April , 2007 EXCHANGE AGENT AGREEMENT
Exhibit 99.5
April ,
2007
Wilmington
Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and
Gentlemen:
Alion Science and Technology Corporation (the
“Company”), proposes to make an offer (the
“Exchange Offer”) to exchange its 101/4% Senior Notes
due 2015, (the “New Notes”) for a like principal
amount of its outstanding 101/4% Senior Notes due 2015, (the
“Old Notes”). The terms and conditions of the Exchange
Offer as currently contemplated are set forth in a prospectus
(the “Prospectus” included in the Company’s
registration statement on
Form S-4
(File
No. 333- )
as amended (the “Registration Statement”)) filed with
the Securities and Exchange Commission (the “SEC”),
and proposed to be distributed to all record holders of the Old
Notes. The Old Notes and the New Notes are collectively referred
to in this Exchange Agent Agreement (this “Agreement”)
as the “Notes” or the “Securities.”
Capitalized terms used herein and not defined shall have the
respective meanings ascribed to them in the Registration
Statement or the accompanying letter of transmittal (the
“Letter of Transmittal”). This Exchange Agent
Agreement is hereinafter referred to as this
“Agreement”.
The Company hereby appoints Wilmington Trust Company to act
as exchange agent (the “Exchange Agent”) in connection
with the Exchange Offer. References hereinafter to
“you” shall refer to Wilmington Trust Company.
The Exchange Offer is expected to be commenced by the Company on
or
about ,
2007. The Letter of Transmittal accompanying the Registration
Statement is to be used by the holders of the Old Notes to
tender into the Exchange Offer, and contains instructions with
respect to the delivery of Old Notes tendered. The Exchange
Agent’s obligations with respect to receipt and inspection
of the Letter of Transmittal in connection with the Exchange
Offer shall be satisfied for all purposes hereof by
(1) inspection of the electronic message transmitted to the
Exchange Agent by Exchange Offer participants in accordance with
the Automated Tender Offer Program (“ATOP”) of the
Depositary Trust Company (“DTC”), and by
otherwise observing and complying with all procedures
established by DTC in connection with ATOP, to the extent that
ATOP is utilized by Exchange Offer participants, or (2) by
inspection of the Letter of Transmittal by each respective
holder of Old Notes.
The Exchange Offer shall expire at 5:00 p.m., New York City
time,
on ,
2007, or on such later date or time to which the Company may
extend the Exchange Offer (the “Expiration Date”).
Subject to the terms and conditions set forth in the
Registration Statement, the Company expressly reserves the right
to extend the Exchange Offer from time to time and may extend
the Exchange Offer by giving oral (confirmed in writing) or
written notice to you at any time before 9:00 a.m., New
York City time, on the business day following the previously
scheduled Expiration Date, and in such case the term
“Expiration Date” shall mean the time and date on
which the Exchange Offer as so extended shall expire.
The Company expressly reserves the right, in its sole
discretion, to delay, amend or terminate the Exchange Offer, and
not to accept for exchange any Old Notes not theretofore
accepted for exchange, in among other cases upon the occurrence
of any of the conditions of the Exchange Offer specified in the
Registration Statement under the caption “The Exchange
Offer — Expiration Date; Extensions; Termination;
Amendments” and “The Exchange Offer —
Conditions of The Exchange Offer.” The Company will give to
you as promptly as practicable oral (confirmed in writing) or
written notice of any delay, amendment, termination or
non-acceptance.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth herein or in the section of the
Registration Statement captioned the “The Exchange
Offer”, in the Letter of Transmittal accompanying the
Registration Statement and such duties which are necessarily
incidental thereto.
2. You will establish a book-entry account with respect to
the Old Notes at DTC (the “Book-Entry Transfer
Facility”) for purposes of the Exchange Offer within two
business days after the date of the Registration Statement, and
any financial institution that is a participant in the
Book-Entry Transfer Facility’s systems may make book-entry
delivery of the Old Notes by causing the Book-Entry Transfer
Facility to transfer such Old Notes into your account in
accordance with the Book-Entry Transfer Facility’s
procedure for such transfer.
3. You are to examine each of the Letters of Transmittal
and certificates for Old Notes (or confirmation of book-entry
transfers into your account at the Book-Entry Transfer Facility)
and any other documents delivered or mailed to you by or for
holders of the Old Notes to ascertain whether: (i) the
Letters of Transmittal, certificates and any such other
documents are duly executed and properly completed in accordance
with instructions set forth therein and in the Registration
Statement and that such book-entry confirmations are in due and
proper form and contain the information required to be set forth
therein, and (ii) the Old Notes have otherwise been
properly tendered. In each case where the Letter of Transmittal
or any other document has been improperly completed or executed
or where book-entry confirmations are not in due and proper form
or omit certain information or any of the certificates for Old
Notes are not in proper form for transfer or some other
irregularity in connection with the acceptance of the Exchange
Offer exists, you will endeavor to inform the presenters of the
need for fulfillment of all requirements and to take any other
action as may be necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the Chief Financial Officer,
Secretary or any Vice President of the Company (such approval,
if given orally, promptly to be confirmed in writing) or any
other party designated by such officer in writing, you are
authorized to waive any irregularities in connection with any
tender of Old Notes pursuant to the Exchange Offer. You are not
otherwise authorized to waive any such irregularities.
5. Tenders of Old Notes may be made only as set forth in
the Letter of Transmittal and in the section of the Registration
Statement captioned “The Exchange Offer —
Procedures for Tendering Outstanding Notes” and Old Notes
shall be considered properly tendered to you only when tendered
in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old
Notes which the Chief Financial Officer, Secretary or any Vice
President of the Company or any other party designated by any
such officer in writing shall approve as having been properly
tendered shall be considered to be properly tendered (such
approval, if given orally, must be confirmed in writing the same
day to constitute valid approval).
6. You shall promptly advise the Company with respect to
any Old Notes delivered subsequent to the Expiration Date and
accept its instructions with respect to disposition of such Old
Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or
more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a
representative capacity only when proper evidence of his or her
authority so to act is submitted; and
(c) from persons other than the registered holder of Old
Notes provided that customary transfer requirements, including
any payment of applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated
and as permitted in the Letter of Transmittal and return any
untendered Old Notes to the holder (or such other person as may
be designated in the Letter of Transmittal) as promptly as
practicable after expiration or termination of the Exchange
Offer.
8. Upon satisfaction or waiver of all of the conditions to
the Exchange Offer, the Company will notify you (such notice, if
given orally, shall be promptly confirmed in writing) of its
acceptance, promptly after the Expiration Date, of all Old Notes
properly tendered and you, on behalf of the Company, will cause
the exchange of such Old Notes for New Notes and cause such Old
Notes to be cancelled. Delivery of New Notes will be made on
behalf of the Company by the trustee at the rate of $1,000
principal amount of New Notes (subject to adjustment) for each
$1,000 principal amount of the Old Notes tendered, and, in the
case of Old Notes tendered, promptly after notice (such notice,
if given orally, shall be promptly confirmed in writing) of
acceptance of said Old Notes by the Company; provided, however,
that in all cases, Old Notes tendered pursuant to the Exchange
Offer will be exchanged only after timely receipt by you of
certificates for such Old Notes (or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility),
a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) and an Agent’s Message (as defined in
the Registration Statement) with any required signature
guarantees and any other required document. Unless otherwise
instructed in writing by the Company, you shall issue New Notes
only in minimum denominations of $2,000 and in any integral
multiple of $1,000 in excess thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable
after the Expiration Date. Subject to the terms and upon the
conditions set forth in the Registration Statement and the
Letter of Transmittal, Old Notes tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the
Expiration Date in accordance with the terms of the Exchange
Offer. All questions as to the form and validity of notices of
withdrawal, including timeliness of receipt, shall be determined
by the Company in its sole discretion which shall be final and
binding.
10. The Company shall not be required to exchange any Old
Notes tendered if any of the conditions set forth in the
Registration Statement are not met. Notice of any decision by
the Company not to exchange any Old Notes tendered shall be
given (such notices, if given orally, shall be promptly
confirmed in writing) by the Company to you.
11. If, pursuant to the Registration Statement, the Company
does not accept for exchange all or part of the Old Notes
tendered because of an invalid tender, the occurrence of certain
other events set forth in the Registration Statement or
otherwise, you shall as soon as practicable after the expiration
or termination of the Exchange Offer return those certificates
for unaccepted Old Notes (or effect appropriate book-entry
transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them (or effected such
book-entry transfer).
12. All certificates for reissued Old Notes, unaccepted Old
Notes or New Notes (other than those effected by book-entry
transfer) shall be forwarded by (a) first-class mail,
postage pre-paid under a blanket surety bond protecting you and
the Company from loss or liability arising out of the
non-receipt or non-delivery of such certificates or (b) by
registered mail insured separately for the replacement value of
each of such certificates.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker,
dealer, bank or other persons or to engage or utilize any
persons to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency,
value or genuineness of any of the Old Notes deposited with you
pursuant to the Exchange Offer, and will not be required to and
you shall not make any representation as to the validity, value
or genuineness of the Registration Statement, the Exchange Offer
or the New Notes;
(b) shall not be obligated to take any legal action
hereunder which might in your reasonable judgment involve any
expense or liability, unless you shall have been furnished with
reasonable indemnity;
(c) shall not be liable to the Company for any action taken
or omitted by you, or any action suffered by you to be taken or
omitted, without negligence, misconduct or bad faith on your
part, by reason of or as a result of the administration of your
duties hereunder in accordance with the terms and conditions of
this Agreement or by reason of your compliance with the
instructions set forth herein or with any written or oral
instructions delivered to you pursuant hereto, and may
reasonably rely on and shall be protected in acting in good
faith in reliance upon any certificate, instrument, opinion,
notice, letter, facsimile or other document or security
delivered to you and reasonably believed by you to be genuine
and to have been signed by the proper party or parties;
(d) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to
its due execution and validity and effectiveness of its
provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith
reasonably believe to be genuine or to have been signed or
represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon
written notice or oral instructions from the Chief Financial
Officer, Secretary or any Vice President of the Company or any
other party designated by any such officer of the Company;
(f) shall not advise any person tendering Old Notes
pursuant to the Exchange Offer as to whether to tender or
refrain from tendering all or any portion of Old Notes or as to
the market value, decline or appreciation in market value of any
Old Notes that may or may not occur as a result of the Exchange
Offer or as to the market value of the Exchange Notes;
(g) may consult with counsel with respect to any questions
relating to your duties and responsibilities, and the written
advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by you hereunder in good faith and in
reliance thereon; and
(h) shall act solely as agent of the Company and shall not
assume any obligation, or relationship of agency or trust for
or, with any of the owners or holders of the Old Notes.
15. You shall send to all holders of Old Notes a copy of
the Registration Statement, the Letter of Transmittal, the
Notice of Guaranteed Delivery (as defined in the Registration
Statement) and such other documents (collectively, the
“Exchange Offer Documents”) as may be furnished by the
Company to commence the Exchange Offer and take such other
action as may from time to time be requested by the Company or
its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Exchange Offer Documents
or such other forms as may be approved from time to time by the
Company, to all holders of Old Notes and to all persons
requesting such documents and to accept and comply with
telephone requests for information relating to the Exchange
Offer, provided that such information shall relate only to the
procedures for accepting (or withdrawing from) the Exchange
Offer. The Company will furnish you with copies of such
documents at your request. All other requests for information
relating to the Exchange Offer shall be directed to the Company,
Attention: General Counsel, at the Company’s offices at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
telephone number:
▇▇▇-▇▇▇-▇▇▇▇.
16. You shall advise by facsimile transmission, email or
telephone, and promptly thereafter confirm in writing to the
Chief Financial Officer or Secretary of the Company, and such
other person or persons as the Company may request in writing,
daily, and more frequently during the week immediately preceding
the Expiration Date and if otherwise requested, up to and
including the Expiration Date, as to the aggregate principal
amount of Old Notes which have been tendered pursuant to the
Registration Statement and the items received by you pursuant to
the Exchange Offer and this Agreement, separately reporting and
giving cumulative totals as to items properly received and items
improperly received. In addition, you will also inform, and
cooperate in making available to, the Company or any such other
person or persons as the Company requests in writing from time
to time prior to the Expiration Date of such other information
as it or he or she reasonably requests. Such cooperation shall
include, without limitation, the granting by you to the Company
and such person as the Company may request of access to those
persons on your staff who are responsible for receiving tenders,
in order to ensure that immediately prior to the Expiration Date
the Company shall have received information in sufficient detail
to enable it to decide whether to extend the Exchange Offer. You
shall prepare a final list of all persons whose tenders were
accepted, the aggregate principal amount of Old Notes tendered,
the aggregate principal amount of Old Notes accepted and the
identity of any participating broker-dealers and the aggregate
principal amount of Exchange Notes delivered to each, and
deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed
Delivery shall be stamped by you as to the date and, after the
expiration of the Exchange Offer, the time of receipt thereof
shall be preserved by you for a period of time at least equal to
the period of time you customarily preserve other records
pertaining to the transfer of securities, or one year, whichever
is longer, and thereafter shall be delivered by you to the
Company. You shall dispose of unused Letters of Transmittal and
other surplus materials in accordance with your customary
procedures.
18. You hereby expressly waive any lien, encumbrance or
right of set-off whatsoever that you may have with respect to
funds deposited with you for the payment of transfer taxes by
reasons of amounts, if any, borrowed by the Company, or any of
its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder you
shall be entitled to such compensation and reimbursement of
out-of-pocket
expenses as agreed in the attached Schedule A.
20. You hereby acknowledge receipt of the Registration
Statement, the Letter of Transmittal and the other documents
associated with the Exchange Offer attached hereto and further
acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the
Registration Statement, the Letter of Transmittal and such other
forms (as they may be amended from time to time), on the other
hand, shall be resolved in favor of the Registration Statement,
the Letter of Transmittal and such other forms, except with
respect to the duties, liabilities and indemnification of you as
Exchange Agent which shall be controlled by this Agreement.
21. The Company agrees to indemnify and hold you harmless
in your capacity as Exchange Agent hereunder against any
liability, cost or expense, including reasonable attorneys’
fees and expenses, arising out of or in connection with your
appointment as Exchange Agent and the performance of your duties
hereunder, including, without limitation, any act, omission,
delay or refusal made by you in reasonable reliance upon any
signature, endorsement, assignment, certificate, order, request,
notice, instruction or other instrument or document reasonably
believed by you to be valid, genuine and sufficient and in
accepting any tender or effecting any transfer of Old Notes
reasonably believed by you in
good faith to be authorized, and in delaying or refusing in good
faith to accept any tenders or effect any transfer of Old Notes;
provided, however, that the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or
expense to the extent arising out of your gross negligence,
willful misconduct or bad faith. The Company’s obligations
under this paragraph 21 shall survive the termination of
this Agreement and the discharge of your obligation hereunder
and any other termination of this Agreement under any federal or
state bankruptcy law.
22. You shall comply with all requirements under the tax
laws of the United States, including without limitation those
relating to missing Tax Identification Numbers, and shall file
any appropriate reports with the Internal Revenue Service. The
Company understands that you are required, in certain instances,
to deduct twenty-eight percent (28%) with respect to interest
paid on the New Notes and proceeds from the sale, exchange,
redemption or retirement of the New Notes from holders who have
not supplied their correct Taxpayer Identification Numbers or
required certification. Such funds will be turned over to the
Internal Revenue Service in accordance with applicable
regulations.
23. You shall notify the Company of the amount of any
transfer taxes payable in respect of the exchange of Old Notes
and shall deliver or cause to be delivered, in a timely manner,
to each governmental authority to which any transfer taxes are
payable in respect of the exchange of Old Notes your check in
the amount of all transfer taxes so payable, and the Company
shall reimburse you for the amount of any and all transfer taxes
payable in respect of the exchange of Old Notes; provided,
however, that you shall reimburse the Company for amounts
refunded to you in respect of your payment of any such transfer
taxes, at such time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the
laws of the State of New York applicable to agreements made and
to be performed entirely within such state, and without regard
to conflicts of law principles, and shall inure to the benefit
of, and the obligations created hereby shall be binding upon,
the successors and assigns of each of the parties hereto and
nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
Without limitation of the foregoing, the parties hereto
expressly agree that no holder of Old Notes or Exchange Notes
shall have any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
25. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original
and all of which taken together shall constitute one and the
same agreement.
26. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in
part, except by a written instrument signed by a duly authorized
representative of the party to be charged.
28. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in
writing (including facsimile) and shall be given to such party,
addressed to it, as its address or telecopy number set forth
below:
If to the Company:
Alion Science and Technology Corporation
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
Attention: General
Counsel
With a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇
▇. ▇▇▇▇, Esq.
If to the Exchange Agent:
Wilmington Trust Company
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: Corporate
Trust Operations
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration
Date. Notwithstanding the foregoing, Paragraphs 18, 19, 21
and 22 shall survive the termination of this Agreement. Upon any
termination of this Agreement, you shall promptly deliver to the
Company any certificates for notes, funds or property
(including, without limitation, Letters of Transmittal and any
other documents relating to the Exchange Offer) then held by you
as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the
date hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the
enclosed copy.
ALION SCIENCE AND TECHNOLOGY CORPORATION
| By: |
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
Accepted as
the date
first above written:
WILMINGTON
TRUST COMPANY,
as exchange agent
| By: |
Name:
Title: