/C Obligations outstanding at such time, in
repayment or prepayment of such of the outstanding Loans or other Obligations
then owing to such Lender.


 


2.13                           Sharing of Payments.  If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it,
or the participations in L/C Obligations or in Swing Line Loans held by it, any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify
the Administrative Agent of such fact, and (b) purchase from the other
Lenders such participations in the Loans made by them and/or such
subparticipations in the participations in L/C Obligations or Swing Line Loans
held by them, as the case may be, as shall be necessary to cause such
purchasing Lender to share the excess payment in respect of such Loans or such
participations, as the case may be, pro rata with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender under any of the circumstances described
in Section 10.05(including pursuant to any settlement entered into
by the purchasing Lender in its discretion), such purchase shall to that extent
be rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender’s ratable share (according to the proportion of (i) the amount of
such paying Lender’s required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered,
without further interest thereon.  The
Borrower agrees that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of setoff, but subject to Section 10.08)
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation; provided  further
that, so long as the Obligations under the Loan Documents shall not have been
accelerated, any excess payment received by any Appropriate Lender shall be
shared on a pro rata basis only with other Appropriate Lenders.  The Administrative Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify
the Lenders following any such purchases or repayments.  Each Lender that purchases a participation
pursuant to this Section shall from and after such purchase have the right
to give all notices, requests, demands, directions and other communications
under this Agreement with respect to the portion of the Obligations purchased
to the same extent as though the purchasing Lender were the original owner of
the Obligations purchased.


 


The
provisions of this Section shall not be construed to apply to (x) the application of Cash Collateral provided
for in Section 2.16, or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any
assignee or participant, other than an assignment to the Borrower or any
Affiliate  thereof (as to which the provisions of
this Section shall apply).


 


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2.14                           Increase in
Revolving Commitments


 


(a)                                  So long as no Default has occurred and is
continuing and no Default would result therefrom, upon notice to the
Administrative Agent (which shall promptly notify all of the Lenders), the
Borrower may from time to time request an increase in the Revolving Credit
Commitments (each request for an increase in Revolving Credit Commitments being
a “Revolving
Credit Commitment Increase”; provided that (i) any such request
for an increase shall be in a minimum amount of $15,000,000, (ii) the
Borrower may make a maximum of four such requests and (iii) after giving effect
to any such increase, the aggregate amount of the Revolving Credit Commitments
and the Term Facilities shall not exceed $1,350,000,000 at any time.  At the time of sending such notice, the
Borrower (in consultation with the Administrative Agent) shall specify the time
period within which each Lender is requested to respond (which shall in no
event be less than ten Business Days from the date of delivery of such notice
to the Lenders).  Each Lender shall
notify the Administrative Agent within such time period whether or not it
agrees to increase (which it may determine in its sole discretion) its
Revolving Credit Commitment and, if so, whether by an amount equal to, greater
than, or less than its Pro Rata Share of such requested increase.  Any Lender not responding within such time
period shall be deemed to have declined to increase its Commitment.  The Administrative Agent shall notify the
Borrower and each Lender of the Lenders’ responses to each request made
hereunder.  In the event that
insufficient Revolving Credit Commitments are received, the Borrower may
request additional Revolving Credit Commitments from new lenders that are
Eligible Assignees and upon execution of a Joinder Agreement, such Eligible
Assignee shall become a Revolving Credit Lender hereunder and the Borrower also
may reduce the amount of such requested increase, so long as such reduced
amount is not less than the minimum amount. 
Schedule 2.01 shall be modified accordingly for all such new
Revolving Credit Commitments.


 


(b)                                 If the Commitments are increased in accordance
with this Section 2.14, the Administrative Agent and the Borrower
shall determine the effective date (the “Increase
Effective Date”) and the final allocation of such increase.  The Administrative Agent shall promptly
notify the Borrower and the Lenders of the final allocation of such increase
and the Increase Effective Date.  As a
condition precedent to such increase, the Borrower shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a Responsible
Officer of such Loan Party (i) certifying and attaching the resolutions
adopted by such Loan Party approving or consenting to such increase, and (ii) in
the case of the Borrower, certifying that, before and after giving effect to
such increase, (A) the representations and warranties contained in Article V
and the other Loan Documents are true and correct on and as of the Increase
Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that for purposes of this Section 2.14,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to subsections (a) and (b), respectively, of Section 6.01,
and (B) no Default exists.


 


(c)                                  On each Increase Effective Date, (x) the
Borrower shall prepay Revolving Credit Loans outstanding on such Increase
Effective Date (and pay any additional amounts required pursuant to Section 3.05),
including with the proceeds of new Revolving Credit Borrowings, to the extent
necessary to keep Revolving Credit Loans ratable with any revised Pro 


 


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Rata
Shares arising from any nonratable increase in the Commitments under this Section 2.14,
and (y) if any L/C Advances are then outstanding pursuant to Section 2.03(c)(iii) or
any participations in Swing Line Loans pursuant to Section 2.04(c)(ii) are
outstanding, each Additional Revolving Credit Lender and each existing
Revolving Credit Lender increasing its Revolving Credit Commitments shall make
such L/C Advances or fund such participations in Swing Line Loans, and the L/C
Advances or participations in Swing Line Loans of existing Revolving Credit
Lenders not increasing their Revolving Credit Commitments shall be repaid, in
each case, to the extent necessary to keep such L/C Advances and participations
ratable with any revised Pro Rata Shares arising from any nonratable increase
in the Commitments pursuant to this Section 2.14.


 


(d)                                 This Section shall supersede any
provisions in Section 10.01 to the contrary.


 


2.15                           Increase in Term
Loan Commitments.


 


(a)                                  So long as no Default has occurred and is
continuing and no Default would result therefrom, upon notice to the
Administrative Agent (which shall promptly notify all of the Lenders), the
Borrower may from time to time, request the addition of one or more new term
loan facilities (each an “Incremental
Term Facility”)
or one or more increases in the Term Commitments under a Term Facility existing
at the time of such request (each such request for an Incremental Term Facility
or an increase in Term Commitments being a “Term Commitment Increase”); provided that (i) any such request
for Incremental Term Commitments shall be in a minimum amount of $50,000,000, (ii) the
Borrower may make a maximum of three such requests and (iii) after giving
effect to any such Term Commitment Increase, the aggregate amount of the
Revolving Credit Commitments and the Term Facilities shall not exceed
$1,350,000,000 at any time.  At the time
of sending such notice, the Borrower (in consultation with the Administrative
Agent) shall specify:


 


(A)                              The time period
within which each Lender is requested to respond, which shall in no event be
less than ten Business Days from the date of delivery of such notice to the
Lenders,


 


(B)                                If the request
is for an Incremental Term Facility, the requested Maturity Date for such
Incremental Term Facility, which shall not be prior to six months after the
Maturity Date in respect of the Term A Facility,


 


(C)                                If the request
is for an Incremental Term Facility, the requested amortization schedule for
such Incremental Term Loans, which shall not amortize more rapidly (determined
on the basis of amortization as a percentage of the initial principal amount)
than quarterly installments of Term A Loans, and


 


(D)                               If the request
is for an Incremental Term Facility, any scheduled reduction of Incremental
Term Commitments for such Incremental Term Facility.


 


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(b)                                 Each Lender
shall notify the Administrative Agent within such time period whether or not it
agrees to participate (which it may determine in its sole discretion) in such
Incremental Term Facility and, if so, by what amount.  Any Lender not responding within such time
period shall be deemed to have declined to participate.  The Administrative Agent shall notify the
Borrower and each Lender of the Lenders’ responses to each request made
hereunder.  In the event that
insufficient Incremental Term Commitments are received, the Borrower may
request additional Incremental Term Commitments from new lenders that are
Eligible Assignees and also may reduce the amount of such requested Incremental
Term Commitments so long as such reduced amount is not less than the minimum
amount.  Any Eligible Assignee agreeing
to a Commitment in respect of an existing Term Facility shall, upon execution
of a Joinder Agreement, become a Term Lender hereunder.  Such Incremental Term Facility, and the terms
thereof, shall be set forth in an Incremental Term Facility Supplement to this
Agreement among the Borrower and the Lenders under the Incremental Term
Facility (upon execution of an Incremental Term Facility Supplement any
Eligible Assignee shall become a Term Lender hereunder).  Schedule 1 to such Incremental Term
Facility Supplement shall set forth the Incremental Term Commitments of each
Term Lender.


 


(c)                                  If Incremental
Term Commitments are effected in accordance with this Section, the
Administrative Agent and the Borrower shall determine the effective date (the “Incremental Effective Date”)
and the final allocation of such Incremental Term Facility.  The Administrative Agent shall promptly
notify the Borrower and the Lenders of the final allocation of such increase
and the Incremental Effective Date.  As a
condition precedent to such increase, (i) the Borrower shall deliver to
the Administrative Agent a certificate of each Loan Party dated as of the
Incremental Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (A) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such
increase, and (B) in the case of the Borrower, certifying that, before and
after giving effect to such increase, (x) the representations and
warranties contained in Article V and the other Loan Documents are
true and correct on and as of the Incremental Effective Date, except to the
extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date,
and except that for purposes of this Section 2.15, the
representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to subsections (a) and (b), respectively, of Section 6.01,
and (y) no Default exists, and (ii) each Guarantor shall reaffirm its
obligations under the Guaranty.


 


(d)                                 This Section shall
supersede any provisions in Section 10.01 to the contrary.


 


2.16                           Cash  Collateral.


 


(a)                                  Certain Credit
Support Events.  Upon the
request of the Administrative Agent or any L/C Issuer (i) if such L/C
Issuer has honored any full or partial drawing request under any Letter of
Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as
of the Letter of Credit Expiration Date, any L/C Obligation for any reason
remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations.  At any time that there shall exist a
Defaulting Lender that is a Revolving Lender, immediately upon the request of
the Administrative Agent, any L/C Issuer or any Swing Line 


 


65

















 


Lender, the Borrower shall deliver to the
Administrative Agent Cash Collateral in an amount sufficient to cover all
Fronting Exposure (after giving effect to Section 2.17(a)(iv) and
any Cash Collateral provided by such Defaulting Lender).


 


(b)                                 Grant of
Security Interest.  All Cash Collateral
(other than credit support not constituting funds subject to deposit) shall be
maintained in blocked, non-interest bearing deposit accounts at Bank of
America.  The Borrower, and to the extent
provided by any Lender, such Lender, hereby grants to (and subjects to the
control of) the Administrative Agent, for the benefit of the Administrative
Agent, the L/C Issuers and the Lenders (including the Swing Line Lenders), and
agrees to maintain, a first priority security interest in all such cash, deposit
accounts and all balances therein, and all other property so provided as
collateral pursuant hereto, and in all proceeds of the foregoing, all as
security for the obligations to which such Cash Collateral may be applied
pursuant to Section 2.16(c). 
If at any time the Administrative Agent determines that Cash Collateral
is subject to any right or claim of any Person other than the Administrative
Agent as herein provided, or that the total amount of such Cash Collateral is
less than the applicable Fronting Exposure and other obligations secured
thereby, the Borrower or the relevant Defaulting Lender will, promptly upon
demand by the Administrative Agent, pay or provide to the Administrative Agent
additional Cash Collateral in an amount sufficient to eliminate such
deficiency.


 


(c)                                  Application.  Notwithstanding
anything to the contrary contained in this Agreement, Cash Collateral provided
under any of this Section 2.16 or Sections 2.03, 2.04,
2.05, 2.17 or 8.02 in respect of Letters of Credit or
Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations, Swing Line Loans,
obligations to fund participations therein (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) and
other obligations for which the Cash Collateral was so provided, prior to any
other application of such property as may be provided for herein.


 


(d)                                 Release.  Cash Collateral (or the appropriate portion
thereof) provided to reduce Fronting Exposure or other obligations shall be
released promptly following (i) the elimination of the applicable Fronting
Exposure or other obligations giving rise thereto (including by the termination
of Defaulting Lender status of the applicable Lender (or, as appropriate, its
assignee following compliance with Section 10.06(b)(vi))) or (ii) the
Administrative Agent’s good faith determination that there exists excess Cash
Collateral; provided, however, (x) that Cash Collateral furnished
by or on behalf of a Loan Party shall not be released during the continuance of
a Default (and following application as provided in this Section 2.16
may be otherwise applied in accordance with Section 8.03), and (y) the
Person providing Cash Collateral and the L/C Issuers or Swing Line Lenders, as
applicable, may agree that Cash Collateral shall not be released but instead
held to support future anticipated Fronting Exposure or other obligations.


 


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2.17                           Defaulting  Lenders; Adjustments.  Notwithstanding anything to the contrary
contained in this Agreement, if any Lender becomes a Defaulting Lender, then,
until such time as that Lender is no longer a Defaulting Lender, to the extent
permitted by applicable Law:


 


(i)                                     Waivers and
Amendments.  That Defaulting
Lender’s right to approve or disapprove any amendment, waiver or consent with
respect to this Agreement shall be restricted as set forth in Section 10.01.


 


(ii)                                  Reallocation of
Payments.  Any payment
of principal, interest, fees or other amounts received by the Administrative
Agent under this Agreement for the account of that Defaulting Lender (whether
voluntary or mandatory, at maturity, pursuant to Article VIII or
otherwise, and including any amounts made available to the Administrative Agent
by that Defaulting Lender pursuant to Section 10.08), shall be
applied at such time or times as may be determined by the Administrative Agent
as follows: first, to the payment of any amounts
owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts
owing by that Defaulting Lender to an L/C Issuer or a Swing Line Lender
hereunder; third, if so determined by the
Administrative Agent or requested by an L/C Issuer or a Swing Line Lender, to
be held as Cash Collateral for future funding obligations of that Defaulting
Lender of any participation in any Swing Line Loan or Letter of Credit; fourth, as the Borrower may request (so long as no Default
exists), to the funding of any Loan in respect of which that Defaulting Lender
has failed to fund its portion thereof as required by this Agreement, as
determined by the Administrative Agent; fifth, if so
determined by the Administrative Agent and the Borrower, to be held in a
non-interest bearing deposit account and released in order to satisfy
obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders,
the L/C Issuers or the Swing Line Lenders as a result of any judgment of a
court of competent jurisdiction obtained by any Lender, an L/C Issuer or a
Swing Line Lender against that Defaulting Lender as a result of that Defaulting
Lender’s breach of its obligations under this Agreement; seventh,
so long as no Default exists, to the payment of any amounts owing to the
Borrower as a result of any judgment of a court of competent jurisdiction
obtained by the Borrower against that Defaulting Lender as a result of that
Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed
by a court of competent jurisdiction; provided that if (x) such
payment is a payment of the principal amount of any Loans or L/C Borrowings in
respect of which that Defaulting Lender has not fully funded its appropriate
share and (y) such Loans or L/C Borrowings were made at a time when the
conditions set forth in Section 4.02 were satisfied or waived, such
payment shall be applied solely to pay the Loans of, and L/C Borrowings owed
to, all non-Defaulting Lenders on a pro rata basis prior to being applied to
the payment of any Loans of, or L/C Borrowings owed to, that Defaulting
Lender.  Any payments, prepayments or
other amounts paid or payable to a Defaulting Lender that are applied (or held)
to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant
to this Section 2.17(a)(ii) shall be deemed paid to and
redirected by that Defaulting Lender, and each Lender irrevocably consents
hereto.


 


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(iii)                               Certain Fees.  That Defaulting
Lender (x) shall  not be
entitled to receive any commitment fee pursuant to Section 2.09(a) for
any period during which that Lender is a Defaulting Lender (and the Borrower
shall not be required to pay any such fee that otherwise would have been
required to have been paid to that Defaulting Lender) and (y) shall be
limited in its right to receive Letter of Credit Fees as provided in Section 2.03(h).


 


(iv)                              Reallocation of
Pro Rata Shares to Reduce Fronting Exposure.  During any period in which there is a
Defaulting Lender that is a Revolving Lender, for purposes of computing the
amount of the obligation of each non-Defaulting Lender to acquire, refinance or
fund participations in Letters of Credit or Swing Line Loans pursuant to Sections
2.03 and 2.04, the “Pro Rata Share” of each non-Defaulting Lender shall be
computed without giving effect to the Commitment of that Defaulting Lender; provided,
that, (i) each such reallocation shall be given effect only if, at the date
the applicable Lender becomes a Defaulting Lender, no Default exists; and (ii) the
aggregate obligation of each non-Defaulting Lender to acquire, refinance or
fund participations in Letters of Credit and Swing Line Loans shall not exceed
the positive difference, if any, of (1) the Commitment of that
non-Defaulting Lender minus (2) the aggregate Outstanding Amount of
the Loans of that Lender.


 


(b)                                 Defaulting Lender Cure.  If the
Borrower, the Administrative Agent, the Swing Line Lenders and the L/C Issuers
agree in writing in their sole discretion that a Defaulting Lender should no
longer be deemed to be a Defaulting Lender, the Administrative Agent will so
notify the parties hereto, whereupon as of the effective date specified in such
notice and subject to any conditions set forth therein (which may include
arrangements with respect to any Cash Collateral), that Lender will, to the
extent applicable, purchase that portion of outstanding Loans of the other
Lenders or take such other actions as the Administrative Agent may determine to
be necessary to cause the Loans and funded and unfunded participations in
Letters of Credit and Swing Line Loans to be held on a pro rata basis by the
Lenders in accordance with their Pro Rata Shares (without giving effect to Section 2.17(a)(iv)),
whereupon that Lender will cease to be a Defaulting Lender; provided
that no adjustments will be made retroactively with respect to fees accrued or
payments made by or on behalf of the Borrower while that Lender was a
Defaulting Lender; and provided, further, that except to the
extent otherwise expressly agreed by the affected parties, no change hereunder
from Defaulting Lender to Lender will constitute a waiver or release of any
claim of any party hereunder arising from that Lender’s having been a
Defaulting Lender.


 


ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01                           Taxes.


 


(a)                                  Unless provided otherwise in Section 10.14(a)(iii),
any and all payments by the Borrower to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the
case of the Administrative Agent and each Lender, (i) taxes imposed on or
measured by its overall net income or its overall gross income 


 


68

















 


and
franchise taxes imposed in lieu thereof, by the United States or by the
jurisdiction (or any political subdivision thereof) under the Laws of which the
Administrative Agent or such Lender, as the case may be, is organized or
maintains a lending office or its principal executive office, and (ii) any
branch profits tax imposed by the United States or any similar tax imposed by
any other jurisdiction in which such lending office or principal executive
office is located or is deemed to be doing business (all such non-excluded
taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and liabilities being hereinafter referred to as “Taxes”).  If the Borrower shall be required by any Laws
to deduct any Taxes from or in respect of any sum payable under any Loan
Document to the Administrative Agent or any Lender, unless provided otherwise
in Section 10.14(a)(iii), (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 3.01(a)),
the Administrative Agent or such Lender, as applicable receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other Governmental
Authority in accordance with applicable Laws, and (iv) within 30 days
after the date of such payment, the Borrower shall furnish to the
Administrative Agent (which shall forward the same to the applicable Lender) or
such Lender (as the case may be) the original or a certified copy of a receipt
evidencing payment thereof to the extent such a receipt is issued therefor, or
such other written evidence of payment thereof that is reasonably satisfactory
to the Administrative Agent.


 


(b)                                 In addition, the Borrower agrees to pay any
and all present or future stamp, court or documentary taxes and any other
excise, property, intangible or mortgage recording taxes or similar charges or
levies which arise from any payment made under any Loan Document or from the
execution, delivery, performance, enforcement or registration of, or otherwise
with respect to, any Loan Document (hereinafter referred to as “Other Taxes”).  If the Borrower is required to pay material
amounts of any Other Taxes with respect to any Loan Document, then the
applicable Lender shall take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including designation of a different lending office, if
any) to eliminate or substantially reduce the amount of such taxes otherwise
payable by the Borrower under this Section 3.01(b).


 


(c)                                  Unless provided otherwise in Section 10.14(a)(iii),
the Borrower agrees to indemnify the Administrative Agent and each Lender for (i) the
full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section)
paid by the Administrative Agent or such Lender, and (ii) any liability
(including additions to tax, penalties, interest and reasonable expenses)
arising therefrom or with respect thereto, in each case whether or not such
Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority.  Payment under
this Section 3.01(c) shall be made within 30 days after the
date such Lender or the Administrative Agent makes a demand therefor.  A certificate setting forth the amount of
such payment delivered by a Lender or the Administrative Agent to the Borrower
shall be conclusive absent the manifest error of the Lender or the
Administrative Agent, as the case may be.


 


(d)                                 If any Lender or the Administrative Agent
receives a refund of Taxes or Other Taxes paid by the Borrower or for which the
Borrower has indemnified any Lender party or the Administrative Agent, as the
case may be, pursuant to this Section 3.01, then such Lender 


 


69

















 


or
the Administrative Agent, as applicable, shall pay the amount of such refund,
net of any expenses incurred by or any Taxes or Other Taxes imposed on such
Lender or the Administrative Agent, to the Borrower within 30 days of the
receipt of such amount; provided that the Borrower agrees, upon the request of
such Lender or the Administrative Agent, to promptly return the amount of such
refund (or a portion thereof) to such Lender or the Administrative Agent
(together with the amount of any applicable penalties, interest or other
charges in respect thereof) if such Lender or the Administrative Agent is
required to repay such refund (or a portion thereof) to the relevant
Governmental Authority.  Notwithstanding
the foregoing, (i) the Borrower shall not be entitled to review the tax
records or financial information of any Lender or the Administrative Agent and (ii) neither
the Administrative Agent nor any Lender shall have any obligation to pursue any
refund of Taxes or Other Taxes paid by the Borrower.


 


3.02                           Illegality.  If any Lender determines that any Law has
made it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or
fund Loans whose interest is determined by reference to the Eurodollar Rate, or
to determine or charge interest rates based upon the Eurodollar Rate, or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, (i) any obligation of such Lender to
make or continue Eurodollar Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts
the illegality of such Lender making or maintaining Base Rate Loans the
interest rate on which is determined by reference to the Eurodollar Rate
component of the Base Rate, the interest rate on which Base Rate Loans of such
Lender shall, if necessary to avoid such illegality, be determined by the
Administrative Agent without reference to the Eurodollar Rate component of the
Base Rate, in each case until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer
exist.  Upon receipt of such notice, (x) the
Borrower shall, upon demand from such Lender (with a copy to the Administrative
Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such
Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such
Lender shall, if necessary to avoid such illegality, be determined by the
Administrative Agent without reference to the Eurodollar Rate component of the
Base Rate), either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such
day, or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans and (y) if such notice asserts the illegality of
such Lender determining or charging interest rates based upon the Eurodollar
Rate, the Administrative Agent shall during the period of such suspension
compute the Base Rate applicable to such Lender without reference to the
Eurodollar Rate component thereof until the Administrative is advised in
writing by such Lender that it is no longer illegal  for such Lender to determine or charge
interest rates based upon the Eurodollar Rate. 
Upon any such prepayment or conversion, the Borrower shall also pay
accrued interest on the amount so prepaid or converted.  Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.


 


3.03                           Inability to
Determine Rates.  If the
Required Lenders determine that for any reason adequate and reasonable means do
not exist for determining the Eurodollar Rate for 


 


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any requested Interest Period with respect to a
proposed Eurodollar Rate Loan or in connection with an existing or proposed
Base Rate Loan, or that the Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, or that Dollar deposits
are not being offered to banks in the London interbank eurodollar market for
the applicable amount and the Interest Period of such Eurodollar Rate Loan, the
Administrative Agent will promptly so notify the Borrower and each Lender.  Thereafter, (x) the obligation of the
Lenders to make or maintain Eurodollar Rate Loans shall be suspended, and (y) in
the event of a determination described in the preceding sentence with respect
to the Eurodollar Rate component of the Base Rate, the utilization of the
Eurodollar Rate component in determining the Base Rate shall be suspended, in
each case until the Administrative Agent (upon the instruction of the Required
Lenders) revokes such notice.  Upon
receipt of such notice, the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for
a Borrowing of Base Rate Loans in the amount specified therein.


 


3.04                           Increased Cost and
Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans


 


(a)                                  If any Lender determines that as a result of
the introduction of or any change in or in the interpretation of any Law that
becomes effective after the date hereof (and in the case of a Lender acquiring
its interest in any Loan or Commitment in an Assignment and Assumption, after
the date of such Assignment and Assumption) or such Lender’s compliance therewith,
there shall be any increase in the cost to such Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Loans or (as the case may be)
issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing
(excluding for purposes of this Section 3.04(a) any such
increased costs or reduction in amount resulting from (i) Taxes or Other
Taxes (as to which Section 3.01 shall govern), (ii) changes in
the basis of taxation of overall net income or overall gross income of such
Lender by the United States or any foreign jurisdiction or any political
subdivision of either thereof under the Laws of which such Lender is organized
or has its Lending Office, and (iii) reserve requirements contemplated by Section 3.04(c) utilized
in the determination of the Eurodollar Rate), then from time to time upon
demand of such Lender (with a copy of such demand to the Administrative Agent),
the Borrower shall pay to such Lender such additional amounts as will
compensate such Lender for such increased cost or reduction.  A certification as to the amount of such
increased cost, including a calculation thereof in reasonable detail, shall be submitted
to the Borrower upon the making of any demand pursuant to this Section.


 


(b)                                 If any Lender determines that the introduction
of any Law regarding capital adequacy or any change therein or in the
interpretation thereof, in each case, that becomes effective after the date
hereof (and in the case of a Lender acquiring its interest in any Loan or
Commitment in an Assignment and Assumption, after the date of such Assignment
and Assumption), or compliance by such Lender (or its Lending Office)
therewith, has the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such
Lender’s obligations hereunder (taking into consideration its policies with
respect to capital adequacy and such Lender’s desired return on capital), then
from 


 


71

















 


time
to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.  A certification as to the amount of such
additional amounts owed to such Lender under this Section 3.04(b),
including a calculation thereof in reasonable detail, shall be submitted to the
Borrower upon the making of any demand pursuant to this Section.


 


(c)                                  The Borrower
shall pay to each Lender, as long as such Lender shall be required to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”),
additional interest on the unpaid principal amount of each Eurodollar Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such
Lender (as determined by such Lender in good faith, which determination shall
be conclusive), which shall be due and payable on each date on which interest
is payable on such Loan, provided the Borrower shall have received at
least 15 days’ prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender.  If
a Lender fails to give notice 15 days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable 15 days from receipt of
such notice.


 


(d)                                 Notwithstanding
the foregoing subsections (a) and (b) of this Section 3.04,
the Borrower shall only be obliged to compensate any Lender for any amount
arising or accruing during (i) any time period commencing not more than (A) in
the case of subsection (a), six months and (B) in the case of subsection
(b), three months, prior to the date on which such Lender notifies the
Administrative Agent and the Borrower that it proposes to demand such
compensation and identifies to the Administrative Agent and the Borrower the
statute, regulation or other basis upon which the claimed compensation is or
will be based and (ii) any time period during which, because of the
retroactive application of such statute, regulation or other basis, such Lender
did not know that such amount would arise or accrue.


 


3.05                           Compensation for
Losses.  Upon demand of any Lender
(with a copy to the Administrative Agent) from time to time, the Borrower shall
promptly compensate such Lender for and hold such Lender harmless from any
loss, cost or expense incurred by it as a result of:


 


(a)                                  any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or


 


(b)                                 any failure by the Borrower (for a reason other than the failure of such
Lender to make a Loan) to prepay, borrow, continue or convert any Loan other
than a Base Rate Loan on the date or in the amount notified by the Borrower; or


 


(c)                                  any assignment of a Eurodollar Rate Loan on a day other than the last day
of the Interest Period therefor as a result of a request by the Borrower
pursuant to Section 10.16;


 


including
any loss of anticipated profits and any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate 


 


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the
deposits from which such funds were obtained. 
The Borrower shall also pay any customary administrative fees charged by
such Lender in connection with the foregoing.


 


For
purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.


 


3.06                           Matters Applicable
to all Requests for Compensation.


 


(a)                                  A certificate of any Agent or any Lender
claiming compensation under this Article III and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error.  In
determining such amount, such Agent or such Lender may use any reasonable
averaging and attribution methods.


 


(b)                                 Upon any Lender’s making a claim for
compensation under Section 3.01 or 3.04, the Borrower may
replace such Lender in accordance with Section 10.16.


 


3.07                           Survival.  All of the Borrower’s obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.


 


ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


4.01                           Conditions of
Restatement.  The
amendment and restatement of the Existing Credit Agreement pursuant hereto
shall become effective on and as of the date (the “Restatement
Closing Date”), which shall occur on or prior to October 31,
2010, on which each of the following conditions precedent shall have been
satisfied or duly waived:


 


(a)                                  Substantially contemporaneously with the Restatement Closing Date and the
making of the initial Loans hereunder, all principal of, and interest on, Loans
owed to the Existing Lenders and all accrued fees and other amounts payable to
the Existing Lenders shall have been paid in full.


 


(b)                                 The Administrative Agent’s receipt of the following, each of which shall
be originals or facsimiles (followed promptly by delivery of originals to the
Administrative Agent) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the Restatement
Closing Date (or, in the case of certificates of governmental officials, a
recent date before the Restatement Closing Date) and each in form and substance
satisfactory to the Administrative Agent and each of the Lenders:


 


(i)                                     executed counterparts of this Agreement and the Guaranty, sufficient in
number for distribution to each Agent, each Lender and the Borrower;


 


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(ii)                                  a Note duly executed by the Borrower in favor of each Lender requesting a
Note;


 


(iii)                               an amended and restated security agreement, in substantially the form of Exhibit G
hereto (together with each other security agreement and security agreement
supplement delivered pursuant to Section 6.12, in each case as
amended, the “Security Agreement”),
duly executed by each Loan Party, together with, to the extent not already
delivered to the Administrative Agent:


 


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


 


(B)                                copies  of proper financing
statements, to be filed on or after the day of the initial Credit Extension
under the Uniform Commercial Code of all jurisdictions that the Administrative
Agent may deem necessary or desirable in order to perfect and protect the first
priority liens and security interests created under the Security Agreement,
covering the Collateral described in the Security Agreement,


 


(C)                                evidence of the insurance required by the terms of the Security
Agreement,


 


(D)                               to the extent not previously delivered under the Existing Credit
Agreement, executed Assignments of Government Contract Claims and Notices of
Assignment of Government Contract Claims with respect to each Assignable
Government Contract Claim (remaining as of the Restatement Closing Date) in
excess of $50,000,000 in effect as of the Restatement Closing Date, in
accordance with Section 4(c) of the Security Agreement, and


 


(E)                                 evidence that all other action that the Administrative Agent may deem
necessary or desirable in order to perfect and protect the first priority liens
and security interests created under the Security Agreement has been taken
(including, without limitation, receipt of duly executed  UCC-3 termination statements);


 


(iv)                              to the extent requested by the Administrative Agent and available as of
the Restatement Closing Date, Mortgage Modifications covering the Mortgaged
Properties, duly executed by the appropriate Loan Party, together with:


 


(A)                              to the extent requested by the Administrative Agent in its sole
discretion, evidence that counterparts of the Mortgage Modifications have been
duly executed, acknowledged and delivered and are in a form suitable for filing
or recording in all filing or recording offices that the Administrative Agent
may deem necessary or desirable in order to create a


 


74
















 


valid
first (subject to Permitted Encumbrances) and subsisting Lien on the property
described therein in favor of the Administrative Agent for the benefit of the
Secured Parties and that all filing and recording taxes, if any, and fees have
been paid or will be paid upon recordation or filing of the Mortgage
Modifications,


 


(B)           to the extent required by the
Administrative Agent in its sole discretion, fully paid American Land Title
Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”)
or endorsements (including, but not limited to, “date-down” endorsements),
updates or confirmations thereof (in respect of Mortgage Policies previously
delivered under the Existing Credit Agreement) in form and substance, with
endorsements and in amount reasonably acceptable to the Administrative Agent,
issued, coinsured and reinsured by title insurers reasonably acceptable to the
Administrative Agent, insuring the Mortgages to be valid first and subsisting
Liens on the property described therein, free and clear of all defects and
encumbrances, excepting Permitted Encumbrances, and providing for such other
affirmative insurance (including endorsements for future advances under the
Loan Documents and for mechanics’ and materialmen’s Liens) and such coinsurance
and direct access reinsurance as the Administrative Agent may deem reasonably
necessary or desirable,


 


(C)           to the extent required by the
Administrative Agent and in any Loan Party’s possession, American Land Title
Association/American Congress on Surveying and Mapping form surveys, for which
all necessary fees (where applicable) have been paid, and dated as of a date
reasonably satisfactory to the Administrative Agent, showing all buildings and
other improvements, any off-site improvements, the location of any easements,
parking spaces, rights of way, building set-back lines and other dimensional
regulations and the absence of encroachments, either by such improvements or on
to such property, and other defects,


 


(D)          evidence of the insurance required by
the terms of the Mortgages, and


 


(E)           such other consents, agreements and
confirmations of third parties relating to the Mortgaged Properties or
amendments, amendments and restatements, supplements, modifications, updates or
confirmations thereof (in respect of the Existing Mortgages) as the
Administrative Agent may deem reasonably necessary or desirable and evidence
that all other actions that the Administrative Agent may deem reasonably
necessary or desirable in order to create valid first (subject to Permitted
Encumbrances) and subsisting Liens on the property described in the Mortgages
have been taken;


 


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(v)           such certificates of resolutions or
other action, incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agent may require evidencing
the identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this Agreement
and the other Loan Documents to which such Loan Party is a party or is to be a
party;


 


(vi)          such documents and certifications as
the Administrative Agent may reasonably require to evidence that each Loan
Party (A) is duly organized or formed, including, without limitation,
certified true and correct copies of the charter of each Loan Party, and each
amendment thereto, as in effect on the Restatement Closing Date, and (B) is
validly existing, in good standing and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect;


 


(vii)         a favorable opinion of Gibson, Dunn &
Crutcher LLP, special counsel to the Loan Parties, addressed to each Agent and
each Lender, as to the matters (including intellectual property matters) set
forth in Exhibit J-1;


 


(viii)        to the extent requested by the
Administrative Agent, favorable opinions of local counsel for the Loan Parties (i) in
jurisdictions in which the Mortgaged Properties are located, including, among
other things, opinions with respect to the enforceability and continuing
perfection of the Existing Mortgages as modified by the Mortgage Modifications
covering the Mortgaged Properties and any related fixture filings,
substantially in the form of Exhibit J-2 hereto and otherwise in
form and substance reasonably satisfactory to the Administrative Agent, and (ii) if
any Mortgage Modifications are delivered after the Restatement Closing Date
pursuant to Section 6.15 hereof, in jurisdictions in which the Loan
Parties party to such Mortgage Modifications are organized or formed, with
respect to the valid existence, corporate power and authority of such Loan
Parties in the execution and delivery of such Mortgage Modifications, in form
and substance reasonably satisfactory to the Administrative Agent;


 


(ix)           a favorable opinion of general
counsel to the Borrower, as to the matters set forth in Exhibit J-3;


 


(x)            a certificate of a Responsible
Officer of the Borrower either (A) attaching copies of all consents,
licenses and approvals required in connection with the execution, delivery and
performance by each Loan Party and the validity against such Loan Party of the
Loan Documents to which it is a party, and such consents, licenses and
approvals shall be in full force and effect, or (B) stating that no such
consents, licenses or approvals are so required;


 


(xi)           a certificate signed by a Responsible
Officer of the Borrower certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been


 


76

















 


satisfied,
(B) that there has been no event or circumstance since March 31, 2010
that has had or could be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect and (C) the Senior Secured Credit
Rating;


 


(xii)          a certificate attesting to the
Solvency of the Loan Parties, on a consolidated basis, before and after giving
effect to the Transaction, from the Chief Financial Officer of the Borrower, in
substantially the form of Exhibit I hereto;


 


(xiii)         to the extent requested by the
Administrative Agent and available to the Borrower and its Subject
Subsidiaries, any currently relevant environmental assessment report, as to any
Environmental Liabilities to which any Loan Party or any of its Subsidiaries
may be subject, and the Lenders shall be satisfied that such Environmental
Liabilities were adequately reflected in the Borrower’s financial reserves
shown on the financial statements included in the Information Memorandum or
that, to the extent not so reflected, the Borrower has made adequate provision
for such Environmental Liabilities (including as may have been disclosed in any
filing with the SEC prior to the date of the Offering Memorandum);


 


(xiv)        evidence that all insurance required to
be maintained pursuant to the Loan Documents has been obtained and is in
effect; and


 


(xv)         such financial, business and other
information regarding the Borrower and its Subsidiaries and such other
assurances, certificates, documents, consents or opinions as any Agent or any
Lender reasonably may require.


 


(c)           The Borrower shall have paid, prior
to the Restatement Closing Date, (i) all fees and expenses (including the
reasonable fees and expenses of Shearman & Sterling LLP) required to
be paid on the Restatement Closing Date pursuant to the Fee Letters, and (ii) all
other fees and expenses required to be paid pursuant to Section 10.04(a) for
which invoices shall have been presented to the Borrower prior to the
Restatement Closing Date.


 


(d)           There shall exist no action, suit,
investigation, litigation or proceeding affecting any Loan Party or any of its
Subsidiaries pending or threatened before any Governmental Authority or
arbitrator that (i) could be reasonably likely to have a Material Adverse
Effect, or (ii) purports to affect the legality, validity or
enforceability of any Loan Document or the consummation of the Transaction.


 


(e)           All governmental authorizations and
all third party consents and approvals necessary in connection with the
Transaction shall have been obtained (without the imposition of any conditions
that are not acceptable to the Lenders) and shall remain in effect; and no Law
shall be applicable in the judgment of the Lenders, in each case that
restrains, prevents or imposes materially adverse conditions upon the
Transaction or the rights of the Loan Parties or their Subsidiaries freely to
transfer or otherwise dispose of, or to create any Lien on, any properties now
owned or hereafter acquired by any of them.


 


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4.02         Conditions
to all Credit Extensions.  The
obligation of each Lender to honor any Request for Credit Extension (other than
a Committed Loan Notice requesting only a conversion of Loans to the other
Type, or a continuation of Eurodollar Rate Loans) is subject to the following
conditions precedent:


 


(a)           The representations and warranties of
the Borrower and each other Loan Party contained in Article V or
any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and
correct in all material respects on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date, and except that for
purposes of this Section 4.02, the representations and warranties
contained in Sections 5.05(a) and (b) shall be deemed to refer
to the most recent statements furnished pursuant to Sections 6.01(a) and
(b), respectively.


 


(b)           No Default shall exist, or would
result from such proposed Credit Extension or from the application of the
proceeds therefrom.


 


(c)           The Administrative Agent and, if
applicable, an L/C Issuer or a Swing Line Lender shall have received a Request
for Credit Extension in accordance with the requirements hereof.


 


Each
Request for Credit Extension (other than a Committed Loan Notice requesting
only a conversion of Loans to the other Type or a continuation of Eurodollar
Rate Loans) submitted by the Borrower shall be deemed to be a representation
and warranty that the conditions specified in Sections 4.02(a) and (b) have
been satisfied or will be satisfied on and as of the date of the applicable
Credit Extension and the Administrative Agent shall have received for the
account of such Lender or such L/C Issuer a certificate signed by a duly
authorized officer of the Borrower, dated the date of such Credit Extension,
stating that such statements are true.


 


ARTICLE V

REPRESENTATIONS AND WARRANTIES


 


The
Borrower represents and warrants to the Agents and the Lenders that:


 


5.01         Existence,
Qualification and Power; Compliance with Laws.  The Borrower and each of its Subsidiaries (a) is
duly organized or formed, validly existing and in good standing under the Laws
of the jurisdiction of its incorporation or organization, (b) has all
requisite corporate or other organizational power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i) own
or lease its assets and carry on its business and (ii) execute, deliver
and perform its obligations under the Loan Documents to which it is a party, (c) is
duly qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is
in compliance with all Laws (such compliance to include, without limitation,
compliance with the Racketeer Influenced and Corrupt Organizations Chapter of
the Organized Crime Control Act of 1970, and with the Uniting and


 


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Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub.L.107-56 and all
other laws and regulations relating to money laundering and terrorist
activities); except in each case referred to in clause (b)(i), (c) or (d),
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.


 


5.02         Authorization;
No Contravention.  The execution,
delivery and performance by each Loan Party of each Loan Document to which such
Person is or is to be a party, and the consummation of the Transaction, are
within such Loan Party’s corporate or other organizational powers, have been
duly authorized by all necessary corporate or other organizational action, and
do not and will not (a) contravene the terms of any of such Person’s
Organization Documents; (b) conflict with or result in any breach or
contravention of, or require any payment to be made under (i) any
Contractual Obligation to which such Person is a party or affecting such Person
or the properties of such Person or any of its Subsidiaries or (ii) any
order, injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Person or its property is subject; (c) violate any
Law; or (d) result in the creation of any Lien other than a Lien expressly
permitted under Section 7.01.


 


5.03         Governmental
Authorization; Other Consents.  As of the Restatement Date and as of each date
for which Schedule 5.03 has been supplemented in accordance with Section 6.02(i),
no approval, consent, exemption, authorization, or other action by, or notice
to, or filing with, any Governmental Authority or any other Person is necessary
or required in connection with (i) the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document or Material Debt Document, or for the consummation of the Transaction,
(ii) the grant by any Loan Party of the Liens granted by it pursuant to
the Collateral Documents, (iii) the perfection or maintenance of the Liens
created under the Collateral Documents (including the first priority (subject
to Specified Statutory Liens) nature thereof) or (iv) the exercise by any
Agent or any Lender of its rights under the Loan Documents or the remedies in
respect of the Collateral pursuant to the Collateral Documents, except for the
authorizations, approvals, actions, notices and filings listed on Schedule 5.03
hereto, all of which have been duly obtained, taken, given or made and are in
full force and effect except as otherwise stated in such Schedule 5.03.


 


5.04         Binding
Effect.  This Agreement has been, and
each other Loan Document, when delivered hereunder, will have been, duly
executed and delivered by each Loan Party that is party thereto.  This Agreement constitutes, and each other
Loan Document when so delivered will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms.


 


5.05         Financial
Statements; No Material Adverse Effect.


 


(a)           The Audited Financial Statements (i) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; (ii) fairly
present the financial condition of the Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; and (iii) show all
Material Debt and other material liabilities, direct or contingent,


 


79

















 


of the Borrower and its
Subsidiaries as of the date thereof, including liabilities for taxes, material
commitments and Indebtedness.


 


(b)           The unaudited consolidated financial
statements of the Borrower and its Subsidiaries as of July 4, 2010, and
the related consolidated statements of income or operations and cash flows for
the fiscal quarter ended on that date (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, and (ii) fairly present the financial
condition of the Borrower and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby, subject, in the case of
clauses (i) and (ii), to the absence of footnotes and to normal year-end
audit adjustments.  As of the Restatement
Date and as of each date for which such Schedule 5.05 has been
supplemented in accordance with Section 6.02(i), Schedule 5.05
sets forth all Material Debt and other material liabilities, direct or
contingent, of the Borrower and its consolidated Subsidiaries as of the date of
such financial statements, including liabilities for taxes, material
commitments and Indebtedness and, except for Indebtedness under the Convertible
Notes, since the date of such financial statements through the Restatement
Closing Date, there has been no material change in such indebtedness or
liabilities.


 


(c)           Since the date of the Audited
Financial Statements, there has been no event or circumstance, either
individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.


 


5.06         Litigation.  There are no actions, suits, proceedings,
claims or disputes pending or, to the knowledge of the Borrower after due and
diligent investigation, threatened, at law, in equity, in arbitration or before
any Governmental Authority, by or against the Borrower or any of its
Subsidiaries or against any of their properties or revenues that (a) purport
to affect or pertain to this Agreement, any other Loan Document, or the
consummation of the Transaction or any part thereof, or (b) either
individually or in the aggregate, if determined adversely, could reasonably be
expected to have a Material Adverse Effect.


 


5.07         No
Default.  Neither the Borrower nor any
Subsidiary is in default under or with respect to, or a party to, any
Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.  No Default has occurred and is continuing or
would result from the consummation of the transactions contemplated by this
Agreement or any other Loan Document.


 


5.08         Ownership
of Property; Liens; Investments.


 


(a)           The Borrower and each Subject
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business as it is currently conducted, except for Permitted
Liens and such other defects in title as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


(b)           The property of the Borrower and its
Subject Subsidiaries is subject to no Liens, other than Permitted Liens.


 


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(c)           As of the Restatement Date and as of
each date for which such Schedule 5.08(c) has been supplemented in
accordance with Section 6.02(i), set forth on Schedule 5.08(c) hereto
is a complete and accurate list, as of the Restatement Closing Date, of all
owned real property with a book value in excess of $10,000,000 owned by the Borrower
and its Subject Subsidiaries, as of the date hereof showing the street address,
county or other relevant jurisdiction, state, and record owner thereof.  The Borrower and each Subsidiary has good,
marketable and insurable fee simple title to such real property, free and clear
of all Liens other than Permitted Liens.


 


5.09         Environmental
Matters.


 


(a)           Borrower and its Subsidiaries have
been and are in compliance with all Environmental Laws, including obtaining and
complying with all required Environmental Permits, other than non-compliances
that could not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect.


 


(b)           Neither the Borrower nor any of its
Subsidiaries nor any property currently or, to the knowledge of Borrower or any
of its Subsidiaries, previously owned, operated or leased by or for Borrower or
any of its Subsidiaries is subject to any pending or, to the knowledge of
Borrower or any of its Subsidiaries, threatened, claim, order, agreement,
notice of violation, notice of potential liability or is the subject of any
pending or threatened proceeding or governmental investigation under or
pursuant to Environmental Laws other than those that could not, individually or
in the aggregate, reasonably be expected to result in a Material Adverse
Effect.


 


(c)           Except as set forth on Schedule
5.09(c), as of the Restatement Closing Date and as of each date for which
such Schedule has been supplemented in accordance with Section 6.02(i),
neither the Borrower nor any of its Subsidiaries is a treatment, storage or
disposal facility requiring a permit under the Resource Conservation and
Recovery Act, 42 U.S.C. § 6901 et seq., the regulations thereunder or any state
analog.


 


(d)           There are no facts, circumstances or
conditions known to Borrower or any of its subsidiaries arising out of or
relating to the operations or ownership of Borrower or any of its Subsidiaries
or of the property owned, operated or leased by Borrower or any of its
Subsidiaries that are not specifically included in the financial information
furnished to the Lenders that could be reasonably expected to result in any
material Environmental Liabilities, unless such liabilities are (i) covered
by environmental liability insurance, (ii) subject to an indemnity from a
Governmental Party, or (iii) subject to an indemnity satisfactory to the
Borrower from a Person that is not an Affiliate of the Borrower that the board
of directors of the Borrower have determined in good faith is appropriately
credit worthy in relation to the potential amount of such liabilities.


 


(e)           As the date hereof, no Environmental
Lien has attached to any property of Borrower or its Subsidiaries and, to the
knowledge of Borrower or its Subsidiaries, no facts, circumstance or conditions
exist that could, individually or in the aggregate, reasonably be expected to
result in an Environmental Lien that would have a Material Adverse Effect.


 


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(f)            Neither Borrower nor any of its
Subsidiaries is undertaking, and has not completed, either individually or
together with other potentially responsible parties, as of the
Restatement Closing Date, any
investigation or assessment or Remedial Action relating to any actual or
threatened release of Hazardous Materials
at any site, location or operation, either voluntarily or pursuant to the order
of any Governmental Authority or the requirements of any Environmental Law; and
all Hazardous Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly owned or operated by
Borrower or any of its Subsidiaries have been disposed of in a manner that
could not, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect.


 


5.10         Insurance.  The properties of the Borrower and its
Subsidiaries are insured with financially sound and reputable insurance
companies, in such amounts (after giving effect to any self-insurance
compatible with the following standards), with such deductibles and covering
such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrower or
the applicable Subsidiary operates.


 


5.11         Taxes.  The Borrower and its Subsidiaries have filed
all federal and all material state and other tax returns and reports required
to be filed, and have paid all federal and all material state and other taxes,
assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those
which are not yet due or are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP.  There
is no proposed tax assessment against the Borrower or any Subsidiary that
would, if made, have a Material Adverse Effect.


 


5.12         ERISA
Compliance


 


(a)           Each Plan is in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
applicable Laws.  Each Plan that is
intended to qualify under Section 401(a) of the Code has
received a favorable determination or opinion letter from the IRS or an
application for such a letter is currently being processed by the IRS with
respect thereto and, to the knowledge of the Borrower or any ERISA Affiliate
after due and diligent investigation, nothing has occurred which would prevent,
or cause the loss of, such qualification. 
Each Loan Party and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to
any Plan.


 


(b)           There are no pending or, to the
knowledge of the Borrower or any ERISA Affiliate after due and diligent
investigation, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan that could be reasonably be
expected to have a Material Adverse Effect. 
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect.


 


(c)           (i) No ERISA Event has occurred
or is reasonably expected to occur; (ii) no application for a waiver of
the minimum funding standard has been filed with respect to


 


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any Pension Plan; (iii) neither
any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any material liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007
of ERISA); (iv) neither any Loan Party nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any material liability (and no event
has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Sections 4201 or 4243 of
ERISA with respect to a Multiemployer Plan; and (v) neither any Loan Party
nor any ERISA Affiliate has engaged in a transaction described in Sections
4069 or 4212(c) of ERISA.


 


(d)           (i) With respect to each scheme
or arrangement mandated by a government other than the United States (a “Foreign Government Scheme or Arrangements”), any employer and employee contributions required by law or by the
terms of any Foreign Government Scheme or Arrangement or any Foreign Plan have
been made, or, if applicable, accrued, in accordance with normal accounting
practices; and (ii) except for Foreign Government Schemes or Arrangements,
no Loan Party or Subsidiary of any Loan Party maintains or contributes to any
employee benefit plan that is not subject to the Laws of the United States of
America.


 


5.13         Subsidiaries;
Equity Interests.  As of the
Restatement Date and as of each date for which such Schedule 5.13 has been
supplemented in accordance with Section 6.02(i): (i) the
Borrower has no Subsidiaries other than those specifically disclosed in Part (a) of
Schedule 5.13, and all of the outstanding Equity Interests in such
Subsidiaries (other than COI Ceramics, Inc.) have been validly issued, are
fully paid and non-assessable and are owned by a Loan Party in the amounts
specified on Part (a) of Schedule 5.13 free and clear of all
Liens except those created under the Collateral Documents and liens permitted
under Section 7.01(c); (ii) the Borrower and its Subject
Subsidiaries have no Investments constituting Equity Interests in any Person
other than (x) Subject Subsidiaries and (y) those specifically
disclosed in Part (b) of Schedule 5.13; (iii) set
forth on Part (c) of Schedule 5.13 is a complete and
accurate list of all Loan Parties, showing as of the Restatement Closing Date
(as to each Loan Party) the jurisdiction of its incorporation, the address of
its principal place of business and its U.S. taxpayer identification number or,
in the case of any non-U.S. Loan Party that does not have a U.S. taxpayer
identification number, its unique identification number issued to it by the jurisdiction
of its incorporation; and (iv) the charter of each Loan Party and each
amendment thereto (in the form of the copies provided pursuant to Section 4.01(b)(vi))
is valid and in full force and effect.


 


5.14         Margin
Regulations; Investment Company Act


 


(a)           The Borrower is not engaged and will
not engage, principally or as one of its important activities, in the business
of purchasing or carrying margin stock (within the meaning of Regulation U
issued by the FRB), or extending credit for the purpose of purchasing or
carrying margin stock and no proceeds of any Borrowings or drawings under any
Letter of Credit will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin
stock.


 


(b)           None of the Borrower, any Person
Controlling the Borrower, or any Subsidiary is or is required to be registered
as an “investment company” under the Investment


 


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Company Act of 1940.  Neither the making of any Loan, nor the
issuance of any Letters of Credit, nor the application of the proceeds or
repayment thereof by the Borrower, nor the consummation of the other
transactions contemplated by the Loan Documents, will violate any provision of
any such Act or any rule, regulation or order of the SEC thereunder.


 


5.15         Disclosure.  The Borrower has disclosed to the Agents and
the Lenders all agreements, instruments and corporate or other restrictions to
which it or any of its Subsidiaries is subject, and all other matters known to
it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.  No
report, financial statement, certificate or other information furnished (whether
in writing or orally) by or on behalf of any Loan Party to any Agent or any
Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or any other Loan Document
(as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected
financial information, the Borrower represents only that such information was
prepared in good faith based upon assumptions believed by the Borrower to be
reasonable at the time.


 


5.16         Compliance
with Laws.  Each Loan
Party and each Subsidiary is in compliance in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in
good faith by appropriate proceedings diligently conducted or (b) the
failure to comply therewith, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.


 


5.17         Intellectual
Property; Licenses, Etc.  Except as would not reasonably be expected to
result in a Material Adverse Effect, the Borrower and its Subsidiaries own, or
have secured licenses for, all of the trademarks, service marks, trade names,
copyrights, patents, patent rights, and other intellectual property rights used
in the operation of their respective business (collectively, “IP Rights”).  To the knowledge of each Loan Party and its
Subject Subsidiaries, the use of the IP Rights in connection with such
businesses does not materially infringe or misappropriate the rights of any
other Person.  To the knowledge of the
Borrower and its Subject Subsidiaries, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or
now contemplated to be employed, by the Borrower or any of its Subject
Subsidiaries materially infringes upon any rights held by any other
Person.  No claim or litigation regarding
any of the foregoing is pending or, to the knowledge of the Borrower and its
Subsidiaries, threatened in writing, that, in either case, would reasonably be
expected to have a Material Adverse Effect.


 


5.18         Solvency.  The Loan Parties are, on a consolidated
basis, Solvent.


 


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


 


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5.20         Perfection, Etc.  To the extent required by this Agreement and
the Security Agreement, all filings and other actions necessary or desirable to
perfect and protect the security interest in the Collateral created under the
Collateral Documents have been duly made or taken or will be duly made or taken
immediately after the Restatement Closing Date, and are in full force and
effect, and the Collateral Documents create in favor of the Administrative
Agent for the benefit of the Secured Parties a valid and, together with such
filings and other actions, perfected first priority security interest in the
Collateral subject to Specified Statutory Liens, securing the payment of the
Secured Obligations, and all filings and other actions necessary or desirable to
perfect and protect such security interest have been duly taken or will be duly
made or taken immediately after the Restatement Closing Date.  The Loan Parties are the legal and beneficial
owners of the Collateral free and clear of any Lien, except for the liens and
security interests created or permitted under the Loan Documents.


 


5.21         Designated
Senior Indebtedness.  The
Indebtedness under the Loan Documents and all other Obligations constitute (i) “Senior
Indebtedness” and “Designated Senior Indebtedness” under the Senior
Subordinated Notes Indenture and the Convertible Notes Indenture, respectively,
and (ii) senior indebtedness as defined in terms analogous to the
foregoing terms under any other Material Debt Documents with respect to
Material Debt that is subordinated in right of payment to the Obligations.


 


5.22         Loan
Parties Consolidated Assets.  The Borrower and the Guarantors collectively
own at least 75% of the consolidated total assets of the Borrower.


 


ARTICLE VI

AFFIRMATIVE COVENANTS


 


So
long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder which is accrued and payable shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower
shall, and shall (except in the case of the covenants set forth in Sections
6.01, 6.02, 6.03 and 6.11) cause each Subsidiary to:


 


6.01         Financial
Statements.  Deliver to
the Administrative Agent and each Lender (including through electronic and
other customary internet-based means), in form and detail satisfactory to the
Administrative Agent and the Required Lenders:


 


(a)           as soon as available, but in any
event within 90 days after the end of each fiscal year of the Borrower
(commencing with the fiscal year ended March 31, 2011), an audited
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal year, and the related audited consolidated statements of income
or operations, shareholders’ equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in accordance with GAAP,
audited and accompanied by a report and opinion of an independent certified
public accountant of nationally recognized standing reasonably acceptable to
the Required Lenders, which report and opinion shall be prepared in accordance
with generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception
as to the scope of such audit; and


 


85

















 


(b)           as soon as available, but in any
event within 45 days after the end of each of the first three fiscal quarters
of each fiscal year of the Borrower (commencing with the fiscal quarter ended October 3,
2010), an unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal quarter, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for
such fiscal quarter and for the portion of the Borrower’s fiscal year then
ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail and certified by
a Responsible Officer of the Borrower as fairly presenting the financial
condition, results of operations, shareholders’ equity and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes.


 


As
to any information contained in materials furnished pursuant to Section 6.02(d),
the Borrower shall not be separately required to furnish such information under
Section 6.01(a) or (b), but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in Sections 6.01(a) and (b) at the times
specified therein.


 


6.02         Certificates;
Other Information.  Deliver to
the Administrative Agent and each Lender, in form and detail satisfactory to
the Administrative Agent and the Required Lenders:


 


(a)           concurrently with the delivery of the
financial statements referred to in Section 6.01(a), a certificate
of its independent certified public accountants certifying such financial
statements and stating (which certificate and the statements contained therein
may be limited in form, scope and substance to the extent required by
accounting rules or guidelines in effect from time to time and to the
extent delivery of any such certificate is permitted pursuant to such rules or
guidelines) that in making the examination necessary therefor no knowledge was
obtained of any Default existed as of the date of such statements or, if any
such Default shall exist, stating the nature and status of such event;


 


(b)           concurrently with the delivery of the
financial statements referred to in Sections 6.01(a) and (b),
(i) a duly completed Compliance Certificate signed by a Responsible
Officer of the Borrower, and in the event of any change in generally accepted
accounting principles used in the preparation of such financial statements, the
Borrower shall also provide, if necessary for the determination of compliance
with Section 7.10, a statement of reconciliation conforming such
financial statements to GAAP and (ii) a certificate of the chief financial
officer of the Borrower describing in reasonable detail (including amounts) all
Acquisitions consummated in such period pursuant to Section 7.03(f) and
all Investments in Foreign Subsidiaries, Joint Ventures and other minority
interests during such period made pursuant to Section 7.03(g);


 


(c)           promptly after any request by the
Administrative Agent or any Lender, copies of any detailed audit reports,
management letters or recommendations submitted to the board of directors (or
the audit committee of the board of directors) of any Loan Party


 


86

















 


by
independent accountants in connection with the accounts or books of any Loan
Party or any Subsidiary, or any audit of any of them;


 


(d)           promptly after the same are
available, copies of each annual report, proxy or financial statement or other
report or communication sent to the stockholders of the Borrower, and copies of
all annual, regular, periodic and special reports and registration statements
which the Borrower may file or be required to file with the SEC under Section 13
or 15(d) of the Securities Exchange Act of 1934, or with any
Governmental Authority that may be substituted therefor, or with any national
securities exchange, and in any case not otherwise required to be delivered to
the Administrative Agent pursuant hereto;


 


(e)           promptly after the furnishing or
receipt thereof, (i) copies of any statement or report furnished to any
holder of debt securities of any Loan Party or of any of its Subsidiaries
pursuant to the terms of any Material Debt Document (relating to Material Debt
incurred under Section 7.02(c) or (d)) and not otherwise
required to be furnished to the Lenders pursuant to any other clause of this Section 6.02,
and (ii) copies of all notices, requests, demands, waivers, forbearances
and other documents received by any Loan Party or any of its Subsidiaries under
or pursuant to any Material Debt Document with respect to any event,
development or circumstance that could be adverse in any material respect
(including the occurrence of any default) to (A) the Borrower, any
Material Subsidiaries or the Borrower and its Subsidiaries taken as a whole or (B) 
the rights, interests and remedies of the Secured Parties under any of the Loan
Documents; and, from time to time upon request by the Administrative Agent,
such information and reports regarding such Material Debt Document as the
Administrative Agent may reasonably request;


 


(f)            as soon as available and in any
event within 30 days after the end of each fiscal year, a report summarizing
the insurance coverage (specifying type, amount and carrier) in effect for each
Loan Party and its Subsidiaries and containing such additional information as
the Administrative Agent, or any Lender through the Administrative Agent, may
reasonably specify;


 


(g)           promptly and in any event within five
Business Days after receipt thereof by any Loan Party or any of its Subsidiaries,
copies of each notice or other correspondence received from the SEC (or
comparable agency in any applicable non-U.S. jurisdiction) concerning any
formal investigation or other formal inquiry by such agency regarding financial
or other operational results of any Loan Party or any of its Subsidiaries;


 


(h)           promptly after receiving any written
notice of any Environmental Action against any Loan Party or any of its
Subsidiaries or of any Loan Party or any of its Subsidiaries obtaining
knowledge of any noncompliance by any Loan Party or any of its Subsidiaries
with any Environmental Law or Environmental Permit that could reasonably be
expected to (i) have a Material Adverse Effect or (ii) cause any
property described in the Mortgages to be subject to any material restrictions
on occupancy or use or to be


 


87

















 


subject
to any restrictions on ownership or transferability under any Environmental
Law, copies of such notice;


 


(i)            as soon as available and in any
event within 30 days after the end of (A) each fiscal year, a report
supplementing Schedules 5.08(c) and 5.13 hereto, including an
identification of (1) all owned real property of the type described in Section 5.08(c) disposed
of for $10,000,000 or more by the Borrower or any of its Subject Subsidiaries
during such fiscal year (including the street address, county or other relevant
jurisdiction, state and sales prices thereof, (2) all owned real property
acquired for $10,000,000 or more of the type described in Section 5.08(c) during
such fiscal year (including the street address, county or other relevant
jurisdiction, state, record owner, and purchase price thereof) and (3) a
description of such other changes, if any, in the information included in such
Schedules as may be necessary for such Schedules to be accurate and complete
and (B) each fiscal quarter, amendments to each Schedule referred to in Section 10
of the Security Agreement to add any additional information or change any
information required to ensure the representations and warranties contained
therein are true and correct in all material respects; and


 


(j)            promptly, such additional
information regarding the business, financial, legal or corporate affairs of
any Loan Party or any Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.


 


Documents
required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included in
materials otherwise filed with the SEC) may be delivered electronically and if
so delivered, shall be deemed to have been delivered on the date (i) on
which the Borrower posts such documents, or provides a link thereto on the
Borrower’s website on the Internet at the website address listed on Schedule
10.02; or (ii) on which such documents are posted on the Borrower’s
behalf on an Internet or intranet website, if any, to which each Lender and
each Agent have access (whether a commercial, third-party website or whether
sponsored by the Administrative Agent); provided that:  (i) the Borrower shall deliver paper
copies of such documents to the Administrative Agent or any Lender that
requests the Borrower to deliver such paper copies until a written request to
cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) the Borrower shall notify (which may be by facsimile or by
customary electronic or internet postings) the Administrative Agent and each
Lender of the posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions of such documents).  The Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.


 


The
Borrower hereby acknowledges that (a) the Administrative Agent and/or the
Arrangers will, subject to Section 10.07, make available to the
Lenders and the L/C Issuers materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, the “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or
another similar electronic system (the “Platform”)
and (b) certain of the Lenders (each, a “Public
Lender”) may


 


88

















 


have
personnel who do not wish to receive material non-public information with
respect to the Borrower or its Affiliates, or the respective securities of any
of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons’ securities.  The Borrower hereby agrees that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have
authorized the Administrative Agent, the Arrangers, the L/C Issuers and the
Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrower or its respective
securities for purposes of United States Federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 10.07); (y) all
Borrower Materials marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated “Public Investor”; and (z) the
Administrative Agent and the Arrangers shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not designated “Public Investor”.


 


6.03         Notices.  Within three Business Days, notify the
Administrative Agent and each Lender:


 


(a)           upon any Responsible Officer
obtaining actual knowledge of the occurrence of any Default;


 


(b)           (i) of any Environmental Action
or termination or cancellation of a Government Contract by a Governmental Party
or subcontract with respect to a Government Contract that has resulted or could
reasonably be expected to result in a Material Adverse Effect, and (ii) upon
any Responsible Officer obtaining actual knowledge of any other matter that has
resulted or could reasonably be expected to result in a Material Adverse Effect;


 


(c)           upon any Responsible Officer
obtaining actual knowledge of the occurrence of any ERISA Event;


 


(d)           of any material change in accounting
policies or financial reporting practices by any Loan Party or any Subject
Subsidiary;


 


(e)           of the receipt of any Extraordinary
Receipt for which the Borrower is required to make a mandatory repayment
pursuant to Section 2.05(b)(i); and


 


(f)            of any announcement by Moody’s,
Fitch or S&P of any change in the Senior Secured Credit Rating.


 


Each
notice pursuant to this Section, other than notices under clauses (d) and
(f) above, shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth details of the occurrence referred to
therein and stating what action the Borrower has taken and proposes to take
with respect thereto.  Each notice
pursuant to Section 6.03(a) shall describe


 


89

















 


with
particularity any and all provisions of this Agreement and any other Loan
Document that have been breached.


 


6.04         Payment
of Obligations.  Pay and
discharge as the same shall become due and payable, all its obligations and
liabilities, including all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are
being contested in good faith by appropriate proceedings diligently conducted
and adequate reserves in accordance with GAAP are being maintained by the
Borrower or such Subsidiary and except where the failure to so pay or discharge
could not in the aggregate be reasonably be expected to have a Material Adverse
Effect.


 


6.05         Preservation
of Existence, Etc. 
(a)  Preserve, renew and maintain in full force and effect its
legal existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.04 or 7.05;
and (b) take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct
of its business, except, in each case, to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.


 


6.06         Maintenance
of Properties.  Subject to Section 7.05,
(a) maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; and (b) make all necessary
repairs thereto and renewals and replacements thereof except, where the failure
to do so could not reasonably be expected to have a Material Adverse Effect.


 


6.07         Maintenance
of Insurance.  Maintain
with financially sound and reputable insurance companies not Affiliates of the
Borrower (other than insurance provided through ATK Insurance Company which
shall be subject to reasonable and prudent re-insurance in light of the
capitalization of ATK Insurance Company), insurance with respect to its
properties and business, subject to the provisions of Section 13 of
the Security Agreement, against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such types and
in such amounts (after giving effect to any insurance provided through ATK
Insurance Company which shall be subject to reasonable and prudent re-insurance
in light of the capitalization of ATK Insurance Company compatible with the
following standards) as are customarily carried under similar circumstances by
such other Persons and providing that such insurer will endeavor to give not
less than 30 days’ prior notice to the Administrative Agent of termination,
lapse or cancellation of such insurance. 
The Borrower and ATK Insurance Company shall give not less than 30 days’
prior notice to the Administrative Agent of termination, lapse or cancellation
of such insurance, including all re-insurance.


 


6.08         Compliance
with Laws.  Comply in
all material respects with the requirements of all Laws (including, without
limitation, Environmental Laws) and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is
being contested in good faith by appropriate proceedings diligently conducted
or (b) the failure to comply therewith could not reasonably be expected to
have a Material Adverse Effect.


 


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6.09         Books
and Records.  (a) Maintain
proper books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Borrower or
such Subsidiary, as the case may be; and (b) maintain such books of record
and account in material conformity with all applicable requirements of any
Governmental Authority having regulatory jurisdiction over the Borrower or such
Subsidiary, as the case may be.


 


6.10         Inspection
Rights.  Permit representatives and
independent contractors of each Agent and each Lender at the Lender’s own
expense to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom
(subject to applicable governmental confidentiality and secrecy laws and
requirements), and to discuss its affairs, finances and accounts with its
directors, officers, and independent public accountants at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Borrower; provided, however,
that when a Specified Default exists any Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice.


 


6.11         Use
of Proceeds.  Use the
proceeds of the Credit Extensions for general corporate purposes not in
contravention of any Law or of any Loan Document, including, without
limitation, (a) for refinancing or replacing Credit Extensions made by the
Existing Lenders, (b) for providing working capital to the Borrower and
its Subsidiaries, including to enable them to perform their obligations under
Government Contracts, (c) for financing capital expenditures and
Acquisitions and (d) for other lawful corporate purposes.


 


6.12         Covenant
to Guarantee Obligations and Give Security.


 


(a)           Upon (x) the request of the
Administrative Agent following the occurrence and during the continuance of a
Specified Default or (y) the delivery of the report (the “Report”) required to be delivered
pursuant to Section 6.02(i) indicating the formation or
acquisition of any new direct or indirect Domestic Subsidiaries by any Loan
Party (and as may be required in order to comply with Section 7.11)
or the acquisition of any property by any Loan Party, and such property, in the
judgment of the Administrative Agent, shall not already be subject to a
perfected first priority security interest subject to Specified Statutory Liens
in favor of the Administrative Agent for the benefit of the Secured Parties,
unless expressly excluded from being required to be the subject of such
security interest by the terms of this Agreement or the terms of the Collateral
Documents, then the Borrower shall, in each case at the Borrower’s expense:


 


(i)            in
connection with the formation or acquisition of a Domestic Subsidiary, within
10 Business Days after the delivery of the Report, cause each such
Domestic Subsidiary, and cause each direct and indirect parent of such Domestic
Subsidiary (if it has not already done so), to duly execute and deliver to the
Administrative Agent a guaranty or guaranty supplement, in form and substance
reasonably satisfactory to the Administrative Agent, guaranteeing the other
Loan Parties’ obligations under the Loan Documents,


 


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(ii)           within
5 Business Days after such request or after the delivery of the Report, furnish
to the Administrative Agent a description of the owned real properties having a
purchase price (or in the case of a Specified Default, fair market value) of
$10,000,000 or more and, in the case of a Specified Default, other properties
of the Loan Parties and their respective Subsidiaries so acquired or upon which
the Administrative Agent does not have a valid, first priority, perfected Lien,
unless expressly excluded from being required to be the subject of such
security interest by the terms of this Agreement or the terms of the Collateral
Documents, in each case in detail reasonably satisfactory to the Administrative
Agent,


 


(iii)          within
10 Business Days after such request or after the delivery of the Report, duly
execute and deliver, and cause each such Domestic Subsidiary and each direct
and indirect parent of such Domestic Subsidiary (if it has not already done so)
to duly execute and deliver, to the Administrative Agent mortgages, deeds of
trust, trust deeds, deeds to receive debt, pledges, assignments, Security
Agreement Supplements, IP Security Agreement Supplements and other
security agreements, as specified by and in form and substance reasonably
satisfactory to the Administrative Agent (including delivery of all Pledged
Equity in and of such Domestic Subsidiary, and other instruments of the type
specified in Section 4.01(b)(iii)), securing payment of all the
Obligations of the applicable Loan Party, such Subsidiary or such parent, as
the case may be, under the Loan Documents and constituting Liens on all such
properties, except during the continuation of a Specified Default, only to the
same extent that is required in the Collateral Documents,


 


(iv)          within
10 Business Days after such request or after the delivery of the Report, take,
and cause such Domestic Subsidiary or such parent to take, whatever action
(including, without limitation, the recording of mortgages, the filing of
Uniform Commercial Code financing statements, the giving of notices and the
endorsement of notices on title documents) may be necessary or advisable in the
opinion of the Administrative Agent to vest in the Administrative Agent (or in
any representative of the Administrative Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the mortgages,
deeds of trust, trust deeds, deeds to receive debt, pledges, assignments,
Security Agreement Supplements, IP Security Agreement Supplements and
security agreements delivered pursuant to this Section 6.12,
enforceable against all third parties in accordance with their terms, except
during the continuation of a Specified Default, only to the same extent that is
required in the Collateral Documents,


 


(v)           within
10 Business Days after such request or after the delivery of the Report,
deliver to the Administrative Agent, upon the request of the Administrative
Agent in its reasonable discretion, a signed copy of a favorable opinion,
addressed to the Administrative Agent and the other Secured Parties, of counsel
for the Loan Parties acceptable to the Administrative Agent as to the matters
contained in clauses (i), (iii) and (iv) above, as to
such guaranties, guaranty supplements, mortgages, deeds of trust, trust deeds,
deeds to receive debt, pledges, assignments, Security Agreement Supplements, IP
Security Agreement Supplements and security agreements being legal, valid and
binding obligations of each Loan Party party thereto enforceable in accordance
with their terms, as to the matters contained in clause (iv) above,
as to such recordings, filings, notices,


 


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endorsements and other actions being sufficient to
create valid perfected Liens on such properties, and as to such other matters
as the Administrative Agent may reasonably request,


 


(vi)          as
promptly as practicable after such request or after the delivery of the Report,
deliver, upon the request of the Administrative Agent in its reasonable
discretion, to the Administrative Agent with respect to each parcel of real
property acquired for $10,000,000 or more (except that no minimum amount shall
apply in the case of a Specified Default) owned by the entity that is the
subject of such request, formation or acquisition title policies, surveys and
environmental assessment reports, each in scope, form and substance reasonably
satisfactory to the Administrative Agent, provided, however, that to the extent that any Loan Party or any of
its Subsidiaries shall have otherwise received any of the foregoing items with
respect to such real property, such items shall, promptly after the receipt
thereof, be delivered to the Administrative Agent, and


 


(vii)         promptly
execute and deliver any and all further instruments and documents and take all
such other actions as required by the Security Agreement and at any time and
from time to time as the Administrative Agent may deem necessary or desirable
in obtaining the full benefits of, or in perfecting and preserving the Liens
of, such guaranties, mortgages, deeds of trust, trust deeds, deeds to receive
debt, pledges, assignments, Security Agreement Supplements, IP Security
Agreement Supplements and security agreements.


 


(b)           Any Subsidiary or Excluded Joint Venture
that is not a Guarantor that becomes a guarantor with respect to any Material
Debt of any Loan Party shall comply with Section 6.12(a) as if
it were a newly formed Domestic Subsidiary of a Loan Party.


 


6.13         Further
Assurances.  Promptly
upon request by any Agent, or any Lender through the Administrative Agent, (i) correct
any material defect or error that may be discovered in any Loan Document or in
the execution, acknowledgment, filing or recordation thereof, and (ii) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, certificates, assurances and
other instruments as any Agent, or any Lender through the Administrative Agent,
may reasonably require from time to time in order to (A) carry out more
effectively the purposes of the Loan Documents, (B) to the fullest extent
permitted by applicable law, subject any Loan Party’s or any of its
Subsidiaries’ properties, assets, rights or interests to the Liens now or
hereafter intended to be covered by any of the Collateral Documents, (C) perfect
and maintain the validity, effectiveness and priority of any of the Collateral
Documents and any of the Liens intended to be created thereunder and (D) assure,
convey, grant, assign, transfer, preserve, protect and confirm more effectively
unto the Secured Parties the rights granted or now or hereafter intended to be
granted to the Secured Parties under any Loan Document or under any other
instrument executed in connection with any Loan Document to which any Loan
Party or any of its Subsidiaries is or is to be a party, and cause each of its
Subsidiaries to do so.


 


6.14         Material
Contracts.  Perform and
observe all the terms and provisions of each Material Contract to be performed
or observed by it, maintain each such Material Contract


 


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(including each Government Contract) in full force
and effect, enforce each such Material Contract in accordance with its terms,
except, in any case, where the failure to do so, either individually or in the
aggregate, would not be reasonably likely to have a Material Adverse Effect.


 


6.15         Conditions
Subsequent to the Restatement Closing Date.  (a) Within 60 days after the Restatement
Closing Date (which time period may be extended by an additional 60 days at the
sole discretion of the Administrative Agent), furnish to the Administrative
Agent such items required under Section 4.01(b)(iv) and Section 4.01(b)(viii) that
were not delivered on or prior to the Restatement Closing Date in accordance
with such sections, in each case in compliance with the provisions of, and
together with the other requirements set forth in, such sections, (b) within
60 days after the Restatement Closing Date (which time period may be extended
by an additional 60 days at the sole discretion of the Administrative Agent),
at the sole discretion of the Administrative Agent, furnish to the
Administrative Agent a supplement to the Intellectual Property Security
Agreement and (c) comply with the requirements of Section 15(h) of
the Security Agreement, if applicable.


 


6.16         Assignable
Government Contract Claims.  The Borrower and each other Loan Party shall (a) within
thirty days following the date thereof, notify the Administrative Agent upon (i) entering
into any individual Government Contract with Assignable Government Contract
Claims in excess of $50,000,000 (with descriptions of the contract, Government
Party and Loan Party), and (ii) the termination or cancellation of any
Government Contract with Government Contract Claims (remaining as of such time)
in excess of $50,000,000 and (b) comply with each provision in the
Security Agreement with respect to Government Contract Claims, including,
without limitation, execution and delivery of Assignments of Government
Contract Claims and Notices of Assignments of Government Contract Claims.


 


6.17         Preparation
of Environmental Reports.  At
the request of the Administrative Agent after the Administrative Agent shall
have obtained knowledge of any circumstances that has the reasonable likelihood
of Borrower or any of its Subsidiaries incurring any Environmental Liability
that could reasonably be expected to result in a Default or a Material Adverse
Effect as a result of any information provided under Section 6.02(h) or
(j) or Section 6.03(a) or (b) hereunder or
through other publicly available information filed with the SEC, the Borrower
shall provide to the Lenders within sixty days after such request, at the
expense of the Borrower, an environmental site assessment report for any of its
properties described in such request, prepared by an environmental consulting
firm acceptable to the Administrative Agent, indicating the presence or absence
of Hazardous Materials and the estimated cost of any compliance, removal or
remedial action in connection with any Hazardous Materials on such properties;
without limiting the generality of the foregoing, if the Administrative Agent
determines at any time that a material risk exists that any such report will
not be provided within the time referred to above, the Administrative Agent may
retain an environmental consulting firm to prepare such report at the expense
of the Borrower, and the Borrower hereby grants and agrees to cause any
Subsidiary that owns any property described in such request to grant access at
the time of such request to the Administrative Agent, the Lenders, such firm
and any agents or representatives thereof an irrevocable non-exclusive license,
subject to the rights of tenants, to enter onto their respective properties to
undertake such an assessment


 


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subject to government approvals, if such approvals
are required.  The Borrower shall take
all reasonable steps to obtain any such required government approvals.


 


ARTICLE
VII

NEGATIVE COVENANTS


 


So
long as any Lender shall have any Commitment hereunder, any Loan or other
Obligation hereunder which is accrued and payable shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower
shall not, nor shall it permit any Subsidiary to, directly or indirectly:


 


7.01         Liens.  Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, or sign or file under the Uniform Commercial Code of any
jurisdiction a financing statement that names the Borrower or any of its
Subsidiaries as debtor, or sign any security agreement authorizing any secured
party thereunder to file such financing statement, or assign any accounts or
other right to receive income, other than the following:


 


(a)           Liens created pursuant to any Loan
Document;


 


(b)           Liens existing on the date hereof and
listed on Schedule 7.01(b) and any renewals or extensions thereof, provided
that (i) the property covered thereby is not changed other than the addition of
proceeds, products, accessions and improvements to such property on customary
terms, (ii) the amount of the obligations secured thereby is not increased
except, in respect of Indebtedness, if permitted by Section 7.02(e),
(iii) no additional Loan Party shall become a direct or contingent obligor of
the obligations secured thereby and (iv) any renewal or extension of the
obligations secured or benefited thereby is permitted by Section 7.02(e);


 


(c)           Liens for taxes not yet due or which
are being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;


 


(d)           carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s or other like Liens arising in the ordinary course
of business which are not overdue for a period of more than 30 days or which
are being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person;


 


(e)           pledges or deposits in the ordinary
course of business in connection with workers’ compensation, unemployment
insurance and other social security legislation, other than any Lien imposed by
ERISA;


 


(f)            pledges or deposits to secure the
performance of bids, trade contracts and leases (other than Indebtedness),
statutory obligations, surety bonds (other than bonds related to judgments or
litigation), construction bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;


 


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(g)           (i) easements, rights-of-way, zoning
and similar restrictions and other similar encumbrances or title defects which
do not materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
applicable Person, and (ii) Permitted Encumbrances; provided  further,
that if a Loan Party or any Subsidiary is permitted to create or suffer any of
the Permitted Liens described in this Section 7.01(g) that have been or
will be recorded against the applicable property after the date hereof, the
Administrative Agent shall subordinate the lien of the mortgage to such
Permitted Lien, promptly after any such written request by a Loan Party or
Subsidiary, as applicable;


 


(h)           Liens securing judgments for the
payment of money not constituting an Event of Default under Section 8.01(h)
or securing appeal or other surety bonds related to such judgments;


 


(i)            Liens securing Indebtedness
permitted under Section 7.02(g); provided that (i) such Liens do
not at any time encumber any property other than the property financed by such
Indebtedness, (ii) the principal amount of the Indebtedness secured thereby
does not exceed the cost of the property being acquired, constructed or
improved on the date such Indebtedness is incurred and (iii) with respect to
Capitalized Leases, such Liens do not at any time extend to or cover any
Collateral or assets other than the assets subject to such Capitalized Leases;


 


(j)            Liens on property of a Person
existing at the time such Person is merged into or consolidated with the
Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the
Borrower or on any Property acquired, in each case, in connection with any
Acquisition permitted under Section 7.03(f); provided that such
Liens were not created in contemplation of such Acquisition and do not extend
to any assets other than those of the Person merged into or consolidated with
the Borrower or such Subsidiary or acquired by the Borrower or such Subsidiary
and the obligations secured thereby are permitted under Section 7.02(g);


 


(k)           (i) Liens created by any Loan Party
in favor of any other Loan Party and (ii) Liens created by any Subsidiary that
is not a Loan Party in favor of the Borrower or any other Subsidiary;


 


(l)            (i) precautionary Uniform Commercial
Code filings by lessors under operating leases covering solely the property
subject to such leases and (ii) Uniform Commercial Code filings in respect of
Liens permitted under this Section 7.01;


 


(m)          Liens on equipment, inventory and
goods, including supplies, materials and work in process, created in the
ordinary course of business in favor of a Governmental Party by operation of
Parts 32 and 45 of the Federal
Acquisition Regulation, all implementing contract provisions at Part 52, and
any corresponding provisions in any applicable agency Federal Acquisition
Regulation Supplement in connection with the performance by the Borrower and
its Subsidiaries under a Government Contract (and not arising out of a default
under such Government Contract);


 


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(n)           other Liens securing obligations
outstanding in an aggregate amount not to exceed $100,000,000;


 


(o)           Liens on any segregated and
identifiable proceeds of any assets subject to a Lien permitted by the
foregoing clauses of this Section 7.01 to the extent the documents
governing such Liens expressly provide therefor or such Liens arise as a matter
of law;


 


(p)           Liens arising solely by virtue of any
statutory or common law provision relating to banker’s liens, rights of set-off
or similar rights; and


 


(q)           Liens on assets of a Foreign
Subsidiary that do not constitute Collateral and which secure Indebtedness or
other obligations of such Subsidiary (or of another Foreign Subsidiary) that
are permitted to be incurred under this Agreement.


 


7.02         Indebtedness.  Create, incur, assume or suffer to exist any
Indebtedness, except:


 


(a)           Indebtedness under the Loan Documents;


 


(b)           Indebtedness of the Borrower under
the Senior Subordinated Notes and the Convertible Notes and guarantees thereof
by the Guarantors;


 


(c)           so long as no Default is continuing
or would result therefrom, Indebtedness of the Borrower that (i) is subordinated
in right of payment to the Obligations on terms and conditions that are (x)
substantially similar to the terms and conditions set forth in the Senior
Subordinated Notes Indenture or (y) reasonably satisfactory to the
Administrative Agent, (ii) has a scheduled maturity no earlier than six months
after the latest scheduled maturity of any Facility, (iii) has no scheduled
amortization or mandatory prepayment or redemption (including at the option of
the holders thereof) except customary provisions for offers to purchase upon a
change of control or an asset sale, (iv) has covenants and defaults (A) no more
restrictive to the Borrower and its Subsidiaries than those contained in the
Senior Subordinated Indenture, taken as a whole, (which, if reasonably
requested by the Borrower, may be confirmed by the Administrative Agent, it
being understood that the Administrative Agent may, but shall not be obligated
to, seek the consent of the Required Lenders prior to giving such
confirmation), or (B) otherwise acceptable to the Required Lenders, and (v)
which may be guaranteed by the Guarantors on the same subordination terms as in
clause (i) above; provided, that if such Indebtedness is to be in
the form of subordinated Indebtedness convertible into common Equity Interests
of the Borrower, such convertible Indebtedness may have customary conversion
and voluntary or mandatory redemption provisions for convertible debt
securities which may be payable in (x) common Equity Interests of the Borrower
at any time or (y) in cash only if exercisable by the Borrower or the holders
thereof after a date six months after the latest scheduled maturity of any
Facility (it being agreed that conversion and redemption provisions
substantially similar to the conversion and redemption provisions of any
Convertible Notes shall in any event be permitted);


 


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(d)           so long as (i) no Default is
continuing or would result therefrom, and (ii) after giving pro forma effect to the incurrence thereof,
the Borrower would have been in compliance with the Consolidated Leverage Ratio
covenant set forth in Section 7.10(c) for the fiscal quarter most
recently ended for which a Compliance Certificate has been delivered, unsecured
Indebtedness of the Borrower (which may be guaranteed by the Guarantors) that
(A) has a scheduled maturity no earlier than six months after the latest
scheduled maturity of any Facility, (B) has no scheduled amortization or
mandatory prepayment or redemption (including at the option of the holders
thereof) except customary offers to purchase upon a change of control, and, to
the extent then customary, an asset sale, and (C) has covenants and defaults
applicable to the Borrower and its Subsidiaries customarily contained in senior
note indentures (and in any event, without limiting the foregoing, less
restrictive than those contained in this Agreement, it being understood that
the Senior Subordinated Notes Indenture is less restrictive than this
Agreement); provided, that if such Indebtedness is to be in the form of
Indebtedness convertible into common Equity Interests of the Borrower, such
convertible Indebtedness may have customary voluntary or mandatory redemption
provisions for convertible debt securities which may be payable in (x) common
Equity Interests of the Borrower at any time or (y) in cash only if exercisable
by the Borrower or the holders thereof after a date six months after the latest
scheduled maturity of any Facility (it being agreed that conversion and
redemption provisions substantially similar to the conversion and redemption
provisions of any Convertible Notes shall in any event be permitted);


 


(e)           Indebtedness outstanding on the date
hereof and listed on Schedule 7.02(e) and any refinancings, refundings,
renewals or extensions thereof; provided that the amount of such
Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder and the direct and contingent obligors
thereof shall not be changed, as a result of or in connection with such
refinancing, refunding, renewal or extension; provided  still  further
that the terms relating to principal amount, amortization, maturity, collateral
(if any) and subordination (if any), and other material terms taken as a whole,
of any such extending, refunding or refinancing Indebtedness, and of any
agreement entered into and of any instrument issued in connection therewith,
are no less favorable in any material respect to the Loan Parties or the
Lenders than the terms of any agreement or instrument governing the Indebtedness
being extended, refunded or refinanced and the interest rate applicable to any
such extending, refunding or refinancing Indebtedness does not exceed the then
applicable market interest rate;


 


(f)            (i) Guarantees of the Borrower or
any Subsidiary in respect of Indebtedness otherwise permitted hereunder of the
Borrower or any Subsidiary, and (ii) intercompany Indebtedness among the
Borrower and its Subsidiaries, in each of clauses (i) and (ii), so long
as such Guarantee or intercompany Indebtedness is an Investment permitted under
Section 7.03;


 


(g)           Indebtedness in respect of
Capitalized Leases, Synthetic Leases and purchase money obligations for fixed
or capital assets acquired, constructed or improved


 


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within
the limitations set forth in Section 7.01(i); provided, however,
that the aggregate principal amount of all such Indebtedness at any one time
outstanding shall not exceed $100,000,000;


 


(h)           obligations in respect of surety
bonds and similar instruments (excluding letters of credit, bank guaranties and
bankers’ acceptances) incurred in the ordinary course of business; and


 


(i)            Indebtedness not otherwise permitted
by this Section 7.02 in an aggregate principal amount outstanding at any
time not to exceed $100,000,000.


 


7.03         Investments.  Make or hold any Investments, except:


 


(a)           Investments held by the Borrower or a
Subsidiary in the form of Cash Equivalents; provided, that ATK Insurance
Company may also hold any other reasonable Investments in the ordinary course
of its operations;


 


(b)           (i) Investments of the Borrower in
any Guarantor, (ii) Investments of any Guarantor in the Borrower or another
Guarantor, and (iii) Investments by Subsidiaries that are not Loan Parties in
the Borrower or any other Subsidiary;


 


(c)           Investments consisting of extensions
of credit in the nature of accounts receivable or notes receivable arising from
the grant of trade credit in the ordinary course of business, and Investments
received in satisfaction or partial satisfaction thereof from financially
troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss;


 


(d)           Investments existing on the date
hereof and set forth on Schedule 7.03(d);


 


(e)           Investments by the Borrower in Swap
Contracts in the ordinary course of business not prohibited under Section 7.16;
and


 


(f)            Investments consisting of
Acquisitions; provided that, with respect to each Acquisition made
pursuant to this Section 7.03(f):


 


(A)          if such Acquisition is in respect of (i) a Person, such
Person shall become a wholly-owned Domestic Subsidiary and such Domestic
Subsidiary shall comply with the requirements of Section 6.12, and (ii)
the assets of a Person, a Loan Party shall acquire such assets and such Loan
Party shall comply with the requirements of Section 6.12;


 


(B)           the lines of business of the Person to be (or the property
and assets of which are to be) so purchased or otherwise acquired shall be in,
or substantially related to, the aerospace, defense or commercial ammunition
industries;


 


(C)           such Acquisition shall not include or result in any
Environmental Liabilities that could reasonably be expected to be material to
the business, financial condition, operations or prospects of the Borrower and
its Subsidiaries,


 


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taken as a whole unless such
liabilities are (x) covered by environmental liability insurance, (y) subject
to an indemnity from a Governmental Party or (z) subject to an indemnity
satisfactory to the Borrower from the seller of such Person, property or assets
(or an Affiliate thereof) and the board of directors of the Borrower have
determined in good faith that the seller or such Affiliate thereof is
appropriately creditworthy in relation to the potential amount of such
Environmental Liabilities;


 


(D)          immediately before and immediately after giving pro forma effect to any such Acquisition,
(i) no Default shall have occurred and be continuing and (ii) the noncash
consideration for such Acquisition may consist solely of Company Stock; provided
that (1) the Borrower shall demonstrate in reasonable detail that after giving pro forma effect to the Acquisition
(including, without limitation, the incurrence and assumption of any
Indebtedness in connection therewith), the Borrower would be in compliance by
more than 0.25:1.00 with the Consolidated Leverage Ratio covenant set forth in Section
7.10(b); and (2) for the purposes of this Section 7.03, pro forma compliance with respect to Section
7.10 shall be computed for the fiscal quarter most recently ended for which
a Compliance Certificate has been delivered;


 


(E)           the Borrower shall have delivered to the Administrative
Agent, on behalf of the Lenders, at least two Business Days following the date
on which any such purchase or other acquisition is to be consummated a
certificate of a Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying that all of the
requirements set forth in this Section 7.03(f) have been satisfied or
will be satisfied on or prior to the consummation of such purchase or other
acquisition; and


 


(g)           Investments by the Borrower and its
Subsidiaries not otherwise permitted under this Section 7.03 in an
aggregate amount not to exceed 10% of the consolidated total assets of the
Borrower (determined as of the end of the prior fiscal year); provided
that, with respect to each Investment made pursuant to this Section 7.03(g):


 


(A)          such Investment shall not include and would not reasonably
be expected to result in any Environmental Liabilities material to the
business, financial condition, operations or prospects of the Borrower and its
Subsidiaries, taken as a whole unless such liabilities are (x) covered by
environmental liability insurance, (y) subject to an indemnity from a
Governmental Party, or (z) subject to an indemnity satisfactory to the Borrower
from the seller of such Person, property or assets (or an Affiliate thereof)
and the board of directors of the Borrower have determined in good faith that
the seller or such Affiliate thereof is appropriately creditworthy in relation
to the potential amount of such Environmental Liabilities;


 


(B)           such Investment shall be in Persons, property and assets
which are part of, or in lines of business which are in, or substantially
related to, the aerospace, defense or commercial ammunition industries; provided,
that the aggregate amount of Investments under this Section 7.03(g)
shall be permitted


 


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only if, after giving pro forma effect thereto, the Loan Parties
would be in compliance with Section 7.11;


 


(C)           any determination of the amount of such Investment shall
include all cash consideration and noncash consideration (including, without
limitation, the fair market value of all Equity Interests issued or transferred
to the sellers thereof, all write-downs of property and assets and reserves for
liabilities with respect thereto) paid by or on behalf of the Borrower and its
Subsidiaries in connection with such Investment;


 


(D)          immediately before and immediately after giving pro forma effect to any such Investment,
no Default shall have occurred and be continuing; provided that pro forma compliance with respect to Section
7.10 shall be computed for the fiscal quarter most recently ended for which
a Compliance Certificate has been delivered; and


 


(h)           Investments by the Borrower in
respect of, including by way of any contributions to, any employee benefit,
pension or retirement plan, including any Pension Plan or Multiemployer Plan.


 


7.04         Fundamental
Changes.  Merge, dissolve, liquidate,
consolidate with or into another Person, or Dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of a Person,
except that, so long as no Default exists or would result therefrom:


 


(a)           any Domestic Subsidiary may merge
with (i) the Borrower, provided that the Borrower shall be the
continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided
that when any Guarantor is merging with another Subsidiary, a Guarantor shall
be the continuing or surviving Person;


 


(b)           any Loan Party may Dispose of all or
substantially all of its assets (upon voluntary liquidation or otherwise) to the
Borrower or to another Loan Party;


 


(c)           any Subsidiary which is not a Loan
Party may dispose of all or substantially all its assets to (i) another
Subsidiary which is not a Loan Party or (ii) to a Loan Party for no
consideration, or, in the case of this clause (ii), pursuant to a Disposition
which is in the nature of a liquidation; and


 


(d)           in connection with any Acquisition
permitted under Section 7.03(f), any Subsidiary of the Borrower may
merge into or consolidate with any other Person or permit any other Person to
merge into or consolidate with it; provided that the Person surviving
such merger shall be a wholly owned Domestic Subsidiary of the Borrower that
complies or is in compliance with Section 6.12.


 


7.05         Dispositions.  Make any Disposition, except:


 


(a)           Dispositions of (i) obsolete or worn
out property, whether now owned or hereafter acquired, in the ordinary course
of business or (ii) property which the Borrower


 


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in
good faith determines is surplus property and as a result is no longer useful
or economic in the conduct of the business of the Borrower and its
Subsidiaries;


 


(b)           Dispositions of inventory in the
ordinary course of business;


 


(c)           Dispositions of equipment or real
property to the extent that (i) such property is exchanged for credit against
the purchase price of similar replacement property or (ii) the proceeds of such
Disposition are, within 180 days after such Disposition, applied to the
purchase price of such replacement property;


 


(d)           Dispositions of property by (x) the
Borrower to any Guarantor and (y) any Subsidiary to the Borrower or to a
wholly-owned Subsidiary; provided that for Dispositions described in clause
(y) above, if the transferor of such property is a Guarantor, the
transferee thereof must either be the Borrower or a Guarantor;


 


(e)           (i) Dispositions permitted by Section
7.04 and (ii) the grant of any Lien permitted by Section 7.01;


 


(f)            Dispositions of Cash Equivalents;


 


(g)           Non-exclusive licenses of IP Rights
(i) in the ordinary course of business, and (ii) in favor of a Governmental
Party in respect of IP Rights developed during the performance of a Government
Contract with such Governmental Party to the extent that such license was (A)
required by the Federal Acquisition Regulation or (B) contemplated by the
Federal Acquisition Regulation and included in such Government Contract if the
Borrower reasonably determines that such license was necessary or advisable in
order to procure such Government Contract;


 


(h)           concurrently with the acquisition of
any fixed or capital assets, the sale and leaseback thereof so long as such
lease is an operating lease and such acquisition, sale and leaseback
transaction was entered into in order to obtain favorable governmental pricing
of such assets; and


 


(i)            Dispositions by the Borrower and its
Subsidiaries not otherwise permitted under this Section 7.05; provided
that (i) at the time of such Disposition, no Default shall exist or would
result from such Disposition, (ii) the aggregate fair market value of all
property Disposed of in reliance on this clause (i) during the term of
this Agreement shall not exceed 15% of the consolidated total assets of the
Borrower in any one fiscal year and 20% of the consolidated total assets of the
Borrower in the aggregate since the Restatement Closing Date (in each case,
determined as of the date of the most recently delivered financial statements
pursuant to Section 6.01) and (iii) the price for such asset shall
be paid to the Borrower or such Subsidiary for at least 80% cash consideration;


 


provided, however,
that any (x) Disposition pursuant to Section 7.05(a)(ii), Section
7.05(b) through Section 7.05(f) (other than Section 7.05(d)
and Section 7.05(e)(ii)) shall be for fair market value, (y) any Disposition
of Equity Interests in a Subsidiary pursuant to Section 7.05(i)
resulting in a Joint Venture shall only be permitted to the extent that the
fair market value of the


 


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remaining
Equity Interests in such Joint Venture is an Investment permitted under Section 7.03(g),
and (z) any Disposition of assets to another Person pursuant to Section
7.05(i) the consideration for which are Equity Interests or other interests
of another Person resulting in a Joint Venture, shall only be permitted to the
extent the fair market value of such assets would constitute an Investment
permitted under Section 7.03(g); provided, further, that
no assets shall be Disposed of under Section 7.05(i) in connection with
an asset securitization transaction.


 


7.06         Restricted
Payments.  Declare or
make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except that, so long as no Default shall
have occurred and be continuing at the time of any action described below or
would result therefrom:


 


(a)           each Subsidiary may make Restricted
Payments to the Borrower and to wholly-owned Subsidiaries (and, in the case of
a Restricted Payment by a non-wholly-owned Subsidiary, to the Borrower and any
Subsidiary and to each other owner of capital stock or other Equity Interests
of such Subsidiary on a pro rata basis based on their relative ownership
interests);


 


(b)           each Subsidiary of the Borrower may
declare and make dividend payments or other distributions payable solely in the
common stock or other common Equity Interests of such Person;


 


(c)           the Borrower and each Subsidiary may
purchase, redeem or otherwise acquire shares of its common stock or other
common Equity Interests with the proceeds received from the substantially
concurrent issue of new shares of its common stock or other common Equity
Interests;


 


(d)           the Borrower may make Restricted
Payments so long as (1) the Material Debt Documents then outstanding would
permit such Restricted Payment, (2) after giving pro forma effect to such Restricted Payments the
Borrower shall have a minimum of $100,000,000 of any combination of cash on
hand and availability under a revolving credit facility, and (3) if, after
giving effect thereto, either (A) the pro forma
Consolidated Senior Secured Leverage Ratio would be less than 2.00:1.00 or (B)
the aggregate amount of such Restricted Payments would be less than the sum of
(x) $250,000,000 in aggregate since the Restatement Closing Date plus
(y) up to 100% of the Net Cash Proceeds from the sale or issuance by the
Borrower of any of its Equity Interest since the Restatement Closing Date not
used to make any Restricted Payments under Section 7.06(c) above plus
(z) 50% of the Consolidated Net Income since the Restatement Closing Date; and


 


(e)           so long as such Restricted Payment
would be permitted under the Material Debt Documents then outstanding, (i) the
Borrower may refinance the Convertible Notes or the Senior Subordinated Notes
in whole or in part, using subordinated Indebtedness having a maturity date
longer than the debt being refinanced and having subordination terms not
materially less favorable to the Lenders than the terms of the debt being
refinanced and (ii) the Borrower may refinance any Senior Debt incurred
pursuant to Section 7.02(d) or (h), in whole or in part, using other
Indebtedness permitted by Section 7.02(d) or (h) having a maturity date longer
than the debt being refinanced.


 


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7.07         Change
in Nature of Business. 
Engage in any material line of business substantially different from
those lines of business conducted by the Borrower and its Subsidiaries on the
date hereof or any business substantially related or incidental thereto.


 


7.08         Transactions
with Affiliates.  Enter into
any transaction of any kind with any Affiliate of the Borrower, whether or not
in the ordinary course of business, other than on fair and reasonable terms
substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate, provided that
the foregoing restriction shall not apply to (a) transactions between or among
any Loan Parties, (b) Restricted Payments permitted to be made pursuant to Section
7.06, (c) issuances of securities or other payments pursuant to, or the
funding of, employment arrangements, indemnification agreements, stock options
and stock ownership plans approved by the board of directors of the Borrower or
such Subsidiary, (c) the grant of stock options or similar rights  to employees and directors of the Borrower
pursuant to plans approved by the board of directors of the Borrower, (d) loans
or advances to employees in the ordinary course of business in accordance with
past practices of the Borrower and its Subsidiaries to the extent permitted
under Section 7.03, but in any event not to exceed $2,000,000 in the
aggregate outstanding at any one time, and (e) the payment of reasonable fees
to directors of the Borrower and its Subsidiaries who are not employees of the
Borrower or its Subsidiaries.


 


7.09         Burdensome
Agreements.  Enter into
or permit to exist any Contractual Obligation (other than this Agreement or any
other Loan Document) that (a) limits the ability (i) of any Subsidiary to
make Restricted Payments to the Borrower or any Guarantor or to otherwise
transfer property to or to make Investments in the Borrower or any Guarantor,
except for (A) any agreement in effect on the date hereof or at the time any
Subsidiary becomes a Subsidiary of the Borrower, so long as such agreement was
not entered into solely in contemplation of such Person becoming a Subsidiary
of the Borrower, or (B) any other agreement or instrument entered into after
the Restatement Closing Date, provided that the encumbrances or
restrictions in any such other agreement or instrument are no more restrictive
in any material respect than those contained in this Agreement, the Senior
Subordinated Notes Indenture or the Convertible Notes Indenture, (ii) of any
Subsidiary to Guarantee the Indebtedness of the Borrower other than the Senior
Subordinated Notes Indenture as in effect on the date hereof, the Convertible
Notes Indenture as in effect on the date hereof and any Material Debt Document
governing Indebtedness permitted under Section 7.02(c), (d) or (h) so
long as the applicable provisions thereof are no more restrictive in any
material respect than the Senior Subordinated Notes Indenture or this Agreement
as in effect on the date hereof or (iii) of the Borrower or any Subsidiary to
create, incur, assume or suffer to exist Liens on property of such Person other
than the Senior Subordinated Notes Indenture as in effect on the date hereof,
the Convertible Notes Indenture as in effect on the date hereof, any Material
Debt Document governing Indebtedness permitted under Section 7.02(c), (d) or
(h) so long as the applicable provisions thereof are no more restrictive in
any material respect than the Senior Subordinated Notes Indenture as in effect
on the date hereof, and any Material Debt Document governing Indebtedness
permitted under Section 7.02(d) or (h) so long as such provisions are no
more restrictive in any material respect than customary provisions contained in
senior note or senior discount note indentures as determined in the reasonable
discretion of the Administrative Agent;


 


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provided, however, that this
clause (iii) shall not prohibit any negative pledge incurred or provided
in favor of any holder of Indebtedness permitted under Section 7.02(g) solely
to the extent any such negative pledge relates to the property financed by or
the subject of such Indebtedness; or (b) requires the grant of a Lien to
secure an obligation of such Person if a Lien is granted to secure another
obligation of such Person other than customary provisions in the indentures and
the Material Debt Documents referred to in clause (a)(iii) above so
long such indentures and the Material Debt Documents do not require the grant
of a Lien to secure an obligation of such Person if a Lien is granted to secure
any obligations of the Borrower or its Subsidiaries with respect to any of the
Loan Documents.


 


7.10         Financial Covenants.


 


(a)           Consolidated Interest Coverage Ratio.  Permit the Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of the Borrower to be less than
3.00:1.00.


 


(b)           Consolidated Senior Secured Leverage Ratio.  Permit the Consolidated Senior Secured
Leverage Ratio on the last day of any fiscal quarter to be greater than
2.50:1.00.


 


(c)           Consolidated Leverage Ratio.  Permit the Consolidated Leverage Ratio on the
last day of any fiscal quarter to be greater than 4.00:1.00.


 


7.11         Loan Parties Consolidated Assets.  Notwithstanding anything to the contrary,
permit the Borrower and the Guarantors collectively at any time to own less
than 75% of the consolidated total assets of the Borrower determined as of the
date of the last financial statements delivered pursuant to Section 6.01,
including, without limitation, as the result of any Disposition or Investment.


 


7.12         Amendments of Organization Documents.  Amend any of its Organization Documents in a
manner that adversely affects the rights of the Agents or the Lenders under the
Loan Documents on their ability to enforce the same.


 


7.13         Accounting Changes.  Make any change in (i) accounting
policies or reporting practices, except as required or permitted by generally
accepted accounting principles, or (ii) fiscal year.


 


7.14         Prepayments, Etc. of Indebtedness.  (a)  Prepay, redeem, purchase, defease
or otherwise satisfy prior to the scheduled maturity thereof in any manner, or
make any payment in violation of any subordination terms of, any subordinated
Indebtedness, except the refinancing of subordinated Indebtedness with other
Indebtedness to the extent permitted under Section 7.02(c), (d) or
(h) and except to the extent permitted under clause (d) or
(e) of Section 7.06 or (b) voluntarily prepay,
redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner any Indebtedness incurred under Section 7.02(d),
except so long as no Default is continuing or would result therefrom.


 


7.15         Amendment, Etc. of Related Documents.  Cancel or terminate any Senior Subordinated
Notes Document, the Convertible Notes Document or any Material Debt Documents
with respect to subordinated Material Debt or consent to or amend, modify or
change 


 


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in any manner any term or condition thereof or give
any consent, waiver or approval thereunder, waive any default under or any
breach of any term or condition thereof, agree in any manner to any other
amendment, modification or change of any term or condition thereof or take any
other action in connection therewith that would impair the value of the
interest or rights of any Loan Party thereunder or that would impair the rights
or interests of any Agent or any Lender, other than any termination thereof in
connection with the payment in full of all Obligations thereunder.


 


7.16         Speculative Transactions.  Engage, or permit any of its Subsidiaries to
engage, in any transaction involving Swap Contracts, including commodity
options or futures contracts, which are speculative in nature and not in the
ordinary course of business.


 


7.17         Material Contracts.  Cancel or terminate, or, to the extent it has
the power to do so (including through compliance with and performance of all
terms and obligations of Material Contracts), permit the cancellation or
termination of, Material Contracts involving aggregate consideration payable to
the Borrower and its Subsidiaries in any fiscal year of more than 25% of the
consolidated revenues of the Borrower and its Subsidiaries for the prior fiscal
year.


 


7.18         No Other Designated Senior Indebtedness.  Designate any Indebtedness, other than
Indebtedness arising under the Loan Documents, as “Designated Senior Indebtedness”
or analogous provision under the Senior Subordinated Notes Indenture, or the
Convertible Notes Indenture or any analogous term describing senior
indebtedness under any Material Debt Document in respect of subordinated
Material Debt.


 


ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES


 


8.01         Events of Default.  Any of the following shall constitute an
Event of Default:


 


(a)           Non-Payment.  The Borrower or any other Loan Party fails to
(i) pay when and as required to be paid herein, any amount of principal of
any Loan or any L/C Obligation, or (ii) pay within five Business Days
after the same becomes due, any interest on any Loan or on any L/C Obligation,
or any fee due hereunder, or any other amount payable hereunder or under any
other Loan Document; or


 


(b)           Specific Covenants.  The Borrower fails to perform or observe any
term, covenant or agreement contained in any of 6.03(a), 6.05, 6.11,
or Article VII; or


 


(c)           Other Defaults.  Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in Section 8.01(a) or
(b) above) contained in any Loan Document on its part to be performed
or observed and such failure continues for 30 days after a Responsible Officer
of such Loan Party shall have become aware of such failure; or


 


(d)           Representations and Warranties.  Any representation, warranty, certification
or statement of fact made or deemed made by or on behalf of the Borrower 


 


106

















 


or
any other Loan Party herein, in any other Loan Document, or in any document
delivered in connection herewith or therewith shall be incorrect in any
material respect when made or deemed made; or


 


(e)           Cross-Default.  Any Loan Party or any Subsidiary (i) fails
to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) after giving effect to any
applicable grace period in respect of any Indebtedness (including Swap
Contracts) or Guarantee of Indebtedness (other than Indebtedness hereunder)
having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold Amount, or (ii) fails
to observe or perform any other agreement or condition relating to any such
Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or otherwise relating to such Indebtedness, or any other
event occurs (including any termination event or analogous provision in any
Swap Contract), the effect of which default or other event is to cause, or to
permit the holder or holders of such Indebtedness or the beneficiary or
beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an
offer to repurchase, prepay, defease or redeem such Indebtedness to be made,
prior to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; or


 


(f)            Insolvency Proceedings, Etc.  Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or


 


(g)           Inability to Pay Debts.  Any Loan Party or any Subsidiary becomes
unable or admits in writing its inability or fails generally to pay its debts
as they become due; or


 


(h)           Judgments.  There is entered against any Loan Party or
any Subsidiary a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not covered by
independent third-party insurance as to which the insurer is rated at least “A”
by A.M. Best Company, has been notified of the potential claim and does
not dispute coverage) and (A) enforcement proceedings are commenced by any
creditor upon such judgment or order or (B) there is a period of 30
consecutive days during which a stay of enforcement of such judgment, by reason
of a pending appeal or otherwise, is not in effect; or


 


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(i)            ERISA.  (i) An ERISA Event occurs with respect
to a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Borrower under Title IV of ERISA
to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of the Threshold Amount, or (ii) any Loan Party or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan in an aggregate amount in excess of $50,000,000;
or


 


(j)            Invalidity of Loan Documents.  Any provision of any Loan Document, at any
time after its execution and delivery and for any reason other than as
expressly permitted hereunder or thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party contests
in any manner the validity or enforceability of any provision of any Loan
Document; or any Loan Party denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind
any Loan Document; or


 


(k)           Change of Control.  There occurs any Change of Control; or


 


(l)            Collateral Document.  Any Collateral Document after delivery
thereof pursuant to Section 4.01 or 6.12 shall for any reason
(other than pursuant to the terms thereof or as expressly permitted thereby)
cease to create a valid and perfected first priority lien (subject to Specified
Statutory Liens and, in the case of Mortgaged Properties only, Liens permitted
under Section 7.01(g)) on and security interest in the Collateral
purported to be covered thereby or any Loan Party shall so assert such
invalidity or lack of perfection or priority.


 


8.02         Remedies upon Event of Default.  If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders, take any or all of the following actions:


 


(a)           declare the commitment of each Lender to make Loans and any obligation of
the L/C Issuers to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;


 


(b)           declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;


 


(c)           require that the Borrower Cash Collateralize the L/C Obligations (in an
amount equal to the then Outstanding Amount thereof); and


 


(d)           exercise on behalf of itself, the other Agents and the Lenders all rights
and remedies available to it, the other Agents and the Lenders under the Loan
Documents or applicable Law;


 


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provided, however,
that upon the occurrence of an Event of Default under Section 8.01(f) or
an actual or deemed entry of an order for relief with respect to the Borrower
under the Bankruptcy Code of the United States, the obligation of each Lender
to make Loans and any obligation of the L/C Issuers to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall automatically
become due and payable, and the obligation of the Borrower to Cash
Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of any Agent or any Lender.


 


8.03         Application of Funds.  After the exercise of remedies provided for
in Section 8.02 (or after the Loans have automatically become
immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 8.02),
any amounts received on account of the Obligations shall, subject to the
provisions of Sections 2.16 and 2.17, be applied by the Administrative Agent in
the following order:


 


First, to payment of that portion of the Obligations
constituting fees, indemnities, expenses and other amounts (including Attorney
Costs and amounts payable under Article III, but excluding
principal and interest under the Loans) payable to the Agents in their
capacities as such ratably among them in proportion to the amounts described in
this clause First payable to them;


 


Second,
to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders
(including Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;


 


Third,
to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans, L/C Borrowings and other Obligations, ratably among the
Lenders in proportion to the respective amounts described in this clause Third
payable to them;


 


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


 


Fifth,
to the Administrative Agent for the account of the L/C Issuers, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit to the extent not otherwise Cash
Collateralized by the Borrower pursuant to Sections 2.03 and 2.16;


 


Sixth, to the payment
of all other Obligations of the Loan Parties owing under or in respect of the
Loan Documents that are due and payable to the Agents and the other Secured
Parties on such date, ratably based upon the respective aggregate amounts of
all such Obligations owing to the Agents and the other Secured Parties on such
date; and


 


109

















 


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


 


Subject
to Section 2.03(c) and 2.16, amounts used to Cash
Collateralize the aggregate undrawn amount of Letters of Credit pursuant to
clause Fifth above shall be applied to satisfy drawings under such
Letters of Credit as they occur.  If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.


 


ARTICLE IX

ADMINISTRATIVE AGENT AND OTHER AGENTS


 


9.01         Appointment and Authority.


 


(a)           Each of the Lenders hereby irrevocably appoints Bank of America to act on
its behalf as the Administrative Agent hereunder and under the other Loan
Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto.  The
provisions of this Article are solely for the benefit of the
Administrative Agent and the Lenders, and the Borrower shall not have rights as a third party beneficiary of
any of such provisions


 


(b)           The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (in its capacities as a Lender, Swing Line
Lender (if applicable), potential Hedge Bank and potential Cash Management
Bank) and each L/C Issuer hereby irrevocably appoints and authorizes the
Administrative Agent to act as the agent of such Lender and such L/C Issuer for
purposes of acquiring, holding and enforcing any and all Liens on Collateral
granted by any of the Loan Parties to secure any of the Obligations, together
with such powers and discretion as are reasonably incidental thereto.  In this connection, the Administrative Agent,
as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact
appointed by the Administrative Agent pursuant to Section 9.05 for
purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents, or for exercising any rights
and remedies thereunder at the direction of the Administrative Agent), shall be
entitled to the benefits of all provisions of this Article IX and Article XI
(including Section 10.04(c), as though such co-agents, sub-agents
and attorneys-in-fact were the “collateral agent” under the Loan Documents) as
if set forth in full herein with respect thereto.


 


9.02         Rights as a Lender.  The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual
capacity.  Such Person and its Affiliates
may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if such Person
were not the Administrative Agent hereunder and without any duty to account
therefor to the Lenders.


 


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9.03         Exculpatory Provisions.  The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents.  Without limiting the
generality of the foregoing, the Administrative Agent:


 


(a)   shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing;


 


(b)   shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative
Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and


 


(c)   shall
not, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.


 


The
Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in
the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by the Borrower or a Lender.


 


The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or
in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document, or the
creation, perfection or priority of any Lien purported to be created by the
Collateral Documents, (v) the value or the sufficiency of any Collateral,
or (v) the satisfaction of any condition set forth in Article IV
or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.


 


9.04         Reliance by Administrative Agent.


 


The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, 


 


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document
or other writing (including any electronic message, Internet or intranet
website posting or other distribution) believed by it to be genuine and to have
been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon
any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying
thereon.  In determining compliance with
any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or
an L/C Issuer, the Administrative Agent may presume that such condition is satisfactory
to such Lender or such L/C Issuer unless the Administrative Agent shall have
received notice to the contrary from such Lender or such L/C Issuer prior to
the making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult with
legal counsel (who may be counsel for the Borrower), independent accountants
and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel, accountants
or experts.


 


9.05         Delegation of Duties.  The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent.  The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.


 


9.06         Resignation of Administrative Agent.  The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuers and the
Borrower.  Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, with the
consent of the Borrower at all times other than during the continuance of an
Event of Default (which consent of the Borrower shall not be unreasonably
withheld or delayed), to appoint a successor, which shall be a bank with an
office in the United States, or an Affiliate of any such bank with an office in
the United States.  If no such successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuers, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (a) the
retiring Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders or the L/C Issuers under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold
such collateral security until such time as a successor Administrative Agent is
appointed) and (b) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender and each L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above
in this Section.  Upon the acceptance of
a successor’s appointment as Administrative Agent hereunder, 


 


112

















 


such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and
the retiring Administrative Agent shall be discharged from all of its duties
and obligations hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section).  The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor.  After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.


 


Any
resignation by Bank of America as Administrative Agent pursuant to this Section shall
also constitute its resignation as L/C Issuer and Swing Line Lender.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, (i) such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring L/C Issuer and Swing Line Lender, (ii) the retiring
L/C Issuer and Swing Line Lender shall be discharged from all of their respective
duties and obligations hereunder or under the other Loan Documents, and (iii) the
successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to the retiring L/C Issuer to effectively
assume the obligations of the retiring L/C Issuer with respect to such Letters
of Credit.


 


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


 


9.08         Administrative Agent May File Proofs of
Claim.  In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding
relative to any Loan Party, the Administrative Agent (irrespective of whether
the principal of any Loan or L/C Obligation shall then be due and payable as
herein expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise


 


(a)   to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Lenders and the Administrative
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative Agent and
their respective agents and counsel and all 


 


113

















 


other
amounts due the Lenders and the Administrative Agent under Sections 2.03(h) and
(i), 2.09 and 10.04) allowed in such judicial proceeding;
and


 


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


 


and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, if the
Administrative Agent shall consent to the making of such payments directly to
the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.


 


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


 


9.09         Collateral and Guaranty Matters.  The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion,


 


(a)   to
release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments
and payment in full of all Obligations (other than contingent indemnification
obligations not yet due and payable) and the expiration or termination of all
Letters of Credit, (ii) that is Disposed of or to be Disposed of to a
Person other than a Loan Party as part of or in connection with any sale or
other transfer permitted hereunder or under any other Loan Document, or (iii) subject
to Section 10.01, if approved, authorized or ratified in writing by
the Required Lenders;


 


(b)   to
release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder; and


 


(c)   to
subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that
is permitted by Section 7.01(i).


 


Upon
request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent’s authority to release or
subordinate its interest in particular types or items of property, or to
release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.09.  In each case as specified in this Section 9.09,
the Administrative Agent will, at the Borrower’s expense, execute and deliver
to the applicable Loan Party such documents as such Loan Party may reasonably
request to evidence the release of such item of Collateral from the assignment
and security interest granted under the Collateral Documents or to subordinate
its interest in such item, or to release such Guarantor from its


 


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obligations
under the Guaranty, in each case in accordance with the terms of the Loan
Documents and this Section 9.09. 
In each case as specified in this Section 9.09, the
Administrative Agent will, at the Borrower’s expense, execute and deliver to
the applicable Loan Party such documents as such Loan Party may reasonably
request to evidence the release of such item of Collateral from the assignment,
security interest and Lien granted under the Collateral Documents, and, if
applicable, return any possessory collateral or to release such Guarantor from
its obligations under the Guaranty, in each case in accordance with the terms
of the Loan Documents and this Section 9.09.


 


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


 


ARTICLE X

MISCELLANEOUS


 


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


 


(a)           waive any condition set forth in Section 4.01(b), or, in the
case of the initial Credit Extension, Section 4.02, without the
written consent of each Lender;


 


(b)           extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written
consent of such Lender;


 


(c)           postpone any date scheduled for any payment of principal or interest
under Sections 2.07 or 2.08, or any date fixed by the Administrative
Agent for the payment of fees or other amounts due to the Lenders (or any of
them) hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby;


 


(d)           reduce the principal of, or the rate of interest specified herein on, any
Loan or L/C Borrowing, or (subject to clause (v) of the second proviso to
this Section 10.01) any fees or other amounts payable hereunder or
under any other Loan Document without the written consent of each Lender
directly affected thereby; provided, however, that only the
consent of the Required Lenders shall be necessary (i) to amend the
definition of


 


115

















 


“Default
Rate” or to waive any obligation of the Borrower to pay interest or Letter of
Credit Fees at the Default Rate or (ii) to amend any financial covenant
hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or L/C Borrowing
or to reduce any fee payable hereunder;


 


(e)           change any provision of this Section 10.01 or the definition
of “Required Lenders” or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender;


 


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


 


(g)           release all or substantially all of the value of the Guaranty, without
the written consent of each Lender, except to the extent the release of any
Guarantor is permitted pursuant to Section 9.11 (in which case such
release may be made by the Administrative Agent acting alone);


 


and
provided  further that no amendment, waiver or consent shall (i) change
the order of application of any reduction in the Commitments or any prepayment
of Loans between the Facilities from the application thereof set forth in the
applicable provisions of Section 2.05(b), 2.06(b) or 8.03,
respectively, in any manner that materially and adversely affects the Lenders
under the Revolving Credit Facility or a Term Facility unless in writing and
signed by the Required Revolving Credit Lenders and the applicable Required
Term Lenders, as the case may be, under the adversely affected Facility or (ii) require
the permanent reduction of the Revolving Credit Facility at any time when all
or a portion of the Term Facilities remains in effect unless in writing and
signed by the applicable Required Term Lenders; and provided  further
that (i) no amendment, waiver or consent shall, unless in writing and
signed by the L/C Issuers in addition to the Lenders required above, affect the
rights or duties of the L/C Issuers under this Agreement or any Letter of
Credit Application relating to any Letter of Credit issued or to be issued by
it; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Swing Line Lenders in addition to the Lenders required above,
affect the rights or duties of the Swing Line Lenders under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by an Agent in
addition to the Lenders required above, affect the rights or duties of, or any
fees or other amounts payable to, such Agent under this Agreement or any other
Loan Document; and (iv) Section 10.06(h) may not be
amended, waived or otherwise modified without the consent of each Granting
Lender all or any part of whose Loans are being funded by an SPC at the time of
such amendment, waiver or other modification; and (v) the respective Fee
Letters may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. 
Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent
hereunder (and any amendment, waiver or consent which by its terms requires the
consent of all Lenders or each affected Lender may be effected with the consent
of the applicable Lenders other than Defaulting Lenders), except that (x) the
Commitment of any Defaulting Lender may not be increased or extended without
the consent of such Lender and (y) any waiver, amendment or modification
requiring the consent of all Lenders or each affected Lender that by its terms
affects any 


 


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Defaulting
Lender more adversely than other affected Lenders shall require the consent of
such Defaulting Lender, and the Borrower may replace any Defaulting Lender with
the consent of the Administrative Agent (such consent not to be unreasonably
withheld) in accordance with Section 10.16.  In the event that any amendment or waiver to
this Agreement or any Loan Document or any consent to departure therefrom has
been requested and any Lender does not agree to such amendment, waiver or
consent, the Borrower may replace any such Lender not agreeing to such
amendment, waiver or consent in accordance with Section 10.16.


 


10.02       Notices and Other Communications; Facsimile
Copies.


 


(a)           General.  Unless otherwise expressly provided herein,
all notices and other communications provided for hereunder or under any other
Loan Document shall be in writing (including by facsimile transmission).  All such written notices shall be mailed
certified or registered mail, faxed or delivered to the applicable address,
facsimile number or (subject to Section 10.02(b)) electronic mail
address, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:


 


(i)            if to the Borrower, the Administrative Agent,
any L/C Issuer or the Swing Line Lender, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on Schedule
10.02 or to such other address, facsimile number, electronic mail address
or telephone number as shall be designated by such party in a notice to the
other parties; and


 


(ii)           if to any other Lender, to the address,
facsimile number, electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by such
party in a notice to the Borrower, the Administrative Agent, the L/C Issuers
and the Swing Line Lender.


 


Notices
and other communications sent by hand or overnight courier service, or mailed
by certified or registered mail, shall be deemed to have been given when
received; notices and other communications sent by facsimile shall be deemed to
have been given when sent (except that, if not given during normal business
hours for the recipient, shall be deemed to have been given at the opening of
business on the next business day for the recipient).  Notices and other communications delivered
through electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).


 


(b)           Electronic Communications.  Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including electronic-mail and internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender pursuant to Article II
if such Lender has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication.  The Administrative Agent or the Borrower may,
in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it, provided
that approval of such procedures may be limited to particular notices or
communications.


 


117

















 


Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient,
such notice or communication shall be deemed to have been sent at the opening
of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that
such notice or communication is available and identifying the website address
therefor.


 


(c)           Effectiveness of Facsimile Documents and Signatures.  Loan Documents may be
transmitted and/or executed and delivered by facsimile.  The effectiveness of any such documents and
signatures shall, subject to applicable Law, have the same force and effect as
manually-signed originals and shall be binding on all Loan Parties, the Agents
and the Lenders.  The Administrative
Agent may also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the
failure to request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.


 


(d)           The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.”  THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM
VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION
WITH THE BORROWER MATERIALS OR THE PLATFORM. 
In no event shall the Administrative Agent or any of its Related Parties
(collectively, the “Agent Parties”) have any liability to the Borrower,
any Lender or any other Person for losses, claims, damages, liabilities or
expenses of any kind (whether in tort, contract or otherwise) arising out of
the Borrower’s or the Administrative Agent’s transmission of Borrower Materials
through the Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of competent jurisdiction by
a final and nonappealable judgment to have resulted from the gross negligence
or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to the Borrower, any
Lender or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).


 


(e)           Reliance by Agents and Lenders.  The Agents and the Lenders shall be entitled
to rely and act upon any notices purportedly given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof.  The Borrower shall indemnify the
Administrative Agent each L/C Issuer, each Lender and the Related Parties of
each of them from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of
the Borrower.  All telephonic 


 


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communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.


 


(f)            Updated Notice
Information, Etc.  Each of the Borrower, the Administrative Agent,
each L/C Issuer and each Swing Line Lender may change its address, telecopier
or telephone number for notices and other communications hereunder by notice to
the other parties hereto.  Each other
Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the Borrower, the Administrative
Agent, the L/C Issuers and the Swing Line Lenders.  In addition, each Lender agrees to notify the
Administrative Agent from time to time to ensure that the Administrative Agent
has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such
Lender.  Furthermore, each Public Lender
agrees to cause at least one individual at or on behalf of such Public Lender
to at all times have selected the “Private Side Information” or similar
designation on the content declaration screen of the Platform in order to
enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United States
Federal and state securities Laws, to make reference to Borrower Materials that
are not made available through the “Public Side Information” portion of the
Platform and that may contain material non-public information with respect to
the Borrower or its securities for purposes of United States Federal or state
securities laws.


 


10.03       No Waiver; Cumulative Remedies.  No failure by any Lender or any Agent to
exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder or any other Loan Document shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
herein provided, and provided under each other Loan Document, are cumulative
and not exclusive of any rights, remedies, powers and privileges provided by
law.


 


Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan
Documents against the Loan Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 8.02 for the benefit of all the Lenders; provided,
however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies
that inure to its benefit (solely in its capacity as Administrative Agent)
hereunder and under the other Loan Documents, (b) any L/C Issuer or any
Swing Line Lender from exercising the rights and remedies that inure to its
benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case
may be) hereunder and under the other Loan Documents, (c) any Lender from
exercising setoff rights in accordance with Section 10.08 (subject
to the terms of Section 2.13), or (d) any Lender from filing
proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Loan Party under any Debtor Relief
Law; and provided, further, that if at any time there is no
Person acting as Administrative Agent hereunder and under the other Loan
Documents, then (i) the Required Lenders shall have the rights otherwise
ascribed to the 


 


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Administrative
Agent pursuant to Section 8.02 and (ii) in addition to the
matters set forth in clauses (b), (c) and (d) of the preceding proviso
and subject to Section 2.13, any Lender may, with the consent of
the Required Lenders, enforce any rights and remedies available to it and as
authorized by the Required Lenders.


 


10.04       Expenses; Indemnity; Damage Waiver.  (a)  Costs and Expenses.  Borrower agrees (a) to pay or reimburse
each Agent for all reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation, negotiation, syndication and
execution of this Agreement and the other Loan Documents, and any amendment,
waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs, (b) to pay
or reimburse each L/C Issuer for all reasonable out-of-pocket expenses incurred
by such L/C Issuer in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder and (c) to
pay or reimburse each Agent and each Lender for all costs and expenses incurred
in connection with the enforcement of any rights or remedies under this
Agreement or the other Loan Documents (including all such costs and expenses
incurred during any legal proceeding, including any proceeding under any Debtor
Relief Law), including all Attorney Costs. 
The foregoing costs and expenses shall include all search, filing,
recording, title insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by any Agent and the cost of
independent public accountants and other outside experts retained by any Agent
or any Lender.  If any Loan Party fails
to pay when due any costs, expenses or other amounts payable by it hereunder or
under any Loan Document, including, without limitation, Attorney Costs and
indemnities, such amount may be paid on behalf of such Loan Party by any Agent
or any Lender, in its sole discretion.


 


(b)           Indemnification by the Borrower.  Whether or not the Transactions contemplated
hereby are consummated, the Borrower shall indemnify and hold harmless the
Administrative Agent (and any sub-agent thereof), each Lender and each Related
Party of any of the foregoing Persons (collectively the “Indemnitees”) from
and against any and all liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, costs, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which may at any
time be imposed on, incurred by or asserted against any such Indemnitee in any
way relating to or arising out of or in connection with (a) the execution,
delivery, enforcement, performance or administration of any Loan Document or
any other agreement, letter or instrument delivered in connection with the
transactions contemplated thereby or the consummation of the transactions
contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the
use or proposed use of the proceeds therefrom (including any refusal by any L/C
Issuer to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (c) any actual or alleged presence or release
of Hazardous Materials on or from any property currently or formerly owned or
operated by the Borrower, any Subsidiary or any other Loan Party, or any
Environmental Liability related in any way to the Borrower, any Subsidiary or
any other Loan Party, or (d) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, 


 


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investigation, litigation or proceeding) and
regardless of whether any Indemnitee is a party thereto (all the foregoing,
collectively, the “Indemnified
Liabilities”), in all cases, whether or not caused by or
arising, in whole or in part, out of the negligence of the Indemnitee; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses or disbursements are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee.  No Indemnitee shall be
liable for any damages arising from the use by others of any information or
other materials obtained through IntraLinks or other similar information
transmission systems in connection with this Agreement, nor shall any
Indemnitee have any liability for any indirect or consequential damages
relating to this Agreement or any other Loan Document or arising out of its
activities in connection herewith or therewith (whether before or after the
Restatement Closing Date).  In the case
of an investigation, litigation or other proceeding to which the indemnity in
this Section 10.04(b) applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is
brought by any Loan Party, its directors, shareholders or creditors or an
Indemnitee or any other Person, whether or not any Indemnitee is otherwise a
party thereto and whether or not any of the transactions contemplated hereunder
or under any of the other Loan Documents is consummated.


 


(c)           Reimbursement by Lenders.  To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b) of
this Section to be paid by it to the Administrative Agent (or any
sub-agent thereof), any L/C Issuer or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), such L/C Issuer or such Related Party, as the case may be,
such Lender’s Pro Rata Share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or such L/C Issuer in its capacity
as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with
such capacity.  The obligations of the
Lenders under this subsection (c) are subject to the
provisions of Section 2.12(e).


 


(d)           Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable
law, the Borrower shall not assert, and the Borrower agrees that no Subsidiary
of the Borrower that is an account party under any Letter of Credit shall
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients
of any information or other materials distributed to such unintended recipients
by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than for
direct or actual damages resulting from the gross negligence or willful
misconduct 


 


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of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.


 


(e)           Payments.  All amounts due under this Section shall
be payable not later than ten Business Days after demand therefor.


 


(f)            Survival.  The agreements in this Section shall
survive the resignation of the Administrative Agent, the L/C Issuers and the
Swing Line Lenders, the replacement of
any Lender, the termination of the Commitments and the repayment, satisfaction
or discharge of all the other Obligations.


 


10.05       Payments Set Aside.  To the extent that any payment by or on
behalf of the Borrower is made to any Agent or any Lender, or any Agent or any
Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by such Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each
Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by any Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Rate from time to time in
effect.  The obligations of the Lenders
and the L/C Issuers under clause (b) of the preceding sentence shall
survive the payment in full of the Obligations and the termination of this
Agreement..


 


10.06       Successors and Assigns.


 


(a)           The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance
with the provisions of Section 10.06(b), (ii) by way of
participation in accordance with the provisions of Section 10.06(d),
or (iii) by way of pledge or assignment of a security interest subject to
the restrictions of Section 10.06(f) (and any other attempted
assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in subsection (d) of this
Section and, to the extent expressly contemplated hereby, the Indemnitees)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.


 


(b)           Assignments by Lenders.  Any Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment(s) and the Loans
(including for purposes of this Section 10.06(b), participations in
L/C Obligations and in Swing Line Loans) at the time owing to it); provided
that any such assignment shall be subject to the following conditions:


 


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(i)            Minimum Amounts.


 


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


 


(B)           in any case not described in
subsection (b)(i)(A) of this Section, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder) or,
if the Commitment is not then in effect, the principal outstanding balance of
the Loans of the assigning Lender subject to each such assignment, determined
as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000, in the case of any
assignment in respect of the Revolving Credit Facility, or $1,000,000, in the
case of any assignment in respect of any Term Facility, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has
been met;


 


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


 


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


 


(A)          the consent of the Borrower
(such consent not to be unreasonably withheld or delayed) shall be required
unless (1) an Event of Default has occurred and is continuing at the time
of such assignment or (2) such assignment is to a Lender, an Affiliate of
a Lender or an Approved Fund; provided that the Borrower shall be deemed
to have consented to any such assignment unless it shall object thereto by
written notice to the Administrative Agent within ten (10) Business Days
after having received notice thereof;


 


(B)           the consent of the
Administrative Agent (such consent not to be unreasonably withheld or delayed)
shall be required for assignments in respect of (1) any Term Commitment or
Revolving Credit Commitment if such assignment 


 


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is to a Person that is not a
Lender with a Commitment in respect of the applicable Facility, an Affiliate of
such Lender or an Approved Fund with respect to such Lender or (2) any
Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an
Approved Fund;


 


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


 


(D)          the consent of the Swing
Line Lenders (such consent not to be unreasonably withheld or delayed) shall be
required for any assignment in respect of the Revolving Credit Facility.


 


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


 


(b)           No Assignment to Certain Persons.  No such assignment shall be made (A) to
the Borrower or any of the Borrower’s Affiliates, or (B) to any Defaulting
Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender
hereunder, would constitute any of the foregoing Persons described in this
clause (B), or (C) to a natural person.


 


(c)           Certain Additional Payments.  In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be
effective unless and until, in addition to the other conditions thereto set
forth herein, the parties to the assignment shall make such additional payments
to the Administrative Agent in an aggregate amount sufficient, upon
distribution thereof as appropriate (which may be outright payment, purchases
by the assignee of participations or subparticipations, or other compensating
actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans previously
requested but not funded by the Defaulting Lender, to each of which the
applicable assignee and assignor hereby irrevocably consent), to (x) pay
and satisfy in full all payment liabilities then owed by such Defaulting Lender
to the Administrative Agent or any Lender hereunder (and interest accrued
thereon) and (y) acquire (and fund as appropriate) its full pro rata share
of all Loans and participations in Letters of Credit and Swing Line Loans in
accordance with its Pro Rata Share. 
Notwithstanding the foregoing, in the event that any assignment of
rights and obligations of any Defaulting Lender hereunder shall become
effective under applicable Law without compliance with the provisions of this
paragraph, then the assignee of such interest shall be deemed to be a
Defaulting Lender for all purposes of this Agreement until such compliance
occurs.


 


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Subject
to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.06(c),
from and after the effective date specified in each Assignment and Assumption,
the Eligible Assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05 and 10.04
with respect to facts and circumstances occurring prior to the effective date
of such assignment).  Upon request, the
Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender.  Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with Section 10.06(d).


 


(c)           Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations owing
to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive absent manifest error, and the Borrower, the Agents and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary.  The Register
shall be available for inspection by the Borrower at any reasonable time and
from time to time upon reasonable prior notice. 
In addition, at any time that a request for a consent for a material or
other substantive change to the Loan Documents is pending, any Lender may
request and receive from the Administrative Agent a copy of the Register.


 


(d)           Participations.  Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person, a Defaulting Lender
or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a
portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to
it); provided that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Agents and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. 
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in
the first proviso to Section 10.01 that directly affects such
Participant.  Subject to Section 10.06(e),
the Borrower 


 


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agrees that each
Participant shall be entitled to the benefits of Sections 3.01, 3.04
and 3.05  to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section 10.06(b).  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.08  as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were
a Lender.


 


(e)           Limitations upon Participant Rights.  A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04  than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower’s prior
written consent.  A Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 10.14 as though it
were a Lender.


 


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


 


(g)           Certain Definitions.  As used herein, the following terms have the
following meanings:


 


“Eligible Assignee” means (a) a
Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any
other Person (other than a natural person) approved by (i) the Administrative
Agent, (ii) in the case of any assignment of a Revolving Commitment or in
the case of an Eligible Assignee that shall become a party hereto in accordance
with Section 2.14(a), the L/C Issuers and the Swing Line Lenders,
and (iii) unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed); provided
that notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.


 


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


 


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


 


(h)           Special Purpose Funding Vehicles.  Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower (an “SPC”) the option to provide all or any part of any 


 


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Loan that such Granting
Lender would otherwise be obligated to make pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund
any Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Loan, the Granting Lender shall
be obligated to make such Loan pursuant to the terms hereof or, if it fails to
do so, to make such payment to the Administrative Agent as is required under Section 2.12(c)(ii).  Each party hereto hereby agrees that (i) neither
the grant to any SPC nor the exercise by any SPC of such option shall increase
the costs or expenses or otherwise increase or change the obligations of the
Borrower under this Agreement (including its obligations under Section 3.04),
(ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender would be liable, and (iii) the
Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. 
The making of a Loan by an SPC hereunder shall utilize the Commitment of
the Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender.  In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior debt of any SPC, it will not institute against, or join any other Person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the United States or
any State thereof.  Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to,
but without prior consent of the Borrower and the Administrative Agent and with
the payment of a processing fee of $3,500 (which processing fee may be waived
by the Administrative Agent in its sole discretion), assign all or any portion
of its right to receive payment with respect to any Loan to the Granting Lender
and (ii) disclose on a confidential basis any non-public information
relating to its funding of Loans to any rating agency, commercial paper dealer
or provider of any surety or Guarantee or credit or liquidity enhancement to
such SPC.


 


(i)            Resignation as L/C Issuer or Swing Line Lender after Assignment.  Notwithstanding anything to the
contrary contained herein, if at any time Bank of America assigns all of its
Commitments and Loans pursuant to Section 10.06(b), Bank of America
may, (i) upon 30 days’ notice to the Borrower and the Lenders, resign as
L/C Issuer and/or (ii) upon 30 days’ notice to the Borrower, resign as
Swing Line Lender.  In the event of any
such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be
entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line
Lender hereunder; provided, however, that no failure by the
Borrower to appoint any such successor shall affect the resignation of Bank of
America as L/C Issuer or Swing Line Lender, as the case may be.  If Bank of America resigns as L/C Issuer, it
shall retain all the rights and obligations of an L/C Issuer hereunder with
respect to all Letters of Credit issued by it and outstanding as of the
effective date of its resignation as L/C Issuer and all L/C Obligations with
respect thereto (including the right to require the Lenders to make Base Rate
Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c). 
In addition, notwithstanding anything to the contrary 


 


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contained herein, if at
any time any other L/C Issuer or Swing Line Lender, in its capacity as Lender,
assigns all of its Commitments and Loans pursuant to Section 10.06(b),
such Lender may, (i) upon 30 days’ notice to the Borrower and the other
Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to the
Borrower, resign as Swing Line Lender. 
In the event of any such resignation as L/C Issuer or Swing Line Lender,
the Borrower shall be entitled to appoint from among the Lenders (subject to
such Lender’s acceptance of such appointment) a successor L/C Issuer or Swing
Line Lender hereunder; provided, however, that no failure by the
Borrower to appoint any such successor shall affect the resignation of such
Lender as L/C Issuer or Swing Line Lender, as the case may be.  If such Lender resigns as L/C Issuer, it
shall retain all the rights and obligations of an L/C Issuer hereunder with
respect to all Letters of Credit issued by it and outstanding as of the
effective date of its resignation as L/C Issuer and all L/C Obligations with
respect thereto (including the right to require the Lenders to make Base Rate
Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  If such Lender resigns as Swing Line Lender,
it shall retain all the rights of the Swing Line Lender provided for hereunder
with respect to Swing Line Loans made by it and outstanding as of the effective
date of such resignation, including the right to require the Lenders to make
Base Rate Loans or fund risk participations in outstanding Swing Line Loans
pursuant to Section 2.04(c). 
Upon the appointment of a successor L/C Issuer and/or Swing Line Lender,
(a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line
Lender, as the case may be, and (b) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations
of such retiring L/C Issuer with respect to such Letters of Credit


 


10.07       Confidentiality.  Each of the Agents and the Lenders agrees to
maintain the confidentiality of the Information, except that Information may be
disclosed (a) to its Affiliates and to its Affiliates’ respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential); (b) to the extent requested by any
regulatory authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners); (c) to the extent required by applicable Laws or
regulations or by any subpoena or similar legal process; (d) to any other
party to this Agreement; (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder; (f) subject to an agreement
containing provisions substantially the same as those of this Section 10.07,
to (i) any Eligible Assignee of or Participant in, or any prospective
Eligible Assignee of or Participant in, any of its rights or obligations under
this Agreement or (ii) any direct or indirect contractual counterparty or
prospective counterparty (or such contractual counterparty’s or prospective
counterparty’s professional advisor) to any credit derivative transaction
relating to obligations of the Loan Parties; (g) with the consent of the
Borrower; (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section 10.07
or (ii) becomes available to any Agents or any Lender on a nonconfidential
basis from a source other than the Borrower; (i) to any state, Federal or
foreign authority or examiner (including the National Association of Insurance
Commissioners or any other similar organization) regulating any Lender; or (j) to
any rating agency when required by it (it being understood that, prior to any 


 


128

















 


such disclosure, such rating agency shall undertake
to preserve the confidentiality of any Information relating to the Loan Parties
received by it from such Lender).  In
addition, the Agents and the Lenders may disclose the existence of this
Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the
Agents and the Lenders in connection with the administration and management of
this Agreement, the other Loan Documents, the Commitments, and the Credit
Extensions.  Each of the Administrative
Agent and the Lenders acknowledges that (a) the Information may include
material non-public information concerning the Borrower or a Subsidiary, as the
case may be, (b) it has developed compliance procedures regarding the use
of material non-public information and (c) it will handle such material
non-public information in accordance with applicable Law, including United
States Federal and state securities Law. 
For the purposes of this Section, “Information” means all information received
from any Loan Party relating to any Loan Party or its business, other than any
such information that is available to any Agent or any Lender on a
nonconfidential basis prior to disclosure by any Loan Party; provided
that, in the case of information received from a Loan Party after the date
hereof, such information is clearly identified in writing at the time of
delivery as confidential.  Any Person
required to maintain the confidentiality of Information as provided in this Section 10.07
shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of
such Information as such Person would accord to its own confidential
information.


 


10.08       Setoff.  In addition to any rights and remedies of the
Lenders provided by law, upon the occurrence and during the continuance of any
Event of Default, each Lender and each of their respective Affiliates is
authorized at any time and from time to time, without prior notice to the
Borrower or any other Loan Party, any such notice being waived by the Borrower
(on its own behalf and on behalf of each Loan Party) to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other
Indebtedness at any time owing by, such Lender to or for the credit or the
account of the respective Loan Parties against any and all Obligations owing to
such Lender hereunder or under any other Loan Document, now or hereafter
existing, irrespective of whether or not such Agent or such Lender shall have
made demand under this Agreement or any other Loan Document and although such
Obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or indebtedness; provided, that
in the event that any Defaulting Lender shall exercise any such right of
setoff, (x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the provisions
of Section 2.17 and, pending such payment, shall be segregated by
such Defaulting Lender from its other funds and deemed held in trust for the
benefit of the Administrative Agent and the Lenders, and (y) the
Defaulting Lender shall provide promptly to the Administrative Agent a
statement describing in reasonable detail the Obligations owing to such
Defaulting Lender as to which it exercised such right of setoff.  Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such setoff and application.  The rights of the Administrative Agent and
each Lender and their respective Affiliates under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of setoff) that the Administrative Agent, such Lender and their
respective Affiliates may have.


 


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10.09       Interest Rate Limitation.  Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under
the Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the “Maximum Rate”).  If any Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower.  In
determining whether the interest contracted for, charged, or received by an
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.


 


10.10       Counterparts.  This Agreement and each other Loan Document
may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.  Delivery by telecopier of an
executed counterpart of a signature page to this Agreement and each other
Loan Document shall be effective as delivery of an original executed
counterpart of this Agreement and such other Loan Document. The Agents may also
require that any such documents and signatures delivered by telecopier be
confirmed by a manually-signed original thereof; provided that the
failure to request or deliver the same shall not limit the effectiveness of any
document or signature delivered by telecopier, facsimile or pdf.


 


10.11       Integration.  This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on
the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, on such subject matter. 
In the event of any conflict between the provisions of this Agreement
and those of any other Loan Document, the provisions of this Agreement shall
control; provided that the inclusion of supplemental rights or remedies
in favor of the Agents or the Lenders in any other Loan Document shall not be
deemed a conflict with this Agreement. 
Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.


 


10.12       Survival of Representations and Warranties.  All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant
hereto or thereto or in connection herewith or therewith shall survive the
execution and delivery hereof and thereof. 
Such representations and warranties have been or will be relied upon by
each Agent and each Lender, regardless of any investigation made by any Agent
or any Lender or on their behalf and notwithstanding that any Agent or any
Lender may have had notice or knowledge of any Default at the time of any
Credit Extension, and shall continue in full force and effect as long as any
Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or
any Letter of Credit shall remain outstanding.


 


10.13       Severability.  If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith 


 


130

















 


negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions.  The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.  Without limiting the foregoing provisions of
this Section 10.13, if and to the extent that the enforceability of
any provisions in this Agreement relating to Defaulting Lenders shall be
limited by Debtor Relief Laws, as determined in good faith by the Administrative
Agent, the L/C Issuers or the Swing Line Lenders, as applicable, then such
provisions shall be deemed to be in effect only to the extent not so limited.


 


10.14       Tax Forms.  (a)  (i)  Each Lender
that is not a “United States person” within the meaning of Section 7701(a)(30)
of the Code (a “Foreign Lender”) shall
deliver to the Borrower and to the Administrative Agent, at least three
Business Days prior to receipt of any payment subject to withholding under the
Code (or upon accepting an assignment of an interest herein), two duly signed
completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Foreign Lender and entitling it to an exemption from, or
reduction of, withholding tax on all payments to be made to, or for the account
of, such Foreign Lender by the Borrower pursuant to the Loan Documents) or IRS Form W-8ECI
or any successor thereto (relating to all payments to be made to, or for the
account of, such Foreign Lender by the Borrower pursuant to the Loan Documents)
or such other evidence satisfactory to the Borrower and the Administrative
Agent that such Foreign Lender is entitled to an exemption from, or reduction
of, U.S. withholding tax, including any exemption pursuant to Section 881(c) of
the Code, and in the case of a Foreign Lender claiming such an exemption under Section 881(c) of
the Code, a certificate that establishes in writing to the Borrower and to the
Administrative Agent that such Foreign Lender is not (i) a “bank” as
defined in Section 881(c)(3)(A) of the Code, (ii) a
10-percent shareholder within the meaning of Section 871(h)(3)(B) of
the Code, and (iii) a controlled foreign corporation related to the
Borrower with the meaning of Section 864(d) of the Code.  Thereafter and from time to time, each such
Foreign Lender shall (A) promptly submit to the Borrower and to the
Administrative Agent such additional duly completed and signed copies of one of
such forms (or such successor forms as shall be adopted from time to time by
the relevant United States taxing authorities) as may then be available under
then current United States laws and regulations to avoid, or such evidence as
is satisfactory to the Borrower and the Administrative Agent of any available
exemption from or reduction of, United States withholding taxes in respect of
all payments to be made to, or for the account of, such Foreign Lender by the
Borrower pursuant to the Loan Documents, (B) promptly notify the Borrower
and the Administrative Agent of any change in circumstances which would modify
or render invalid any claimed exemption or reduction, and (C) take such
steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable
Laws that the Borrower make any deduction or withholding for taxes from amounts
payable to such Foreign Lender.


 


(ii)           Each Foreign Lender, to the extent it does not
act or ceases to act for its own account with respect to any portion of any
sums paid or payable to such Lender under any of the Loan Documents (for
example, in the case of a typical participation by such Lender), shall deliver
to the Borrower and the Administrative Agent at least three Business Days prior
to the 


 


131

















 


date when such Foreign
Lender ceases to act for its own account with respect to any portion of any
such sums paid or payable, and at such other times as may be necessary in the
determination of the Borrower or the Administrative Agent (in each case, in the
reasonable exercise of its discretion), (A) two duly signed completed
copies of the forms or statements required to be provided by such Lender as set
forth above, to establish the portion of any such sums paid or payable with
respect to which such Lender acts for its own account that is not subject to
U.S. withholding tax, and (B) two duly signed completed copies of IRS
Form W-8IMY (or any successor thereto), together with any information such
Lender is required to transmit with such form pursuant to the Code and the
Treasury Regulations, and any other certificate or statement of exemption
required under the Code or the Treasury Regulations, to establish that such
Lender is not acting for its own account with respect to a portion of any such
sums payable to such Lender.


 


(iii)          If a payment made to a Lender under any Loan
Document would be subject to U.S. federal withholding tax imposed by FATCA if
such Lender were to fail to comply with the applicable reporting requirements
of FATCA (including those contained in Section 1471(b) or 1472(b) of
the Code, as applicable), such Lender shall deliver to the Borrower and the
Administrative Agent, at the time or times prescribed by law and at such time or
times reasonably requested by the Borrower or the Administrative Agent, such
documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of
the Code) and such additional documentation reasonably requested by the Borrower
or the Administrative Agent as may be necessary for the Borrower or the
Administrative Agent to comply with its obligations under FATCA, to determine
that such Lender has complied with such Lender’s obligations under FATCA or to
determine the amount to deduct and withhold from such payment. For purposes of
this Section 10.14(a)(iii), FATCA shall include any Treasury regulations
or interpretations thereof.


 


(iv)          The Borrower shall not be required to pay any
additional amount to, or for the account of, any Foreign Lender under Section 3.01
(A) with respect to any Taxes required to be deducted or withheld on the
basis of the information, certificates or statements of exemption such Lender
transmits with an IRS Form W-8BEN or W-8IMY (or any successor form thereto)
pursuant to this Section 10.14(a), (B) if such Lender shall
have failed to satisfy the foregoing provisions of this Section 10.14(a) or
(C) any U.S. federal withholding tax to the extent imposed as a result of
a failure to satisfy the applicable requirements of FATCA after the date on
which the requirements become effective; provided that if such Lender
shall have satisfied the requirement of this Section 10.14(a) on
the date such Lender became a Lender or ceased to act for its own account with
respect to any payment under any of the Loan Documents, nothing in this Section 10.14(a) shall
relieve the Borrower of its obligation to pay any amounts pursuant to Section 3.01
to the extent that, as a result of any change in any applicable Law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, (A) such Lender is no longer
properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender or other Person for the
account of which such Lender receives any sums payable under any of the Loan
Documents is not subject to withholding or is subject to withholding at a
reduced rate, or (B) the rate at which such Lender or other Person is
subject to tax is increased.


 


132

















 


(v)           The Administrative Agent may withhold any
Taxes required to be deducted and withheld from any payment under any of the
Loan Documents with respect to which the Borrower is not required to pay
additional amounts under this Section 10.14(a).


 


(b)           Upon the request of the Administrative Agent, each Lender that is a “United
States person” within the meaning of Section 7701(a)(30) of the
Code shall deliver to the Administrative Agent two duly signed completed copies
of IRS Form W-9.  If such Lender
fails to deliver such forms, then the Administrative Agent may withhold from
any interest payment to such Lender an amount equivalent to the applicable
back-up withholding tax imposed by the Code.


 


(c)           If any Governmental Authority asserts that the Administrative Agent did
not properly withhold or backup withhold, as the case may be, any tax or other
amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section 10.14, and costs and
expenses (including Attorney Costs) of the Administrative Agent.  The obligation of the Lenders under this Section 10.14
shall survive the termination of the Aggregate Commitments, repayment of all
other Obligations hereunder and the resignation of the Administrative Agent.


 


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


 


10.16       Replacement of Lenders.  Under any circumstances set forth herein
providing that the Borrower shall have the right to replace a Lender as a party
to this Agreement, the Borrower may, upon notice to such Lender and the
Administrative Agent, replace such Lender by causing such Lender to assign its
Loans and Commitments (with the assignment fee to be paid by the Borrower in
such instance) pursuant to Section 10.06(b) to one or more
other Lenders or Eligible Assignees procured by the Borrower.  Upon the making of any such assignment, the
Borrower shall (x) pay in full any amounts payable pursuant to Section 3.05
and (y) provide appropriate assurances and indemnities (which may include
letters of credit) to the L/C Issuers and the Swing Line Lenders as each may
reasonably require with respect to any continuing obligation to fund participation
interests in any L/C Obligations or any Swing Line Loans then outstanding; provided, however, that (i) each
such assignment made as a result of a demand by the Borrower shall be arranged
by the Borrower after consultation with the Administrative Agent and shall be
an assignment or assignments pursuant to Section 10.06(b) of
all of the rights and obligations of the assigning Lender under this Agreement,
and (ii) no Lender shall be obligated to make any such assignment pursuant
to Section 10.06(b) as a result of a demand by the Borrower
unless and until such Lender shall have received one or more payments from
either the Borrower or one or more Eligible Assignees in an aggregate amount at
least equal to the aggregate outstanding principal amount of the Advances owing
to such Lender, together with accrued interest thereon to the date of payment
of such principal amount and all other amounts payable to such Lender under
this Agreement.


 


134
















 


10.17                     Governing Law.


 


(a)                                  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.


 


(b)                                 ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, EACH
AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. 
THE BORROWER, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED
THERETO.  THE BORROWER, EACH AGENT AND
EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.


 


10.18                     Waiver of Right to Trial by Jury.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).  EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION..


 


10.19                     Binding Effect.  This Agreement shall become effective when it
shall have been executed by the Borrower and the Administrative Agent shall
have been notified by each Lender, the Swing Line Lenders and the L/C Issuers
that each such Lender, the Swing Line Lenders and the L/C Issuers has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, each Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.


 


10.20                     USA PATRIOT Act Notice.  Each Lender and the Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies the Borrower that
pursuant to the requirements of the USA PATRIOT ACT (Title III of Pub. L.
107-56 (signed into law October


 


135

















 


26, 2001)) (the “Act”), it is required to obtain, verify
and record information that identifies the Borrower, which information includes
the name and address of the Borrower and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act.  The Borrower
shall, promptly following a request by the Administrative Agent or any Lender,
provide all documentation and other information that the Administrative Agent
or such Lender requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and
regulations, including the Act.


 


136

















 


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


 


	
   

  	
  ALLIANT
  TECHSYSTEMS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John L. Shroyer

  
	
   

  	
  Name:

  	
  John
  L. Shroyer

  
	
   

  	
  Title:

  	
  Senior
  Vice President and

  
	
   

  	
   

  	
  Chief
  Financial Officer

  



 

















 


	
   

  	
  BANK
  OF AMERICA, N.A., as

  
	
   

  	
  Administrative
  Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert Rittelmeyer

  
	
   

  	
  Name:

  	
  Robert
  Rittelmeyer

  
	
   

  	
  Title:

  	
  Vice
  President

  



 

















 


	
   

  	
  BANK
  OF AMERICA, N.A., as a Lender, an L/C Issuer and a Swing Line Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kenneth Beck

  
	
   

  	
  Name:

  	
  Kenneth
  Beck

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  



 

















 


	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION, as a Lender, an L/C Issuer and a Swing Line Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gaylen J. Frazier

  
	
   

  	
  Name:

  	
  Gaylen
  J. Frazier

  
	
   

  	
  Title:

  	
  A.V.P.

  



 

















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Brian Buck

  
	
   

  	
  Name:

  	
  Brian
  Buck

  
	
   

  	
  Title:

  	
  Director

  



 

















 


	
   

  	
  SUNTRUST
  BANK, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David Fournier

  
	
   

  	
  Name:

  	
  David
  Fournier

  
	
   

  	
  Title:

  	
  Vice
  President

  



 

















 


	
   

  	
  THE
  BANK OF NEW YORK MELLON, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John T. Smathers

  
	
   

  	
  Name:

  	
  John
  T. Smathers

  
	
   

  	
  Title:

  	
  First
  Vice President

  



 

















 


	
   

  	
  BANK
  OF THE WEST, A CALIFORNIA BANKING CORPORATION, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David Wang

  
	
   

  	
  Name:

  	
  David
  Wang

  
	
   

  	
  Title:

  	
  Vice
  President

  



 
















 


	
   

  	
  The
  Bank of Tokyo-Mitsubishi UFJ, Ltd., as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Victor Pierzchalski

  
	
   

  	
  Name:

  	
  Victor
  Pierzchalski

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 

















 


	
   

  	
  BRANCH
  BANKING AND TRUST COMPANY, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James E. Davis

  
	
   

  	
  Name:

  	
  James
  E. Davis

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  



 

















 


	
   

  	
  CHANG
  HWA COMMERCIAL BANK, LTD., LOS ANGELES BRANCH, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Beverley Chen

  
	
   

  	
  Name:

  	
  Beverley
  Chen

  
	
   

  	
  Title:

  	
  VP &
  General Manager

  



 

















 


	
   

  	
  FIRST
  COMMERCIAL BANK, LOS ANGELES BRANCH, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Cliff Lin

  
	
   

  	
  Name:

  	
  Cliff
  Lin

  
	
   

  	
  Title:

  	
  VP &
  General Manager

  



 

















 


	
   

  	
  GE
  CAPITAL FINANCIAL INC., as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alison P. Trapp

  
	
   

  	
  Name:

  	
  Alison
  P. Trapp

  
	
   

  	
  Title:

  	
  Duly
  Authorized Signatory

  



 

















 


	
   

  	
  GENERAL
  ELECTRIC CAPITAL CORPORATION, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James R. Persico

  
	
   

  	
  Name:

  	
  James
  R. Persico

  
	
   

  	
  Title:

  	
  Duly
  Authorized Signatory

  



 

















 


	
   

  	
  HUA
  NAN COMMERCIAL BANK, LTD.

  
	
   

  	
  NEW
  YORK AGENCY, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Henry Hsieh

  
	
   

  	
  Name:

  	
  Henry
  Hsieh

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  



 

















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Matthew H. Massie

  
	
   

  	
  Name:

  	
  Matthew
  H. Massie

  
	
   

  	
  Title:

  	
  Managing
  Director

  



 

















 


	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Frank J. Jancar

  
	
   

  	
  Name:

  	
  Frank
  J. Jancar

  
	
   

  	
  Title:

  	
  Vice
  President

  



 

















 


	
   

  	
  MIZUHO
  CORPORATE BANK, LTD., as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert Gallagher

  
	
   

  	
  Name:

  	
  Robert
  Gallagher

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 
















 


	
   

  	
  PNC
  BANK, NATIONAL ASSOCIATION, successor to National City Bank, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Leong

  
	
   

  	
  Name:

  	
  Michael
  Leong

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  



 

















 


	
   

  	
  PEOPLE’S
  UNITED BANK, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Maurice E. Fry

  
	
   

  	
  Name:

  	
  Maurice
  E. Fry

  
	
   

  	
  Title:

  	
  Senior
  Commercial Loan Officer, SVP

  



 

















 


	
   

  	
  ROYAL
  BANK OF CANADA, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Scott Umbs

  
	
   

  	
  Name:

  	
  Scott
  Umbs

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 

















 


	
   

  	
  RBC
  BANK (USA), as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard Marshall

  
	
   

  	
  Name:

  	
  Richard
  Marshall

  
	
   

  	
  Title:

  	
  Market
  Executive — National Division

  



 

















 


	
   

  	
  THE
  ROYAL BANK OF SCOTLAND PLC, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  L. Peter Yetman

  
	
   

  	
  Name:

  	
  L.
  Peter Yetman

  
	
   

  	
  Title:

  	
  Director

  



 

















 


	
   

  	
  UNITED
  OVERSEAS BANK, NEW YORK AGENCY, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Koh Kok Jin

  
	
   

  	
  Name:

  	
  Koh
  Kok Jin

  
	
   

  	
  Title:

  	
  SVP &
  General Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mario Sheng

  
	
   

  	
  Name:

  	
  Mario
  Sheng

  
	
   

  	
  Title:

  	
  AVP

  



 
















 


Schedule 1


 


GUARANTORS


 


Ammunition
Accessories Inc.


ATK
Commercial Ammunition Company Inc.


ATK
Commercial Ammunition Holdings Company Inc.


ATK
Launch Systems Inc.


ATK
Space Systems Inc.


Eagle
Industries Unlimited, Inc.


Eagle
Mayaguez, LLC


Eagle
New Bedford, Inc.


Federal
Cartridge Company


 

















 


Schedule 1.01


 


EXISTING LETTERS OF CREDIT


 


	
  LC Number

  	
   

  	
  Issuing Bank

  	
   

  	
  Ultimate Beneficiary

  	
   

  	
  Amount

  	
   

  	
  Applicant

  	
   

  	
  Issue Date

  	
   

  	
  Current Expiry Date

  
	
  SLCMSP000333

  	
   

  	
  US Bank

  	
   

  	
  [Name 1]

  	
   

  	
  $

  	
  99,564.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  23-Jan-07

  	
   

  	
  30-Sep-11

  
	
  SLCMSP000335

  	
   

  	
  US Bank

  	
   

  	
  [Name 2]

  	
   

  	
  $

  	
  1,520,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  6-Dec-06

  	
   

  	
  14-Nov-11

  
	
  SLCMSP000374

  	
   

  	
  US Bank

  	
   

  	
  [Name 3]

  	
   

  	
  $

  	
  263,925.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  23-Feb-07

  	
   

  	
  30-Oct-11

  
	
  SLCMSP000400

  	
   

  	
  US Bank

  	
   

  	
  [Name 4]

  	
   

  	
  $

  	
  184,300.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  16-May-07

  	
   

  	
  1-Nov-11

  
	
  SLCMSP000401

  	
   

  	
  US Bank

  	
   

  	
  [Name 5]

  	
   

  	
  $

  	
  1,290,100.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  16-May-07

  	
   

  	
  15-Jun-11

  
	
  SLCMSP000404

  	
   

  	
  US Bank

  	
   

  	
  [Name 6]

  	
   

  	
  $

  	
  17,900.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  17-May-07

  	
   

  	
  30-Jun-11

  
	
  SLCMSP000405

  	
   

  	
  US Bank

  	
   

  	
  [Name 7]

  	
   

  	
  $

  	
  375,900.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  21-May-07

  	
   

  	
  15-Jun-11

  
	
  SLCMSP000408

  	
   

  	
  US Bank

  	
   

  	
  [Name 8]

  	
   

  	
  $

  	
  53,700.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  22-May-07

  	
   

  	
  1-Jun-11

  
	
  SLCMSP000425

  	
   

  	
  US Bank

  	
   

  	
  [Name 9]

  	
   

  	
  $

  	
  4,860,500.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  18-Jul-07

  	
   

  	
  18-Jul-11

  
	
  SLCMSP000426

  	
   

  	
  US Bank

  	
   

  	
  [Name 10]

  	
   

  	
  $

  	
  4,860,500.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  18-Jul-07

  	
   

  	
  18-Jul-11

  
	
  SLCMSP000458

  	
   

  	
  US Bank

  	
   

  	
  [Name 11]

  	
   

  	
  $

  	
  357,500.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  21-Feb-08

  	
   

  	
  30-Apr-11

  
	
  SLCMSP000524

  	
   

  	
  US Bank

  	
   

  	
  [Name 12]

  	
   

  	
  $

  	
  350,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  23-May-08

  	
   

  	
  15-Jan-11

  
	
  SLCMSP000537

  	
   

  	
  US Bank

  	
   

  	
  [Name 13]

  	
   

  	
  $

  	
  1,109,680.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  11-Aug-08

  	
   

  	
  31-Dec-10

  
	
  SLCMSP000538

  	
   

  	
  US Bank

  	
   

  	
  [Name 14]

  	
   

  	
  $

  	
  277,420.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  11-Aug-08

  	
   

  	
  30-Apr-11

  
	
  SLCMSP000543

  	
   

  	
  US Bank

  	
   

  	
  [Name 15]

  	
   

  	
  $

  	
  171,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  20-Aug-08

  	
   

  	
  30-Jan-11

  
	
  SLCMSP000544

  	
   

  	
  US Bank

  	
   

  	
  [Name 16]

  	
   

  	
  $

  	
  684,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  20-Aug-08

  	
   

  	
  30-Jan-11

  
	
  SLCMSP000548

  	
   

  	
  US Bank

  	
   

  	
  [Name 17]

  	
   

  	
  $

  	
  568,497.86

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  20-Aug-08

  	
   

  	
  30-Oct-10

  



 

















 


	
  SLCMSP000604

  	
   

  	
  US Bank

  	
   

  	
  [Name 18]

  	
   

  	
  $

  	
  3,200,010.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  14-Jan-09

  	
   

  	
  31-Mar-11

  
	
  SLCMSP000607

  	
   

  	
  US Bank

  	
   

  	
  [Name 19]

  	
   

  	
  $

  	
  610,937.04

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  14-Jan-10

  	
   

  	
  16-Oct-11

  
	
  SLCMSP000608

  	
   

  	
  US Bank

  	
   

  	
  [Name 20]

  	
   

  	
  $

  	
  730,479.47

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  26-Jan-09

  	
   

  	
  30-Dec-10

  
	
  SLCMSP000609

  	
   

  	
  US Bank

  	
   

  	
  [Name 21]

  	
   

  	
  $

  	
  473,036.55

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  14-Jan-10

  	
   

  	
  28-Feb-11

  
	
  SLCMSP000610

  	
   

  	
  US Bank

  	
   

  	
  [Name 22]

  	
   

  	
  $

  	
  276,095.67

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  26-Jan-09

  	
   

  	
  30-Dec-10

  
	
  SLCMSP000618

  	
   

  	
  US Bank

  	
   

  	
  [Name 23]

  	
   

  	
  $

  	
  30,600.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  11-Feb-09

  	
   

  	
  1-Oct-11

  
	
  SLCMSP000619

  	
   

  	
  US Bank

  	
   

  	
  [Name 24]

  	
   

  	
  $

  	
  214,200.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  11-Feb-09

  	
   

  	
  1-Oct-11

  
	
  SLCMSP000622

  	
   

  	
  US Bank

  	
   

  	
  [Name 25]

  	
   

  	
  $

  	
  39,875,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  23-Feb-09

  	
   

  	
  27-Feb-11

  
	
  SLCMSP000623

  	
   

  	
  US Bank

  	
   

  	
  [Name 26]

  	
   

  	
  $

  	
  15,950,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  23-Feb-09

  	
   

  	
  27-Feb-11

  
	
  ILCMSPX00641

  	
   

  	
  US Bank

  	
   

  	
  [Name 27]

  	
   

  	
  $

  	
  151,010.48

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  22-Apr-10

  	
   

  	
  31-Oct-10

  
	
  SLCMSP000646

  	
   

  	
  US Bank

  	
   

  	
  [Name 28]

  	
   

  	
  $

  	
  8,184,734.77

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  17-Apr-09

  	
   

  	
  24-Jan-12

  
	
  SLCMSP000693

  	
   

  	
  US Bank

  	
   

  	
  [Name 29]

  	
   

  	
  $

  	
  155,400.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  22-Jun-09

  	
   

  	
  30-Nov-10

  
	
  SLCMSP000694

  	
   

  	
  US Bank

  	
   

  	
  [Name 30]

  	
   

  	
  $

  	
  155,400.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  22-Jun-09

  	
   

  	
  30-Nov-10

  
	
  SLCMSP000726

  	
   

  	
  US Bank

  	
   

  	
  [Name 31]

  	
   

  	
  $

  	
  594,796.55

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  4-Sep-09

  	
   

  	
  30-Nov-10

  
	
  SLCMSP000732

  	
   

  	
  US Bank

  	
   

  	
  [Name 32]

  	
   

  	
  $

  	
  357,960.50

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  23-Feb-10

  	
   

  	
  30-Jun-11

  
	
  SLCMSP000789

  	
   

  	
  US Bank

  	
   

  	
  [Name 33]

  	
   

  	
  $

  	
  183,752.35

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  23-Feb-10

  	
   

  	
  31-Mar-11

  
	
  SLCMSP000792

  	
   

  	
  US Bank

  	
   

  	
  [Name 34]

  	
   

  	
  $

  	
  1,431,842.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  18-Feb-10

  	
   

  	
  31-May-11

  
	
  SLCMSP000794

  	
   

  	
  US Bank

  	
   

  	
  [Name 35]

  	
   

  	
  $

  	
  923,650.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  1-Feb-10

  	
   

  	
  12-Jul-11

  
	
  SLCMSP000795

  	
   

  	
  US Bank

  	
   

  	
  [Name 36]

  	
   

  	
  $

  	
  1,718,363.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  2-Feb-10

  	
   

  	
  19-Feb-11

  



 

















 


	
  SLCMSP000796

  	
   

  	
  US Bank

  	
   

  	
  [Name 37]

  	
   

  	
  $

  	
  2,577,544.65

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  18-Feb-10

  	
   

  	
  19-Feb-11

  
	
  SLCMSP000798

  	
   

  	
  US Bank

  	
   

  	
  [Name 38]

  	
   

  	
  $

  	
  318,887.46

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  23-Feb-10

  	
   

  	
  31-Dec-10

  
	
  SLCMSP000799

  	
   

  	
  US Bank

  	
   

  	
  [Name 39]

  	
   

  	
  $

  	
  220,500.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  23-Feb-10

  	
   

  	
  31-Jan-11

  
	
  SLCMSP000803

  	
   

  	
  US Bank

  	
   

  	
  [Name 40]

  	
   

  	
  $

  	
  1,728,762.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  15-Mar-10

  	
   

  	
  15-Nov-11

  
	
  SLCMSP000806

  	
   

  	
  US Bank

  	
   

  	
  [Name 41]

  	
   

  	
  $

  	
  346,125.00

  	
   

  	
  Alliant Techsystems
  Inc.

  	
   

  	
  15-Mar-10

  	
   

  	
  27-Jan-11

  
	
  SLCMSP000807

  	
   

  	
  US Bank

  	
   

  	
  [Name 42]

  	
   

  	
  $

  	
  34,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  15-Mar-10

  	
   

  	
  28-Jan-12

  
	
  SLCMSP000809

  	
   

  	
  US Bank

  	
   

  	
  [Name 43]

  	
   

  	
  $

  	
  6,000,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  26-Mar-10

  	
   

  	
  31-Mar-11

  
	
  SLCMSP000822

  	
   

  	
  US Bank

  	
   

  	
  [Name 44]

  	
   

  	
  $

  	
  147,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  17-May-10

  	
   

  	
  29-Apr-11

  
	
  SLCMSP000823

  	
   

  	
  US Bank

  	
   

  	
  [Name 45]

  	
   

  	
  $

  	
  250,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  22-Apr-10

  	
   

  	
  30-Apr-11

  
	
  SLCMSP000840

  	
   

  	
  US Bank

  	
   

  	
  [Name 46]

  	
   

  	
  $

  	
  314,500.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  3-Jun-10

  	
   

  	
  20-Jul-11

  
	
  SLCMSP000843

  	
   

  	
  US Bank

  	
   

  	
  [Name 47]

  	
   

  	
  $

  	
  283,881.25

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  9-Jun-10

  	
   

  	
  28-Feb-11

  
	
  SLCMSP000869

  	
   

  	
  US Bank

  	
   

  	
  [Name 48]

  	
   

  	
  $

  	
  75,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  17-Aug-10

  	
   

  	
  31-Aug-11

  
	
  SLCMSP000870

  	
   

  	
  US Bank

  	
   

  	
  [Name 49]

  	
   

  	
  $

  	
  106,116.00

  	
   

  	
  Alliant Techsystems
  Inc.

  	
   

  	
  17-Aug-10

  	
   

  	
  31-Aug-11

  
	
  SLCMSPA01815

  	
   

  	
  US Bank

  	
   

  	
  [Name 50]

  	
   

  	
  $

  	
  783,417.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  31-Dec-01

  	
   

  	
  31-Dec-11

  
	
  SLCMMSP02104

  	
   

  	
  US Bank

  	
   

  	
  [Name 51]

  	
   

  	
  $

  	
  6,000,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  10-Jul-02

  	
   

  	
  10-Jul-11

  
	
  SLCMMSP02297

  	
   

  	
  US Bank

  	
   

  	
  [Name 52]

  	
   

  	
  $

  	
  370,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  1-Nov-02

  	
   

  	
  1-Nov-11

  



 

















 


	
  SLCMSPA02333

  	
   

  	
  US Bank

  	
   

  	
  [Name 53]

  	
   

  	
  $

  	
  250,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  6-Nov-02

  	
   

  	
  6-Nov-11

  
	
  SLCMMSP02355

  	
   

  	
  US Bank

  	
   

  	
  [Name 54]

  	
   

  	
  $

  	
  2,500,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  22-Nov-02

  	
   

  	
  22-Nov-11

  
	
  SLCMMSP02799

  	
   

  	
  US Bank

  	
   

  	
  [Name 55]

  	
   

  	
  $

  	
  300,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  24-Sep-03

  	
   

  	
  24-Sep-11

  
	
  SLCMSPA03051

  	
   

  	
  US Bank

  	
   

  	
  [Name 56]

  	
   

  	
  $

  	
  2,150,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  15-Mar-04

  	
   

  	
  30-Mar-11

  
	
  SLCMSPA03052

  	
   

  	
  US Bank

  	
   

  	
  [Name 57]

  	
   

  	
  $

  	
  13,975,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  15-Mar-04

  	
   

  	
  31-Dec-10

  
	
  SLCMMSP03175

  	
   

  	
  US Bank

  	
   

  	
  [Name 58]

  	
   

  	
  $

  	
  1,963,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  10-Jun-04

  	
   

  	
  19-May-11

  
	
  SLCMMSP03433

  	
   

  	
  US Bank

  	
   

  	
  [Name 59]

  	
   

  	
  $

  	
  500,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  15-Nov-04

  	
   

  	
  2-Oct-11

  
	
  SLCMMSP03715

  	
   

  	
  US Bank

  	
   

  	
  [Name 60]

  	
   

  	
  $

  	
  31,200.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  3-Jun-05

  	
   

  	
  31-Dec-10

  
	
  SLCMMSP04254

  	
   

  	
  US Bank

  	
   

  	
  [Name 61]

  	
   

  	
  $

  	
  98,500.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  7-Sep-06

  	
   

  	
  31-Jan-11

  
	
  SLCMMSP04255

  	
   

  	
  US Bank

  	
   

  	
  [Name 62]

  	
   

  	
  $

  	
  197,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  7-Sep-06

  	
   

  	
  31-Jan-11

  
	
  SLCMMSP05491

  	
   

  	
  US Bank

  	
   

  	
  [Name 63]

  	
   

  	
  $

  	
  216,250.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  6-Jan-09

  	
   

  	
  5-Jan-11

  
	
  SLCMMSP05492

  	
   

  	
  US Bank

  	
   

  	
  [Name 64]

  	
   

  	
  $

  	
  54,062.50

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  6-Jan-09

  	
   

  	
  5-Jan-11

  
	
  SLC74401MMSP

  	
   

  	
  US Bank

  	
   

  	
  [Name 65]

  	
   

  	
  $

  	
  999,364.00

  	
   

  	
  Alliant Techsystems
  Inc.

  	
   

  	
  20-Nov-91

  	
   

  	
  27-Sep-11

  
	
  SLC75109MMSP

  	
   

  	
  US Bank

  	
   

  	
  [Name 66]

  	
   

  	
  $

  	
  14,710,888.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  28-Oct-93

  	
   

  	
  30-Sep-11

  



 
















 


Schedule 2.01


 


COMMITMENTS AND PRO RATA
SHARES


 


	
  Name of Initial Lender

  	
   

  	
  Revolving

  Commitment ($)

  	
   

  	
  Term A

  Commitment ($)

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  60,000,000.00

  	
   

  	
  $

  	
  40,000,000.00

  	
   

  
	
  The Bank of New York Mellon

  	
   

  	
  $

  	
  21,000,000.00

  	
   

  	
  $

  	
  14,000,000.00

  	
   

  
	
  Bank of the West, a California Banking Corporation

  	
   

  	
  $

  	
  18,000,000.00

  	
   

  	
  $

  	
  12,000,000.00

  	
   

  
	
  The Bank of Tokyo-Mitsubishi UFJ, Ltd.

  	
   

  	
  $

  	
  45,000,000.00

  	
   

  	
  $

  	
  30,000,000.00

  	
   

  
	
  Branch Banking and Trust Company

  	
   

  	
  $

  	
  21,000,000.00

  	
   

  	
  $

  	
  14,000,000.00

  	
   

  
	
  Chang Hwa Commercial Bank Ltd., Los Angeles Branch

  	
   

  	
  $

  	
  6,000,000.00

  	
   

  	
  $

  	
  4,000,000.00

  	
   

  
	
  First Commercial Bank, Los Angeles Branch

  	
   

  	
  $

  	
  6,000,000.00

  	
   

  	
  $

  	
  4,000,000.00

  	
   

  
	
  GE Capital Financial Inc.

  	
   

  	
  $

  	
  7,000,000.00

  	
   

  	
  $

  	
  28,000,000.00

  	
   

  
	
  General Electric Capital Corporation

  	
   

  	
  $

  	
  35,000,000.00

  	
   

  	
  $

  	
  0.00

  	
   

  
	
  Hua Nan Commercial Bank, Ltd. New York Agency

  	
   

  	
  $

  	
  9,000,000.00

  	
   

  	
  $

  	
  6,000,000.00

  	
   

  
	
  JPMorgan Chase, N.A.

  	
   

  	
  $

  	
  21,000,000.00

  	
   

  	
  $

  	
  14,000,000.00

  	
   

  
	
  KeyBank National Association

  	
   

  	
  $

  	
  30,000,000.00

  	
   

  	
  $

  	
  20,000,000.00

  	
   

  
	
  Mizuho Corporate Bank, Ltd.

  	
   

  	
  $

  	
  42,000,000.00

  	
   

  	
  $

  	
  28,000,000.00

  	
   

  
	
  PNC Bank, National Association

  	
   

  	
  $

  	
  15,000,000.00

  	
   

  	
  $

  	
  10,000,000.00

  	
   

  
	
  People’s United Bank

  	
   

  	
  $

  	
  12,000,000.00

  	
   

  	
  $

  	
  8,000,000.00

  	
   

  
	
  Royal Bank of Canada

  	
   

  	
  $

  	
  36,000,000.00

  	
   

  	
  $

  	
  24,000,000.00

  	
   

  
	
  RBC Bank (USA)

  	
   

  	
  $

  	
  6,000,000.00

  	
   

  	
  $

  	
  4,000,000.00

  	
   

  
	
  The Royal Bank of Scotland Plc

  	
   

  	
  $

  	
  48,000,000.00

  	
   

  	
  $

  	
  32,000,000.00

  	
   

  
	
  Suntrust Bank

  	
   

  	
  $

  	
  48,000,000.00

  	
   

  	
  $

  	
  32,000,000.00

  	
   

  
	
  United Overseas Bank, New York Agency

  	
   

  	
  $

  	
  18,000,000.00

  	
   

  	
  $

  	
  12,000,000.00

  	
   

  
	
  U.S. Bank National Association

  	
   

  	
  $

  	
  48,000,000.00

  	
   

  	
  $

  	
  32,000,000.00

  	
   

  
	
  Wells Fargo Bank, National Association

  	
   

  	
  $

  	
  48,000,000.00

  	
   

  	
  $

  	
  32,000,000.00

  	
   

  



 

















 


Schedule 5.03


 


CERTAIN AUTHORIZATIONS


 


A.            UCC filings,
tax notices or affidavits and any related fees to be filed or paid in the
following jurisdictions:


 


	
  Entity

  	
   

  	
  Secretary of State

  Office

  
	
   

  	
   

  	
   

  
	
  Alliant
  Techsystems Inc.

  	
   

  	
  Delaware

  
	
  Ammunition
  Accessories Inc.

  	
   

  	
  Delaware

  
	
  ATK
  Commercial Ammunition Company Inc.

  	
   

  	
  Delaware

  
	
  ATK
  Commercial Ammunition Holdings Company Inc.

  	
   

  	
  Delaware

  
	
  ATK
  Launch Systems Inc.

  	
   

  	
  Delaware

  
	
  ATK
  Space Systems Inc.

  	
   

  	
  Delaware

  
	
  Eagle
  Industries Unlimited, Inc.

  	
   

  	
  Missouri

  
	
  Eagle
  Mayaguez, LLC

  	
   

  	
  Missouri

  
	
  Eagle
  New Bedford, Inc.

  	
   

  	
  Missouri

  
	
  Federal
  Cartridge Company

  	
   

  	
  Minnesota

  



 


B.            Fixture filings
and mortgage filings and any related fees to be filed or paid  in the relevant jurisdictional counties.


 


C.            Securities
filings that may be required pursuant to any applicable law in connection with
the exercise of any rights and remedies with respect to the Collateral
consisting of Pledged Equity.


 


D.            Any filings to
be filed with respect to assignable Government Contracts as required by the
Assignment of Claims Act and the Assignment of Claims Regulations.


 

















 


Schedule 5.05


 


MATERIAL DEBT AND
LIABILITIES


 


As
of September 30, 2010

in thousands


 


	
   

  	
   

  	
  Year Payment is Due

  	
   

  	
   

  	
   

  	
  Total

  	
   

  
	
   

  	
   

  	
  Remainder of FY11

  	
   

  	
  FY12 & FY13

  	
   

  	
  FY14 & FY15

  	
   

  	
  Beyond

  	
   

  	
  Obligations

  	
   

  
	
  Long-term Debt

  	
   

  	
  $

  	
  279,763

  	
   

  	
  $

  	
  300,000

  	
   

  	
  $

  	
  199,453

  	
   

  	
  $

  	
  750,000

  	
   

  	
  $

  	
  1,529,216

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Interest on debt

  	
   

  	
  $

  	
  34,554

  	
   

  	
  $

  	
  120,953

  	
   

  	
  $

  	
  117,172

  	
   

  	
  $

  	
  212,216

  	
   

  	
  $

  	
  484,895

  	
   

  
	
  Operating leases

  	
   

  	
  $

  	
  26,497

  	
   

  	
  $

  	
  97,901

  	
   

  	
  $

  	
  92,763

  	
   

  	
  $

  	
  102,823

  	
   

  	
  $

  	
  319,983

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Capital leases

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Environmental remediation costs, net

  	
   

  	
  $

  	
  230

  	
   

  	
  $

  	
  2,670

  	
   

  	
  $

  	
  4,553

  	
   

  	
  $

  	
  17,834

  	
   

  	
  $

  	
  25,286

  	
   

  
	
  Pension and other PRB contributions

  	
   

  	
  $

  	
  11,874

  	
   

  	
  $

  	
  277,431

  	
   

  	
  $

  	
  399,216

  	
   

  	
  $

  	
  486,501

  	
   

  	
  $

  	
  1,175,021

  	
   

  
	
  Letters of credit

  	
   

  	
  $

  	
  96,040

  	
   

  	
  $

  	
  46,285

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  $

  	
  142,325

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Guarantees*

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Other obligations**

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  



 






*Guarantees
should include guarantees of third parties (not other ATK entities).


 


**Other
Obligations: include unconditional purchase obligations, defined as “an
obligation to transfer funds in the future for fixed or minimum amounts, or
quantities of goods or services at fixed or minimum prices.”  It must be noncancelable, or cancelable only
upon the occurrence of some remote contingency or with the permission of the
other party.  An example is if we have
entered into an agreement to purchase X amount of a raw material at X dollar
amount in the future, and we cannot cancel that agreement (except in the instances
stated above).


 

















 


Schedule 5.08(c)


 


REAL PROPERTY OWNED BY LOAN
PARTIES


 


* Indicates the
real property mortgaged pursuant to this Agreement.


 




	
  *Elkton
  Defense Launch Vehicles

  55 Thiokol Road

  Elkton, MD 21922

  Cecil County

  Record Owner:  Alliant Techsystems Inc.

  	
   

  	
  *Bacchus Works
  (Plant 1)

  8400 West 5000 South

  Magna, UT 84044-0098

  Salt Lake County

  Record Owner:  Alliant Techsystems Inc.

  
	
   

  	
   

  	
   

  
	
  *ABL West
  Virginia/Maryland

  Alleghany County, MD

  Record Owner:  Alliant Techsystems Inc.

  	
   

  	
  *Bacchus Works
  (Bacchus West)

  8400 West 5000 South

  Magna, UT 84044-0098

  Salt Lake County

  Record Owner:  Alliant Techsystems Inc.

  
	
   

  	
   

  	
   

  
	
  *Allegany
  Ballistics Lab

  210 State Route 956

  Rocket Center, WV 26726

  Mineral County

  Record Owner:  Alliant Techsystems Inc.

  	
   

  	
  *Bacchus Works
  (Buffer Zone Land)

  8400 West 5000 South

  Magna, UT 84044-0098

  Salt Lake County

  Record Owner:  Alliant Techsystems Inc.

  
	
   

  	
   

  	
   

  
	
  *890 Ogden
  Canyon Road

  Ogden, UT 84401

  Weber County

  Record Owner:  ATK Launch Systems Inc.

  	
   

  	
  *Bacchus Works
  (High-Tech Structures Facility)

  8400 West 5000 South

  Magna, UT 84044-0098

  Salt Lake County

  Record Owner:  Alliant Techsystems Inc.

  
	
   

  	
   

  	
   

  
	
  *2299 Snake
  River Avenue

  Lewiston, ID 83501

  Nez Perce County

  Record Owner:  Ammunition Accessories Inc.

  	
   

  	
  *Northern Utah
  Manufacturing Area

  9160 North Hwy 83

  Corrine, UT 84307

  Box Elder County

  Record Owner:  ATK Launch Systems Inc.

  
	
   

  	
   

  	
   

  
	
  *1053 Snake
  River Avenue

  Lewiston, ID 83501

  Nez Perce County

  Record Owner:  Ammunition Accessories Inc.

  	
   

  	
  *900 Ehlen
  Drive

  Anoka, MN 55303-1778

  Anoka County

  Record Owner:  Federal Cartridge Company

  
	
   

  	
   

  	
   

  
	
  *150 Southport
  Avenue

  Lewiston, ID 83501

  Nez Perce County

  Record Owner:  Ammunition Accessories Inc.

  	
   

  	
   

  






 

















 


Schedule 5.09(c)


 


TREATMENT, STORAGE AND
DISPOSAL MATTERS


 


Alliant
Techsystems Inc.’s and its Subsidiaries’ Treatment, Storage, Disposal
Facilities.


 




	
  Propulsion &
  Controls Division

  55
  Thiokol Road

  Elkton,
  MD  21921

  MDD003067121

  	
   

  	
  ATK
  Launch Systems

  P.O. Box
  707

  Brigham
  City, UT  84302

  UTD009081357

  
	
   

  	
   

  	
   

  
	
  ATK
  Launch Systems

  P.O. Box
  98

  Magna,
  UT  84044-0098

  UTD001705029

  	
   

  	
  Ammunition
  and Energetics Division

  Radford
  Army Ammunition Plant

  Route
  114

  Radford,
  VA  24141-0100

  VA1210020730

  
	
   

  	
   

  	
   

  
	
  Advanced
  Weapons Division

  23100
  Sugar Bush Road

  Elk
  River, MN  55330

  MND081138604

  	
   

  	
  Tactical
  Systems Division

  210
  State Route 956

  Rocket
  Center, WV  26726-3548

  WV0170023691

  
	
   

  	
   

  	
   

  
	
  Federal
  Cartridge Company

  900 Ehlen Drive

  Anoka,
  MN  55303

  MND006156590

  	
   

  	
  Lake
  City Ammunition Division

  MO
  Hwy 7 & 78

  Independence,
  MO  64051

  MO4213820489

  






 
















 


Schedule 5.13


 


SUBSIDIARIES AND OTHER
EQUITY INVESTMENTS


 


Part A:  Subsidiaries of Alliant Techsystems Inc.


 


	
  Name of Subsidiary

  	
   

  	
  Percentage Owned

  	
   

  
	
  Ammunition Accessories Inc.

  	
   

  	
  100

  	
  %

  
	
  ATK Commercial Ammunition Company Inc.

  	
   

  	
  100

  	
  %

  
	
  ATK Commercial Ammunition Holdings Company Inc.

  	
   

  	
  100

  	
  %

  
	
  ATK Insurance Company

  	
   

  	
  100

  	
  %

  
	
  ATK Launch Systems Inc.

  	
   

  	
  100

  	
  %

  
	
  ATK Space Systems Inc.

  	
   

  	
  100

  	
  %

  
	
  COI Ceramics, Inc.

  	
   

  	
  65

  	
  %

  
	
  Eagle Industries del Caribe, Inc.

  	
   

  	
  100

  	
  %

  
	
  Eagle Industries International Inc.

  	
   

  	
  100

  	
  %

  
	
  Eagle Industries Unlimited, Inc.

  	
   

  	
  100

  	
  %

  
	
  Eagle Mayaguez, LLC

  	
   

  	
  100

  	
  %

  
	
  Eagle New Bedford, Inc.

  	
   

  	
  100

  	
  %

  
	
  Federal Cartridge Company

  	
   

  	
  100

  	
  %

  
	
  Front Line Defense International, Inc.

  	
   

  	
  100

  	
  %

  



 


Part B:  Other Equity Investments of Alliant
Techsystems Inc.


 


1.             ATK Space Systems Inc. holds a 65%
Equity Interest (5,674,930 Shares) in COI Ceramics, Inc.


 


2.             See Schedule 7.03(d) - “Existing Investments.”


 

















 


Part C:  Loan Parties
Company Information.


 


	
  Company

  	
   

  	
  State of

  Organization

  	
   

  	
  Address of

  Principal Place of Business

  	
   

  	
  U.S. Taxpayer

  I.D. Number

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Alliant
  Techsystems Inc.

  	
   

  	
  Delaware

  	
   

  	
  7480 Flying Cloud Drive

  Eden Prairie, MN 55344

  	
   

  	
  41-1672694

  
	
  Ammunition
  Accessories Inc.

  	
   

  	
  Delaware

  	
   

  	
  2299 Snake River Avenue

  Lewiston, ID 83501

  	
   

  	
  63-1287464

  
	
  ATK
  Commercial Ammunition Company Inc.

  	
   

  	
  Delaware

  	
   

  	
  938 South 2000 East

  (University Park Blvd)

  Clearfield, UT 84015

  	
   

  	
  41-2022465

  
	
  ATK
  Commercial Ammunition Holdings Company Inc.

  	
   

  	
  Delaware

  	
   

  	
  938 South 2000 East

  (University Park Blvd)

  Clearfield, UT 84015

  	
   

  	
  20-4048077

  
	
  ATK
  Launch Systems Inc.

  	
   

  	
  Delaware

  	
   

  	
  PO Box 707

  9160 North Hwy 83

  Corinne, UT 84307

  	
   

  	
  36-2678716

  
	
  ATK
  Space Systems Inc.

  	
   

  	
  Delaware

  	
   

  	
  8400 West 5000 South

  Magna, UT 84044

  	
   

  	
  33-0517898

  
	
  Eagle
  Industries Unlimited, Inc.

  	
   

  	
  Missouri

  	
   

  	
  1000 Biltmore Drive

  Fenton, MO 63026

  	
   

  	
  43-1255338

  
	
  Eagle
  Mayaguez, LLC

  	
   

  	
  Missouri

  	
   

  	
  Route 114

  Interior Street D #55

  Zono Industrial De Juanibo

  Mayaguez, Puerto Rico

  	
   

  	
  26-1285554

  
	
  Eagle
  New Bedford, Inc.

  	
   

  	
  Missouri

  	
   

  	
  1000 Biltmore Drive

  Fenton, MO 63026

  	
   

  	
  26-1274585

  
	
  Federal
  Cartridge Company.

  	
   

  	
  Minnesota

  	
   

  	
  900 Ehlen Drive

  Anoka, MN 55303

  	
   

  	
  41-0252320

  



 

















 


SCHEDULE 7.01(b)


 


EXISTING LIENS


 


1.                                       Liens
consisting of cash collateral deposits in respect of the letters of credit
issued by Crédit Agricole CIB (f/k/a Calyon) listed on Schedule 7.02(e) - “Existing Indebtedness.”


 

















 


SCHEDULE 7.02(e)


 


EXISTING INDEBTEDNESS


 


1.             $400,000,000 (in the aggregate)
6.75% Senior Subordinated Notes due 2016 issued by Alliant Techsystems Inc.


 


2.             $279,763,000 2.75%
convertible senior subordinated notes due 2024 issued by Alliant Techsystems
Inc.


 


3.             $199,453,000 3.00%
convertible senior subordinated notes due 2024 issued by Alliant Techsystems
Inc.


 


4.             $300,000,000 2.75%
convertible senior subordinated notes due 2011 issued by Alliant Techsystems
Inc.


 


5.             $350,000,000 6.875% Senior
Subordinated Notes due 2020 issued by Alliant Techsystems Inc.


 


6.             The letters of credit set forth on
Schedule 1.01 - “Existing Letters of Credit.”


 


7.             The following letters of credit
issued by Crédit Agricole CIB (f/k/a Calyon):


 


	
  LC#

  	
   

  	
  Beneficiary

  	
   

  	
  Amount ($)

  	
   

  	
  Applicant

  	
   

  	
  Issue Date

  	
   

  	
  Expiry Date

  
	
  205936015

  	
   

  	
  [Name
  1]

  	
   

  	
  1,831,117.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  28-Feb-02

  	
   

  	
  28-Feb-11

  
	
  205936017

  	
   

  	
  [Name
  2]

  	
   

  	
  894,977.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  28-Feb-02

  	
   

  	
  28-Feb-11

  
	
  216436002

  	
   

  	
  [Name
  3]

  	
   

  	
  4,079,581.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  13-Jun-02

  	
   

  	
  13-Jun-11

  
	
  221836013

  	
   

  	
  [Name
  4]

  	
   

  	
  1,629,047.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  6-Aug-02

  	
   

  	
  6-Aug-11

  
	
  223436029

  	
   

  	
  [Name
  5]

  	
   

  	
  1,930,000.00

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  20-Aug-02

  	
   

  	
  20-Aug-11

  
	
  500536002

  	
   

  	
  [Name
  6]

  	
   

  	
  329,976.02

  	
   

  	
  Alliant
  Techsystems Inc.

  	
   

  	
  5-Jan-05

  	
   

  	
  31-Dec-10

  



 

















 


Schedule 7.03(d)


 


EXISTING INVESTMENTS


 


None. 


 

















 


Schedule 10.02


 


ADMINISTRATIVE AGENT’S
OFFICE, CERTAIN ADDRESSES FOR NOTICES


 


	
  Borrower:

  	
  7480
  Flying Cloud Drive

  Eden
  Prairie, MN 55344

  Attention:  [Name]

  Telephone:  [Number]

  Facsimile:  [Number]

  Electronic
  mail:  [email address]

  
	
   

  	
   

  
	
  Administrative
  Agent:

   

  	
  For
  payments and Requests for Credit Extensions

  Bank
  of America, N.A.

  2001
  Clayton Road

  Mail
  Code: CA4-706-02-25

  Concord,
  CA 94520

  Attention:
  [Name]

  Telephone:
  [Number]

  Facsimile:
  [Number]

  Electronic
  mail:  [email address]

   

  Bank of America, N.A.

  New York, N.Y.

  ABA# [Number]

  Account No.:  [Number]

  Attn: Credit Services

  Ref:  Alliant Techsystems Inc.

  
	
   

  	
   

  
	
   

  	
  Other
  Notices as Administrative Agent:

  Bank
  of America, N.A.

  Agency
  Management

  Attention:  [Name]

  1455 Market Street, 5th
  Floor

  Mail Code CA5-701-05-19

  San Francisco, CA  94103

  Telephone:    [Number]

  Facsimile:     [Number]

  Electronic
  mail:  [email address]

  



 
















 


EXHIBIT A


 


FORM OF COMMITTED LOAN
NOTICE


 


Date: 
                      ,        


 


To:          Bank of America, N.A., as
Administrative Agent


 


Ladies
and Gentlemen:


 


Reference
is made to that certain Second Amended and Restated Credit Agreement, dated as
of October 7, 2010 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Agreement;” the terms
defined therein being used herein as therein defined), among Alliant
Techsystems Inc., a Delaware corporation (the “Borrower”),
the Lenders from time to time party thereto, Bank of America, N.A., as
Administrative Agent, the other Agents and the Arrangers.


 


The
undersigned hereby requests pursuant to Section 2.02(a) of the
Agreement (select one):


 


o A Borrowing of [Term] [Revolving]
Loans


 


o A conversion or
continuation of [Term] [Revolving] Loans


 


1.             On                                                               (a
Business Day).


 


2.             In the aggregate principal amount
of $                                                          .


 


3.             Comprised of [Eurodollar Loans]
[Base Rate Loans] [to be borrowed] [to be continued] [to be converted into
[Eurodollar Loans] [Base Rate Loans]].


 


4.             For Eurodollar Rate Loans to be
borrowed, continued or converted into: 
with an Interest Period of         
months.


 


Any
request for a Revolving Credit Borrowing herein complies with the proviso to
the first sentence of Section 2.01(a) of the Agreement.


 


 


	
   

  	
  ALLIANT TECHSYSTEMS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT B


 


FORM OF SWING LINE LOAN
NOTICE


 


Date: 
                      ,          


 


To:          Bank of America, N.A., as Swing Line
Lender and Administrative Agent


 


To:          U.S. Bank National Association, as
Swing Line Lender


 


Ladies
and Gentlemen:


 


Reference
is made to that certain Second Amended and Restated Credit Agreement, dated as
of October 7, 2010 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Agreement;” the terms
defined therein being used herein as therein defined), among Alliant Techsystems
Inc., a Delaware corporation (the “Borrower”),
the Lenders from time to time party thereto, Bank of America, N.A., as
Administrative Agent, the other Agents and the Arrangers.


 


The
undersigned hereby requests a Swing Line Loan pursuant to Section 2.04(b) of
the Agreement:


 


1.             On
                                                            
(a Business Day).


 


2.             In the principal amount of $                                                    .


 


The
Swing Line Borrowing requested herein complies with the requirements of the
provisos to the first sentence of Section 2.04(a) of the
Agreement.


 


 


	
   

  	
  ALLIANT TECHSYSTEMS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT C-1


 


FORM OF TERM NOTE


 


	
  $         

  	
             ,
  2010

  



 


FOR
VALUE RECEIVED, the undersigned, Alliant Techsystems Inc., a Delaware
corporation (the “Borrower”), hereby promises
to pay to the order of
                                          
or registered assigns (the “Lender”),
in accordance with the provisions of the Agreement (as hereinafter defined),
the principal amount of
           DOLLARS AND
           CENTS ($
        ) or, if less, the unpaid
principal amount of the [Term A Loan] [Incremental Term Loan] made by the
Lender to the Borrower under that certain Second Amended and Restated Credit Agreement,
dated as of October 7, 2010 (as amended, restated, extended, supplemented
[(including pursuant to the Incremental Term Facility Supplement dated
          ,
        )] or otherwise modified in
writing from time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), among the
Borrower, the Lenders from time to time party thereto, Bank of America, N.A.,
as Administrative Agent, the other Agents and the Arrangers.


 


The
Borrower promises to pay interest on the unpaid principal amount of the [Term A
Loan] [Incremental Term Loan] until such principal amount is paid in full, at
such interest rates and at such times as provided in the Agreement.  All payments of principal and interest shall
be made to the Administrative Agent for the account of the Lender in Dollars in
immediately available funds at the Administrative Agent’s Office.  If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.


 


This
Term Note is one of the Term Notes referred to in the Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the
terms and conditions provided therein. 
This Term Note is also entitled to the benefits of the Guaranty and is
secured by the Collateral.  Upon the
occurrence and continuation of one or more of the Events of Default specified
in the Agreement, all amounts then remaining unpaid on this Term Note shall
become, or may be declared to be, immediately due and payable all as provided
in the Agreement.  The [Term A Loan]
[Incremental Term Loan] made by the Lender shall be evidenced by one or more
loan accounts or records maintained by the Lender in the ordinary course of
business.  The Lender may also attach
schedules to this Term Note and endorse thereon the date, amount and maturity of
its Loans and payments with respect thereto.


 


The
Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
non-payment of this Term Note.


 


Except
as provided in the Agreement, this [Term A Note] [Incremental Term Loan] may
not be assigned by the Lender to any Person.


 

















 


THIS
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.


 


	
   

  	
  ALLIANT TECHSYSTEMS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


LOANS AND PAYMENTS WITH
RESPECT THERETO


 


	
  Date

  	
   

  	
  Type of

  Loan Made

  	
   

  	
  Amount of

  Loan Made

  	
   

  	
  End of

  Interest

  Period

  	
   

  	
  Amount of

  Principal or

  Interest Paid

  This Date

  	
   

  	
  Outstanding

  Principal

  Balance This

  Date

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


EXHIBIT C-2


 


FORM OF REVOLVING CREDIT
NOTE


 


	
  $            

  	
                   ,
  2010

  



 


FOR
VALUE RECEIVED, the undersigned, Alliant Techsystems Inc., a Delaware
corporation (the “Borrower”), hereby promises
to pay to the order of
                                          
or registered assigns (the “Lender”),
in accordance with the provisions of the Agreement (as hereinafter defined),
the principal amount of        DOLLARS AND
         CENTS
($          ) or, if less,
the aggregate unpaid principal amount of all Revolving Credit Loans made by the
Lender to the Borrower under that certain Second Amended and Restated Credit
Agreement, dated as of October 7, 2010 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined
therein being used herein as therein defined), among the Borrower, the Lenders
from time to time party thereto, Bank of America, N.A., as Administrative
Agent, the other Agents and the Arrangers.


 


The
Borrower promises to pay interest on the unpaid principal amount of all
Revolving Credit Loans until such principal amount is paid in full, at such
interest rates and at such times as provided in the Agreement.  Except as otherwise provided in Section 2.04(f) of
the Agreement with respect to Swing Line Loans, all payments of principal and
interest shall be made to the Administrative Agent for the account of the
Lender in Dollars in immediately available funds at the Administrative Agent’s
Office.  If any amount is not paid in
full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in
the Agreement.


 


This
Revolving Credit Note is one of the Revolving Credit Notes referred to in the
Agreement, is entitled to the benefits thereof and may be prepaid in whole or
in part subject to the terms and conditions provided therein.  This Revolving Credit Note is also entitled
to the benefits of the Guaranty and is secured by the Collateral.  Upon the occurrence and continuation of one
or more of the Events of Default specified in the Agreement, all amounts then
remaining unpaid on this Revolving Credit Note shall become, or may be declared
to be, immediately due and payable all as provided in the Agreement.  Revolving Credit Loans made by the Lender
shall be evidenced by one or more loan accounts or records maintained by the
Lender in the ordinary course of business. 
The Lender may also attach schedules to this Revolving Credit Note and
endorse thereon the date, amount and maturity of its Revolving Credit Loans and
payments with respect thereto.


 


The
Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
non-payment of this Revolving Credit Note.


 


Except
as provided in the Agreement, this Revolving Credit Note may not be assigned by
the Lender to any Person.


 

















 


THIS
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.


 


	
   

  	
  ALLIANT TECHSYSTEMS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


LOANS AND PAYMENTS WITH
RESPECT THERETO


 


	
  Date

  	
   

  	
  Type of

  Loan Made

  	
   

  	
  Amount of

  Loan Made

  	
   

  	
  End of

  Interest

  Period

  	
   

  	
  Amount of

  Principal or

  Interest Paid

  This Date

  	
   

  	
  Outstanding

  Principal

  Balance This

  Date

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 
















 


EXHIBIT D


 


FORM OF COMPLIANCE
CERTIFICATE


 


Financial Statement
Date: 
                ,
20   


 


To:                              Bank of
America, N.A., as Administrative Agent


 


Ladies
and Gentlemen:


 


Reference
is made to that certain Second Amended and Restated Credit Agreement, dated as
of October 7, 2010 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), among Alliant
Techsystems Inc., a Delaware corporation (the “Borrower”),
the Lenders from time to time party thereto, Bank of America, N.A., as
Administrative Agent, the other Agents and the Arrangers.


 


The
undersigned Responsible Officer hereby certifies as of the date hereof that
he/she is the                                   
                   
                         
of the Borrower, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Borrower, and
that:


 


[Use following paragraph 1 for fiscal year-end
financial statements]


 


1.               Attached hereto
as Schedule 1 are the year-end audited financial statements required by Section 6.01(a) of
the Agreement for the fiscal year of the Borrower ended as of the above date,
together with the report and opinion of an independent certified public
accountant or independent chartered accountant required by such section.


 


[Use following paragraph 1 for fiscal quarter-end
financial statements]


 


1.               Attached hereto
as Schedule 1 are the unaudited financial statements required by Section 6.01(b) of
the Agreement for the fiscal quarter of the Borrower ended as of the above
date.  Such financial statements fairly
present the financial condition, results of operations and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP as at such date and for
such period, subject only to normal year-end audit adjustments and the absence
of footnotes.


 


2.               The undersigned
has reviewed and is familiar with the terms of the Agreement and has made, or
has caused to be made under his/her supervision, a review of the transactions
and condition (financial or otherwise) of the Borrower during the accounting
period covered by the attached financial statements.


 


3.               A review of the
activities of the Borrower during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during such
fiscal period the Borrower performed and observed all its Obligations under the
Loan Documents, and


 


[select one:]


 

















 


[to
the actual knowledge of the undersigned as of the date of this Compliance
Certificate, during such fiscal period the Borrower performed and observed each
covenant and condition of the Loan Documents applicable to it, and no Default
has occurred and is continuing.]


 


—or—


 


[the
following covenants or conditions have not been performed or observed and the
following is a list of each such Default and its nature and status:]


 


4.               The
representations and warranties of the Borrower contained in Article V
of the Agreement, or which are contained in the other Loan Documents, are true
and correct in all material respects on and as of the date hereof, except to
the extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct in all material respects
as of such earlier date, and except that for purposes of this Compliance
Certificate, the representations and warranties contained in subsections (a) and
(b) of Section 5.05 of the Agreement shall be deemed to refer
to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01 of the Agreement, including the
statements in connection with which this Compliance Certificate is delivered.


 


5.               The financial
covenant analyses and information set forth on Schedule 2 attached
hereto are true and accurate on and as of the date of this Certificate.


 


IN WITNESS WHEREOF, the undersigned has
executed this Certificate as of                                     ,                      
..


 


	
   

  	
  ALLIANT TECHSYSTEMS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


For the Quarter/Year ended
                                       (“Statement Date”)


 


SCHEDULE 2

to the Compliance Certificate

($ in 000’s)


 


I.             Section 7.10(a) —
Consolidated Interest Coverage Ratio.


 


	
  A.

  	
  Consolidated
  EBITDA for four consecutive fiscal quarters ending on above date (“Subject Period”):

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Consolidated
  Net Income for Subject Period:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Consolidated
  Interest Charges (see below) for Subject Period:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Income
  tax expenses for Subject Period:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  Depreciation
  and amortization for Subject Period:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.

  	
  Non-recurring,
  unusual or extraordinary, non-cash expenses for Subject Period:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.

  	
  Write
  off of deferred financing costs:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.

  	
  Non-cash
  charges related to stock-based employee compensation:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.

  	
  Charges
  associated with the market-to-market of non-qualifying Swap Contracts:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.

  	
  Impairment
  charges or write offs with respect to goodwill and other intangible assets

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.

  	
  Net
  income of all SPV Subsidiaries that has not been distributed to the Borrower
  or any of its other Subsidiaries and the Indebtedness of which has been
  excluded from Consolidated Funded Indebtedness pursuant to items II.A.8 and
  II.B.9 from the calculation of “Consolidated Funded Indebtedness” below.

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.

  	
  Consolidated
  EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5 + 6 + 7 + 8 + 9 - 10):

  	
   

  	
  $

  	
   

  	
   

  
									



 

















 


	
  B.

  	
  Consolidated
  Interest Charges for Subject Period:

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Sum
  of interest, premium payments, debt discount, fees, charges and related
  expenses (but not amortization or write-off of the costs of issuance) of the
  Borrower and its Subsidiaries in connection with borrowed money (including
  capitalized interest) or in connection with the deferred purchase price of
  assets, in each case to the extent (i) treated as interest in accordance
  with GAAP for Subject Period and (ii) paid in cash during such Subject
  Period:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Portion
  of rent expense of the Borrower and its Subsidiaries on a consolidated basis
  for Subject Period under Capitalized Leases treated as interest in accordance
  with GAAP, in each case to the extent paid as cash during such Subject
  Period:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Consolidated
  Interest Charges (Lines I.B.1+ 2)

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
  Consolidated
  Interest Coverage Ratio (Line I.A.11  ̧ Line I.B.3):

  	
   

  	
    to
  1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Minimum required:  3.00 to
  1.00 as of the end of each Statement Date.

  	
   

  	
   

  	
   

  



 


II.            Section 7.10
(b) — Consolidated Senior Secured Leverage Ratio.


 


	
  A.

  	
  Consolidated
  Funded Indebtedness, which constitutes Senior Secured Debt, at Statement
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Outstanding
  principal amount of all obligations for borrowed money (including Obligations
  under the Agreement, whether current or long term) and all obligations
  evidenced by bonds, debentures, notes, loan agreements and similar
  instruments:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Outstanding
  principal amount of all purchase money Indebtedness:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Direct
  or contingent obligations arising under Financial Letters of Credit,
  Financial Surety Bonds, bankers’ acceptances, bank guarantees and similar
  instruments:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  Obligations
  in respect of the deferred price of property or services (other than trade
  accounts payable in the ordinary course of business):

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.

  	
  Attributable
  Indebtedness:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.

  	
  All
  obligations in respect of Disqualified Equity Interests:

  	
   

  	
  $

  	
   

  	
   

  



 

















 


	
   

  	
  7.

  	
  Without
  duplication, all Guarantees (excluding Performance Guarantees) with respect
  to outstanding Indebtedness described above of Persons other than the
  Borrower and its Subsidiaries:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.

  	
  All
  Indebtedness of the types described above of any partnership or joint venture
  (other than a joint venture that is itself a corporation or limited liability
  company or other legal entity in respect of which the equity holders are not
  liable for the obligations of such entity as a matter of law) in which the
  Borrower or a Subsidiary (other than a SPV Subsidiary, provided that
  Indebtedness under this item II.A.8 of SPV Subsidiaries shall be excluded of
  such Indebtedness only to the extent that the aggregate principal amount of
  such Indebtedness does not exceed $100,000,000) is a general partner or joint
  venturer unless such Indebtedness is expressly non-recourse to the Borrower and
  its Subsidiaries:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.

  	
  Consolidated
  Funded Indebtedness, which constitutes Senior Secured Debt, (Line II.A.1 + 2 +
  3 + 4 + 5 + 6 + 7 + 8):

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B 

  	
  Consolidated
  EBITDA for Subject Period (Line I.A.11 above):

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
  Consolidated
  Senior Leverage Ratio (Line II.A.9  ̧ Line II.B):

  	
   

  	
    to
  1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Maximum
  permitted:  2.50:1:00.

  	
   

  	
   

  	
   

  



 


III.          Section 7.10
(c) — Consolidated Leverage Ratio.


 


	
  A.

  	
  Consolidated
  Funded Indebtedness at Statement Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Outstanding
  principal amount of all obligations for borrowed money (including Obligations
  under the Agreement whether current or long term) and all obligations
  evidenced by bonds, debentures, notes, loan agreements and similar
  instruments: 

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Outstanding
  principal amount of all purchase money Indebtedness: 

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  Direct
  or contingent obligations arising under Financial Letters of Credit,
  Financial Surety Bonds, bankers’ acceptances, bank guarantees and similar
  instruments: 

  	
   

  	
  $

  	
   

  	
   

  



 

















 


	
   

  	
  4.

  	
  Obligations
  in respect of the deferred price of property or services (other than trade
  accounts payable in the ordinary course of business): 

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.

  	
  Attributable
  Indebtedness: 

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.

  	
  All
  obligations in respect of Disqualified Equity Interests: 

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.

  	
  Without
  duplication, all Guarantees (excluding Performance Guarantees) with respect
  to outstanding Indebtedness described above of Persons other than the
  Borrower and its Subsidiaries: 

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.

  	
  All
  Indebtedness of the types described above of any partnership or joint venture
  (other than a joint venture that is itself a corporation or limited liability
  company or other legal entity in respect of which the equity holders are not
  liable for the obligations of such entity as a matter of law) in which the
  Borrower or a Subsidiary (other than a SPV Subsidiary, provided that
  Indebtedness under this item III.A.8 of SPV Subsidiaries shall be excluded of
  such Indebtedness only to the extent that the aggregate principal amount of
  such Indebtedness does not exceed $100,000,000) is a general partner or joint
  venture unless such Indebtedness is expressly non-recourse to the Borrower
  and its Subsidiaries: 

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.

  	
  Consolidated
  Funded Indebtedness (Line III.A.1 + 2 + 3 + 4 + 5 + 6 + 7 + 8): 

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B

  	
  Consolidated
  EBITDA for Subject Period (Line I.A.11 above):

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
  Consolidated
  Leverage Ratio (Line III.A.9  ̧ Line III.B):

  	
   

  	
    to
  1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Maximum
  permitted:  4.00:1:00.

  	
   

  	
   

  	
   

  



 
















 


EXHIBIT E


 


FORM OF ASSIGNMENT AND ASSUMPTION


 


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


 


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


 


	
  1.

  	
  Assignor:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Assignee:

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Borrower:

  	
  Alliant
  Techsystems Inc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Administrative
  Agent:

  	
  Bank
  of America, N.A., as the administrative agent under the Credit Agreement

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Credit
  Agreement:

  	
  The
  Second Amended and Restated Credit Agreement, dated as of October 7, 2010
  among Alliant Techsystems Inc., the Lenders party thereto, Bank of America,
  N.A., as Administrative Agent, the other Agents and the Arrangers.

  
						



 

















 


	
  6.

  	
  Assigned
  Interest:

  	
   

  



 


	
  Facility Assigned

  	
   

  	
  Aggregate

  Amount of

  Commitment/Loans

  for all Lenders*

  	
   

  	
  Amount of

  Commitment/Loans

  Assigned*

  	
   

  	
  Percentage

  Assigned of

  Commitment/Loans(1)

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  



 


[7.                                   Trade
Date:                                   ](2)


 


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


 


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


 


	
   

  	
  ASSIGNOR

  
	
   

  	
  [NAME
  OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 






(1)  Set forth, to at least 9 decimals, as
a percentage of the Commitment/Loans of all Lenders thereunder.


 


*  Amount
to be adjusted by the counterparties to take into account any payments or
prepayments for Term A Loans [Incremental Term Loan].


 


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


 

















 


	
  Consented
  to and Accepted:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BANK
  OF AMERICA, N.A., as

  	
   

  	
   

  
	
  Administrative Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Consented
  to:](3)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 






(3)  To be added for the Borrower and/or
other parties (e.g. Swing Line Lender or L/C Issuer) only to the extent such
consent is required by the terms of the Credit Agreement.


 

















 


ANNEX 1 TO
ASSIGNMENT AND ASSUMPTION


 


Second Amended and Restated Credit Agreement, dated as of October 7,
2010 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the “Credit Agreement;”
the terms defined therein being used herein as therein defined), among Alliant
Techsystems Inc., a Delaware corporation (the “Borrower”),
the Lenders from time to time party thereto, Bank of America, N.A., as
Administrative Agent, the other Agents and the Arrangers.


 


STANDARD TERMS AND
CONDITIONS FOR


 


ASSIGNMENT AND ASSUMPTION


 


1.                                       Representations
and Warranties.


 


1.1.                              Assignor.  The Assignor (a) represents and warrants that
(i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.


 


1.2.                              Assignee.  The Assignee (a) represents and warrants that
(i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all requirements of an Eligible Assignee under the
Credit Agreement (subject to receipt of such consents as may be required under
the Credit Agreement), (iii) from and after the Effective Date, it shall be
bound by the provisions of the Credit Agreement as a Lender thereunder and, to
the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement, together with
copies of the most recent financial statements delivered pursuant to Section
6.01 thereof, as applicable, and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Assumption and to purchase the Assigned Interest on
the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, and (v) if it
is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by the Assignee; and (b) agrees that (i) it will, independently
and without reliance on the Administrative Agent, the 


 

















 


Assignor
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 the Credit Agreement and the other Loan Documents,
and (ii) it will perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement and the other Loan Documents are
required to be performed by it as a Lender.


 


2.                                       Payments.  [From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignee whether such amounts have accrued prior to or on or after the
Effective Date.  The Assignor and the
Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.]  [From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for amounts which have accrued to but excluding the Effective Date
and to the Assignee for amounts which have accrued from and after the Effective
Date.](4)


 


3.                                       General
Provisions.  This
Assignment and Assumption shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and assigns.  This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument.  Delivery of an executed
counterpart of a signature page of this Assignment and Assumption by telecopy
shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption.  This
Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of New York.


 






(4)  Administrative Agent to select first
or second alternative.


 
















 


EXHIBIT F


 


FORM OF GUARANTY


 


SECOND AMENDED AND RESTATED SUBSIDIARY GUARANTY


 


Dated as of October 7, 2010


 


From


 


THE GUARANTORS NAMED HEREIN


 


and


 


THE ADDITIONAL GUARANTORS REFERRED TO HEREIN


 


as Guarantors


 


in favor of


 


THE SECURED PARTIES REFERRED TO IN

THE CREDIT AGREEMENT REFERRED TO HEREIN


 

















 


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


 


	
  SECTION

  	
   

  	
  PAGE

  
	
   

  	
   

  
	
  SECTION 1.

  	
  GUARANTY; LIMITATION OF LIABILITY

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  GUARANTY ABSOLUTE

  	
  2

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  WAIVERS AND ACKNOWLEDGMENTS

  	
  4

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  SUBROGATION

  	
  4

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  PAYMENTS FREE AND CLEAR OF TAXES, ETC.

  	
  5

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  6

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  COVENANTS

  	
  7

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  AMENDMENTS, GUARANTY SUPPLEMENTS, ETC.

  	
  7

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  NOTICES, ETC.

  	
  7

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  NO WAIVER; REMEDIES

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION 11.

  	
  RIGHT OF SET-OFF

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION 12.

  	
  INDEMNIFICATION

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION 13.

  	
  SUBORDINATION

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 14.

  	
  CONTINUING GUARANTY; ASSIGNMENTS UNDER THE CREDIT AGREEMENT

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 15.

  	
  EXECUTION IN COUNTERPARTS

  	
  10

  
				



 


i

















 


	
  SECTION 16.

  	
  GOVERNING LAW; JURISDICTION; WAIVER OF JURY
  TRIAL, ETC.

  	
  10

  



 


Exhibit A -
Guaranty Supplement


 


ii

















 


SECOND AMENDED AND RESTATED SUBSIDIARY GUARANTY


 


SECOND
AMENDED AND RESTATED SUBSIDIARY GUARANTY, dated as of October 7, 2010 (this “Guaranty”), made by
the Persons listed on the signature pages hereof and the Additional Guarantors
(as defined in Section 8(b)) (such Persons so listed and the Additional
Guarantors being, collectively, the “Guarantors” and, individually, each a “Guarantor”) in favor
of the Secured Parties (as defined in the Credit Agreement referred to below).


 


PRELIMINARY
STATEMENT.  Alliant Techsystems Inc., a
Delaware corporation (the “Borrower”),
is party to that certain Second Amended and Restated Credit Agreement dated as
of October 7, 2010 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”; the capitalized terms
defined therein and not otherwise defined herein being used herein as therein
defined) with certain Lenders party thereto, BANK OF AMERICA, N.A, as
Administrative Agent for such Lenders, the other Agents and the Arrangers.  Each Guarantor may receive, directly or
indirectly, a portion of the proceeds of the Loans under the Credit Agreement
and will derive substantial direct and indirect benefits from the transactions
contemplated by the Credit Agreement.  It
is a condition precedent to the making of Loans by the Lenders and the issuance
of Letters of Credit by the L/C Issuers under the Credit Agreement and the
entry by the Hedge Banks into Secured Hedge Agreements from time to time that
each Guarantor shall have executed and delivered this Guaranty.


 


NOW,
THEREFORE, in consideration of the premises and in order to induce the Lenders
to make Loans and the L/C Issuers to issue Letters of Credit under the Credit
Agreement and the Hedge Banks to enter into Secured Hedge Agreements from time
to time, each Guarantor, jointly and severally with each other Guarantor,
hereby agrees as follows:


 


Section 1.       Guaranty;
Limitation of Liability. 
(a)  Each Guarantor hereby
absolutely, unconditionally and irrevocably guarantees the punctual payment
when due, whether at scheduled maturity or on any date of a required prepayment
or by acceleration, demand or otherwise, of all Obligations of each other Loan
Party now or hereafter existing under or in respect of the Loan Documents
(including, without limitation, any extensions, modifications, substitutions, amendments,
amendments and restatements, or renewals of any or all of the foregoing
Obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premiums, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such Obligations being the “Guaranteed Obligations”),
and agrees to pay any and all expenses (including, without limitation, fees and
expenses of counsel) incurred by the Administrative Agent or any other Secured
Party in enforcing any rights under this Guaranty or any other Loan
Document.  Without limiting the
generality of the foregoing, each Guarantor’s liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
any other Loan Party to any Secured Party under or in respect of the Loan
Documents but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
such other Loan Party.


 

















 


(b)  Each
Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and
each other Secured Party, hereby confirms that it is the intention of all such
Persons that this Guaranty and the Obligations of each Guarantor hereunder not
constitute a fraudulent transfer or conveyance for purposes of Debtor Relief
Laws, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act or any similar foreign, federal or state law to the extent applicable to
this Guaranty and the Obligations of each Guarantor hereunder.  To effectuate the foregoing intention, the
Administrative Agent, the other Secured Parties and the Guarantors hereby
irrevocably agree that the Obligations of each Guarantor under this Guaranty at
any time shall be limited to the maximum amount as will result in the
Obligations of such Guarantor under this Guaranty not constituting a fraudulent
transfer or conveyance.


 


(c)  Each
Guarantor hereby unconditionally and irrevocably agrees that if any payment
shall be required to be made to any Secured Party under this Guaranty or any
other guaranty by such Guarantor, such Guarantor will contribute, to the
maximum extent permitted by law, such amounts to each other Guarantor and each
other guarantor so as to maximize the aggregate amount paid to the Secured Parties
under or in respect of the Loan Documents.


 


(d)  To the
extent that any Guarantor shall make a payment under this Guaranty of all or
any of the Guaranteed Obligations (a “Guarantor Payment”) which, taking into account all other
Guarantor Payments then previously or concurrently made by the other
Guarantors, exceeds the amount which such Guarantor would otherwise have paid
if each Guarantor had paid the aggregate Guaranteed Obligations satisfied by
such Guarantor Payment in the same proportion that such Guarantor’s “Allocable
Amount” (as defined below) (in effect immediately prior to such Guarantor
Payment) bore to the aggregate Allocable Amounts of all Guarantors in effect
immediately prior to the making of such Guarantor Payment, then, subject
to Section 4 hereof such Guarantor shall be entitled to receive
contribution and indemnification payments from, and be reimbursed by, each of
the other Guarantors for the amount of such excess, pro  rata in
accordance with their respective Allocable Amounts in effect immediately prior
to such Guarantor Payment.  As of any
date of determination, the “Allocable Amount” of any Guarantor shall be equal to the
maximum amount of the claim which could then be recovered from such Guarantor
under this Guaranty after giving effect to Section 1(b) hereof.  This Section 1(d) is intended only to
define the relative rights of Guarantors and nothing set forth in this Section
1(d) is intended to or shall impair the obligations of Guarantors, jointly
and severally, to pay any amounts as and when the same shall become due and
payable in accordance with the terms of this Guaranty.


 


Section
2.  Guaranty Absolute.  Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan Documents,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of any Secured Party
with respect thereto.  The Obligations of
each Guarantor under or in respect of this Guaranty are independent of the
Guaranteed Obligations or any other Obligations of any other Loan Party under
or in respect of the Loan Documents, and a separate action or actions may be
brought and prosecuted against each Guarantor to enforce this Guaranty, irrespective
of whether any action is brought against the Borrower or any other Loan Party
or whether the Borrower or any other Loan Party is joined in any such action or
actions.  The liability of each Guarantor
under this Guaranty shall be irrevocable, absolute and 


 


2

















 


unconditional
irrespective of, and each Guarantor hereby irrevocably waives any defenses it
may now have or hereafter acquire in any way relating to, any or all of the
following:


 


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


 


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


 


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


 


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


 


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


 


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


 


(g)   the
failure of any other Person to execute or deliver this Guaranty, any Guaranty
Supplement (as hereinafter defined) or any other guaranty or agreement or the
release or reduction of liability of any Guarantor or other guarantor or surety
with respect to the Guaranteed Obligations; or


 


(h)   any
other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by any Secured Party that
might otherwise constitute a defense available to, or a discharge of, any Loan
Party or any other guarantor or surety.


 


This
Guaranty shall continue to be effective or be reinstated, as the case may be,
if at any time any payment of any of the Guaranteed Obligations is rescinded or
must otherwise be returned by any Secured Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan
Party or otherwise, all as though such payment had not been made.


 


3

















 


Section 3.  Waivers and
Acknowledgments.  (a)  Each Guarantor hereby unconditionally and
irrevocably waives promptness, diligence, notice of acceptance, presentment,
demand for performance, notice of nonperformance, default, acceleration,
protest or dishonor and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that any Secured Party
protect, secure, perfect or insure any Lien or any property subject thereto or
exhaust any right or take any action against any Loan Party or any other Person
or any Collateral.


 


(b)   Each
Guarantor hereby unconditionally and irrevocably waives any right to revoke
this Guaranty and acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.


 


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


 


(d)   Each
Guarantor acknowledges that the Administrative Agent may, without notice to or
demand upon such Guarantor and without affecting the liability of such Guarantor
under this Guaranty, foreclose under any mortgage, trust deeds or deed of trust
by nonjudicial sale, and each Guarantor hereby waives any defense to the
recovery by the Administrative Agent and the other Secured Parties against such
Guarantor of any deficiency after such nonjudicial sale and any defense or
benefits that may be afforded by applicable law.


 


(e)   Each
Guarantor hereby unconditionally and irrevocably waives any duty on the part of
any Secured Party to disclose to such Guarantor any matter, fact or thing
relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Loan Party or any of its
Subsidiaries now or hereafter known by such Secured Party.


 


(f)    Each
Guarantor acknowledges that it will receive substantial direct and indirect
benefits from the financing arrangements contemplated by the Loan Documents and
that the waivers set forth in Section 2 and this Section 3
are knowingly made in contemplation of such benefits.


 


Section 4.  Subrogation.  Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower, any other Loan Party or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor’s Obligations under or in respect of this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Secured Party against the Borrower,
any other Loan Party or any other insider guarantor or any Collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute or common law,
including, without limitation, the right to take or receive from the Borrower,
any other Loan Party or any other insider guarantor, directly or indirectly, in


 


4

















 


cash or other property or by set-off or in any other
manner, payment or security on account of such claim, remedy or right, unless
and until all of the Guaranteed Obligations and all other amounts payable under
this Guaranty shall have been paid in full in cash, all Letters of Credit and
all Secured Hedge Agreements shall have expired or been terminated and the
Commitments shall have expired or been terminated.  If any amount shall be paid to any Guarantor
in violation of the immediately preceding sentence at any time prior to the
latest of (a) the payment in full in cash of the Guaranteed Obligations
and all other amounts payable under this Guaranty, (b) the Maturity Date
for the Revolving Credit Facility and (c) the latest date of expiration,
termination or Cash Collateralization or provision of Credit Support (as
defined below) therefor of all Letters of Credit and the expiration or
termination of all Secured Hedge Agreements, such amount shall be received and
held in trust for the benefit of the Secured Parties, shall be segregated from
other property and funds of such Guarantor and shall forthwith be paid or
delivered to the Administrative Agent in the same form as so received (with any
necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising.  If (i) any Guarantor shall make payment
to any Secured Party of all or any part of the Guaranteed Obligations,
(ii) all of the Guaranteed Obligations and all other amounts payable under
this Guaranty shall have been paid in full in cash, (iii) the Maturity
Date for the Revolving Credit Facility shall have occurred and (iv) all
Letters of Credit shall have expired or been terminated or, prior to the date
of expiration or termination, been Cash Collateralized or credit support
therefor shall otherwise have been provided in a manner satisfactory to the
respective L/C Issuer in its sole discretion (“Credit Support”) and all Secured Hedge
Agreements shall have expired or been terminated, the Secured Parties will, at
such Guarantor’s request and expense, execute and deliver to such Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to such Guarantor of an
interest in the Guaranteed Obligations resulting from such payment made by such
Guarantor pursuant to this Guaranty.


 


Section
5.  Payments Free and Clear of Taxes,
Etc.  (a)  Any and all payments made by any Guarantor
to, or for the account of a Secured Party, under or in respect of this Guaranty
or any other Loan Document shall be made, in accordance with Section 3.01
of the Credit Agreement, free and clear of and without deduction for any and
all present or future Taxes.  If any
Guarantor shall be required by law to deduct any Taxes from or in respect of
any sum payable under or in respect of this Guaranty or any other Loan Document
to any Secured Party, (i) the sum payable by such Guarantor shall be
increased as may be necessary so that after such Guarantor and the
Administrative Agent have made all required deductions (including deductions applicable
to additional sums payable under this Section 5(a)), such Secured Party
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Guarantor shall make such deductions,
(iii) such Guarantor shall pay the full amount deducted to the relevant
taxation authority or other Governmental Authority in accordance with
applicable law and (iv) within 30 days after the date of such payment, such
Guarantor shall furnish to the Administrative Agent, at its address referred to
in Section 9, the original or a certified copy of a receipt evidencing payment
thereof to the extent such a receipt is issued therefor, or such other written
evidence of payment thereof that is reasonably satisfactory to the
Administrative Agent.


 


5

















 


(b)   In
addition, each Guarantor agrees to pay any and all present or future Other
Taxes that arise from any payment made by or on behalf of such Guarantor under
or in respect of this Guaranty or any other Loan Document or from the
execution, delivery or registration of, performance under, or otherwise with
respect to, this Guaranty and the other Loan Documents.


 


(c)   Each
Guarantor will indemnify each Secured Party for and hold it harmless against
the full amount of Taxes and Other Taxes imposed by any jurisdiction on amounts
payable under this Section 5, imposed on or paid by such Secured
Party and any liability (including penalties, additions to tax, interest and
reasonable expenses) arising therefrom or with respect thereto, in each case
whether or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority.  Payment under this Section 5 shall be
made within 30 days after the date such Secured Party makes written demand
therefor.  A certificate setting forth
the amount of such payment delivered by a Secured Party to a Guarantor shall be
conclusive absent the manifest error of such Secured Party.


 


(d)   Within
30 days after the date of any payment of Taxes, the relevant Guarantor shall
furnish to the Administrative Agent, at its address referred to in Section 9,
the original or a certified copy of a receipt evidencing such payment.  In the case of any payment hereunder by or on
behalf of any Guarantor through an account or branch outside the United States
or by or on behalf of such Guarantor by a payor that is not a United States
person, if such Guarantor determines that no Taxes are payable in respect
thereof, such Guarantor shall furnish, or shall cause such payor to furnish, to
the Administrative Agent, at such address, an opinion of counsel acceptable to
the Administrative Agent stating that such payment is exempt from Taxes.  For purposes of this Section 5,
the terms “United States”
and “United States person”
shall have the meanings specified in Section 7701 of the Internal
Revenue Code.


 


(e)   The
obligations of Guarantor under this Section are subject in all respects to the
limitations, qualifications and satisfaction of conditions set forth in
Sections 3.01 and 10.14(a) of the Credit Agreement, including, without
limitation, compliance by the Secured Parties with the obligations imposed on
the Lenders set forth in Sections 3.01(d) and 10.14(a) of the Credit Agreement
(it being understood that satisfaction by any Secured Party with the
obligations imposed on it as a Lender under the Credit Agreement shall satisfy
its obligations to any Guarantor hereunder).


 


Section
6.  Representations and Warranties.  Each Guarantor hereby makes each
representation and warranty made in the Loan Documents by the Borrower with
respect to such Guarantor and each Guarantor hereby further represents and
warrants as follows:


 


(a)   There
are no conditions precedent to the effectiveness of this Guaranty that have not
been satisfied or waived.


 


(b)   Such
Guarantor has, independently and without reliance upon any Secured Party and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Guaranty and each other
Loan Document to which it is or is to be a party, and such Guarantor has
established adequate means of obtaining from each other Loan Party on a
continuing basis information pertaining to, and is now and on a continuing
basis will be completely familiar with, the


 


6
















 


business,
condition (financial or otherwise), operations, performance, properties and
prospects of such other Loan Party.


 


Section 7.  Covenants.  Each Guarantor covenants and agrees that, so
long as any part of the Guaranteed Obligations shall remain unpaid, any Letter
of Credit shall be outstanding, any Lender shall have any Commitment or any
Secured Hedge Agreement shall be in effect, such Guarantor will, to the extent
expressly set forth in the Loan Documents, perform and observe, and cause each
of its Subsidiaries to perform and observe, all of the terms, covenants and
agreements set forth in the Loan Documents on its or their part to be performed
or observed or that the Borrower has agreed to cause such Guarantor or such
Subsidiaries, as the case may be, to perform or observe.


 


Section 8.  Amendments, Guaranty Supplements, Etc.  No amendment or waiver of any provision of
this Guaranty and no consent to any departure by any Guarantor therefrom shall
in any event be effective unless the same shall be in writing and signed by the
Administrative Agent and the Required Lenders (except as otherwise provided in
the Credit Agreement), and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing
and signed by all of the Secured Parties (other than any Lender that is, at
such time, a Defaulting Lender), (i) reduce or limit the obligations of
any Guarantor hereunder, release any Guarantor hereunder or otherwise limit any
Guarantor’s liability with respect to the Obligations owing to the Secured
Parties under or in respect of the Loan Documents except as provided in the
next succeeding sentence, (ii) postpone any date fixed for payment
hereunder or (iii) change the number of Secured Parties or the percentage
of (x) the Commitments, (y) the aggregate unpaid principal amount of
the Loans or (z) the aggregate Available Amount of outstanding Letters of
Credit that, in each case, shall be required for the Secured Parties or any of
them to take any action hereunder.  Upon
any Guarantor ceasing to be a Subsidiary as a result of a transaction not
prohibited under the Credit Agreement, such Guarantor shall be released from
this Guaranty in accordance with Section 9.11(b) of the Credit
Agreement.


 


(c)           Upon the execution and delivery by any Person of a guaranty supplement in
substantially the form of Exhibit A hereto (each, a “Guaranty Supplement”),
(i) such Person shall be referred to as an “Additional Guarantor” and shall become
and be a Guarantor hereunder, and each reference in this Guaranty to a “Guarantor” shall also
mean and be a reference to such Additional Guarantor, and each reference in any
other Loan Document to a “Guarantor”
or a “Subsidiary
Guarantor” shall also mean and be a reference to such Additional
Guarantor, and (ii) each reference herein to “this Guaranty”, “hereunder”, “hereof” or words of
like import referring to this Guaranty, and each reference in any other Loan Document
to the “Guaranty”,
the “Subsidiary Guaranty”,
“thereunder”,
“thereof”
or words of like import referring to this Guaranty, shall mean and be a
reference to this Guaranty as supplemented by such Guaranty Supplement.


 


Section 9.  Notices, Etc.  All notices and other communications provided
for hereunder shall be in writing (including by facsimile transmission) and
shall be mailed certified or registered mail, faxed or delivered to it, if to
any Guarantor, addressed to it in care of the Borrower at the Borrower’s
address specified in Section 10.02(a) of the Credit Agreement,
if to


 


7

















 


any
Agent or any Lender, at its address specified in Section 10.02(a) of
the Credit Agreement, if to any Hedge Bank, at its address specified in the
Secured Hedge Agreement to which it is a party, or, as to any party, at such
other address as shall be designated by such party in a written notice to each
other party.  Notices sent by hand or
overnight courier service, or mailed by certified or registered mail, shall be
deemed to have been given when received; notices sent by facsimile shall be
deemed to have been given when sent (except that, if not given during normal
business hours for the recipient, shall be deemed to have been given at the
opening of business on the next business day for the recipient).  Notices and other communication may also be
delivered or furnished as provided in Section 10.02(b) of the
Credit Agreement and any such notices delivered through electronic
communications to the extent provided in Section 10.02(b) of
the Credit Agreement shall be effective as provided in such Section 10.02(b) of
the Credit Agreement.  Delivery by
telecopier of an executed counterpart of a signature page to any amendment
or waiver of any provision of this Guaranty or of any Guaranty Supplement to be
executed and delivered hereunder shall be as effective as delivery of an
original executed counterpart thereof.


 


Section 10.  No Waiver; Remedies.  No failure on the part of any Secured Party
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.  The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.


 


Section 11.  Right of Set-off.  Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or
the granting of the consent specified by Section 8.02 of the Credit
Agreement to authorize the Administrative Agent to declare the Loans and other
Obligations due and payable pursuant to the provisions of said Section 8.02,
each Agent and each Lender and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Agent, such Lender or such Affiliate to or for the credit or
the account of any Guarantor against any and all of the Obligations of such
Guarantor now or hereafter existing under the Loan Documents, irrespective of
whether such Agent or such Lender shall have made any demand under this
Guaranty or any other Loan Document and although such Obligations may be
unmatured.  Each Agent and each Lender
agrees promptly to notify such Guarantor after any such set-off and
application; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and application.  The rights of each Agent and each Lender and
their respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Agent, such Lender and their respective Affiliates may have.


 


Section 12.  Indemnification.  (a) Without limitation on any other
Obligations of any Guarantor or remedies of the Secured Parties under this
Guaranty, each Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Secured Party and each of
their Affiliates and their respective officers, directors, employees, agents
and advisors (each, an “Indemnified
Party”) from and against, and shall pay on demand, any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, fees and expenses of counsel) that may be incurred by or asserted
or awarded against any Indemnified Party in


 


8

















 


connection
with or as a result of any failure of any Guaranteed Obligations to be the
legal, valid and binding obligations of any Loan Party enforceable against such
Loan Party in accordance with their terms; provided that such indemnity
shall not, as to any Indemnified Party, be available to the extent that such
claims, damages, losses, liabilities and expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnified Party.


 


(b)   Each
Guarantor hereby also agrees that none of the Indemnified Parties shall have
any liability (whether direct or indirect, in contract, tort or otherwise) to
any of the Guarantors or any of their respective Affiliates or any of their
respective officers, directors, employees, agents and advisors for, and each
Guarantor hereby agrees not to assert any claim against any Indemnified Party
on any theory of, liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Facilities, the actual or
proposed use of the proceeds of the Loans or the Letters of Credit, the Loan
Documents or any of the transactions contemplated by the Loan Documents.


 


(c)   Without
prejudice to the survival of any of the other agreements of any Guarantor under
this Guaranty or any of the other Loan Documents, the agreements and
obligations of each Guarantor contained in Section 1(a) (with
respect to enforcement expenses), the last sentence of Section 2, Section 5
and this Section 12 shall survive the payment in full of the
Guaranteed Obligations and all of the other amounts payable under this
Guaranty.


 


Section 13.  Subordination.  Each Guarantor hereby subordinates any and
all debts, liabilities and other obligations owed to such Guarantor by each
other Loan Party (the “Subordinated
Obligations”) to the Guaranteed Obligations to the extent and in
the manner hereinafter set forth in this Section 13:


 


(a)   Prohibited
Payments, Etc.  Except during the continuance of a Specified
Default, each Guarantor may receive payments from any other Loan Party on
account of the Subordinated Obligations. 
After the occurrence and during the continuance of a Specified Default,
however, unless the Administrative Agent otherwise agrees, no Guarantor shall
demand, accept or take any action to collect any payment on account of the
Subordinated Obligations.


 


(b)   Prior
Payment of Guaranteed Obligations.  In any proceeding under any Bankruptcy Law
relating to any other Loan Party, each Guarantor agrees that the Secured
Parties shall be entitled to receive payment in full in cash of all Guaranteed
Obligations (including all interest and expenses accruing after the commencement
of a proceeding under any Bankruptcy Law, whether or not constituting an
allowed claim in such proceeding (“Post Petition
Interest”)) before such Guarantor
receives payment of any Subordinated Obligations.


 


(c)   Turn-Over.  After the occurrence and during
the continuance of any Specified Default, each Guarantor shall, if the
Administrative Agent requests pursuant to clause (ii) of subsection
(d) below, collect, enforce and receive payments on account of the
Subordinated Obligations as trustee for the Secured Parties and deliver such
payments to the Administrative Agent on account of the Guaranteed Obligations
(including all Post Petition Interest), together with any necessary
endorsements or other instruments of


 


9

















 


transfer,
but without reducing or affecting in any manner the liability of such Guarantor
under the other provisions of this Guaranty.


 


(d)   Administrative
Agent Authorization.  After the occurrence and during the
continuance of a Specified Default, the Administrative Agent is authorized and
empowered (but without any obligation to so do), in its discretion, (i) in
the name of each Guarantor, to collect and enforce, and to submit claims in
respect of, Subordinated Obligations and to apply any amounts received thereon
to the Guaranteed Obligations (including any and all Post Petition Interest),
and (ii) to require each Guarantor (A) to collect and enforce, and to
submit claims in respect of, Subordinated Obligations and (B) to pay any
amounts received on such Subordinated Obligations to the Administrative Agent
for application to the Guaranteed Obligations (including any and all Post
Petition Interest).


 


Section 14.  Continuing Guaranty; Assignments under the
Credit Agreement.  This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until
the latest of (i) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (ii) the
Maturity Date and (iii) the latest date of expiration, termination or Cash
Collateralization or provision of Credit Support therefor of all Letters of
Credit and the expiration or termination of all Secured Hedge Agreements,
(b) be binding upon each Guarantor, its successors and assigns and (c) inure
to the benefit of and be enforceable by the Secured Parties and their
successors, transferees and assigns. 
Without limiting the generality of clause (c) of the
immediately preceding sentence, any Secured Party may assign or otherwise
transfer all or any portion of its rights and obligations under the Credit
Agreement (including, without limitation, all or any portion of its
Commitments, the Loans owing to it and the Note or Notes held by it) to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Secured Party herein or otherwise,
in each case as and to the extent provided in Section 10.07 of the
Credit Agreement.  Subject to Section 7.04
of the Credit Agreement, no Guarantor shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Secured Parties.


 


Section 15.  Execution in Counterparts.  This Guaranty and each amendment, waiver and
consent with respect hereto may be executed in any number of counterparts and
by different parties thereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. 
Delivery of an executed counterpart of a signature page to this
Guaranty by telecopier shall be effective as delivery of an original executed
counterpart of this Guaranty.


 


Section 16.  Governing Law; Jurisdiction; Waiver of
Jury Trial, Etc.  (a)  This
Guaranty shall be governed by, and construed in accordance with, the laws of
the State of New York.


 


(b)   Each
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Guaranty or any of the other Loan Documents to which
it is or is to be a party, or for recognition or enforcement of any judgment,


 


10

















 


and each Guarantor hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court.  Each Guarantor agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law.  Nothing in this Guaranty or any
other Loan Document shall affect any right that any party may otherwise have to
bring any action or proceeding relating to this Guaranty or any other Loan
Document in the courts of any jurisdiction.


 


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


 


(d)   EACH
GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE LOANS OR THE
ACTIONS OF ANY SECURED PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF.


 


11

















 


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


 


 


	
  Address
  for Notices:

  	
  AMMUNITION
  ACCESSORIES INC.

  
	
  7480
  Flying Cloud Drive

  	
   

  
	
  Eden
  Prairie, MN 55344

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address
  for Notices:

  	
  ATK
  COMMERCIAL AMMUNITION

  
	
  7480
  Flying Cloud Drive

  	
  COMPANY
  INC.

  
	
  Eden
  Prairie, MN 55344

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address for Notices:

  	
  ATK
  COMMERCIAL AMMUNITION

  
	
  7480
  Flying Cloud Drive

  	
  HOLDINGS
  COMPANY INC.

  
	
  Eden
  Prairie, MN 55344

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address
  for Notices:

  	
  ATK
  LAUNCH SYSTEMS INC.

  
	
  7480
  Flying Cloud Drive

  	
   

  
	
  Eden
  Prairie, MN 55344

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address
  for Notices:

  	
  ATK
  SPACE SYSTEMS INC.

  
	
  7480
  Flying Cloud Drive

  	
   

  
	
  Eden
  Prairie, MN 55344

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
  Address
  for Notices:

  	
  FEDERAL
  CARTRIDGE COMPANY

  
	
  7480
  Flying Cloud Drive

  	
   

  
	
  Eden
  Prairie, MN 55344

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address
  for Notices:

  	
  EAGLE
  INDUSTRIES UNLIMITED, INC.

  
	
  7480
  Flying Cloud Drive

  	
   

  	
   

  
	
  Eden
  Prairie, MN 55344

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address
  for Notices:

  	
  EAGLE
  MAYAGUEZ, LLC

  
	
  7480
  Flying Cloud Drive

  	
   

  
	
  Eden
  Prairie, MN 55344

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address
  for Notices:

  	
  EAGLE
  NEW BEDFORD, INC.

  
	
  7480
  Flying Cloud Drive

  	
   

  
	
  Eden
  Prairie, MN 55344

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


Exhibit A

To The

Guaranty


 


FORM OF GUARANTY SUPPLEMENT


 


                    ,      


 


Bank of America, N.A., as Administrative Agent

[Address of Administrative Agent]


 


Attention:


 


Second Amended and Restated Credit Agreement dated as of October 7,
2010 among


Alliant Techsystems Inc., a Delaware corporation (the “Borrower”), the
Lenders


party to the Credit Agreement, Bank of America, N.A., as Administrative
Agent, the other Agents and the Arrangers


 


Ladies
and Gentlemen:


 


Reference
is made to the above-captioned Credit Agreement and to the Guaranty referred to
therein (such Guaranty, as in effect on the date hereof and as it may hereafter
be amended, amended and restated, supplemented or otherwise modified from time
to time, together with this Guaranty Supplement, being the “Guaranty”).  The capitalized terms defined in the Guaranty
or, if not defined in the Guaranty, in the Credit Agreement and not otherwise
defined herein are used herein as therein defined.


 


Section 1.  Guaranty; Limitation of Liability.  (a)  The undersigned hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all Obligations of each other Loan Party
now or hereafter existing under or in respect of the Loan Documents (including,
without limitation, any extensions, modifications, substitutions, amendments or
renewals of any or all of the foregoing Obligations), whether direct or
indirect, absolute or contingent, and whether for principal, interest, premium,
fees, indemnities, contract causes of action, costs, expenses or otherwise
(such Obligations being the “Guaranteed
Obligations”), and agrees to pay any and all expenses
(including, without limitation, fees and expenses of counsel) incurred by the
Administrative Agent or any other Secured Party in enforcing any rights under
this Guaranty Supplement, the Guaranty or any other Loan Document.  Without limiting the generality of the
foregoing, the undersigned’s liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party to any Secured Party under or in respect of the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other Loan
Party.


 


(b)   The undersigned, and by its
acceptance of this Guaranty Supplement, the Administrative Agent and each other
Secured Party, hereby confirms that it is the intention of all such Persons
that this Guaranty Supplement, the Guaranty and the Obligations of the 


 

















 


undersigned
hereunder and thereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the
extent applicable to this Guaranty Supplement, the Guaranty and the Obligations
of the undersigned hereunder and thereunder. 
To effectuate the foregoing intention, the Administrative Agent, the
other Secured Parties and the undersigned hereby irrevocably agree that the
Obligations of the undersigned under this Guaranty Supplement and the Guaranty
at any time shall be limited to the maximum amount as will result in the
Obligations of the undersigned under this Guaranty Supplement and the Guaranty
not constituting a fraudulent transfer or conveyance.


 


(c)   The undersigned hereby
unconditionally and irrevocably agrees that if any payment shall be required to
be made to any Secured Party under this Guaranty Supplement, the Guaranty or
any other guaranty by such Guarantor, the undersigned will contribute, to the
maximum extent permitted by applicable law, such amounts to each other
Guarantor and each other guarantor so as to maximize the aggregate amount paid
to the Secured Parties under or in respect of the Loan Documents.


 


(d)           To the extent that any
Guarantor shall make a payment under this Guaranty of all or any of the
Guaranteed Obligations (a “Guarantor
Payment”) which, taking into account all other Guarantor
Payments then previously or concurrently made by the other Guarantors, exceeds
the amount which such Guarantor would otherwise have paid if each Guarantor had
paid the aggregate Guaranteed Obligations satisfied by such Guarantor Payment
in the same proportion that such Guarantor’s “Allocable Amount” (as defined
below) (in effect immediately prior to such Guarantor Payment) bore to the
aggregate Allocable Amounts of all Guarantors in effect immediately prior to
the making of such Guarantor Payment, then, subject to Section 4
hereof such Guarantor shall be entitled to receive contribution and
indemnification payments from, and be reimbursed by, each of the other
Guarantors for the amount of such excess, pro  rata in accordance
with their respective Allocable Amounts in effect immediately prior to such
Guarantor Payment.  As of any date of
determination, the “Allocable
Amount” of any Guarantor shall be equal to the maximum amount of
the claim which could then be recovered from such Guarantor under this Guaranty
after giving effect to Section 1(b) hereof.  This Section 1(d) is
intended only to define the relative rights of Guarantors and nothing set forth
in this Section 1(d) is intended to or shall impair the
obligations of Guarantors, jointly and severally, to pay any amounts as and
when the same shall become due and payable in accordance with the terms of this
Guaranty.


 


Section 2.  Obligations Under the Guaranty.  The undersigned hereby agrees, as of the date
first above written, to be bound as a Guarantor by all of the terms and
conditions of the Guaranty to the same extent as each of the other Guarantors
thereunder.  The undersigned further
agrees, as of the date first above written, that each reference in the Guaranty
to an “Additional Guarantor”
or a “Guarantor” shall
also mean and be a reference to the undersigned, and each reference in any
other Loan Document to a “Guarantor”
or a “Loan Party” shall
also mean and be a reference to the undersigned.


 


Section 3.  Representations and Warranties.  The undersigned hereby makes each
representation and warranty set forth in Section 6 of the Guaranty
to the same extent as each other Guarantor.


 

















 


Section 4.  Delivery by Telecopier.  Delivery of an executed counterpart of a
signature page to this Guaranty Supplement by telecopier shall be
effective as delivery of an original executed counterpart of this Guaranty
Supplement.


 


Section 5.  Governing Law; Jurisdiction; Waiver of
Jury Trial, Etc.  (a)  This
Guaranty Supplement shall be governed by, and construed in accordance with, the
laws of the State of New York.


 


(b)   The undersigned hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or any federal court
of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Guaranty Supplement, the Guaranty or any of the other Loan Documents
to which it is or is to be a party, or for recognition or enforcement of any
judgment, and the undersigned hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court.  The undersigned
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. 
Nothing in this Guaranty Supplement or the Guaranty or any other Loan
Document shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Guaranty Supplement, the Guaranty or any
of the other Loan Documents to which it is or is to be a party in the courts of
any other jurisdiction.


 


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


 


(d)   THE UNDERSIGNED HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS, THE LOANS OR THE ACTIONS OF ANY SECURED
PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF ADDITIONAL GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Title:

  



 


 
















 


EXHIBIT G


 


FORM OF AMENDED AND RESTATED
SECURITY AGREEMENT


 


SECOND AMENDED AND RESTATED SECURITY AGREEMENT


 


Dated October 7, 2010


 


From


 


The Grantors referred to herein


 


as Grantors


 


to


 


BANK OF AMERICA, N.A.


 


as Administrative Agent


 

















 


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


 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.      GRANT
  OF SECURITY

  	
   

  	
  3

  
	
   

  	
   

  	
   

  
	
  SECTION 2.      SECURITY
  FOR OBLIGATIONS

  	
   

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION 3.      GRANTORS
  REMAIN LIABLE

  	
   

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION 4.      GOVERNMENT
  CONTRACT CLAIMS

  	
   

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION 5.      DELIVERY
  AND CONTROL OF SECURITY COLLATERAL

  	
   

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 6.      MAINTAINING
  THE ACCOUNT COLLATERAL

  	
   

  	
  12

  
	
   

  	
   

  	
   

  
	
  SECTION 7.      INVESTING
  OF AMOUNTS IN THE COLLATERAL ACCOUNT AND THE L/C COLLATERAL ACCOUNT

  	
   

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 8.      RELEASE
  OF AMOUNTS

  	
   

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 9.      MAINTAINING
  ELECTRONIC CHATTEL PAPER, TRANSFERABLE RECORDS AND LETTER-OF-CREDIT RIGHTS
  AND GIVING NOTICE OF COMMERCIAL TORT CLAIMS

  	
   

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 10.    REPRESENTATIONS
  AND WARRANTIES

  	
   

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 11.    FURTHER
  ASSURANCES

  	
   

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 12.    AS
  TO EQUIPMENT AND INVENTORY

  	
   

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 13.    INSURANCE

  	
   

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 14.    POST-CLOSING
  CHANGES; BAILEES; COLLECTIONS ON ASSIGNED AGREEMENTS, RECEIVABLES AND RELATED
  CONTRACTS

  	
   

  	
  23

  
	
   

  	
   

  	
   

  
	
  SECTION 15.    AS
  TO INTELLECTUAL PROPERTY COLLATERAL

  	
   

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 16.    VOTING
  RIGHTS; DIVIDENDS; ETC.

  	
   

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 17.    AS
  TO THE ASSIGNED AGREEMENTS

  	
   

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 18.    PAYMENTS
  UNDER THE ASSIGNED AGREEMENTS

  	
   

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 19.    AS
  TO LETTER-OF-CREDIT RIGHTS

  	
   

  	
  29

  



 


i

















 


	
  SECTION 20.    ADDITIONAL SHARES

  	
   

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 21.    ADMINISTRATIVE AGENT APPOINTED
  ATTORNEY-IN-FACT

  	
   

  	
  29

  
	
   

  	
   

  	
   

  
	
  SECTION 22.    ADMINISTRATIVE AGENT MAY PERFORM

  	
   

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 23.    THE ADMINISTRATIVE AGENT’S DUTIES

  	
   

  	
  30

  
	
   

  	
   

  	
   

  
	
  SECTION 24.    REMEDIES

  	
   

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 25.    INDEMNITY AND EXPENSES.

  	
   

  	
  34

  
	
   

  	
   

  	
   

  
	
  SECTION 26.    AMENDMENTS; WAIVERS; ADDITIONAL GRANTORS;
  ETC.

  	
   

  	
  34

  
	
   

  	
   

  	
   

  
	
  SECTION 27.    NOTICES AND OTHER COMMUNICATIONS;
  FACSIMILE COPIES

  	
   

  	
  34

  
	
   

  	
   

  	
   

  
	
  SECTION 28.    CONTINUING SECURITY INTEREST; ASSIGNMENTS
  UNDER THE CREDIT AGREEMENT

  	
   

  	
  36

  
	
   

  	
   

  	
   

  
	
  SECTION 29.    RELEASE; TERMINATION

  	
   

  	
  36

  
	
   

  	
   

  	
   

  
	
  SECTION 30.    EXECUTION IN COUNTERPARTS

  	
   

  	
  37

  
	
   

  	
   

  	
   

  
	
  SECTION 31.    THE MORTGAGES

  	
   

  	
  37

  
	
   

  	
   

  	
   

  
	
  SECTION 32.    GOVERNING LAW

  	
   

  	
  37

  



 


Schedules


 


	
  Schedule
  I

  	
  -

  	
  Chief
  Executive Office, Location of Originals, Type of Organization, Jurisdiction
  of Organization and Organizational Identification Number

  
	
  Schedule
  II

  	
  -

  	
  Pledged
  Equity and Pledged Debt

  
	
  Schedule
  III

  	
  -

  	
  Changes
  in Name, Location, Etc.

  
	
  Schedule
  IV

  	
  -

  	
  Patents,
  Trademarks and Trade Names, Copyrights and IP Agreements

  
	
  Schedule
  V

  	
  -

  	
  Securities
  Accounts, Deposit Accounts, Commodities Accounts

  
	
  Schedule
  VI

  	
  -

  	
  New
  Locations of Equipment and Inventory

  



 


ii

















 


	
  Schedule
  VII

  	
  -

  	
  Excluded
  Patents

  
	
  Schedule
  VIII

  	
  -

  	
  Affected
  IP Collateral

  
	
  Schedule
  IX

  	
  -

  	
  Material
  Government Contracts

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  -

  	
  Form of
  Security Agreement Supplement

  
	
  Exhibit B

  	
  -

  	
  Form of
  Securities Account Control Agreement

  
	
  Exhibit C

  	
  -

  	
  Form of
  Commodity Account Control Agreement

  
	
  Exhibit D

  	
  -

  	
  Form of
  Deposit Account Control Agreement

  
	
  Exhibit E

  	
  -

  	
  Form of
  Intellectual Property Security Agreement

  
	
  Exhibit F

  	
  -

  	
  Form of
  Intellectual Property Security Agreement Supplement

  
	
  Exhibit G

  	
  -

  	
  Form of
  Consent to Assignment of Letter of Credit Rights

  
	
  Exhibit H-1

  	
  -

  	
  Form of
  Assignment for Government Contract Claims

  
	
  Exhibit H-2

  	
  -

  	
  Form of
  Notice of Assignment of Government Contract Claims

  
	
  Exhibit H-3

  	
  -

  	
  Form of
  Acknowledgment of Government Contract Claims

  



 


iii

















 


SECOND AMENDED AND RESTATED SECURITY AGREEMENT


 


SECOND
AMENDED AND RESTATED SECURITY AGREEMENT dated October 7, 2010 (as amended,
amended and restated, supplemented or otherwise modified from time to time,
this “Agreement”) made by Alliant
Techsystems Inc., a Delaware corporation (the “Borrower”), the other Persons listed on
the signature pages hereof and the Additional Grantors (as defined in Section 26) (the
Borrower, the Persons so listed and the Additional Grantors being,
collectively, the “Grantors”)
to Bank of America, N.A., as administrative agent (in such capacity, together
with any successor administrative agent appointed pursuant to Article IX
of the Credit Agreement (as hereinafter defined), the “Administrative Agent”)
for the Secured Parties (as defined in the Credit Agreement).


 


PRELIMINARY STATEMENTS.


 


1.     The Borrower has entered
into the Amended and Restated Credit Agreement dated as of March 29, 2007,
(the “Existing Credit
Agreement”) with the Lenders, the Agents and the Arrangers (each
as defined therein).


 


2.     In order to finance its
ongoing working capital and general corporate purposes, the Borrower has
requested, and the Lenders have agreed, to further amend and restate the
Existing Credit Agreement and have agreed that the existing loans and other
obligations outstanding under the Existing Credit Agreement shall be governed
by and deemed to be outstanding under the amended and restated terms and
conditions contained in the Second Amended and Restated Credit Agreement (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”) dated October 7,
2010 with the Borrower, the Agents and the Arrangers (each as defined therein).


 


3.     Pursuant to the Credit
Agreement, the Grantors are hereby amending and restating, in its entirety, the
Amended and Restated Security Agreement dated March 29, 2007 made by the
Borrower and the other Grantors referred to therein to the Administrative Agent
in order to grant to the Administrative Agent for the ratable benefit of the
Secured Parties a security interest in the Collateral (as hereinafter defined).


 


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


 


5.     The Grantors have, and may
have from time to time, security entitlements (the “Pledged Security Entitlements”)
with respect to all the financial assets (the “Pledged Financial Assets”) credited from
time to time to securities accounts (collectively, the “Securities Accounts”),
including, as of the date hereof, to the accounts listed in Part A
of Schedule V hereto.


 

















 


6.     The Grantors have opened,
and may open from time to time, deposit accounts with banks (collectively, the “Deposit Accounts”),
including, as of the date hereof, the accounts listed in Part B of Schedule V
hereto.


 


7.     The Grantors have, and may
have from time to time, commodity contracts (the “Pledged Commodity Contracts”) carried
from time to time in commodities accounts, including, as of the date hereof, to
the accounts listed in Part C of Schedule V hereto
(collectively, the “Commodities
Accounts”).


 


8.     The Borrower has opened a
collateral deposit account, Account No. [12332-07636] (together with any
substitute or additional collateral deposit accounts opened in the name of the
Administrative Agent, collectively, the “Collateral Account”), with Bank of America,
N.A. at its office at 1850 Gateway Boulevard, Concord, California 94520, in the
name of the Administrative Agent and under the sole control and dominion of the
Administrative Agent and subject to the terms of this Agreement.


 


9.     It is a condition precedent
to the making of Loans by the Lenders and the issuance of Letters of Credit by
the L/C Issuers under the Credit Agreement and the entry into Secured Hedge
Agreements by the Hedge Banks from time to time that the Grantors shall have
granted the assignment and security interest and made the pledge and assignment
contemplated by this Agreement.


 


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


 


11.   Terms defined in the Credit
Agreement and not otherwise defined in this Agreement are used in this
Agreement as defined in the Credit Agreement. 
Further, unless otherwise defined in this Agreement or in the Credit
Agreement, terms defined in Article 8 or 9 of the UCC (as defined below)
and/or in the Federal Book Entry Regulations (as defined below) are used in
this Agreement as such terms are defined in such Article 8 or 9 and/or the
Federal Book Entry Regulations.  “UCC” means the
Uniform Commercial Code as in effect, from time to time, in the State of New
York; provided that, if perfection or the effect of perfection or
non-perfection or the priority of any security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, “UCC” means the Uniform Commercial Code as in effect from
time to time in such other jurisdiction for purposes of the provisions hereof
relating to such perfection, effect of perfection or non-perfection or
priority.  The term “Federal Book Entry Regulations”
means (a) the federal regulations contained in Subpart B (“Treasury/Reserve Automated Debt Entry System (TRADES)”)
governing book-entry securities consisting of U.S. Treasury bonds, notes and
bills and Subpart D (“Additional
Provisions”) of 31 C.F.R. Part 357, 31 C.F.R. § 357.2,
§ 357.10 through § 357.15 and § 357.40 through § 357.45 and
(b) to the extent substantially identical to the federal regulations referred to
in clause (a) above (as in effect from time to time), the
federal regulations governing other book-entry securities.


 


NOW,
THEREFORE, in consideration of the premises and in order to induce the Lenders
to make Loans and the L/C Issuers to issue Letters of Credit under the Credit
Agreement and to induce the Hedge Banks to enter into Secured Hedge Agreements
from time to time, each 


 


2

















 


Grantor
hereby agrees with the Administrative Agent for the ratable benefit of the
Secured Parties as follows:


 


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


 


(a)   all equipment in all of its forms, including,
without limitation, all machinery, tools, motor vehicles, vessels, aircraft,
furniture and fixtures, and all parts thereof and all accessions thereto and
all software related thereto, including, without limitation, software that is embedded
in and is part of the equipment (any and all such property being the “Equipment”);


 


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


 


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


 


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


 


(i)            the
Initial Pledged Equity and the certificates, if any, representing the Initial
Pledged Equity, and all dividends, distributions, return of capital, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
Initial 


 


3

















 


Pledged Equity and all subscription warrants,
rights or options issued thereon or with respect thereto;


 


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


 


(iii)          all
additional shares of stock and other Equity Interests of any Subject Subsidiary
or Joint Venture (except to the extent that the organizational or other
governing documents thereof prohibit such pledge) from time to time acquired by
such Grantor in any manner (such shares and other Equity Interests, together
with the Initial Pledged Equity, being the “Pledged Equity”), and the certificates,
if any, representing such additional shares or other Equity Interests, and all
dividends, distributions, return of capital, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such shares or other Equity
Interests and all subscription warrants, rights or options issued thereon or
with respect thereto; provided that such Grantor shall not be required
to pledge hereunder, and the Pledged Equity shall not include, more than 65% of
the aggregate shares of stock or other Equity Interests of a Foreign Subsidiary
entitled to vote (within the meaning of Treasury Regulation
Section 1.956-2(c)(2) promulgated under the Internal Revenue Code)
(the “Voting Foreign
Stock”); provided  further that all of the shares of stock or
other Equity Interests of such Foreign Subsidiary not entitled to vote (within
the meaning of Treasury Regulation Section 1.956-2(c)(2) promulgated
under the Internal Revenue Code) shall be pledged by such Grantor; provided
further that if, as a result of any change in the tax laws of the United
States of America after the date of this Agreement, the pledge by such Grantor
of any additional shares of Voting Foreign Stock in any such Foreign Subsidiary
under this Agreement would not result in an increase in the net tax liabilities
of such Grantors, then, promptly after the change in such laws, all such
additional shares of Voting Foreign Stock shall be so pledged under this
Agreement (for purposes of this Section 1(d)(iii));


 


(iv)          all
additional indebtedness in excess of $5,000,000 in the aggregate from time to
time owed to such Grantor by the Borrower or any Subsidiary or Joint Venture of
such Grantor (such indebtedness, together with the Initial Pledged Debt, being
the “Pledged Debt”)
and the instruments evidencing such indebtedness (including all intercompany
notes), and all interest, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of such indebtedness;


 


(v)           the
Securities Accounts, all Pledged Security Entitlements with respect to all
Pledged Financial Assets from time to time credited to any Securities Account,
and all Pledged Financial Assets, and all dividends, distributions, return of
capital, interest, cash, instruments and other property from 


 


4

















 


time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such Pledged
Security Entitlements or such Pledged Financial Assets and all subscription
warrants, rights or options issued thereon or with respect thereto;


 


(vi)          all
Commodities Accounts, all Pledged Commodity Contracts from time to time carried
in the Commodities Accounts, and all value, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such Pledged Commodity Contracts; and


 


(vii)         all
other investment property (excluding any Equity Interests not required to be,
to the extent constituting a security, granted pursuant to Section 1(d) but
otherwise including, without limitation, all (A) securities, whether
certificated or uncertificated, (B) security entitlements,
(C) securities accounts, (D) commodity contracts and
(E) commodities accounts) in which such Grantor has now, or acquires from
time to time hereafter, any right, title or interest in any manner, and the
certificates or instruments, if any, representing or evidencing such investment
property, and all dividends, distributions, return of capital, interest,
distributions, value, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of such investment property and all subscription warrants, rights or
options issued thereon or with respect thereto;


 


(e)   each agreement and contract (excluding
Government Contracts, but including any subcontracts in respect of any
Government Contracts of any other Person), the IP Agreements (as
hereinafter defined), and each Swap Contract to which such Grantor is now or
may hereafter become a party, in each case as such agreements may be amended,
amended and restated, supplemented or otherwise modified from time to time
(collectively, the “Assigned
Agreements”), including, without limitation, (i) all rights
of such Grantor to receive moneys due and to become due under or pursuant to
the Assigned Agreements, (ii) all rights of such Grantor to receive
proceeds of any insurance, indemnity, warranty or guaranty with respect to the
Assigned Agreements, (iii) claims of such Grantor for damages arising out
of or for breach of or default under the Assigned Agreements and (iv) the
right of such Grantor to terminate the Assigned Agreements, to perform
thereunder and to compel performance and otherwise exercise all remedies
thereunder (all such Collateral being the “Agreement Collateral”);


 


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


 


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


 


5

















 


any, from time to time representing or evidencing
the Collateral Account, the L/C Collateral Account, and the Deposit Accounts;


 


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


 


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


 


(g)   the following (collectively, the “Intellectual Property Collateral”):


 


(i)            all
patents, patent applications, utility models and statutory invention
registrations, all inventions claimed or disclosed therein and all improvements
thereto (“Patents”);


 


(ii)           all
trademarks, service marks, domain names, trade dress, logos, designs, slogans,
trade names, business names, corporate names and other source identifiers,
whether registered or unregistered (provided that no security interest
shall be granted in United States intent-to-use trademark applications to the
extent that, and solely during the period in which, the grant of a security
interest therein would impair the validity or enforceability of such
intent-to-use trademark applications under applicable federal law), together,
in each case, with the goodwill symbolized thereby (“Trademarks”);


 


(iii)          all
copyrights, including, without limitation, copyrights in Computer Software (as
hereinafter defined), internet web sites and the content thereof, whether
registered or unregistered (“Copyrights”);


 


(iv)          all
computer software, programs and databases (including, without limitation,
source code, object code and all related applications and data files), firmware
and documentation and materials relating thereto, together with any and all
maintenance rights, service rights, programming rights, hosting rights, test
rights, improvement rights, renewal rights and indemnification rights and any
substitutions, replacements, improvements, error corrections, updates and new
versions of any of the foregoing (“Computer Software”);


 


(v)           all
confidential proprietary information, including, without limitation, know-how,
trade secrets, manufacturing and production processes and techniques,
inventions, research and development information, databases and data,
including, without limitation, technical data, financial, marketing and
business data, pricing and cost information, business and marketing plans and
customer and supplier lists and information (collectively, “Trade
Secrets”),
and all other intellectual property of any type, including, without limitation,
industrial designs and mask works;


 


6
















 


(vi)          all
registrations and applications for registration for any of the foregoing
Patents, Trademarks and Copyrights with any Governmental Authority of the
United States, including, without limitation, those registrations and
applications for registration set forth on Schedule IV hereto (as
such Schedule IV may be supplemented from time to time by
supplements to this Agreement, each such supplement being substantially in the
form of Exhibit F hereto (an “IP Security Agreement
Supplement”)
executed by such Grantor to the Administrative Agent from time to time),
together with all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations thereof;


 


(vii)         all
tangible embodiments of the foregoing, all rights in the foregoing provided by
international treaties or conventions, all rights corresponding thereto
throughout the world and all other rights of any kind whatsoever of such
Grantor accruing thereunder or pertaining thereto;


 


(viii)        all
agreements, permits, consents, orders and franchises relating to the license,
development, use or disclosure of any of the foregoing to which such Grantor,
now or hereafter, is a party or a beneficiary, including, without limitation,
the agreements set forth on Schedule IV hereto (“IP
Agreements”);
and


 


(ix)           any
and all claims for damages and injunctive relief for past, present and future
infringement, dilution, misappropriation, violation, misuse or breach with
respect to any of the foregoing, with the right, but not the obligation, to sue
for and collect, or otherwise recover, such damages;


 


(h)   the commercial tort claims as may be
specifically identified from time to time pursuant to a supplement to this
Agreement delivered in accordance with Section 9(c) (collectively, the “Commercial Tort Claims Collateral”);


 


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


 


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


 


Notwithstanding the
foregoing provisions of this Section 1, the grant of a security interest
as provided herein shall not extend to, and the term “Collateral” shall not
include, as to any


 


7

















 


Grantor:  (1) any accounts, contracts, licenses or
other general intangibles of such Grantor, or any permits, instruments, or
chattel paper of such Grantor, if and to the extent such account, contract,
license, general intangible, permit, instrument or chattel paper contains
restrictions on assignments and the creation of Liens, or under which such an
assignment or Lien would cause a default to occur under such account, contract,
license, general intangible, permit, instrument of chattel paper (other than to
the extent that any relevant term would be rendered ineffective pursuant to
Sections 9-407 or 9-408 of Article 9 of the Uniform Commercial Code
of any relevant jurisdiction or any other applicable law, including Bankruptcy
Law); provided that immediately upon the ineffectiveness, lapse or termination
of any such provision, the Collateral shall include, and such Grantor shall be
deemed to have granted a security interest in, all such rights, title and
interests as if such provision had never been in effect; (2) the lease of
real property by such Grantor as lessee or sublessee not required to be subject
to a Mortgage under (and as such term is defined in) the Credit Agreement;
(3) any property that would otherwise be included in the Collateral if and
to the extent such property consists of deposits permitted by clause (e)
or (f) of Section 7.01 of the Credit Agreement; (4) any United States
intent-to-use trademark or service mark application to the extent that, and
solely during the period in which, the grant of a security interest therein
would impair the validity or enforceability of such intent-to-use trademark or
service mark application under Federal Law; and (5) any asset subject to a
Lien permitted by Sections 7.01(b), (i), (j) or (n) of the Credit
Agreement, if and for so long as the contractual obligation governing such Lien
prohibits the Lien of this Agreement applying to such assets.


 


Section
2.           Security for Obligations.  This Agreement secures, in the case of each
Grantor, the payment of all Obligations of such Grantor now or hereafter existing
under the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments, amendment and restatements, or
renewals of any or all of the foregoing Obligations), whether direct or
indirect, absolute or contingent, and whether for principal, reimbursement
obligations, interest, fees, premiums, penalties, indemnifications, contract
causes of action, costs, expenses or otherwise (all such Obligations being the “Secured Obligations”).


 


Section
3.           Grantors Remain Liable.  Anything herein to the contrary
notwithstanding, (a) each Grantor shall remain liable under the contracts
and agreements included in such Grantor’s Collateral to the extent set forth
therein to perform all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed, (b) the exercise by the
Administrative Agent of any of the rights hereunder shall not release any
Grantor from any of its duties or obligations under the contracts and
agreements included in the Collateral and (c) no Secured Party shall have
any obligation or liability under the contracts and agreements included in the
Collateral by reason of this Agreement or any other Loan Document, nor shall
any Secured Party be obligated to perform any of the obligations or duties of
any Grantor thereunder or to take any action to collect or enforce any claim
for payment assigned hereunder.


 


Section
4.           Government Contract Claims.  (a) 
For purposes of this Agreement and the other Loan Documents, the
following terms shall have the meanings set forth below:


 


“Assignment of
Government Contract Claims” means an Assignment of Government
Claims, in substantially the form of Exhibit H-1 attached hereto
(with such 


 


8

















 


changes
or modification thereto as may be required with any changes or modifications to
the Assignment of Claims Act or the Assignment of Claims Regulations).


 


“CCR Database”
means the Central Contractor Registration database or the CCR database as used
in 48 C.F.R. § 32.805(d)(4) and 48 C.F.R. § 4.1102.


 


“Notice of
Assignment of Government Contract Claims” means a Notice of
Assignment of Government Claims, in substantially the form of Exhibit H-2
attached hereto (with such changes or modification thereto as may be required
with any changes or modifications to the Assignment of Claims Act or the
Assignment of Claims Regulations).


 


(b)   (i) Each Grantor hereby represents and
warrants that other than as required under any of the Loan Documents, no
assignments of any Government Contract Claims have been executed and delivered
in favor of any Person, which were not forwarded to or filed with any Person
(including any Governmental Authority), unless all such assignments and any
notices in respect thereof existing prior to the Restatement Closing Date have
been destroyed, (ii) all assignments of any Government Contract Claims and
notices of such assignments forwarded to or filed with any Person (including
any Governmental Authority) pursuant to 48 CFR Sections 32.802(e) and
32.805(b) on or prior to the Restatement Closing Date shall have been fully
released in accordance with 48 CFR Section 32.805(e), and (iii) there
are no other assignments of or Liens on Government Contract Claims other than
as in favor of a Governmental Party in respect of set-off rights as provided in
the Federal Acquisition Regulation.


 


(c)   With respect to (x) any Assignable
Government Contract Claims in excess of $50,000,000 under any individual
Government Contract of any Grantor, within forty-five (45) days after
entering into such Government Contract, and (y) any Assignable Government
Contract Claims of any or all Grantors that do not then constitute Assigned
Government Contract Claims, if a Specified Default shall have occurred and be
continuing, within thirty (30) days after the request of the
Administrative Agent or the Required Lenders, each applicable Grantor shall
take the following actions with respect to the applicable Government Contracts
and Assignable Government Contract Claims on or prior to the dates indicated
above:


 


(i)            execute and deliver to the
Administrative Agent two (2) original Assignments of Government Contract
Claims and Notices of Assignment of Government Contract Claims, which shall:


 


(A)          include a full description of the
applicable Government Contract, including, (1) the contract number,
(2) the date thereof, (3) the Grantor’s name and address as listed on
the contract, (4) the name of the Governmental Party, the name of its
office and its address, and (5) subject to any applicable laws, rules and
regulations or orders relating to national security restricting such
description, a description of the nature of the contract, and


 


(B)           with respect to each Assignment of
Government Contract Claims, (1) be duly executed by an authorized officer
of such Grantor (other than the 


 


9

















 


secretary or assistant
secretary of such Grantor), (2) be duly attested by the secretary or
assistant secretary of such Grantor, and (3) to the extent not impressed
with the corporate seal, include two (2) certified (by any officer) true
and correct copies of the resolutions of the governing body of such Grantor
authorizing the officer signing the Assignment of Government Contract Claims to
execute the same;


 


(ii)           with respect to each such applicable
Government Contract, provide the name, address and, if reasonably requested by
the Administrative Agent, telephone number of (A) the contracting officer,
administrative contracting officer and, if reasonably requested by the
Administrative Agent, the agency head of the Governmental Party with respect to
such Government Contract, (B) the surety on any bond applicable, if any,
to such Government Contract (including any surety on any bond that may be
applicable subsequently), and (C) the disbursing officer designated in
such Government Contract to make payment; and


 


(iii)          notify the Administrative Agent
whether the assignment of such Government Contract Claims would require the
Administrative Agent to register separately in the CCR Database.


 


(d)   At any time that any of the following has
occurred and is continuing, (x) any Event of Default under the Credit
Agreement, which has not been cured, remedied or waived within ten (10)
days, or, as a result thereof, the Loans and other Obligations are declared
immediately due and payable, (y) any Default under Section 8.01(f) or
(g) of the Credit Agreement, or (z) any Event of Default under
Section 8.01(a), or, with respect to this Agreement or any Collateral, any
Event of Default under Section 8.01(j) or (l) of the Credit Agreement (any
of the foregoing being a “Trigger
Event”), the Administrative Agent may, at the Grantors’ expense,
with respect to the Assignable Government Contract Claims:


 


(i)            file and deliver an original Notice
of Assignment of Government Contract Claims with the appropriate number of
copies thereof and with the appropriate attachments as may be required
(including certified copies of the Assignment of Government Contract Claims) by
the Assignment of Claims Act and the Assignment of Claims Regulations to (1) the
contracting officer or the agency head of the Governmental Party with respect
to such Government Contract, (2) if applicable, the surety on any bond
applicable to such Government Contract (including any surety on any bond that
may be delivered subsequently), and (3) the disbursing officer designated
in such Government Contract to make payment, and


 


(ii)           file, deliver, and record with any
other Person or Governmental Party any other statement, notice, assignment,
instrument, document or agreement or take such other action as may be deemed
necessary or advisable in order to make the assignments of the Assignable
Government Contract Claims in favor of the Administrative Agent for the ratable
benefit of the Secured Parties effective and valid assignments under the
Assignment of Claims Act and the Assignment of Claims Regulations.


 


10

















 


Section
5.  Delivery and Control of Security
Collateral. 
(a)  All certificates or instruments representing or
evidencing Security Collateral shall be delivered to and held by or on behalf
of the Administrative Agent pursuant hereto and shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to the
Administrative Agent.  The Administrative
Agent shall have the right, at any time upon the occurrence and during the
continuance of a Specified Default and with notice thereafter to any Grantor,
to transfer to or to register in the name of the Administrative Agent or any of
its nominees any or all of the Security Collateral, subject only to the
revocable rights specified in Section
16(a) and any applicable laws, rules, regulations or orders relating
to national security).  In addition, the
Administrative Agent shall have the right at any time upon the occurrence and
during the continuance of a Specified Default to exchange certificates or
instruments representing or evidencing Security Collateral for certificates or
instruments of smaller or larger denominations.


 


(b)  With respect to any Security Collateral in
which any Grantor has any right, title or interest and that constitutes an
uncertificated security, such Grantor will cause the issuer thereof, upon the
occurrence and during the continuance of a Specified Default, at the request of
the Administrative Agent (except, if such security is in respect of the Equity
Interests of a Subsidiary or a Joint Venture required to be pledged hereunder),
either (i) to register the Administrative Agent as the registered owner of
such security or (ii) to agree in an authenticated record with such Grantor and
the Administrative Agent that such issuer will comply with instructions with
respect to such security originated by the Administrative Agent without further
consent of such Grantor, such authenticated record to be in form and substance
satisfactory to the Administrative Agent; provided that such
instructions (including any “Notice of Exclusive
Control”) shall be withdrawn in the event such Specified Default is
no longer continuing.  With respect to
any Security Collateral in which any Grantor has any right, title or interest
and that is not an uncertificated security, upon the request of the
Administrative Agent, upon the occurrence and during the continuance of a
Specified Default such Grantor will notify each such issuer of Security
Collateral that such Security Collateral is subject to the security interest
granted hereunder.


 


(c)  With respect to any Security Collateral in
which any Grantor has any right, title or interest and that constitutes a
security entitlement in which the Administrative Agent is not the entitlement
holder, upon the occurrence and during the continuance of a Specified Default,
at the request of the Administration Agent, such Grantor will cause the
securities intermediary with respect to such security entitlement either
(i) to identify in its records the Administrative Agent as the entitlement
holder of such security entitlement against such securities intermediary or
(ii) to agree in an authenticated record with such Grantor and the
Administrative Agent that such securities intermediary will comply with
entitlement orders (that is, notifications communicated to such securities
intermediary directing transfer or redemption of the financial asset to which
such Grantor has a security entitlement) originated by the Administrative Agent
without further consent of such Grantor, such authenticated record to be in
substantially the form of Exhibit B hereto or otherwise in form and
substance satisfactory to the Administrative Agent (such agreement being a “Securities Account Control Agreement”);
provided that such entitlement orders (including any “Notice of
Exclusive Control”) shall be withdrawn in the event such Specified
Default is no longer continuing.


 


11

















 


(d)   With respect to any Security Collateral in
which any Grantor has any right, title or interest and that constitutes a commodity
contract, upon the occurrence and during the continuation of a Specified
Default, at the request of the Administrative Agent, such Grantor shall cause
the commodity intermediary with respect to such commodity contract to agree in
an authenticated record with such Grantor and the Administrative agent that
such commodity intermediary will apply any value distributed on account of such
commodity contract as directed by the Administrative agent without further
consent of such Grantor, such authenticated record to be in substantially the
form of Exhibit C hereto or otherwise in form and substance satisfactory
to the Administrative agent (such agreement being a “Commodity Account Control Agreement”,
and all such authenticated records, together with all Securities Account
Control Agreements being, collectively, “Security Control Agreements”); provided that
such directions (including any “Notice of Exclusive
Control”) shall be withdrawn in the event such Specified Default is
no longer continuing.


 


(e)   Each Grantor shall cause all Pledged Debt
constituting intercompany debt and evidenced by intercompany promissory notes
to be delivered to the Administrative Agent in accordance with Section 5(a).


 


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


 


(a)   If a Specified Default shall have occurred
and be continuing and the Administrative Agent shall have so requested, within
forty-five (45) days after any such request, each Grantor shall
(i) cause each bank with whom a Deposit Account is maintained to agree in
a record authenticated by the Grantor, the Administrative Agent and such bank
(a “Pledged Account Bank”),
to comply with instructions originated by the Administrative Agent directing
the disposition of funds in any Account Collateral without the further consent
of the Grantor; provided that such instructions (including any “Notice of Exclusive Control”) shall be
withdrawn in the event such Specified Default shall no longer be continuing and
(ii) waive or subordinate in favor of the Administrative Agent all claims
of the Pledged Account Bank (including, without limitation, claims by way of a
security interest, lien or right of setoff or right of recoupment to the extent
set forth in Exhibit D hereto) to Account Collateral, which
authenticated record shall be substantially in the form of Exhibit D
hereto, or shall otherwise be in form and substance satisfactory to the
Administrative Agent (the “Deposit
Account Control Agreement”) or (ii) instruct all account
debtors to make all payments to one or more other Pledged Account Banks by
instructing that such payments be remitted to a post office box which shall be
in the name and under the control of such Pledged Account Bank under a lockbox
agreement duly executed by the Grantor and such Pledged Account Bank, in form
and substance satisfactory to the Administrative Agent.  Thereafter, each Grantor will maintain all
Account Collateral only with the Administrative Agent or Pledged Account Banks
unless such Specified Default shall no longer be continuing.


 


(b)   If a Specified Default shall have occurred
and be continuing and the Administrative Agent shall have so requested, within
ten (10) Business Days after any 


 


12

















 


such
request, each Grantor will (i) immediately instruct each Person (including
any Governmental Party to the extent that a Trigger Event has occurred)
obligated at any time to make any payment to such Grantor for any reason (an “Obligor”)
to make such payment to the Collateral Account or, if permitted by the
Administrative Agent, to a Deposit Account maintained with a Pledged Account
Bank and/or (ii) if so requested, deposit in the Collateral Account or, if
permitted by the Administrative Agent, a Deposit Account at the end of each
Business Day, all proceeds of Collateral and all other cash of such
Grantor.  If a Specified Default shall
have occurred and be continuing, each Grantor hereby authorizes the
Administrative Agent to notify each Obligor that such payments have been
assigned to the Administrative Agent as collateral hereunder and to instruct
such Obligor to make all payments to the Collateral Account or as otherwise
directed by the Administrative Agent.


 


(c)   If a Specified Default shall have occurred
and be continuing, concurrently with or at any time after entering into a
Deposit Account Control Agreement with any Pledged Account Bank, if requested
by the Administrative Agent, each Grantor will instruct such Pledged Account
Bank to transfer to the Collateral Account, at the end of each Business Day or
such other frequency as the Administrative Agent may direct, in same day funds,
an amount equal to the credit balance of the Deposit Account in such Pledged
Account Bank.  If any Grantor shall fail
to give any such instructions to any Pledged Account Bank, the Administrative
Agent may do so without further notice to any Grantor.


 


(d)   During the continuation of any Specified
Default, each Grantor agrees that it will not add any bank that maintains a
deposit account for such Grantor or open any new deposit account with any then
existing Pledged Account Bank unless (i) the Administrative Agent shall
have received at least ten (10) days’ prior written notice of such
additional bank or such new deposit account and (ii) if the Administrative
Agent has requested that the Grantors comply with the requirement of Section
6(a), the Administrative Agent shall have received, in the case of a bank
or Pledged Account Bank that is not the Administrative Agent, a Deposit Account
Control Agreement authenticated by such new bank and such Grantor, or a
supplement to an existing Deposit Account Control Agreement with such then
existing Pledged Account Bank, covering such new deposit account (and, upon the
receipt by the Administrative Agent of such Deposit Account Control Agreement
or supplement, Schedule V hereto shall be automatically amended to
include such Deposit Account).  During
the continuation of any Specified Default, each Grantor agrees that it will not
terminate any bank as a Pledged Account Bank or terminate any Account
Collateral, except that the Grantor may terminate a Deposit Account, and
terminate a bank as a Pledged Account Bank with respect to such Deposit
Account, if it gives the Administrative Agent at least ten (10) days’
prior written notice of such termination (and, upon such termination, Schedule V
hereto shall be automatically amended to delete such Pledged Account Bank and
Deposit Account).


 


(e)   To the extent Section 6(a) above is
applicable, if during the continuation of any Specified Default, a Grantor
terminates any Deposit Account covered by a Deposit Account Control Agreement
or any Pledged Account Bank with respect thereto, such Grantor will
immediately, if the Administrative Agent has required that the Grantors 


 


13

















 


comply
with the provisions of Section 6(a) and (b), (i) transfer
all funds and property held in such terminated Deposit Account to another
Deposit Account covered by a Deposit Account Control Agreement maintained with
a Pledged Account Bank or to the Collateral Account and (ii) notify all
Obligors that were making payments to such Deposit Account to make all future
payments to another Deposit Account maintained with a Pledged Account Bank
covered by a Deposit Account Control Agreement or to the Collateral Account, in
each case so that the Administrative Agent shall have a continuously perfected
security interest in such Account Collateral, funds and property.  Each Grantor agrees to terminate any or all
Account Collateral and Deposit Account Control Agreements upon request by the
Administrative Agent.


 


(f)    Upon the occurrence and during the
continuance of a Specified Default, the Administrative Agent shall have sole
right to direct the disposition of funds with respect to each of the Collateral
Account, the L/C Collateral Account, and, if Section 6(a) shall be
applicable, the Deposit Accounts; and it shall be a term and condition of each
of the Collateral Account, the L/C Collateral Account, and the Deposit Accounts
(in the case of Deposit Accounts, only to the extent so directed by the
Administrative Agent to the applicable Pledged Account Bank), notwithstanding
any term or condition to the contrary in any other agreement relating to the
Collateral Account, the L/C Collateral Account or the Deposit Accounts, as the
case may be, that no amount (including, without limitation, interest on Cash
Equivalents credited thereto) will be paid or released to or for the account
of, or withdrawn by or for the account of, the Borrower or any other Person
from the Collateral Account, the L/C Collateral Account or the Deposit Accounts
(only to the extent so directed), as the case may be.


 


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


 


(h)   Upon the request by the Administrative Agent
at any time or as otherwise required in order to Cash Collateralize Letters of
Credit pursuant to the Credit Agreement, the Borrower shall immediately open a
letter of credit deposit account (the “L/C Collateral
Account”) with Bank of America,
N.A. in the name of the Administrative Agent and under the sole control and
dominion of the Administrative Agreement and subject to this Agreement.


 


Section
7.           Investing of Amounts in
the Collateral Account and the L/C Collateral Account.  The Administrative Agent will, subject to the
provisions of Sections 6, 8, and 24, from time to
time (1) invest amounts received with respect to the Collateral Account and the
L/C Collateral Account in such Cash Equivalents credited to (A) the Collateral
Account and the L/C Collateral Account, respectively, as the Borrower may
select and the Administrative Agent may approve or (B) in the case of Cash
Equivalents consisting of Securities Collateral, a securities account in which
the Administrative Agent is the securities intermediary or a securities account
subject to a Securities Account Control Agreement, and (2) invest interest paid
on the Cash Equivalents referred to in clause (a)


 


14

















 


above, and reinvest other proceeds of any such Cash
Equivalents that may mature or be sold, in each case in such Cash Equivalents
credited in the same manner.  Interest
and proceeds that are not invested or reinvested in Cash Equivalents as
provided above shall be deposited and held in the relevant Collateral Account
or L/C Collateral Account.  In addition,
the Administrative Agent shall have the right at any time to exchange such Cash
Equivalents for similar Cash Equivalents of smaller or larger determinations,
or for other Cash Equivalents, credited to the Collateral Account or the L/C
Collateral Account, as the case may be.


 


Section
8.  Release of Amounts.  So long as no Specified Default shall have
occurred and be continuing, the Administrative Agent will pay and release, or
direct the applicable Pledged Account Bank to pay and release, to the
applicable Grantor or at its order or, at the request of such Grantor, to the
Administrative Agent to be applied to the Obligations of the Borrower under the
Loan Documents, such amount, if any, as is then on deposit in the Collateral
Account and the L/C Collateral Account.


 


Section
9.  Maintaining Electronic Chattel
Paper, Transferable Records and Letter-of-Credit Rights and Giving Notice of
Commercial Tort Claims.  So long as
any Loan or any other Obligation of any Loan Party under any Loan Document
shall remain unpaid, any Letter of Credit shall be outstanding, any Secured
Hedge Agreement shall be in effect or any Lender Party shall have any
Commitment, upon the occurrence and during the continuation of a Specified
Default, at the request of the Administrative Agent:


 


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


 


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


 


(c)   Each Grantor will promptly give notice to the
Administrative Agent of any commercial tort claim in excess of $50,000,000 that
arises in the future and will immediately execute or otherwise authenticate a
supplement to this Agreement, and otherwise take all necessary action, to
subject such commercial tort claim to the first priority security interest
created under this Agreement.


 


Section 10.  Representations and Warranties.  Each Grantor represents and warrants as
follows:


 


(a)   Such Grantor’s exact legal name, as defined
in Section 9-503(a) of the UCC, is correctly set forth on Schedule I
hereto.  Such Grantor has only the trade
names, listed on Schedule IV hereto.  Such Grantor is located (within the meaning
of Section 9-307 of the UCC) in the jurisdiction set forth opposite such
Grantor’s name on Schedule I hereto and has its chief executive
office and the office in which it maintains the original copies 


 


15

















 


of
each Assigned Agreement and Related Contract to which such Grantor is a party
and all originals of all chattel paper that evidence Receivables of such
Grantor at the address, if not its chief executive office, set forth on Schedule I
hereto.  The information set forth on Schedule I
hereto with respect to such Grantor is true and accurate in all respects.  For each Grantor, such Grantor has not since
March 29, 2007  changed its name,
location, chief executive office, place where it maintains its agreements, type
of organization, jurisdiction of organization or organizational and, if
applicable, tax identification number from those set forth on Schedule I
hereto except as disclosed on Schedule III hereto.


 


(b)   Substantially all Equipment and Inventory of
such Grantor is located at the locations listed on Schedule 5.08(c) to the
Credit Agreement or Schedule VI hereto (other than Inventory sold
in the ordinary course of business and Equipment located offsite in the
ordinary course of business and Equipment or Inventory having a value, in each
case, of $10,000 or less at any one location). 
All Security Collateral consisting of certificated securities and
instruments have been delivered to the Administrative Agent.  Copies of each Assigned Agreement have been
delivered to the Administrative Agent. 
None of the Receivables or Agreement Collateral is evidenced by a
promissory note or other instrument that has not been delivered to the
Administrative Agent.


 


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


 


(d)   Such Grantor has exclusive possession and
control of substantially all of the Equipment and Inventory (other than
Equipment and Inventory located on property owned by any Governmental Party and
operated by such Grantor) stored at any leased premises or warehouse.  In the case of Equipment and Inventory
located on leased premises or in warehouses, no lessor or warehouseman of any
premises or warehouse upon or in which such Equipment or Inventory is located
has (i) received notification of any secured party’s interest (other than the
security interest granted hereunder) in such Grantor’s Equipment or Inventory
or (ii) any Lien (other than a Permitted Lien), claim or charge (based on
contract, statute or otherwise) on such Equipment and Inventory.


 


(e)   The Pledged Equity pledged by such Grantor
hereunder has been duly authorized and validly issued and is fully paid and
non-assessable.  With respect to the
Pledged Equity that is an uncertificated security, such Grantor has caused the
issuer thereof either (i) to register the Administrative Agent as the
registered owner of such security or (ii) to agree in an authenticated
record with such Grantor and the Administrative Agent that such issuer will
comply with instructions with respect to such security originated by the
Administrative Agent without further consent of such Grantor.  If such Grantor is an issuer of Pledged
Equity, such Grantor confirms that it has received notice of such security
interest.  The Pledged Debt pledged by
such Grantor hereunder (i) to the extent representing intercompany
indebtedness, is the legal, valid and binding


 


16
















 


obligation
of the issuers thereof and (ii) to the extent representing intercompany
indebtedness, is evidenced by one or more promissory notes (which notes have
been delivered to the Administrative Agent).


 


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


 


(g)   Such Grantor has no deposit accounts, other
than as listed on Schedule V.


 


(h)   No authorization or approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body or any other third party is required for (i) the grant by such
Grantor of the security interest granted hereunder or for the execution,
delivery or performance of this Agreement by such Grantor, (ii) the
perfection or maintenance of the security interest created hereunder (including
the first priority nature of such security interest), except for the filing of
financing and continuation statements under the UCC, which financing statements
have been duly filed or will be duly filed immediately after the Restatement
Closing Date, the recordation of the Intellectual Property Security Agreements
referred to in Section 15(f) with the U.S. Patent and Trademark Office
and the U.S. Copyright Office, which Agreements have been duly recorded or will
be duly recorded immediately after the Restatement Closing Date or
(iii) the exercise by the Administrative Agent of its voting or other
rights provided for in this Agreement or the remedies in respect of the
Collateral pursuant to this Agreement, except as may be required in connection
with the disposition of any portion of the Security Collateral by laws
affecting the offering and sale of securities generally and the taking of the
actions described in Section 4(d) with respect to Assignable Government
Contract Claims; provided  however, that the actions described in Sections
5, 6 and 9 with respect to Security Collateral, Account
Collateral, electronic chattel paper, transferable records, letter-of-credit
rights and commercial tort claims respectively, shall be required to the extent
set forth in such Sections upon the occurrence and during the continuance of a
Specified Default.


 


(i)    As to itself and its Intellectual Property
Collateral:


 


(i)            To
the knowledge of such Grantor, the operation of such Grantor’s business as
currently conducted or as contemplated to be conducted and the use of the
Intellectual Property Collateral in connection therewith do not conflict with,
infringe, misappropriate, dilute, misuse or otherwise violate, in each case, in
any material respect, the intellectual property rights of any third party; provided,
that a Governmental Party may authorize or may have authorized the use of
intellectual property by any Person (including any Grantor) of a third party
(including any Grantor with respect to its Intellectual Property Collateral)
(such authorizations, “Governmental IP Authorizations”).


 


17

















 


(ii)           Except
as would not reasonably be expected to result in a Material Adverse Effect,
such Grantor is the owner of all right, title and interest in and to the
Intellectual Property Collateral (for the avoidance of doubt, other than
intellectual property licensed under the IP Agreements) used in the operation
of its business and is entitled to use all Intellectual Property Collateral
subject only to the terms of the IP Agreements and Governmental IP
Authorizations.


 


(iii)          As
supplemented pursuant to Section 15(g), the Intellectual Property
Collateral set forth on Part I of Schedule IV hereto
includes a true and complete list of all of the United States patents, patent
applications, material domain names, trademark registrations and applications,
copyright registrations and applications and material IP Agreements owned by
such Grantor.


 


(iv)          All
material Intellectual Property Collateral used in the operation of its business
is subsisting and has not been adjudged invalid or unenforceable in whole or
part, and to the best of such Grantor’s knowledge, is valid and
enforceable.  To the knowledge of such
Grantor, there are no uses of any item of material Intellectual Property
Collateral used in the operation of its business that could be expected to lead
to such item becoming invalid or unenforceable.


 


(v)           Except
as would not reasonably be expected to result in a Material Adverse Effect,
such Grantor has (A) made or performed all filings, recordings and other acts
and has paid all required fees and taxes to maintain and protect its interest
in each and every item of Intellectual Property Collateral used in the
operation of its business in full force where such Intellectual Property
Collateral should be registered and to protect and maintain its interest
therein including, without limitation, recordations of any of its interests in
the Patents and Trademarks with the U.S. Patent and Trademark Office and
recordation of any of its interests in the Copyrights with the U.S. Copyright
Office, except with respect to Excluded Patents (as defined in Section 15)
to the extent provided in Section 15, and (B) used all required
statutory notices in connection with its use of each patent, trademark and
copyright in the Intellectual Property Collateral.


 


(vi)          No
claim, action, suit, investigation, litigation or proceeding has been asserted
or is pending or, to such Grantor’s knowledge, threatened against such Grantor
(i) based upon or challenging or seeking to deny or restrict the Grantor’s
rights in or use of any of the Intellectual Property Collateral used in the
operation of its business, (ii) alleging that the Grantor’s rights in or
use of such Intellectual Property Collateral or that any services provided by,
processes used by, or products manufactured or sold by, such Grantor infringe,
misappropriate, dilute, misuse or otherwise violate any patent, trademark, copyright
or any other proprietary right of any third party, or (iii) alleging that such
Intellectual Property Collateral is being licensed or sublicensed in violation
or contravention of the terms of any license or other agreement, that, in any
such case, either individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect.  To such Grantor’s knowledge, no Person is
engaging in any activity that infringes, misappropriates, dilutes, misuses or
otherwise violates any material 


 


18

















 


Intellectual Property Collateral used in the
operation of its business or the Grantor’s rights in or use thereof.  Except as would not reasonably be expected to
result in a Material Adverse Effect, such Grantor has not granted any release,
covenant not to sue or nonassertion assurance, to any Person with respect to
any part of the Intellectual Property Collateral.  The consummation of the transactions contemplated
by the Transaction Documents will not result in the termination or impairment
of any of the Intellectual Property Collateral used in the operation of its
business.


 


(vii)         Except
as would not reasonably be expected to have a Material Adverse Effect, with
respect to each IP Agreement:  (A) such
IP Agreement is valid and binding and in full force and effect and represents
the entire agreement between the respective parties thereto with respect to the
subject matter thereof; (B) such IP Agreement will not cease to be valid
and binding and in full force and effect on terms identical to those currently
in effect as a result of the rights and interest granted herein, nor will the
grant of such rights and interest constitute a breach or default under such IP
Agreement or otherwise give any party thereto a right to terminate such IP
Agreement; (C) such Grantor has not received any notice of termination or
cancellation under such IP Agreement; (D) such Grantor has not received
any notice of a breach or default under such IP Agreement, which breach or
default has not been cured; and (E) neither such Grantor nor, to the
knowledge of such Grantor, any other party to such IP Agreement is in breach or
default thereof in any material respect, and no event (with respect to any
event within the control of any other party to such IP Agreement, to the
knowledge of such Grantor) has occurred that, with notice or lapse of time or
both, would constitute such a breach or default or permit termination,
modification or acceleration under such IP Agreement.


 


(viii)        Except
as would not reasonably be expected to have a Material Adverse Effect,
(A) none of the Trade Secrets of such Grantor has been used, divulged,
disclosed or appropriated to the detriment of such Grantor for the benefit of
any other Person other than such Grantor; (B) no employee, independent
contractor or agent of such Grantor has misappropriated any trade secrets of
any other Person in the course of the performance of his or her duties as an
employee, independent contractor or agent of such Grantor; and (C) no
employee, independent contractor or agent of such Grantor is in default or
breach of any term of any employment agreement, non-disclosure agreement,
assignment of inventions agreement or similar agreement or contract relating in
any way to the protection, ownership, development, use or transfer of such
Grantor’s material Intellectual Property Collateral.


 


(ix)           Except
as would not reasonably be expected to have a Material Adverse Effect, no
Grantor or Intellectual Property Collateral is subject to any outstanding
consent, settlement, decree, order, injunction, judgment or ruling restricting
the use of any Intellectual Property Collateral or that would impair the
validity or enforceability of such Intellectual Property Collateral.


 


19

















 


(x)            Schedule
VIII hereto sets forth the material Intellectual Property Collateral of
each Grantor (the “Affected IP Collateral”) with respect to which, (i) Liens
thereon are outstanding on the Restatement Closing Date other than pursuant to
the Security Documents (the “Existing IP Liens”) and (ii) any gaps or flaws in title
exist on the Restatement Closing Date. 
With respect to the Existing IP Liens, (A) all obligations secured
thereby have been satisfied in full, or (B) the exercise of remedies
(including foreclosure) with respect to any Affected IP Collateral as a result
thereof, individually or in the aggregate, would not reasonably be expected to
result in a Material Adverse Effect.  Any
gaps or flaws in title with respect to any Affected IP Collateral, individually
or in the aggregate, would not reasonably be expected to result in a Material
Adverse Effect.


 


(j)    Each Government Contract to which Section
4(c) applies has been properly approved and executed by the Grantor party
thereto and, to the knowledge of such Grantor, the applicable Governmental
Party.  As of the date hereof, Schedule
IX sets forth a true and complete list of the Government Contracts to which Section
4(c) applies.


 


(k)   Upon the Administrative Agent taking the
actions described in Section 4(d)(i) and, to the extent required by
Subpart 32.805(c) and (d) of the Assignment of Claims Regulations,
acknowledged by the appropriate contracting officer, the Assignment of
Government Contract Claims with respect to each Assignable Government Contract
Claims shall constitute an effective and valid assignment of such Assignable
Government Contract Claims to the extent that an assignment of a Government
Claim is governed by the Assignment of Claims Act and the Assignment of Claims
Regulations, and no other action is required in order to create an effective
and valid assignment of such Assignable Government Contract Claims.  Thereupon, the Administrative Agent may
exercise its rights as set forth in Section 6(b).


 


;
provided  however, that for purposes of the representations and
warranties hereunder, (i) each Schedule referred to in this Section 10
shall be amended in accordance with Section 6.02(i)(B) of the Credit
Agreement, and (ii) any representation and warranty contained in this Section
10 to the extent made with specific reference to a specific Schedule shall
be deemed true and correct in all material respects if such representation and
warranty would have been true and correct in all material respects (A) as
of the Restatement Closing Date, or (B) with respect to any period immediately
following the date on which Schedules are required to be amended pursuant to
Section 6.02(i)(B) of the Credit Agreement, as of the date required to be
amended, regardless of whether actually amended, until the next date required
to be so amended, in each case, solely to the extent any such representation
and warranty specifically refers to a Schedule; provided, further,
that if a Specified Default shall have occurred and be continuing, the
Administrative Agent may require such Schedules to be updated and amended at
any time and from time to time.


 


Section
11.  Further Assurances.  (a) 
Each Grantor agrees that from time to time, at the expense of such
Grantor, such Grantor will promptly execute and deliver, or otherwise
authenticate, all further instruments and documents, and take all further
action that may be necessary or that the Administrative Agent may reasonably
request, to perfect and protect any pledge or security interest granted or
purported to be granted by such Grantor hereunder or to enable the
Administrative Agent to exercise and enforce its rights and remedies hereunder
with 


 


20

















 


respect
to any Collateral of such Grantor.  Without
limiting the generality of the foregoing, each Grantor will promptly, with
respect to Collateral of such Grantor, subject to the proviso
hereof:  (i) mark conspicuously each
document included in Inventory, each chattel paper included in Receivables, each
Related Contract, each Assigned Agreement and, at the reasonable request of the
Administrative Agent, each of its records pertaining to such Collateral with a
legend, in form and substance satisfactory to the Administrative Agent,
indicating that such document, chattel paper, Related Contract, Assigned
Agreement or Collateral is subject to the security interest granted hereby;
(ii) if any such Collateral shall be evidenced by a promissory note or other
instrument or chattel paper, deliver and pledge to the Administrative Agent
hereunder such note or instrument or chattel paper duly indorsed and
accompanied by duly executed instruments of transfer or assignment, all in form
and substance satisfactory to the Administrative Agent; (iii) execute or
authenticate and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or as the
Administrative Agent may reasonably request, in order to perfect and preserve
the security interest granted or purported to be granted by such Grantor
hereunder; (iv) subject to Section 4(d), deliver, file and record any
statement, notice, assignment, instrument, document, agreement or other paper
or take any other action, as may be necessary or as the Administrative Agent
may reasonably request, in order to create, preserve, perfect, confirm or
validate the security interest granted hereunder in Assignable Government
Contract Claims and exercise any right in respect thereof; (v) deliver and
pledge to the Administrative Agent for benefit of the Secured Parties
certificates representing Security Collateral that constitutes certificated
securities, accompanied by undated stock or bond powers executed in blank; (vi)
in accordance with Section 6(a), take all action necessary to ensure
that the Administrative Agent has control of Collateral consisting of deposit
accounts, (vii) take all action necessary to ensure that the Administrative
Agent has control of collateral consisting of electronic chattel paper,
investment property, letter-of-credit rights and transferable records as
provided in Sections 9-104, 9-105, 9-106 and 9-107 of the UCC and in
Section 16 of UETA; (viii) cause the Administrative Agent to be the
beneficiary under all letters of credit that constitute Collateral, with the
exclusive right to make all draws under such letters of credit, and with all
rights of a transferee under Section 5-114(e) of the UCC; and
(ix) deliver to the Administrative Agent evidence that all other action
that the Administrative Agent may deem necessary or reasonably desirable to
perfect and protect the security interest created by such Grantor under this
Agreement has been taken; provided that clauses (i), (vi),
(vii) and (viii) shall only apply upon the occurrence and during
the continuation of a Specified Default and clause (ii) shall apply
only upon (except with respect to obligations owing from any Subsidiary or
Joint Venture) the occurrence and during the continuation of a Specified
Default.  From time to time upon
reasonable request by the Administrative Agent, each Grantor will, at such
Grantor’s expense, cause to be delivered to the Administrative Agent, for the
benefit of the Secured Parties, an opinion of counsel, from outside counsel
reasonably satisfactory to the Administrative Agent, as to such matters
relating to the transactions contemplated hereby as the Administrative Agent
may reasonably request.


 


(b)   Each Grantor hereby authorizes the
Administrative Agent to file one or more financing or continuation statements,
and amendments thereto, including, without limitation, one or more financing
statements indicating that such financing statements cover all assets or all
personal property (or words of similar effect) of such Grantor, in each case
without the signature of such Grantor, and regardless of whether any particular
asset described in such financing statements falls within the scope of the UCC
or the granting clause of this Agreement. 
A 


 


21

















 


photocopy or other
reproduction of this Agreement or any financing statement covering the
Collateral or any part thereof shall be sufficient as a financing statement
where permitted by law.  Each Grantor
ratifies its authorization for the Administrative Agent to have filed such financing
statements, continuation statements or amendments filed prior to the date
hereof.


 


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


 


Section
12.  As to Equipment and Inventory.  (a) 
Each Grantor will keep the Equipment and Inventory of such Grantor (other
than Inventory sold in the ordinary course of business and Equipment located
offsite in the ordinary course of business and Equipment or Inventory having a
value, in each case, of $10,000 or less at any one location) at the places
therefor specified on Schedule 5.08 to the Credit Agreement or Schedule VI
hereto or, upon written notice to the Administrative Agent, at such other
places designated by the Grantor in such notice.  Upon the giving of such notice, such new
locations will be automatically added to Schedule VI hereto.


 


(b)   Each Grantor will promptly furnish to the
Administrative Agent a statement respecting any loss or damage exceeding
$20,000,000 to any of the Equipment or Inventory of such Grantor.


 


Section
13.  Insurance.  (a) 
Each Grantor will, at its own expense, maintain insurance with respect
to the Equipment and Inventory of such Grantor in such amounts, against such
risks, in such form and with such insurers, as shall be reasonably satisfactory
to the Administrative Agent from time to time. 
Each policy of each Grantor for liability insurance shall provide for
all losses to be paid on behalf of the Administrative Agent and such Grantor as
their interests may appear.  All losses
with respect to property damage insurance shall be paid to (x) the
Administrative Agent at any time that a Specified Default shall have occurred
and be continuing or if a Material Adverse Effect shall have occurred, such
amounts shall be held and applied in accordance with subsection (c)
of this Section 13, and (y) otherwise to the Borrower or applicable
Grantor.  Each such policy shall in
addition (i) name the Borrower or the applicable Grantor and the
Administrative Agent as insured parties thereunder (without any representation
or warranty by or obligation upon the Administrative Agent) as their interests
may appear, (ii) contain the agreement by the insurer that any loss
payable thereunder shall be payable to the Administrative Agent notwithstanding
any action, inaction or breach of representation or warranty by such Grantor,
(iii) provide that there shall be no recourse against the Administrative
Agent for payment of premiums or other amounts with respect thereto and
(iv) provide for prior written notice of cancellation or of lapse to be
given to the Administrative Agent by the insurer to the extent provided in
Section 6.07 of the Credit Agreement. 
Each Grantor will, if so requested by the Administrative Agent, deliver
to the Administrative Agent original or duplicate policies of such insurance
and, as often as the Administrative Agent may reasonably request, a report of a
reputable insurance broker with respect to such insurance.


 


(b)   Notwithstanding
any other provision of this Agreement, reimbursement under any liability
insurance maintained by any Grantor pursuant to this Section 13 may be
paid directly to the


 


22

















 


Person
bringing a claim against such Grantor or to the firm or person providing
defense against such claim.  In case of
any loss involving damage to Equipment or Inventory when subsection (c)
of this Section 13 is not applicable, the applicable Grantor will make
or cause to be made the necessary repairs to or replacements of such Equipment
or Inventory or other purchases in accordance with Section 2.05(b)(i) of
the Credit Agreement, and any proceeds of insurance properly received by or
released to such Grantor shall be used by such Grantor, except as otherwise
required hereunder or by the Credit Agreement, to pay or as reimbursement for
the costs of such repairs or replacements.


 


(c)   So long as no Specified Default shall have
occurred and be continuing, all insurance payments received by the
Administrative Agent in connection with any loss, damage or destruction of any
Inventory or Equipment will be released by the Administrative Agent to the
Borrower or the applicable Grantor to be applied in accordance with
Section 2.05(b)(i) of the Credit Agreement.  Upon the occurrence and during the
continuance of any Specified Default, all insurance payments in respect of such
Equipment or Inventory shall be paid to the Administrative Agent and shall, in
the Administrative Agent’s sole discretion, (i) be released to the
Borrower or the applicable Grantor to be applied as set forth in the first
sentence of this subsection (c) or (ii) be held as additional
Collateral hereunder or applied as specified in Section 24(b).


 


Section
14.  Post-Closing Changes; Bailees;
Collections on Assigned Agreements, Receivables and Related Contracts.  (a)  No
Grantor will change its name, type of organization, jurisdiction of
organization, organizational identification number or location from those set
forth in Section 10(a) of this Agreement without first giving at least
ten (10) days’ prior written notice to the Administrative Agent and taking
all action required by the Administrative Agent for the purpose of perfecting
or protecting the security interest granted by this Agreement.  No Grantor will change the location of the
Equipment and Inventory or the place where it keeps the originals of the
Assigned Agreements and Related Contracts
to which such Grantor is a party and all originals of all chattel paper that
evidence Receivables of such Grantor from the locations therefor specified in Sections
10(a) and 10(b) without first giving the Administrative Agent
ten (10) days’ prior written notice of such change.  Except in connection with transactions
permitted under Sections 7.04(a) and (b) of the Credit Agreement in favor
of a Grantor, no Grantor will become bound by a security agreement with respect
to the Collateral authenticated by another Person (determined as provided in
Section 9-203(d) of the UCC) without giving the Administrative Agent
ten (10) days’ prior written notice thereof and taking all action required
by the Administrative Agent to ensure that the perfection and first priority
nature of the Administrative Agent’s security interest in the Collateral will
be maintained.  Each Grantor will hold
and preserve its records relating to the Collateral, including, without
limitation, the Assigned Agreements and Related Contracts, and will permit
representatives of the Administrative Agent at any time during normal business
hours to inspect and make abstracts from such records and other documents in
accordance with Section 6.10 of the Credit Agreement.  If any Grantor does not have an
organizational identification number and later obtains one, it will forthwith
notify the Administrative Agent of such organizational identification number.


 


(b)   If a Specified Default shall have occurred
and be continuing and if any Collateral of any Grantor is at any time in the
possession or control of a warehouseman, bailee or agent, and the
Administrative Agent so requests such Grantor will (i) notify such
warehouseman,


 


23

















 


bailee or agent of the
security interest created hereunder, (ii) instruct such warehouseman,
bailee or agent to hold all such Collateral solely for the Administrative Agent’s
account subject only to the Administrative Agent’s instructions, (iii) use
commercially reasonable efforts, to cause such warehouseman, bailee or agent to
authenticate a record acknowledging that it holds possession of such Collateral
for the Administrative Agent’s benefit and shall act solely on the instructions
of the Administrative Agent without the further consent of the Grantor or any
other Person, and (iv) make such authenticated record available to the
Administrative Agent.


 


(c)   Except as otherwise provided in this subsection (c),
each Grantor will continue to collect, at its own expense, all amounts due or
to become due such Grantor under the Assigned Agreements, Receivables and
Related Contracts.  In connection with
such collections, such Grantor may take (and, upon the occurrence and during
the continuance of a Specified Default at the Administrative Agent’s direction,
will take) such action as such Grantor or the Administrative Agent may deem
necessary or advisable to enforce collection of the Assigned Agreements,
Receivables and Related Contracts; provided, however, that the
Administrative Agent shall have the right at any time, upon the occurrence and
during the continuance of a Specified Default and written notice to such
Grantor of its intention to do so, to notify the Obligors under any Assigned
Agreements, Receivables and Related Contracts of the assignment of such
Assigned Agreements, Receivables (subject, in the case of Government Contract
Claims, to Section 4(d)) and Related Contracts to the Administrative
Agent and to direct such Obligors to make payment of all amounts due or to
become due to such Grantor thereunder directly to the Administrative Agent and,
upon such notification and at the expense of such Grantor, to enforce
collection of any such Assigned Agreements, Receivables and Related Contracts,
to adjust, settle or compromise the amount or payment thereof, in the same
manner and to the same extent as such Grantor might have done, and to otherwise
exercise all rights with respect to such Assigned Agreements, Receivables and
Related Contracts, including, without limitation, those set forth set forth in
Section 9-607 of the UCC.  After
receipt by any Grantor of the notice from the Administrative Agent referred to
in the proviso to the preceding sentence, (i) all amounts and proceeds
(including, without limitation, instruments) received by such Grantor in
respect of the Assigned Agreements, Receivables and Related Contracts of such
Grantor shall be received in trust for the benefit of the Administrative Agent
hereunder, shall be segregated from other funds of such Grantor and shall be
forthwith paid over to the Administrative Agent in the same form as so received
(with any necessary indorsement) to be deposited in the Collateral Account and
either (A) released to such Grantor on the terms set forth in Section 8 so long as no Specified Default shall have occurred and be continuing or
(B) if an Event of Default shall have occurred and be continuing, applied
as provided in Section 24(b) and (ii) such Grantor will not adjust,
settle or compromise the amount or payment of any Receivable or amount due on
any Assigned Agreement or Related Contract, release wholly or partly any
Obligor thereof, or allow any credit or discount thereon.  No Grantor will permit or consent to the subordination
of its right to payment under any of the Assigned Agreements, Receivables and
Related Contracts to any other indebtedness or obligations of the Obligor
thereof.


 


Section
15.  As to Intellectual Property
Collateral.  (a)  Except as otherwise provided in this subsection
(a), with respect to each item of its Intellectual Property Collateral
material to the operation of the business of such Grantor, each Grantor agrees
to take, at its expense, all necessary steps, including, without limitation, in
the U.S. Patent and Trademark Office, the U.S. Copyright Office and any other
governmental


 


24

















 


authority, to (i) maintain the validity and
enforceability of such Intellectual Property Collateral and maintain such
Intellectual Property Collateral in full force and effect, and (ii) pursue
the registration and maintenance of each patent, trademark, or copyright
registration or application, now or hereafter included in such Intellectual
Property Collateral of such Grantor, including, without limitation, the payment
of required fees and taxes, the filing of responses to office actions issued by
the U.S. Patent and Trademark Office, the U.S. Copyright Office or other
governmental authorities, the filing of applications for renewal or extension,
the filing of affidavits under Sections 8 and 15 of the U.S. Trademark
Act, the filing of divisional, continuation, continuation-in-part, reissue and
renewal applications or extensions, the payment of maintenance fees and the
participation in interference, reexamination, opposition, cancellation,
infringement and misappropriation proceedings; provided, with respect to
each Patent listed on Schedule VII hereto, to the extent
(A) such Patent is no longer material to and has no material value to the
operation of the business of any Grantor, (B) the Borrower and the other
Grantors have made a commercially reasonable decision to abandon such Patent or
permit such Patent to lapse or expire, and (C) the lapse, expiration or
abandonment of such Patents, either individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, the Grantors
shall not be required to prosecute or maintain any such Patents (collectively,
the “Excluded Patents”)
in accordance with this Section
15(a).  Other than Excluded
Patents, no Grantor shall, without the written consent of the Administrative
Agent, discontinue use of or otherwise abandon any Intellectual Property
Collateral, or abandon any right to file an application for patent, trademark,
or copyright, except for any Intellectual Property Collateral that such Grantor
shall have determined in its commercially reasonable judgment is no longer
material to the operation of its business so long as such discontinuance or
abandonment would not, individually or in the aggregate, be reasonably expected
to result in a Material Adverse Effect.


 


(b)   Each Grantor agrees promptly to notify the
Administrative Agent if such Grantor becomes aware (i) that any material
item of the Intellectual Property Collateral has become abandoned, placed in
the public domain, invalid or unenforceable, or of any material adverse
determination or development regarding such Grantor’s ownership of any of the
material Intellectual Property Collateral or its right to register the same or
to keep and maintain and enforce the same, or (ii) of any material adverse
determination or the institution of any proceeding (including, without
limitation, the institution of any proceeding in the U.S. Patent and Trademark
Office or any court) regarding any material item of the Intellectual Property
Collateral.


 


(c)   In the event that any Grantor becomes aware
that any material item of the Intellectual Property Collateral is being
infringed or misappropriated by a third party, such Grantor shall promptly
notify the Administrative Agent and shall take such actions, at its expense, as
are reasonable and appropriate under the circumstances to protect or enforce
such Intellectual Property Collateral, including, without limitation, suing for
infringement or misappropriation and for an injunction against such
infringement or misappropriation.


 


(d)   Except as would not reasonably be expected to
result in a Material Adverse Effect, each Grantor shall use all required
statutory notices in connection with its use of each item of its Intellectual
Property Collateral.  No Grantor shall do
or permit any act or knowingly omit to do any act whereby any of its material
Intellectual Property Collateral may lapse or


 


25

















 


become invalid or
unenforceable or placed in the public domain other than as permitted under Section 15(a) hereof.


 


(e)   Each Grantor shall take all steps reasonable
and appropriate under the circumstances to preserve and protect each material
item of its Intellectual Property Collateral, including, without limitation,
where reasonable and appropriate maintaining the quality of any and all
products or services used or provided in connection with any of the Trademarks,
consistent with the quality of the products and services as of the date hereof,
and taking all steps necessary to ensure that all licensed users of any of the
Trademarks use such consistent standards of quality, except as permitted under Section 15(a) hereof.


 


(f)    With respect to its Intellectual Property Collateral,
each Grantor agrees to execute or otherwise authenticate an agreement, in
substantially the form set forth in Exhibit E hereto or otherwise
in form and substance satisfactory to the Administrative Agent (an “Intellectual Property Security
Agreement”), for recording the security interest granted
hereunder to the Administrative Agent in such Intellectual Property Collateral
with the U.S. Patent and Trademark Office, the U.S. Copyright Office and any
other United States governmental authorities necessary to perfect the security
interest hereunder in such Intellectual Property Collateral other than with
respect to Excluded Patents.


 


(g)   Each Grantor agrees that should it obtain an
ownership interest in any item of the type set forth in Section 1(g) that
is not on the date hereof a part of the Intellectual Property Collateral (“After-Acquired Intellectual Property”)
(i) the provisions of this Agreement shall automatically apply thereto,
and (ii) any such After-Acquired Intellectual Property and, in the case of
trademarks, the goodwill symbolized thereby, shall automatically become part of
the Intellectual Property Collateral subject to the terms and conditions of
this Agreement with respect thereto. 
Each Grantor shall give, within thirty (30) days after the end of
each calendar quarter, written notice to the Administrative Agent identifying
any United States registered or applied for After-Acquired Intellectual
Property, and such Grantor shall execute and deliver to the Administrative
Agent with such written notice, or otherwise authenticate, an agreement
substantially in the form of Exhibit F hereto or otherwise in form
and substance satisfactory to the Administrative Agent (an “IP Security Agreement Supplement”)
covering such After-Acquired Intellectual Property which IP Security Agreement
Supplement shall be recorded with the U.S. Patent and Trademark Office, the
U.S. Copyright Office and any other United States governmental authorities
necessary to perfect the security interest hereunder in such After-Acquired
Intellectual Property.


 


(h)   Each Grantor shall take, or cause to be
taken, all appropriate action, do or cause to be done all things necessary,
proper, or advisable under applicable laws, and execute and deliver such
documents and other papers, as may be required, at its expense, to take each of
the following actions as soon as reasonably practicable:  (i) release all Existing IP Liens in and
to any item of Affected IP Collateral and record and/or file such releases or
take such other actions as may be necessary to effect such release, (ii) remedy
all material gaps and flaws in the chain of title of any Affected IP
Collateral, in each case, including, without limitation, in the U.S. Patent and
Trademark Office and any other U.S. governmental authority, and
(iii) deliver copies of such documents evidencing all such actions to the
Administrative Agent; provided, that if the


 


26
















 


Borrower or the applicable
Grantor provides a certificate of a Responsible Officer, with respect to one or
more items of Affected IP Collateral, representing and warranting that:


 


(A) the Borrower and such Grantor have used commercially
reasonable efforts to effect the foregoing and notwithstanding such efforts,
have been unable to obtain such release or remedy such gaps and flaws, as the
case may be, and


 


(B) the failure to obtain such release or remedy such gap and
flaw, as the case may be, (1) does not relate to any Intellectual Property
Collateral that is material to the conduct of such Grantor’s business,
(2) would not adversely affect the Secured Parties’ rights and interests
in the Intellectual Property Collateral, taken as a whole, in any material respect,
except to the extent that any Existing IP Liens secure obligations not
prohibited by Credit Agreement, and (3) individually or in the aggregate,
would not reasonably be expected to result in a Material Adverse Effect,


 


the
Administrative Agent shall countersign such certificate which shall be a
confirmation that the requirements of this Section 15(h) are
discharged solely with respect to the Affected IP Collateral described on such
certificate.  In any event, the
Administrative Agent may from time to time at reasonable intervals inquire as
to the status of the Grantors’ progress in complying with this Section 15(h).


 


Section 16.  Voting Rights; Dividends; Etc.  (a)  So long as no Event of Default
shall have occurred and be continuing:


 


(i)                                     Each Grantor shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Security Collateral of such Grantor or any
part thereof; provided,  however, that such Grantor will not exercise or refrain from
exercising any such right if such action would have a material adverse effect
on the value of the Security Collateral or any part thereof.


 


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


 


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


 


(B)                                except in connection with transactions permitted under Sections 7.04(a) and
(b) of the Credit Agreement, dividends and other distributions paid or
payable other than in cash in respect of any Security Collateral in connection
with a partial or total liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in-surplus and


 


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


 


27

















 


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


 


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


 


(b)         Upon
the occurrence and during the continuance of an Event of Default and subject to
any applicable laws, rules and regulations or orders relating to national
security:


 


(i)                                     All rights of each Grantor (x) to exercise or refrain from
exercising the voting and other consensual rights that it would otherwise be
entitled to exercise pursuant to Section 16(a)(i) shall, upon
notice to such Grantor by the Administrative Agent, cease and (y) to
receive the dividends, interest and other distributions that it would otherwise
be authorized to receive and retain pursuant to Section 16(a)(ii) shall
automatically cease, and all such rights shall thereupon become vested in the
Administrative Agent, which shall thereupon have the sole right to exercise or
refrain from exercising such voting and other consensual rights and to receive
and hold as Security Collateral such dividends, interest and other
distributions.


 


(ii)                                  All dividends, interest and other distributions that are received by any
Grantor contrary to the provisions of paragraph (i) of this Section 16(b) shall
be received in trust for the benefit of the Administrative Agent, shall be
segregated from other funds of such Grantor and shall be forthwith paid over to
the Administrative Agent as Security Collateral in the same form as so received
(with any necessary indorsement).


 


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


 


Section 17.  As to the Assigned Agreements.  (a)  Each Grantor will, except where the
failure to do so is not likely to have a Material Adverse Effect, perform and
observe all terms and provisions of the Assigned Agreements to be performed or
observed by it, to the extent it has the power to do so, maintain the Assigned
Agreements to which it is a party in full force and effect and enforce the
Assigned Agreements to which it is a party in accordance with the terms
thereof.


 


(b)         Each
Grantor hereby consents on its behalf and on behalf of its Subsidiaries to the
assignment and pledge to the Administrative Agent for benefit of the Secured
Parties of each Assigned Agreement to which it is a party by any other Grantor
hereunder.


 


28

















 


Section 18.  Payments Under the Assigned Agreements.  (a)  Upon the occurrence and during
the continuation of a Specified Default at the request of the Administrative
Agent, each Grantor agrees to instruct each other party to each Assigned
Agreement (or such Assigned Agreements as the Administrative Agent shall
specify) to which it is a party that all payments due or to become due under or
in connection with such Assigned Agreement will be made directly to the
Collateral Account.


 


(b)         All
moneys received or collected pursuant to subsection (a) above
shall be (i) released to the applicable Grantor on the terms set forth in Section 8
so long as no Specified Default shall have occurred and be continuing or
(ii) if any Event of Default shall have occurred and be continuing,
applied as provided in Section 24(b).


 


Section 19.  As to Letter-of-Credit Rights.  (a)  Each Grantor, by granting a
security interest in its Receivables consisting of letter-of-credit rights to
the Administrative Agent, intends to (and hereby does) assign to the
Administrative Agent its rights (including its contingent rights) to the proceeds
of all Related Contracts consisting of letters of credit of which it is or
hereafter becomes a beneficiary or assignee. 
Upon the occurrence and during the continuation of a Specified Default,
at the request of the Administrative Agent, each Grantor will promptly cause
the issuer of each letter of credit and each nominated person (if any) with
respect thereto to consent to such assignment of the proceeds thereof in
substantially the form of the Consent to Assignment of Letter of Credit Rights
attached hereto as Exhibit G or otherwise in form and substance
satisfactory to the Administrative Agent and deliver written evidence of such
consent to the Administrative Agent.


 


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


 


Section 20.  Additional Shares.  (a) Each Grantor agrees that it will
(i) cause each issuer of the Pledged Equity pledged by such Grantor not to
issue any Equity Interests or other securities in addition to or in
substitution for the Pledged Equity issued by such issuer, except to such
Grantor or otherwise in accordance with the terms of the Loan Documents, and
(ii) except as set forth in Section 1(d)(iii), pledge
hereunder, immediately upon its acquisition (directly or indirectly) thereof,
any and all additional Equity Interests or other securities.


 


Section 21.
 Administrative Agent Appointed
Attorney-in-Fact.  Each
Grantor hereby irrevocably appoints the Administrative Agent such Grantor’s
attorney-in-fact from time to time upon the occurrence and during the
continuance of a Specified Default with full authority in the place and stead
of such Grantor and in the name of such Grantor or otherwise, in the
Administrative Agent’s discretion, to take any action and to execute any
instrument that the 


 


29

















 


Administrative Agent may deem necessary or advisable
to accomplish the purposes of this Agreement, including, without limitation:


 


(a)          to
obtain and adjust insurance required to be paid to the Administrative Agent
pursuant to Section 13,


 


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


 


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


 


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


 


Section 22.  Administrative Agent May Perform.  If any Grantor fails to perform any agreement
contained herein, the Administrative Agent may, but without any obligation to
do so and without notice, itself perform, or cause performance of, such
agreement, and the expenses of the Administrative Agent incurred in connection
therewith shall be payable by such Grantor under Section 25.


 


Section 23. 
The Administrative Agent’s Duties.  (a)  The powers conferred on the
Administrative Agent hereunder are solely to protect the Secured Parties’
interest in the Collateral and shall not impose any duty upon it in such
capacity to exercise any such powers. 
Except for the safe custody of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral, as to ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Collateral, whether or not any Secured Party has
or is deemed to have knowledge of such matters, or as to the taking of any
necessary steps to preserve rights against any parties or any other rights
pertaining to any Collateral.  The
Administrative Agent shall be deemed to have exercised reasonable care in the
custody and preservation of any Collateral in its possession if such Collateral
is accorded treatment substantially equal to that which it accords its own
property.


 


(b)         Anything
contained herein to the contrary notwithstanding, the Administrative Agent may
from time to time, when the Administrative Agent deems it to be necessary,
appoint one or more subagents (each, a “Subagent”) for the Administrative Agent
hereunder with respect to all or any part of the Collateral.  If the Administrative Agent so appoints any
Subagent with respect to any Collateral, (i) the assignment and pledge of
such Collateral and the security interest granted in such Collateral by each
Grantor hereunder shall be deemed for purposes of this Security Agreement to have
been made to such Subagent, in addition to the Administrative Agent, for the
ratable benefit of the Secured Parties, as security for the Secured Obligations
of such Grantor, (ii) such Subagent shall automatically be vested, in
addition to the Administrative 


 


30

















 


Agent, with all rights,
powers, privileges, interests and remedies of the Administrative Agent
hereunder with respect to such Collateral, and (iii) the term “Administrative
Agent,” when used herein in relation to any rights, powers, privileges,
interests and remedies of the Administrative Agent with respect to such
Collateral, shall include such Subagent; provided, however, that
no such Subagent shall be authorized to take any action with respect to any such
Collateral unless and except to the extent expressly authorized in writing by
the Administrative Agent.


 


Section 24.  Remedies.  If any Event of Default shall have occurred
and be continuing:


 


(a)          The
Administrative Agent may exercise in respect of the Collateral, in addition to
other rights and remedies provided for herein or otherwise available to it
(including any applicable laws, rules and regulations or orders relating
to national security), all the rights and remedies of a secured party upon default
under the UCC (whether or not the UCC applies to the affected Collateral) and
also may:  (i) require each Grantor
to, and each Grantor hereby agrees that it will at its expense and upon request
of the Administrative Agent forthwith, assemble all or part of the Collateral
as directed by the Administrative Agent and make it available to the
Administrative Agent at a place and time to be designated by the Administrative
Agent that is reasonably convenient to both parties; (ii) without notice
except as specified below, sell the Collateral (subject to any applicable laws,
rules and regulations or orders relating to national security) or any part
thereof in one or more parcels at public or private sale, at any of the
Administrative Agent’s offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Administrative Agent may deem
commercially reasonable; (iii) occupy any premises owned or leased by any
of the Grantors where the Collateral or any part thereof is assembled or located
for a reasonable period in order to effectuate its rights and remedies
hereunder or under law, without obligation to such Grantor in respect of such
occupation; and (iv) exercise any and all rights and remedies of any of
the Grantors under or in connection with the Collateral, or otherwise in
respect of the Collateral, including, without limitation, (A) any and all
rights of such Grantor to demand or otherwise require payment of any amount
under, or performance of any provision of, the Assigned Agreements, the
Receivables (subject in the case of Government Contract Claims, to Section 4(d)),
the Related Contracts and the other Collateral, (B) withdraw, or cause or
direct the withdrawal, of all funds with respect to the Account Collateral and
(C) exercise all other rights and remedies with respect to the Assigned
Agreements, the Receivables, the Related Contracts and the other Collateral,
including, without limitation, those set forth in Section 9-607 of the
UCC.  Each Grantor agrees that, to the
extent notice of sale shall be required by law, at least ten days’ notice to
such Grantor of the time and place of any public sale or the time after which
any private sale is to be made shall constitute reasonable notification.  The Administrative Agent shall not be
obligated to make any sale of Collateral regardless of notice of sale having
been given.  The Administrative Agent may
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.


 


(b)         Any
cash held by or on behalf of the Administrative Agent and all cash proceeds
received by or on behalf of the Administrative Agent in respect of any sale of,



 


31

















 


collection
from, or other realization upon all or any part of the Collateral may, in the
discretion of the Administrative Agent, be held by the Administrative Agent as
collateral for, and/or then or at any time thereafter applied (after payment of
any amounts payable to the Administrative Agent pursuant to Section 25)
in whole or in part by the Administrative Agent for the ratable benefit of the
Secured Parties against, all or any part of the Secured Obligations, in the
following manner:


 


(i)                                     first, paid to the Agents for any amounts then owing to
the Agents constituting fees, indemnities, expenses and other amounts (other
than principal and interest) or otherwise under the Loan Documents in their
capacities as such (including Attorney Costs and amounts payable under
Article III and Sections 10.04 and 10.05 of the Credit Agreement)
ratably in accordance with such respective amounts then owing to the Agents;


 


(ii)                                  second, paid to the Lenders for any amounts then owing to
the Lenders constituting fees, indemnities other amounts (other than principal
and interest) or otherwise under the Loan Documents (including Attorney Costs
and amounts payable under Article III and Sections 10.04 and 10.05 of
the Credit Agreement) ratably in accordance with such respective amounts then
owing to the Lenders;


 


(iii)                               third, paid to the Lenders for any amounts constituting
accrued and unpaid interest on the Loans, L/C Borrowings and other Obligations
ratably in accordance with such respective amounts then owing to the Lenders;


 


(iv)                              fourth, paid to the Secured Parties for any amounts
constituting unpaid principal on the Loans and the L/C Borrowings and amounts then owing under Secured Hedge Agreements and Secured Cash Management
Agreements, ratably in accordance with
such respective amounts then owing to the Secured Parties;


 


(v)                                 fifth, paid to the Administrative Agent for the accounts
of the L/C Issuers ratably in accordance with their interests, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit of each such L/C Issuer to the extent not
otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and
2.16 of the Credit Agreement; and


 


(vi)                              sixth, paid to the Agents and the other Secured Parties
for any amounts then owing to them under or in respect of the Loan Documents
constituting all other Obligations of the Loan Parties ratably in accordance
with such respective amounts owing to the Agents and the other Secured Parties
on such date.


 


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


 


32

















 


by
law (including any applicable laws, rules and regulations or orders
relating to national security).


 


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


 


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


 


(e)          In
the event of any sale or other disposition of any of the Intellectual Property
Collateral of any Grantor, the goodwill symbolized by any Trademarks subject to
such sale or other disposition shall be included therein, and such Grantor
shall supply to the Administrative Agent or its designee such Grantor’s
know-how and expertise, and documents and things relating to any Intellectual
Property Collateral subject to such sale or other disposition, and such Grantor’s
customer lists and other records and documents relating to such Intellectual
Property Collateral and to the manufacture, distribution, advertising and sale
of products and services of such Grantor.


 


(f)            The
Administrative Agent may, at the Grantors’ expense, take such other actions as
may be necessary to collect any moneys due or to become under any Government
Contract.


 


(g)         Anything
in this Agreement to the contrary notwithstanding, in the event that the
Administrative Agent, acting as authorized pursuant to this Agreement or any of
the Loan Documents, seeks to exercise any rights or remedies upon the
occurrence of an Event of Default that will require it to have access to
Collateral that constitutes information designated by a Governmental Party as
classified or which cannot be held by or disclosed to the Administrative Agent
under applicable laws, rules, regulations or orders relating to national
security (“Classified Information”), (i) the Administrative Agent may only exercise such rights or
remedies to the extent that it can Dispose of such Classified Information to
any Person (an “Authorized Person”) that is permitted to hold and have access to such Classified
Information under applicable laws, rules, regulations or orders relating to
national security, and (ii) if the Administrative Agent is unable to
obtain a clearance or other governmental approval required to have such access
or to Dispose of such Classified Information to an Authorized Person within a
reasonable time after seeking to exercise its remedies upon the occurrence of
an Event of Default, each Grantor shall Dispose of all Classified Information
in compliance with the applicable laws, rules regulations and orders and
as the Administrative Agent may direct, with the proceeds of such Disposition
to constitute Collateral hereunder and to be payable directly, to the extent
permitted under any such applicable laws, rules, regulations and orders
relating to national security, to the Administrative Agent for the benefit of
the Secured Parties.


 


33

















 


Section 25.  Indemnity and Expenses.  Each Grantor agrees to indemnify, defend and
save and hold harmless each Secured Party and each of their Affiliates and
their respective officers, directors, employees, agents and advisors (each, an “Indemnified Party”) from and
against, and shall pay on demand, any and all claims, damages, losses,
liabilities and expenses (including, without limitation, fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or resulting from this
Agreement (including, without limitation, enforcement of this Agreement), except
to the extent such claim, damage, loss, liability or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party’s gross negligence or willful misconduct.


 


(a)          Each
Grantor will within ten (10) Business Days after demand therefor pay to
the Administrative Agent the amount of any and all expenses, including, without
limitation, the fees and expenses of its counsel and of any experts and agents,
that the Administrative Agent may incur in connection with (i) the
administration of this Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from or other realization upon, any of
the Collateral of such Grantor, (iii) the exercise or enforcement of any
of the rights of the Administrative Agent or the other Secured Parties
hereunder or (iv) the failure by such Grantor to perform or observe any of
the provisions hereof.


 


Section 26.  Amendments; Waivers; Additional Grantors;
Etc.  (a)  No amendment or waiver
of any provision of this Agreement, and no consent to any departure by any
Grantor herefrom, shall in any event be effective unless the same shall be in
writing and signed by the Administrative Agent, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.  No failure on the part
of the Administrative Agent or any other Secured Party to exercise, and no
delay in exercising any right hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right.


 


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


 


Section 27.  Notices and Other Communications;
Facsimile Copies.  (a) Unless
otherwise expressly provided herein, all notices and other communications
provided for hereunder or under any other Loan Document shall be in writing
(including by facsimile transmission). 
All such written notices shall be mailed certified or registered mail,
faxed or delivered to the applicable address, facsimile number or (subject to
Section 10.02(b) to the Credit 


 


34

















 


Agreement)
electronic mail address, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:


 


(i)                                     if to the Borrower or the Administrative Agent, to the address, facsimile
number, electronic mail address or telephone number specified for such Person
on Schedule 10.02 of the Credit Agreement or to such address, facsimile
number, electronic mail address or telephone number as shall be designated by
such party in a notice to the other parties, and if to any Grantor other than
the Borrower, to the address set forth opposite such Grantor’s name on the
signature pages hereto or on the signature pages to the Security
Agreement Supplement pursuant to which it became a party hereto; and


 


(ii)                                  if to any other Secured Party, to the address, facsimile number,
electronic mail address or telephone number specified in its Administrative
Questionnaire or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a notice to
the Grantors or the Administrative Agent.


 


Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
facsimile shall be deemed to have been given when sent (except that, if not
given during normal business for the recipient, shall be deemed to have been
given at the opening of business on the next business day for the
recipient).  Notices delivered through
electronic communications to the extent provided in subsection (b) below
shall be effective as provided in such subsection (b).


 


(b)         Notices
and other communications to the Administrative Agent hereunder may be delivered
or furnished by electronic communication (including electronic-mail and
internet or intranet websites) pursuant to procedures approved by the
Administrative Agent.  The Administrative
Agent or the Grantors may, in their discretion, agree to accept notices and
other communications hereunder by electronic communications pursuant to
procedures approved by them, provided that approval of such procedures
may be limited to particular notices or communications.


 


(c)          Loan
Documents may be transmitted and/or executed and delivered by facsimile.  The effectiveness of any such documents and
signatures shall, subject to applicable Law, have the same force and effect as
manually-signed originals and shall be binding on all Grantors and the
Administrative Agent.  The Administrative
Agent may also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to
request or deliver the same shall not limit the effectiveness of any facsimile
document or signature.


 


(d)         The
Administrative Agent shall be entitled to rely and act upon any notices
purportedly given by or on behalf of the Grantors even if (i) such notices
were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof.  The Grantors shall
indemnify each Indemnified Party from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Grantors.  All other communications with the 


 


35

















 


Administrative Agent may
be recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.


 


(e)          Any
party hereto may change its address, telephone number, electronic mail address
or facsimile number for notices and other communications hereunder by notice to
the other parties hereto as provided in this Section 27.


 


Section 28.  Continuing Security Interest; Assignments
Under the Credit Agreement.  This
Agreement shall create a continuing security interest in the Collateral and
shall (3) remain in full force and effect until the latest of (i) the
payment in full in cash of the Secured Obligations, (ii) the Maturity Date
for the Revolving Credit Facility and (iii) the termination, expiration
or, if agreed by the applicable L/C Issuer in its sole discretion, cash
collateralization of all Letters of Credit and all Secured Hedge Agreements, (4) be
binding upon each Grantor, its successors and assigns and (5) inure, together
with the rights and remedies of the Administrative Agent hereunder, to the
benefit of the Secured Parties and their respective successors, transferees and
assigns.  Without limiting the generality
of the foregoing clause (c), any Lender may assign or otherwise
transfer all or any portion of its rights and obligations under the Credit
Agreement (including, without limitation, all or any portion of its
Commitments, the Loans owing to it and the Note or Notes, if any, held by it)
to any other Person, and such other Person shall thereupon become vested with
all the benefits in respect thereof granted to such Lender Party herein or
otherwise, in each case as provided in Section 10.07 of the Credit
Agreement.


 


Section 29.  Release; Termination.  (a)  Upon any Disposition of any item of
Collateral of any Grantor in accordance with the terms of the Loan Documents
(other than sales of Inventory in the ordinary course of business, which shall
be automatically released), the Administrative Agent will, at such Grantor’s
expense, execute and deliver to such Grantor such documents as such Grantor
shall reasonably request to evidence the release of such item of Collateral
from the assignment and security interest granted hereby; provided, however,
that (i) at the time of such request and such release no Event of Default
shall have occurred and be continuing, (ii) such Grantor shall have
delivered to the Administrative Agent, a written request for release describing
the item of Collateral and the terms of the sale, lease, transfer or other
disposition in reasonable detail, including, without limitation, the price
thereof and any expenses in connection therewith, together with a form of
release for execution by the Administrative Agent and a certificate of such
Grantor to the effect that the transaction is in compliance with the Loan
Documents and as to such other matters as the Administrative Agent may
reasonably request, and (iii) the proceeds of any such sale, lease,
transfer or other disposition required to be applied, or any payment to be made
in connection therewith, in accordance with Section 2.05(b) of the
Credit Agreement shall, to the extent so required, be paid or made to, or in
accordance with the instructions of, the Administrative Agent when and as
required under Section 2.05(b) of the Credit Agreement.


 


(b)                                 Upon the latest
of (i) the payment in full in cash of the Secured Obligations,
(ii) the Maturity Date and (iii) the termination, expiration or, if
agreed by the applicable L/C Issuer in its sole discretion, cash
collateralization of all Letters of Credit and all Secured Hedge Agreements,
the pledge and security interest granted hereby shall terminate and all rights
to the Collateral shall revert to the applicable Grantor.  Upon any such termination, the 


 


36
















 


Administrative
Agent will, at the applicable Grantor’s expense, execute and deliver to such
Grantor such documents as such Grantor shall reasonably request to evidence
such termination.


 


Section 30.  Execution in Counterparts.  This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.  Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of an original executed counterpart of this Agreement.


 


Section 31.  The Mortgages.  If any of the Collateral hereunder is also
subject to a valid and enforceable Lien under the terms of any Mortgage and the
terms of such Mortgage are inconsistent with the terms of this Agreement, then
with respect to such Collateral, the terms of such Mortgage shall be
controlling in the case of fixtures and real estate leases, letting and
licenses of, and contracts and agreements relating to the lease of, real
property, and the terms of this Agreement shall be controlling in the case of
all other Collateral.


 


Section 32.  Governing Law.  This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.


 


REMAINDER OF PAGE INTENTIONALLY LEFT BLANK


 


37

















 


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


 


 




	
  Address
  for Notices:

  	
   

  	
  ALLIANT
  TECHSYSTEMS INC.

  
	
  7480
  Flying Cloud Drive

  	
   

  	
   

  
	
  Eden
  Prairie, MN 55344

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Address
  for Notices:

  	
   

  	
  AMMUNITION
  ACCESSORIES INC.

  
	
  7480
  Flying Cloud Drive

  	
   

  	
   

  
	
  Eden
  Prairie, MN 55344

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address
  for Notices:

  	
   

  	
  ATK
  COMMERCIAL AMMUNITION

  
	
  7480
  Flying Cloud Drive

  	
   

  	
  COMPANY
  INC.

  
	
  Eden
  Prairie, MN 55344

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address
  for Notices:

  	
   

  	
  ATK
  COMMERCIAL AMMUNITION

  
	
  7480
  Flying Cloud Drive

  	
   

  	
  HOLDINGS
  COMPANY INC.

  
	
  Eden
  Prairie, MN 55344

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address
  for Notices:

  	
   

  	
  ATK
  LAUNCH SYSTEMS INC.

  
	
  7480
  Flying Cloud Drive

  	
   

  	
   

  
	
  Eden
  Prairie, MN 55344

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address
  for Notices:

  	
   

  	
  ATK
  SPACE SYSTEMS INC.

  
	
  7480
  Flying Cloud Drive

  	
   

  	
   

  
	
  Eden
  Prairie, MN 55344

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  






 

















 




	
  Address
  for Notices:

  	
   

  	
  FEDERAL
  CARTRIDGE COMPANY

  
	
  7480
  Flying Cloud Drive

  	
   

  	
   

  
	
  Eden
  Prairie, MN 55344

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address
  for Notices:

  	
   

  	
  EAGLE
  INDUSTRIES UNLIMITED, INC.

  
	
  7480
  Flying Cloud Drive

  	
   

  	
   

  
	
  Eden
  Prairie, MN 55344

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address
  for Notices:

  	
   

  	
  EAGLE
  MAYAGUEZ, LLC

  
	
  7480
  Flying Cloud Drive

  	
   

  	
   

  
	
  Eden
  Prairie, MN 55344

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address
  for Notices:

  	
   

  	
  EAGLE
  NEW BEDFORD, INC.

  
	
  7480
  Flying Cloud Drive

  	
   

  	
   

  
	
  Eden
  Prairie, MN 55344

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  






 

















 


Schedule I to the


Security Agreement


 


CHIEF EXECUTIVE OFFICE, LOCATION OF ORIGINALS, TYPE OF ORGANIZATION,
JURISDICTION OF ORGANIZATION AND ORGANIZATIONAL IDENTIFICATION NUMBER


 


	
  Grantor

  	
   

  	
  Chief

  Executive

  Office

  	
   

  	
  Location of

  Originals

  	
   

  	
  Type of

  Organization

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  	
  Organizational

  I.D. No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule II to the


Security Agreement


 


PLEDGED EQUITY AND PLEDGED DEBT


 


Part I - Pledged Equity


 


	
  Grantor

  	
   

  	
  Issuer

  	
   

  	
  Class of

  Equity

  Interest

  	
   

  	
  Par Value

  	
   

  	
  Certificate

  No(s)

  	
   

  	
  Number

  of Shares

  	
   

  	
  Percentage

  of

  Outstanding

  Shares

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Part II — Pledged Debt


 


	
  Grantor

  	
   

  	
  Debt

  Issuer

  	
   

  	
  Description of

  Debt

  	
   

  	
  Debt Certificate

  No(s).

  	
   

  	
  Final

  Maturity

  	
   

  	
  Outstanding

  Principal

  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule III to the


Security Agreement


 


CHANGES IN NAME, LOCATION, ETC.


 


Changes in the Grantor’s Name (including new grantor with a
new name and names associated with all predecessors in interest of the Grantor)


 


Changes in the Grantor’s Location


 


Changes in the Grantor’s Chief Executive Office


 


Changes in the Location of Equipment and Inventory


 


Changes in the Place Where Agreements are Maintained


 


Changes in the Type of Organization


 


Changes in the Jurisdiction of Organization


 


Changes in the Organizational Identification Number


 






 












 


Schedule IV to the

Security Agreement


 


INTELLECTUAL PROPERTY


 


I.  Patents


 


	
  Grantor

  	
   

  	
  Patent

  Titles

  	
   

  	
  Country

  	
   

  	
  Patent No.

  	
   

  	
  Applic. No.

  	
   

  	
  Filing Date

  	
   

  	
  Issue Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


II.  Domain Names and
Trademarks


 


	
  Grantor

  	
   

  	
  Domain

  Name/Mark

  	
   

  	
  Country

  	
   

  	
  Mark

  	
   

  	
  Reg.

  No.

  	
   

  	
  Applic.

  No.

  	
   

  	
  Filing

  Date

  	
   

  	
  Issue

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


III.  Trade Names


 


	
  Names

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


IV.  Copyrights


 


	
  Grantor

  	
   

  	
  Title of

  Work

  	
   

  	
  Country

  	
   

  	
  Title

  	
   

  	
  Reg. No.

  	
   

  	
  Applic. No.

  	
   

  	
  Filing

  Date

  	
   

  	
  Issue

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


V.  IP Agreements


 


	
  Grantor

  	
   

  	
  IP Agreements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule V to the

Security Agreement


 


ACCOUNT COLLATERAL


 


PART A — SECURITIES ACCOUNTS


 


	
  Grantor

  	
   

  	
  Name and Address of

  Pledged Account Bank

  	
   

  	
  Mailing Address of

  Pledged Account

  	
   

  	
  Account Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


PART B — DEPOSIT ACCOUNTS


 


	
  Grantor

  	
   

  	
  Name and Address of

  Pledged Account Bank

  	
   

  	
  Mailing Address of

  Pledged Account

  	
   

  	
  Account Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


PART C — COMMODITIES ACCOUNTS


 


	
  Grantor

  	
   

  	
  Name and Address of

  Pledged Account Bank

  	
   

  	
  Mailing Address of

  Pledged Account

  	
   

  	
  Account Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule VI to the

Security Agreement


 


NEW LOCATIONS OF EQUIPMENT AND INVENTORY


 


[Name of Grantor]


 


Location of Equipment:


 


Location of Inventory:


 


[Name of Grantor]


 


Location of Equipment:


 


Location of Inventory:


 


[Etc.]


 

















 


Schedule VII to the

Security Agreement


 


EXCLUDED
PATENTS


 

















 


Schedule VIII to the

Security Agreement


 


AFFECTED IP
COLLATERAL


 

















 


Schedule IX to the

Security Agreement


 


GOVERNMENT CONTRACTS


 

















 


EXHIBIT H


 


[RESERVED]


 
















 


EXHIBIT I


 


SOLVENCY CERTIFICATE


 


October 7, 2010


 


I,
[          ], the Chief
Financial Officer of Alliant Techsystems Inc., a Delaware corporation (the “Borrower”), hereby
certify that I am the Chief Financial Officer of the Borrower, the direct or
indirect parent of each Subsidiary of the Borrower listed on Schedule I  hereto (together with the Borrower, the “Loan Parties”) and
that I am familiar with the properties, businesses, assets, finances and
operations of each Loan Party and I am duly authorized to execute this
certificate as to the Loan Parties to be delivered pursuant to Section 4.01(a)(xii) of
the Second Amended and Restated Credit Agreement, dated as of October 7,
2010 (the “Credit
Agreement”) among the Borrower, the Lenders from time to time party
thereto, Bank of America, N.A., as administrative agent, the other Agents and
the Arrangers.  Unless otherwise
indicated, capitalized terms used but not defined herein shall have the
respective meanings set forth in the Credit Agreement.


 


I
further certify that I am generally familiar with the properties, business and
assets of the Loan Parties and have reviewed the Loan Documents and the
contents of this Solvency Certificate and, in connection herewith, have
reviewed such other documentation and information and have made such
investigation and inquiries as I have deemed necessary and prudent
therefor.  I further certify that the
financial information and assumptions that underlie and form the basis for the
representations made in this Solvency Certificate were reasonable when made and
were made in good faith and continue to be reasonable as of the date hereof.


 


I
understand that the Agents and the Lenders are relying on the representations
contained in this Certificate in connection with the Transactions contemplated
by the Loan Documents.


 


I
do hereby further certify that:


 


1.                                       On the date
hereof, before and after giving effect to the Transactions contemplated by the
Credit Agreement and the other Loan Documents, the fair value of the total
assets (including, without limitation, rights of contribution and indemnities
against other Loan Parties to the extent such rights constitute assets) the
Loan Parties on a consolidated basis is greater than the total amount of
liabilities (including, without limitation, contingent liabilities) of such
Loan Parties on a consolidated basis.


 


2.                                       On the date
hereof, before and after giving effect to the Transactions contemplated by the
Credit Agreement and the other Loan Documents, the present fair saleable value
of the total assets of the Loan Parties on a consolidated basis exceeds the
amount that will be required to pay the probable liability of such Loan Parties
on a consolidated basis on their debts as they become absolute and matured.


 


3.                                       The Loan
Parties on a consolidated basis do not intend to, and do not believe that they
will, incur debts or liabilities beyond their ability to pay such debts and
liabilities as they mature.


 

















 


4.                                       On the date
hereof, before and after giving effect to the Transactions contemplated by the
Credit Agreement and the other Loan Documents, the Loan Parties are not engaged
in business or a transaction, and are not about to engage in business or a
transaction, for which their total assets would constitute unreasonably small
capital.


 


5.                                       No Loan Party
intends, in consummating the Transactions contemplated by the Credit Agreement
and the other Loan Documents, to hinder, delay or defraud either present or
future creditors or any other Person to which such Loan Party is or will become
indebted on or after the date hereof.


 


6.                                       In reaching the
conclusions set forth in this Solvency Certificate, I have considered,
among other things:


 


(a)                                  the cash and other current
assets of each Loan Party reflected in the annual consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries;


 


(b)                                 all obligations and
liabilities of each Loan Party, whether matured or unmatured, liquidated or
unliquidated, disputed or undisputed, secured or unsecured, subordinated,
absolute, fixed or contingent, including, among other things, claims arising
out of, pending, or to the knowledge of the undersigned, threatened litigation
against such Loan Party, and in so doing, such Loan Party has computed the
amount of each such contingent liability as the amount that, in light of all
the facts and circumstances existing on the date hereof, represents the amount
that can reasonably be expected to become an actual or matured liability;


 


(d)                                 anticipated sales volume of
each Loan Party and in the income stream generated by such Loan Party as
reflected in, among other things, the consolidated financial statements of the
Loan Parties;


 


(e)                                  the customary terms of the
trade payables and other account payables of each Loan Party;


 


(f)                                    the amount of the credit
extended by and to customers of each Loan Party;


 


(g)                                 the amortization
requirements of the Credit Agreement and the anticipated interest payable on
the Loans under the Credit Agreement; and


 


(h)                                 the level of capital
customarily maintained by each Loan Party and other entities engaged in the
same or similar business as the business of such Loan Party.


 


Delivery
of an executed counterpart of a signature page to this Solvency
Certificate by fax or pdf shall be effective as delivery of a manually executed
counterpart of this Solvency Certificate.


 

















 


IN
WITNESS WHEREOF, the undersigned hereunto executed this Certificate in the name
of the Borrower and on behalf of each of the Loan Parties as of the date first
written above.


 


 


	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:
  Chief Financial Officer

  



 

















 


EXHIBIT J-1


 


OPINION MATTERS —


 


SPECIAL COUNSEL TO LOAN PARTIES


 

















 


EXHIBIT J-2


 


OPINION MATTERS —


 


LOCAL COUNSEL


 


[FORM OF OPINION OF LOCAL COUNSEL


WITH RESPECT TO PERFECTION]


 


To the Lenders party to the Credit

Agreement referred to below and to Bank of America, N.A.

(“Administrative Agent”), as Administrative Agent for such Lenders


 


Alliant Techsystems Inc.;
[Named Alliant Subsidiary Guarantor]


 


Ladies
and Gentlemen:


 


We
have acted as special [name of State] (the “State”)
counsel to Alliant Techsystems Inc., a Delaware corporation (“Alliant”), and [Name of Alliant’s
Subsidiary], a [insert name of State] corporation (the “Company”),
in connection with the preparation, execution and delivery of, and the initial
Borrowing under, the Second Amended and Restated Credit Agreement, dated as of October 7,
2010 (the “Credit Agreement”), among the
Borrower and each of you.  This opinion
is furnished to you pursuant to Section 4.01(viii) of the
Credit Agreement.  Unless otherwise
defined herein, terms defined in the Credit Agreement are used herein as
therein defined; and terms defined in Articles 1 and 9 of the Uniform
Commercial Code as in effect in the State (the “UCC”)
are used herein as therein defined.


 


In
that connection, we have examined a counterpart of each of the following
documents:


 


2.                                       the Credit
Agreement;


 


3.                                       the Notes
delivered to the Lenders on the date hereof;


 


4.                                       the Guaranty;


 


5.                                       the Security
Agreement;


 


6.                                       the
[[certificate] [articles] of incorporation and by-laws][limited partnership
agreement][certificate of formation and operating agreement][other comparable
charter documents] of the Company, in each case as amended through the date
hereof (the “Certified Organizational Documents”);


 


7.                                       a copy of the
financing statement (the “Financing Statement”)
under the UCC, naming the Company as debtor and the Administrative Agent as
secured party, which Financing Statement we understand will be filed in the
office of the Secretary of State of [insert name of State] (the “Filing Office”); and


 

















 


8.                                       the reports set forth on
Schedule II hereto (the “UCC Search Reports”)
of [name of service that did the UCC Searches] as to financing statements
naming the Loan Parties listed therein as debtors and on file in the Filing
Office on the effective dates for such UCC Search Reports; and


 


9.                                       such other documents
furnished by the Company pursuant to Article IV of the Credit Agreement,
as we have deemed necessary.


 


The
documents described in the foregoing clauses (1) through (4) are
collectively referred to herein as the “Loan Documents”.


 


In
addition, we have examined originals or copies of such other corporate records
of the Company, certificates of public officials and of officers of the Company
and agreements, instruments and other documents as we have deemed necessary as
a basis for the opinions expressed below. 
As to certain matters of fact material to the opinions expressed herein,
we have relied on the representations made in the Credit Agreement and the
other Loan Documents and certificates of public officials and officers of the
Company.  We have not independently
established the facts so relied on.


 


In
our examination of the documents referred to above, we have assumed the due
execution and delivery of each of the documents referred to above by all
parties thereto, other than the Company.


 


In
addition, we have assumed that:


 


(a)                                  The Company
has, or has the power to transfer, rights (to the extent necessary to grant a
security interest) in the Collateral existing on the date hereof and will have,
or will have the power to transfer, rights (to such extent) in property which
becomes Collateral after the date hereof.


 


Based
upon the foregoing and upon such other investigation as we have deemed
necessary and subject to the qualifications set forth below, we are of the
opinion that:


 


(i)                                     The execution and delivery
of the Loan Documents, the performance by the Company of its obligations
thereunder and the compliance with the terms and conditions thereof by the
Company are not in contravention of or in conflict with any law, rule or regulation
of the State applicable to the Company.


 


(ii)                                  The execution and delivery
by the Company of the Loan Documents to which it is a party and the performance
of the Company’s obligations thereunder do not require any governmental
consents, approvals, authorizations, permits, registrations, declarations or
filings or other action or any notices to, consents of, orders of or filings
with any governmental authority or regulatory body of the State (including
those having jurisdiction over the enforcement of the environmental laws of the
State), except for the recordation of the [mortgage[s]/deed[s] of trust
covering Collateral located in the State] in the 


 


3

















 


recording
office described herein and filing of the Financing Statement and continuation
statements in connection therewith in the Filing Office.


 


(iii)                               The Administrative Agent for
the benefit of the Secured Parties will have, upon the filing in the Filing
Office of the Financing Statement, a perfected security interest in that
portion of the Collateral described therein in which a security interest may be
created under Article 9 of the UCC in which a security interest is
perfected by filing a financing statements under the UCC (the “Filing Collateral”).


 


(iv)                              Filing Collateral, priority.  The UCC Search Reports set forth the proper
filing office and the proper debtors necessary to identify those persons who
under the State UCC have on file financing statements against the Company
covering the Filing Collateral as of the effective dates therefor set forth in
Schedule II hereto.  Except for
        , who is referred to in the UCC
Search Report as to financing statements naming [    ] as
debtor and whose financing statement covers
          , the UCC Reports
identify no Person who has filed in the Filing Office a still effective
financing statement describing the Filing Collateral prior to the appropriate
effective dates therefor, set forth in Schedule II hereto.


 


Our
opinions expressed above are subject to the following qualifications:


 


(a)                                  Our opinion in
paragraph (iii) above is subject to the qualification that the security
interest, and perfection and continuation of perfection of the security
interest, of the Administrative Agent in proceeds of Collateral are limited to
the extent set forth in Section [insert UCC provision on “Secured Party’s
Rights on Disposition of Collateral in Proceeds”] of the UCC.


 


(b)                                 Our opinions
expressed above are limited to the law of the State and the federal law of the
United States, and we do not express any opinion herein concerning any other
law.


 


(c)                                  Further, our
opinion in paragraph (iii) is limited to Article 9 of the UCC and
therefore this opinion does not address (i) laws other than Article 9
of the UCC, or (ii) collateral of a type not subject to Article 9 of
the UCC.


 


(d)                                 We express no
opinion with respect to:


 


(i)                                     Section 10.09 of the Credit
Agreement to the extent that such Section implies that set off may be made
without notice; or


 


(ii)                                  the effect of any provision
of the Security Agreement which is intended to establish any standard other
than a standard set forth in the UCC as the measure of the performance by any
party thereto of such party’s obligations of good faith, diligence,
reasonableness or care or of the fulfillment of the duties imposed on any
secured party with respect to the maintenance, disposition or redemption of
collateral, accounting for surplus proceeds of collateral or accepting
collateral in discharge of liabilities.


 


4

















 


A
copy of this opinion letter may be delivered by any of you to any Person that
becomes a Lender in accordance with the provisions of the Credit
Agreement.  Any such Lender may rely on
the opinions expressed above as if this opinion letter were addressed and
delivered to such Lender on the date hereof.


 


This
opinion letter is rendered to you in connection with the transactions
contemplated by the Loan Documents.  This
opinion letter may not be relied upon by you or any future Lender for any other
purpose, or relied upon by any other Person, without our prior written consent.


 


This
opinion letter speaks only as of the date hereof.  We expressly disclaim any responsibility to
advise you of any development or circumstance of any kind, including any change
of law or fact, that may occur after the date of this opinion letter even
though such development, circumstance or change may affect the legal analysis,
a legal conclusion or any other matter set forth in or relating to this opinion
letter.  Accordingly, any of you who may
rely on this opinion letter at any future time should seek advice of your
counsel as to the proper application of this opinion letter at such time.


 


Very
truly yours,


 


 


5

















 


[FORM OF OPINION OF LOCAL COUNSEL

WITH RESPECT TO REAL ESTATE MATTERS]


 


                    ,
2010


 


To:              The Secured Parties under the Credit Agreement

referred to below and to Bank of America, N.A., as

Administrative Agent


 


Re: Alliant Techsystems, Inc. [and
[**Name of Subsidiary Fee Owner**]]


 


Ladies
and Gentlemen:


 


We
have acted as special [name of State] (the “State”)
counsel to Alliant Techsystems Inc., a Delaware corporation (“Alliant”) [and [**Insert name of fee owner
and state and organization type**] (“Company”)] in connection with the execution
and delivery of the [Mortgage/Deed of Trust] referenced below pursuant to that
certain Second Amended and Restated Credit Agreement dated as of October 7,
2010 (the “Credit
Agreement”) by and among
Alliant, the Secured Parties (as defined therein), Bank of America, N.A., as
administrative agent (in such capacity, “Administrative Agent”) for the Secured
Parties, U.S. Bank National Association, as syndication agent,
[                              ],
as documentation agent,
[                    ],
as joint lead arrangers.  This opinion is
rendered at the request of Alliant pursuant to Section 4.01(a)(viii)(i) of
the Credit Agreement.  Capitalized terms
used herein and not otherwise defined shall have the respective meanings
ascribed to such terms in the [Mortgage/Deed of Trust], or if not defined
therein, in the Credit Agreement.


 


In
our capacity as such counsel, we have examined originals, or copies identified
to our satisfaction as being true copies, of such records, documents or other
instruments as in our judgment are necessary or appropriate to enable us to
render the opinions expressed below, including such corporate records and
documents of [Alliant/Company] and such certificates of public officials and officers
of [Alliant/Company] as we have deemed necessary or appropriate for purposes of
this opinion.  These records, documents
and instruments also included execution copies or counterparts of the following
documents (collectively, the “Subject Documents”):


 


1.                                       The Credit
Agreement;


 


2.                                       The
[Mortgage/Deed of Trust], Assignment of Rents and Leases, Security Agreement
and Fixture Filing dated as of
          ,
20     from [Alliant/Company], as [mortgagor/grantor], to [                                ,
as trustee (“Trustee”),
for the benefit of] Administrative Agent, as [mortgagee/beneficiary] (the “[Mortgage/Deed of
Trust]”), encumbering the “Mortgaged Property” described
therein; and


 


3.                                       The Second
Amended and Restated Subsidiary Guaranty dated as of October     ,
2010 from the guarantors named therein in favor of the Secured Parties.


 

















 


Assumptions


 


In
rendering this opinion we have assumed, without having made any independent
investigation of the facts, except with respect to matters of State and federal
law on which we have opined below, the following:


 


(i)                                     the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals and the conformity with originals of all documents submitted to us as
copies;


 


(ii)                                  to the extent
that the obligations of [Alliant/Company] may be dependent upon such matters,
other than with respect to [Alliant/Company], that each party to the agreements
and contracts referred to herein is duly formed, validly existing and in good
standing under the laws of its jurisdiction of formation; that each such other
party has the requisite corporate or other organizational power and authority
to perform its obligations under such agreements and contracts, as applicable;
and that such agreements and contracts have been duly authorized, executed and
delivered by, and each of them constitutes the legally valid and binding
obligations of, such other parties, as applicable, enforceable against such
other parties in accordance with their respective terms;


 


(iii)                               that [Alliant/Company]
is duly incorporated, validly existing and in good standing under the laws of
its jurisdiction of incorporation;


 


(iv)                              that
[Alliant/Company] has the requisite corporate power and authority to enter into
and perform its obligations under the Subject Documents to which it is a party;


 


(v)                                 the due
authorization, execution and delivery by [Alliant/Company] of the Subject
Documents to which [Alliant/Company] is a party;


 


(vi)                              that a part or
all of the loan proceeds to be advanced pursuant to the Credit Agreement will
have been advanced on or before the date hereof;


 


(vii)                           that all
material factual matters, including without limitation, representations and
warranties, contained in the Subject Documents, are true and correct as set
forth therein;


 


(viii)                        that
[Alliant/Company], at the time of recordation of the [Mortgage/Deed of Trust],
held an interest of record in the real property portions of the Mortgaged
Property owned by [Alliant/Company]; and


 


(ix)                                that the
Subject Documents will be governed by and construed in accordance with the
internal laws of the State, notwithstanding the provisions of the Subject
Documents to the contrary.


 


7
















 


Opinions


 


On
the basis of such examination, our reliance upon the assumptions contained
herein and our consideration of those questions of law we considered relevant,
and subject to the limitations and qualifications in this opinion, we are of
the opinion that:


 


1.             The [Mortgage/Deed of Trust]
constitutes the legal, valid and binding obligation of [Alliant/Company],
enforceable against [Alliant/Company] in accordance with its terms.


 


2.             The execution and delivery of the
Subject Documents, the performance by [Alliant/Company] of its obligations
thereunder and the compliance with the terms and conditions thereof by
[Alliant/Company] are not in contravention of or in conflict with any law, rule or
regulation of the State applicable to [Alliant/Company].


 


3.             The execution and delivery by
[Alliant/Company] of the Subject Documents to which it is a party and the
performance of [Alliant/Company]’s obligations thereunder do not require any
governmental consents, approvals, authorizations, permits, registrations, declarations
or filings or other action or any notices to, consents of, orders of or filings
with any governmental authority or regulatory body of the State (including
those having jurisdiction over the enforcement of the environmental laws of the
State), except for the recordation of the [Mortgage/Deed of Trust].


 


4.             The [Mortgage/Deed of Trust]
(including the acknowledgement, attestation, seal and witness requirements) is
in appropriate form for recordation in the State.


 


5.             The [Mortgage/Deed of Trust] is in
proper form sufficient to create a valid [mortgage/deed of trust lien] in favor
of Administrative Agent on, and to vest [Trustee and] Administrative Agent with
power of sale in, such of the Mortgaged Property described therein that
constitutes real property (including fixtures, to the extent the same
constitute real property).  The
recordation of the [Mortgage/Deed of Trust] in the [** NAME APPROPRIATE COUNTY
RECORDING OFFICE**] is the only recordation, filing or registration necessary
to perfect the lien on the Mortgaged Property created by the [Mortgage/Deed of
Trust].  Upon recordation of the
[Mortgage/Deed of Trust] in the [** NAME APPROPRIATE COUNTY RECORDING
OFFICE**], [Trustee/Administrative Agent] will have a valid and perfected
[mortgage/deed of trust lien] on the Mortgaged Property described therein.  No other recordation, filing, re-recordation
or re-filing is necessary in order to perfect or to maintain the priority of
the lien created by the [Mortgage/Deed of Trust].


 


6.             The real property descriptions
attached to the [Mortgage/Deed of Trust] are in form legally sufficient for the
purpose of subjecting that portion of the Mortgaged Property that constitutes
real property to the lien evidenced by the [Mortgage/Deed of Trust].


 


7.             The [Mortgage/Deed of Trust] is in
proper form sufficient to constitute a valid and effective fixture filing with
respect to the Premises under Article 9 of the Uniform Commercial Code as
in effect in the State naming [Alliant/Company] as debtor and Administrative
Agent as secured party.


 


8

















 


8.             Administrative Agent is not
required to qualify to transact business in the State nor will Administrative
Agent incur any tax imposed by the State (including, without limitation, any
tax imposed by the State on interest or on revenue paid in respect of the
Credit Agreement), solely as the result of the ownership or recordation of the
[Mortgage/Deed of Trust].


 


9.             [Except as specifically set forth
on Schedule 1 hereto, no] [No] taxes or other charges, including,
without limitation, intangible, documentary, stamp, mortgage, transfer or
recording taxes or similar charges are payable to the State or to any
governmental authority or regulatory body located therein on account of the
execution or delivery of the [Mortgage/Deed of Trust], or the creation of the
liens and security interests thereunder, or the filing, recordation or
registration of the [Mortgage/Deed of Trust], except for nominal filing or
recording fees.


 


Qualifications


 


The
foregoing opinions are subject to the following qualifications, limitations and
exceptions:


 


1.             Qualifying paragraph 1 above, the
enforceability of the [Mortgage/Deed of Trust] and the liens created thereby
may be limited or affected by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights generally (including,
without limitation, fraudulent conveyance laws) and by general principles of
equity including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of specific
performance or injunctive relief, regardless of whether considered in a
proceeding in equity or at law.  The
aforesaid opinion as to enforceability of the [Mortgage/Deed of Trust] is also
subject to the qualification that certain provisions contained therein may not
be enforceable, but (subject to the limitations set forth in the foregoing
sentence) such unenforceability will not render the [Mortgage/Deed of Trust]
invalid as a whole or substantially interfere with realization of the principal
benefits and/or security provided thereby.


 


2.             In rendering the opinions expressed
in this opinion letter, we have made no examination of and express no opinion
with respect to: (i) title to or, except as to adequacy of form,
descriptions of the Mortgaged Property described in the [Mortgage/Deed of
Trust]; (ii) the nature or extent of [Alliant/Company]’s rights in, or
title to, the Mortgaged Property; (iii) the existence or non-existence of
liens, security interests, charges or encumbrances thereon or therein actually
of record; or (iv) the priority of any liens on any part of the Mortgaged
Property.  We have not independently
certified the existence, condition, location or ownership of any of the Mortgaged
Property.


 


This
opinion is given as of the date hereof, and we disclaim any obligation to
update this opinion letter for events occurring after the date of this opinion
letter.  The foregoing opinion applies
only with respect to the laws of the State and the federal laws of the United
States of America and we express no opinion with respect to the laws of any
other jurisdiction.


 


This
opinion is rendered only to Administrative Agent and the other Secured Parties
and their respective successors and assigns (including any participant in any
Secured Party’s interest) and is solely for their benefit in connection with
the transactions contemplated by the Subject Documents and may not be relied
upon by Administrative Agent or any other 


 


9

















 


Secured
Party or any of their respective successors or assigns for any other purpose
without our prior written consent.


 


	
   

  	
  Very
  truly yours,

  



 


10

















 


SCHEDULE 1


 


Mortgage Recording Taxes, Documentary Stamp Taxes


and other similar Taxes and Fees


 


[**INSERT
DESCRIPTION OF AND METHOD OF CALCULATING ALL MORTGAGE RECORDING TAXES,
DOCUMENTARY STAMP TAXES AND SIMILAR TAXES AND FEES**]


 


11

















 


[FORM OF OPINION OF LOCAL COUNSEL


WITH RESPECT TO CORPORATE FORMALITIES]


 


	
                  ,
  2010

  



 


	
  To:

  	
  The
  Secured Parties under the Credit Agreement

  referred to below and to Bank of America, N.A., as

  Administrative Agent

  



 


Re: Alliant Techsystems, Inc.
[and [**Name of Subsidiary Fee
Owner**]]


 


Ladies
and Gentlemen:


 


We
have acted as special [name of State] (the “State”)
counsel to Alliant Techsystems Inc., a Delaware corporation (“Alliant”) [and [**Insert name of fee owner
and state and organization type**] (“Company”)] in connection with the execution
and delivery of the [Mortgage/Deed of Trust] referenced below pursuant to that
certain Second Amended and Restated Credit Agreement dated as of October 7,
2010 (the “Credit
Agreement”) by and among
Alliant, the Secured Parties (as defined therein), Bank of America, N.A., as
administrative agent (in such capacity, “Administrative Agent”) for the Secured
Parties, U.S. Bank National Association, as syndication agent,
[                      ],
as documentation agent, [                    ],
as joint lead arrangers.  This opinion is
rendered at the request of Alliant pursuant to Section 4.01(a)(viii)(ii) of
the Credit Agreement.  Capitalized terms
used herein and not otherwise defined shall have the respective meanings ascribed
to such terms in the [Mortgage/Deed of Trust], or if not defined therein, in
the Credit Agreement.


 


In
our capacity as such counsel, we have examined originals, or copies identified
to our satisfaction as being true copies, of such records, documents or other
instruments as in our judgment are necessary or appropriate to enable us to
render the opinions expressed below, including such corporate records and
documents of Company and such certificates of public officials and officers of
Company as we have deemed necessary or appropriate for purposes of this
opinion.  These records, documents and
instruments also included execution copies or counterparts of the following
documents (collectively, the “Subject Documents”):


 


1.             The Credit Agreement;


 


2.             The [Mortgage/Deed of Trust],
Assignment of Rents and Leases, Security Agreement and Fixture Filing dated as
of
[                  ],
20     from [Alliant/Company], as [mortgagor/grantor], to
[                                ,
as trustee (“Trustee”),
for the benefit of] Administrative Agent, as [mortgagee/beneficiary] (the “[Mortgage/Deed of
Trust]”), encumbering the “Mortgaged Property” described
therein; and


 


3.             The Second Amended and Restated
Subsidiary Guaranty dated as of October     , 2010
from Company and the other guarantors named therein in favor of the Secured
Parties.


 

















 


Assumptions


 


In
rendering this opinion we have assumed, without having made any independent
investigation of the facts, except with respect to matters of State and federal
law on which we have opined below, the following:


 


(a)           the genuineness of all signatures,
the authenticity of all documents submitted to us as originals and the
conformity with originals of all documents submitted to us as copies;


 


(b)           to the extent that the obligations of
Company may be dependent upon such matters, other than with respect to Company,
that each party to the agreements and contracts referred to herein is duly
formed, validly existing and in good standing under the laws of its
jurisdiction of formation; that each such other party has the requisite
corporate or other organizational power and authority to perform its
obligations under such agreements and contracts, as applicable; and that such
agreements and contracts have been duly authorized, executed and delivered by,
and each of them constitutes the legally valid and binding obligations of, such
other parties, as applicable, enforceable against such other parties in
accordance with their respective terms; and


 


(c)           that all material factual matters, including
without limitation, representations and warranties, contained in the Subject
Documents, are true and correct as set forth therein.


 


Opinions


 


On
the basis of such examination, our reliance upon the assumptions contained
herein and our consideration of those questions of law we considered relevant,
and subject to the limitations and qualifications in this opinion, we are of
the opinion that:


 


(i)            Company is duly
organized, validly existing and in good standing under the laws of the State.


 


(ii)           Company has the
requisite corporate power and authority to enter into and perform its
obligations under the Subject Documents to which it is a party.


 


(iii)          The Subject
Documents to which Company is a party have been duly authorized, executed and
delivered by Company.


 


Qualifications


 


The
foregoing opinions are subject to the following qualifications, limitations and
exceptions:


 


This
opinion is given as of the date hereof, and we disclaim any obligation to
update this opinion letter for events occurring after the date of this opinion
letter.  The foregoing opinion applies
only with respect to the laws of the State and the federal laws of the United
States of America and we express no opinion with respect to the laws of any
other jurisdiction.


 

















 


This
opinion is rendered only to Administrative Agent and the other Secured Parties
and their respective successors and assigns (including any participant in any
Secured Party’s interest) and is solely for their benefit in connection with
the transactions contemplated by the Subject Documents and may not be relied
upon by Administrative Agent or any other Secured Party or any of their
respective successors or assigns for any other purpose without our prior
written consent.


 


	
   

  	
  Very
  truly yours,

  



 


 

















 


EXHIBIT J-3


 


OPINION MATTERS —


 


GENERAL COUNSEL TO
BORROWER


 
















 


EXHIBIT K


 


FORM OF INCREMENTAL TERM
FACILITY SUPPLEMENT


 


This
INCREMENTAL TERM FACILITY SUPPLEMENT [(Tranche
    )](1) (this
“Supplement”)
is entered into as of
              ,
20    , among Alliant Techsystems Inc., a Delaware
corporation (the “Borrower”), each lender party
hereto (collectively, the “Incremental
Term Loan Lenders”
and individually, an “Incremental
Term Loan Lender”),
and Bank of America, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”).


 


Reference
is made to that certain Second Amended and Restated Credit Agreement, dated as
of October 7, 2010 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Credit Agreement;”
the terms defined therein being used herein as therein defined), among the Borrower,
the Lenders from time to time party thereto, the Administrative Agent, the
other Agents and the Arrangers.


 


Pursuant
to Section 2.15(a) of the Credit Agreement, the Borrower has
requested (a) the addition of a $[amount not less than $50,000,000] additional term loan facility, (b) that
the Incremental Term Loan Lenders Party hereto extend Incremental Term Loans as
provided herein, and (c) the effective date for such additional term loan
facility be
            ,
20    .


 


Each
Incremental Term Loan Lender party to this Supplement (this “Supplement”) has
agreed to provide the Incremental Term Commitment set forth opposite it name on
Schedule I hereto  (its “Incremental Term Commitment”)
and has indicated its willingness to lend the Incremental Term Loans on the
terms and conditions set forth herein and in the Credit Agreement.


 


Section 1.               Incremental Term Facility.  The aggregate Incremental Term Commitments of
$              
provided hereunder [shall be
designated “Tranche     Incremental Term Facility] (the “[Tranche     ] Incremental Term
Facility”) [and the
Incremental Term Loans made thereunder shall be designated Tranche
    Incremental Term Loans]
[see
footnote 1 regarding tranches]
shall, in addition to the terms and conditions set forth in the Credit
Agreement, have the following terms and conditions:


 


(a)           The Incremental Term Facility Closing
Date must occur on or prior to
              ,
20     (the “Termination Date”), which shall in no event
be less than ten Business Days from the date of this Supplement;


 


(b)           The Maturity Date shall be
              ,
20    ;


 


(c)           The Borrower shall repay to the
Administrative Agent for the ratable account of the Incremental Term Lenders
the aggregate principal amount of all [Tranche
    ]
Incremental Term Loans outstanding on the following dates in the respective
amounts set forth 


 






(1)          It may be advisable to create a tranche of
Incremental Term Facility if it is contemplated that there will be multiple
series of Incremental Term Facilities. 
If only one Incremental Term Facility is contemplated, creating a
tranche would not be necessary.


 

















 


opposite
such dates (which amounts shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.06
of the Credit Agreement):


 


	
  Date

  	
   

  	
  Amount

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


provided, however,
that the final principal repayment installment of the [Tranche     ] Incremental Term Loans shall be repaid on
the Maturity Date for the [Tranche
    ] Incremental
Term Facility under which such [Tranche
    ]
Incremental Term Loans were made and in any event shall be in an amount equal
to the aggregate principal amount of all [Tranche
    ]
Incremental Term Loans outstanding on such date;


 


(d)           The Applicable Rate for the [Tranche     ] Incremental Term Loans shall be (i) with
respect to Base Rate Loans, a rate per annum equal to
      %, and (ii) with respect to Eurodollar
Loans, a rate per annum equal to       %; and


 


(e)           The making of the [Tranche     ] Incremental Term Loans shall be subject
to the provisions of Sections 2.01(b), 2.02 and 4.02 of the Credit
Agreement.


 


Section 2.               Representations and Warranties
of the Borrower.  The Borrower
represents to the Administrative Agent and the Incremental Term Loan Lenders
that:


 


(a)           No Default has occurred and is
continuing on and as of the Effective Date or would result from the addition of
the Incremental Term Facility hereunder;


 


(b)           The representations and warranties of
the Borrower contained in Article V or any other Loan Document, are
true and correct in all material respects on and as of the Effective Date,
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct in all material
respects as of such earlier date, and except that for purposes of this Section 2(b),
the representations and warranties contained in Sections 5.05(a) and (b) of
the Credit Agreement shall be deemed to refer to the most recent statements
furnished pursuant to Sections 6.01(a) and (b), respectively, of
the Credit Agreement;


 

















 


(c)           The Borrower has complied with each
of the conditions set forth in Section 2.15(c) of the Credit
Agreement on and as of the Effective Date; and


 


(d)           The [Tranche
    ] Incremental
Term Facility does not exceed the Term Commitment Increase Availability.


 


Section 3.               New Lenders.


 


Each
Incremental Term Loan Lender that is an Additional Term Loan Lender:


 


(a) represents
and warrants that (i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Supplement and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all requirements of an Eligible Assignee under
the Credit Agreement, and (iii) from and after the Effective Date, it
shall be bound by the provisions of the Credit Agreement as a Lender thereunder
and shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Credit Agreement and the other Loan Documents, together
with copies of the most recent financial statements delivered pursuant to Section 6.01
thereof, as applicable, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Supplement and provide its Incremental Term Commitment hereunder on the
basis of which it has made such analysis and decision independently and without
reliance on the Administrative Agent or any other Lender;


 


(b) agrees
that it will, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement and the other Loan
Documents;


 


(c) appoints
and authorizes the Administrative Agent to take such action on its behalf and
to exercise such powers under the Credit Agreement and the other Loan Documents
as are delegated to the Administrative Agent by the terms thereof, together
with such powers as are reasonably incidental thereto;


 


(d) agrees
that it will perform in accordance to their terms, all obligations which by the
terms of the Credit Agreement and the other Loan Documents are required to be
performed by it as a Lender; and


 


(e) in
the case of such Incremental Term Loan Lender that is a Foreign Lender, comply
with the provisions of Section 10.15 of the Credit Agreement.


 


Section 4.               Reference to and Effect on
Loan Documents.  (a)          On and after the Effective Date, each
reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or
words of like import referring to the Credit Agreement, and each reference in
the Notes and each of the other Loan Documents to “the Credit Agreement”, “thereunder”,
“thereof” or words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement, as supplemented by this
Supplement.  This Supplement is an
Incremental Term Facility Supplement referred to in the definition of Loan
Documents and shall for all purposes constitute a Loan Document.


 

















 


(b)           The Credit Agreement, the Notes and
each of the other Loan Documents, as specifically supplemented by this
Supplement, are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed. 
Without limiting the generality of the foregoing, the Collateral
Documents and all of the Collateral described therein do and shall continue to
secure the payment of all Obligations (including, without limitation, any
Obligations created or contemplated hereunder) of the Loan Parties under the
Loan Documents, in each case as supplemented by this Supplement.


 


(c)           Each of the undersigned Guarantors
consents to this Supplement and the transactions contemplated hereby and hereby
confirms and agrees that (i) notwithstanding the effectiveness of this
Supplement, the Guaranty is, and shall continue to be, in full force and effect
and is hereby ratified and confirmed in all respects, except that, on and after
the effectiveness of this Supplement each reference in the Guaranty to the “Credit
Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a
reference to the Credit Agreement, as supplemented by this Supplement, and
(b) each of the Collateral Documents to which such Guarantor is a party
and all of the Collateral described therein do, and shall continue to, secure
the payment of all Obligations (including, without limitation, any Obligations
created or contemplated hereunder) to be secured thereunder.


 


Section 5.               Costs and Expenses.  The Borrower agrees to pay or reimburse all
reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with the preparation, execution, delivery and administration,
modification and amendment of this Supplement and the other instruments and
documents to be delivered hereunder or in connection herewith (including,
without limitation, the reasonable fees and expenses of counsel for the
Administrative Agent) in accordance with the terms of Section 10.04
of the Credit Agreement.


 


Section 6.               Execution in Counterparts.  This Supplement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute but one and the same agreement.  Delivery of an executed counterpart of a
signature page to this Supplement by telecopier shall be effective as
delivery of a manually executed counterpart of this Supplement.


 


Section 7.               Effective Date; Termination of
Commitments.  This Supplement shall
become effective on the requested effective date (the “Effective Date”)
subject to (a) receipt by the Administrative Agent of executed
counterparts of this Supplement by each party hereto, (b) receipt by the
Administrative Agent of an Administrative Questionnaire from each Additional
Term Loan Lender party hereto, (c) the representations and warranties of
the Borrower in Section 2 being true and correct in all material
respects, and (d) such date not being later than the Termination
Date.  If the Effective Date and the
Incremental Term Facility Closing Date do not occur on or prior to the
Termination Date, the Incremental Term Commitments hereunder shall automatically
terminate.


 


Section 8.               Governing Law.  This Supplement shall be governed by, and
construed in accordance with, the laws of the State of New York, and shall be
subject to the jurisdictional and service provisions of the Credit Agreement,
as if this were a part of the Credit Agreement.


 

















 


	
  ALLIANT TECHSYSTEMS INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BANK OF AMERICA, N.A., as

  
	
  Administrative Agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  [GUARANTORS]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


	
  [NAME
  OF INCREMENTAL TERM LOAN LENDER]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


SCHEDULE I


TO


INCREMENTAL TERM FACILITY SUPPLEMENT


 


	
  Incremental Tem Loan Lender

  	
   

  	
  Incremental Term Loan Commitment

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 

















 


EXHIBIT L


 


FORM OF JOINDER AGREEMENT


 


JOINDER
AGREEMENT (this “Joinder
Agreement”), dated
                              ,
20      , by                                         
to the Second Amended and Restated Credit Agreement, dated as of October 7,
2010 (as the same may be amended, restated, extended, supplemented or otherwise
modified from time to time, the “Credit Agreement”; the terms defined therein
being used herein as therein defined), among Alliant Techsystems Inc. a
Delaware corporation (the “Borrower”),
the Lenders from time to time party thereto, Bank of America, N.A., as
Administrative Agent, the other Agents and the Arrangers.


 


W I T N E S S E T H:


 


WHEREAS,
the Credit Agreement provides in Section [2.14(a)] [2.15(b)]
thereof that any Eligible Assignee may become [a Revolving Credit Lender under
the Revolving Credit Facility] [a Term Lender under any Term Facility in
existence at the time of a request for a Term Commitment Increase] by executing
and delivering to the Administrative Agent this Joinder Agreement subject to the
terms and conditions of Section [2.14] [2.15]; and


 


WHEREAS,
the undersigned now desires to become a [Revolving Credit Lender] [Term A
Lender] [Incremental Term Loan Lender] under the Credit Agreement;


 


NOW,
THEREFORE, the undersigned hereby agrees as follows:


 


1.  The undersigned agrees to be bound by the
provisions of the Credit Agreement and other Loan Documents, and agrees that it
shall, on the date this Joinder Agreement is accepted by the Administrative
Agent and the Borrower, become a [Revolving Credit Lender] [Term A Lender]
[Incremental Term Loan Lender] for all purposes of the Credit Agreement to the
same extent as if originally such a Lender thereto, and hereby commits to
provide [Revolving Credit Commitments] [Term A Commitments] [Incremental Term
Commitments] of $           
under the [Revolving Credit Facility][Term A Facility][Incremental Term
Facility created under the Incremental Term Facility Supplement dated
                ,
20     (the “Applicable Incremental Term Facility Supplement”)]
and [Schedule 2.01 of the Credit Agreement][Schedule I of the
Applicable Incremental Term Facility Supplement]  shall be adjusted to reflect the [Revolving Credit
Commitment][Term A Commitment][Incremental Term Commitment] of the undersigned.


 


2.  The undersigned:


 


(a) represents
and warrants that (i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Joinder Agreement and to
consummate the transactions contemplated hereby and to become a [Revolving
Credit Lender] [Term A Lender] [Incremental Term Loan Lender] under the Credit
Agreement, (ii) it meets all requirements of an Eligible Assignee under
the Credit Agreement, and (iii) from and after the Effective Date, it
shall be bound by the provisions of the Credit Agreement and other Loan
Documents as a Lender thereunder and shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement and the
other Loan Documents, together with copies of the most recent 


 

















 


financial
statements delivered pursuant to Section 6.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Joinder Agreement and provide its [Revolving Credit Commitments] [Term A
Commitments] [Incremental Term Commitments] hereunder on the basis of which it
has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender;


 


(b) agrees
that it will, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement and the other Loan
Documents;


 


(c) appoints
and authorizes the Administrative Agent to take such action on its behalf and
to exercise such powers under the Credit Agreement and the other Loan Documents
as are delegated to the Administrative Agent by the terms thereof, together
with such powers as are reasonably incidental thereto;


 


(d) agrees
that it will perform in accordance to their terms, all obligations which by the
terms of the Credit Agreement and the other Loan Documents are required to be
performed by it as a Lender; and


 


(e) in
the case of such [Revolving Credit Lender] [Term A Lender] [Incremental Term
Loan Lender] that is a Foreign Lender, comply with the provisions of Section 10.15
of the Credit Agreement.


 


3.  The undersigned has provided the Administrative
Agent with an Administrative Questionnaire.


 


4.  This Joinder Agreement shall become effective
on the date accepted by the Administrative Agent and Borrower as provided
below.


 


5.  This Joinder Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, and shall
be subject to the jurisdictional and service provisions of the Credit
Agreement, as if this were a part of the Credit Agreement.


 


IN
WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be
executed and delivered by a duly authorized officer on the date first above
written.


 


	
   

  	
  [INSERT
  NAME OF LENDER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
  Accepted
  this          day of

  	
   

  
	
                            ,
  20

  	
   

  
	
   

  	
   

  
	
  BANK OF AMERICA, N.A.,

  	
   

  
	
  as
  Administrative Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  ALLIANT TECHSYSTEMS INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title