EXHIBIT 10.32
EFFECTIVENESS AGREEMENT dated as of April
20, 2001 (this "EFFECTIVENESS AGREEMENT"), among
ALLIANT TECHSYSTEMS INC., a Delaware corporation (the
"COMPANY"); the borrowing subsidiaries party hereto
(each, a "BORROWING SUBSIDIARY" and collectively with
the Company, the "BORROWERS"); the financial
institutions and other entities listed in Schedule I
hereto, in their respective capacities as parties to
the Existing Credit Agreements referred to below (the
"ORIGINAL LENDERS"); the financial institutions and
other entities listed in Schedule II hereto (the
"CONTINUING LENDERS" and, together with the Original
Lenders, the "LENDERS"); and THE CHASE MANHATTAN
BANK, as Administrative Agent, in each case under (i)
the Credit Agreement dated as of November 23, 1998,
among the Company, the lenders referred to therein
and the Administrative Agent, as in effect on the
date hereof ("EXISTING AGREEMENT A"), and (ii) the
Amended and Restated Credit Agreement dated as of
November 23, 1998, among the Company, the lenders
referred to therein and the Administrative Agent, as
in effect on the date hereof ("EXISTING AGREEMENT B"
and, together with Existing Agreement A, the
"EXISTING CREDIT AGREEMENTS").
WHEREAS, the Borrowers have requested, and the Lenders and the
Administrative Agent have agreed, upon the terms and subject to the conditions
set forth herein, that the Existing Credit Agreements be amended, restated and
combined as provided herein effective upon satisfaction of the conditions set
forth in Section 10 below;
NOW, THEREFORE, each Borrower, each of the Lenders and the
Administrative Agent hereby agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Restated
Credit Agreement referred to below, except that references to "Loans",
"Revolving Loans" and "Term Loans" under the Existing Credit Agreements shall
have the meanings assigned to such terms in the applicable Existing Credit
Agreement. As used in this Effectiveness Agreement, the following terms shall
have the meanings assigned to them below:
"ADDITIONAL LENDERS" shall mean the Continuing Lenders that
are not Original Lenders.
"ASSIGNING LENDERS" shall mean the Departing Lenders and (a)
with respect to Revolving Loans, each Continuing Lender whose outstanding
Revolving Loans
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as of the Effectiveness Date (as hereinafter defined) will be less than the
aggregate outstanding amount of its Revolving Loans under Existing Agreement A
immediately prior to the occurrence of the Effectiveness Date as a result of
this Agreement and the transactions provided for herein, and (b) with respect to
Term Loans, each Continuing Lender whose outstanding Tranche A Term Loans as of
the Effectiveness Date will be less than the aggregate outstanding amount of its
Term Loans under Existing Agreement A and Loans under Existing Agreement B
immediately prior to the occurrence of the Effectiveness Date as a result of
this Agreement and the transactions provided for herein.
"DEPARTING LENDERS" shall mean the Original Lenders that are
not Continuing Lenders.
"INCREASING LENDERS" shall mean the Additional Lenders and (a)
with respect to Revolving Loans, each Continuing Lender whose outstanding
Revolving Loans as of the Effectiveness Date will be greater than the aggregate
outstanding amount of its Revolving Loans under Existing Agreement A immediately
prior to the occurrence of the Effectiveness Date as a result of this Agreement
and the transactions provided for herein and (b) with respect to Term Loans,
each Continuing Lender whose outstanding Tranche A Term Loans as of the
Effectiveness Date will be greater than the aggregate outstanding amount of its
Term Loans under Existing Agreement A and Loans under Existing Agreement B
immediately prior to the occurrence of the Effectiveness Date as a result of
this Agreement and the transactions provided for herein.
SECTION 2. EFFECTIVENESS DATE. (a) The transactions provided
for in Sections 3 through 9 hereof shall be consummated at a closing (the
"CLOSING") to be held on the Effectiveness Date at the offices of Cravath,
Swaine & ▇▇▇▇▇, or at such other time and place as the parties hereto shall
agree upon.
(b) The "EFFECTIVENESS DATE" shall be specified by the
Company, and shall be a date not later than April 30, 2001, as of which all the
conditions set forth or referred to in Section 10 hereof shall have been
satisfied. The Company shall give not less than one Business Day's written
notice proposing a date as the Effectiveness Date to the Administrative Agent,
which shall send copies of such notice to the Lenders. This Effectiveness
Agreement shall terminate at 5:00 p.m., New York City time, on April 30, 2001,
if the Effectiveness Date shall not have occurred at or prior to such time.
SECTION 3. AMENDMENT AND RESTATEMENT OF THE EXISTING CREDIT
AGREEMENTS; RECLASSIFICATION OF LOANS; LETTERS OF CREDIT. (a) The Existing
Credit Agreements (including all Exhibits and Schedules thereto) are hereby
amended, restated and combined, effective as of the Effectiveness Date (subject
to the satisfaction of the conditions set forth in Section 10 below), into a
single credit agreement (including all exhibits and schedules thereto) reading
in its entirety as set forth in Exhibit A hereto (the
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"RESTATED CREDIT AGREEMENT"), and the Administrative Agent is hereby directed to
enter into such Loan Documents and to take such other actions as may be required
to give effect to the transactions contemplated hereby. From and after the
effectiveness of such amendment, restatement and combination, the terms
"Agreement", "this Agreement", "herein", "hereinafter", "hereto", "hereof" and
words of similar import, as used in the Restated Credit Agreement, shall, unless
the context otherwise requires, refer to the Existing Credit Agreements as
amended, restated and combined in the form of the Restated Credit Agreement, and
the term "Credit Agreement", as used in the Loan Documents, shall mean the
Restated Credit Agreement.
(b) On the Effectiveness Date, (i) the Closing Date Term Loans
and Delayed Draw Term Loans outstanding under Existing Agreement A will become
Tranche A Term Loans under the Restated Credit Agreement, (ii) the Revolving
Loans outstanding under Existing Agreement A will become Revolving Loans under
the Restated Credit Agreement and (iii) the Loans outstanding under Existing
Agreement B will become Tranche A Term Loans under the Restated Credit
Agreement, and the terms of all such Loans shall without further action be
amended to be those of the respective Classes of Loans into which they shall
have been converted, as set forth in the Restated Credit Agreement.
Notwithstanding anything to the contrary in the Existing Credit Agreements, each
Interest Period in effect with respect to any Eurodollar Loan outstanding under
the Existing Credit Agreements will terminate on the Effectiveness Date, and
each such Loan will be converted on such date into an ABR Loan, subject to the
right of the Company thereafter to convert such Loan into a Eurodollar Loan as
provided in the Restated Credit Agreement.
(c) All Letters of Credit outstanding under the Existing
Credit Agreements shall continue to be outstanding under the Restated Credit
Agreement and the terms of the Restated Credit Agreement will govern the rights
of the Issuing Banks with respect to drawings made thereunder and other matters
related thereto.
SECTION 4. DELIVERY OF NOTES. On or prior to the Effectiveness
Date, each Lender holding one or more Notes (as defined in the Existing Credit
Agreements) shall deliver such Notes to the Administrative Agent. Each Lender
that fails so to deliver any such Note held by it hereby agrees to indemnify the
Company for any loss, cost or expense resulting from such failure. Upon the
effectiveness of the Restated Credit Agreement, the Administrative Agent shall
release and deliver such Notes to the Company for cancelation.
SECTION 5. FEES AND EXPENSES. On the Effectiveness Date, on or
before the effectiveness of the Restated Credit Agreement, the Company shall pay
to the Administrative Agent (a) for its own account, all fees and other amounts
owed to it under any agreement or instrument between it and the Company as of
the Effectiveness Date, (b) for the account of each Lender the upfront fee
separately agreed upon by the Company
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and due to such Lender on the Effectiveness Date, (c) for the account of each
Issuing Bank, all unpaid fees accrued to but excluding the Effectiveness Date
for the account of such Issuing Bank under the Existing Credit Agreements and
(d) for the account of each applicable payee, all expenses due and payable on or
before the Effectiveness Date in connection with the Loan Documents to be
delivered on the Effectiveness Date or otherwise, including, without limitation,
the reasonable fees and expenses accrued and invoiced through the Effectiveness
Date of Cravath, Swaine & ▇▇▇▇▇, counsel for the Administrative Agent.
SECTION 6. FUNDING MEMORANDUM. On or prior to the
Effectiveness Date, the Administrative Agent and the Company will prepare and
agree upon a funding memorandum (the "FUNDING MEMORANDUM") setting forth (i) the
respective amounts of the Loans of each class under each of the Existing Credit
Agreements that are held on the Effectiveness Date by the Continuing Lenders and
that will continue to be held by such Continuing Lenders (such Loans being
called "RETAINED LOANS"), (ii) the respective amounts of the Loans of each class
under each of the Existing Credit Agreements that will be assigned on the
Effectiveness Date pursuant to Section 7(a) by the Assigning Lenders (such Loans
being called the "ASSIGNED LOANS"), (iii) the respective amounts of the Assigned
Loans of each class that will be purchased on the Effectiveness Date pursuant to
Section 7(a) by the Increasing Lenders and the Additional Lenders and (iv) the
respective amounts to be paid and received by the parties hereto on the
Effectiveness Date pursuant to Section 9. The amounts of the Assigned Loans of
each Class under each of the Existing Credit Agreements that are to be assigned
by each Assigning Lender and purchased by each Increasing Lender, as set forth
in the Funding Memorandum, will be such that, after giving effect to such
assignments and purchases and to the additional Loans made on the Effectiveness
Date pursuant to Section 7(b), the Loans of each Class to be outstanding under
the Restated Credit Agreement will be held by the Continuing Lenders in the
respective amounts (or, in the case of Revolving Loans, pro rata in accordance
with the Revolving Credit Commitments) set forth in Schedule 2.01 to the
Restated Credit Agreement.
SECTION 7. ASSIGNMENT AND PURCHASE; ADDITIONAL LOANS. (a)
Subject to the conditions set forth in Section 10, effective on the
Effectiveness Date, (i) each Assigning Lender hereby sells, assigns and
transfers to the Increasing Lenders, without recourse, representation or
warranty (other than as expressly set forth below in this paragraph), all its
Assigned Loans of each Class and all its related rights and interests under the
Existing Credit Agreements, and (ii) each Increasing Lender hereby purchases and
accepts from the Assigning Lenders the Assigned Loans of each Class to be
purchased by it and all such related rights and interests. The parties hereto
acknowledge that each Increasing Lender is purchasing its Assigned Loans of each
Class ratably from each Assigning Lender assigning Loans of such Class and that
each Assigning Lender is assigning its Assigned Loans of each Class ratably to
each Increasing Lender purchasing Loans of such Class. Notwithstanding the
foregoing, (A) the Original Lenders shall
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retain the exclusive right under the Existing Credit Agreements to receive and
retain the payments referred to in clauses (a) and (b) of Section 9, and (B) the
Departing Lenders shall retain all their rights arising out of the period prior
to the Effectiveness Date under the Existing Credit Agreements in respect of
indemnification and expense reimbursement obligations (including under Sections
2.15, 2.16, 2.17 and 9.03 of Existing Agreement A and Sections 2.09, 2.10, 2.11
and 9.03 of Existing Agreement B, each as in effect immediately prior to the
Effectiveness Date), which shall survive the amendment of the Existing Credit
Agreements without prejudice to the rights of the Continuing Lenders under the
Restated Credit Agreement. Each Assigning Lender represents to each Increasing
Lender that it owns the Loans and related interests being assigned by it
hereunder free and clear of any Liens and that it has the power and all
requisite authority to effect the assignments provided for herein.
(b) On the Effectiveness Date, each Continuing Lender with a
Commitment of any Class will make new Loans of such Class, as provided in
Section 2.01 of the Restated Credit Agreement, in a principal amount equal to
the difference between (i) such Lender's pro rata percentage, based upon its
applicable Commitment, of the Loans of such Class to be outstanding on the
Effectiveness Date after giving effect to the transactions provided for herein
and in the Restated Credit Agreement and (ii) the sum of (x) the principal
amount of the Loans of such Class acquired by such Lender pursuant to paragraph
(a) of this Section 7 and (y) the principal amount of the Loans of such Class to
be held by such Lender after giving effect to Section 3(b) above that are not
assigned by such Lender to any other Lender pursuant to paragraph (a) of this
Section 7.
SECTION 8. CONSENTS AND RELEASES. The Company hereby consents
and agrees to the transactions contemplated by Sections 6 and 7 and hereby
releases, effective on the Effectiveness Date, the Departing Lenders from all
their obligations under the Existing Credit Agreements. The Continuing Lenders
and the Company agree that, upon the effectiveness of the amendment, restatement
and combination provided for in Section 3, the obligations of the Borrowers, the
Administrative Agent and the Continuing Lenders shall, except as expressly set
forth herein, be limited to those set forth in the Restated Credit Agreement.
SECTION 9. PAYMENTS. (a) Subject to the conditions set forth
in Section 10 hereof, on the Effectiveness Date:
(i) the Company shall pay to the Administrative Agent, in the
manner required under the Existing Credit Agreements, for distribution
to the Original Lenders in accordance with the Existing Credit
Agreements, an amount equal to the sum of (A) all interest accrued
under the Existing Credit Agreements on the Loans outstanding
thereunder through the date immediately preceding the Effectiveness
Date and not yet paid and (B) all fees and other amounts accrued under
the Existing Credit Agreements through the date immediately preceding
the
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Effectiveness Date and not yet paid, in each case whether or not
then due under the terms of the Existing Credit Agreements;
(ii) each Increasing Lender shall pay to the Administrative
Agent, in accordance with Section 2.06(a) of the Restated Credit
Agreement, amounts equal to the principal amounts of the Assigned Loans
of each Class to be purchased by such Increasing Lender, as set forth
in the Funding Memorandum (the obligations of the Increasing Lenders
under this paragraph (ii) being several and not joint); and
(iii) the Administrative Agent shall pay (A) to the Original
Lenders, (1) from the funds received by it pursuant to clause (i)(A)
above, all accrued and unpaid interest in respect of the Loans of such
Lenders outstanding under the Existing Credit Agreements on the
Effectiveness Date and (2) from the funds received by it pursuant to
clause (i)(B) above, all fees and other amounts accrued and unpaid
(whether or not than due) to such Lenders under the Existing Credit
Agreements; and (B) to the Assigning Lenders, from the funds received
by it pursuant to clause (ii) above, the aggregate principal amounts of
the Assigned Loans of each Class of such Lenders outstanding on the
Effectiveness Date.
(b) The Company agrees to pay to each Assigning Lender any
breakage costs that may result from the termination pursuant to Section 3(b)
herein of the Interest Periods applicable to the Loans outstanding under the
Existing Credit Agreements as provided in Section 2.16 of Existing Agreement A
or Section 2.10 of Existing Agreement B, and agrees that for purposes of
computing amounts due under such Sections, such Loans will be deemed to have
been prepaid on the Effectiveness Date.
(c) In the event the Company shall specify a date as the
Effectiveness Date and the Effectiveness Date shall not occur on such date, the
Company shall indemnify each Lender for any loss or expense incurred by such
Lender as a result of the transactions to have been consummated by such Lender
on such proposed Effectiveness Date, in each case determined as set forth in
Section 2.16 of the Restated Credit Agreement in respect of any failure to
borrow or prepay any Loan.
(d) The Company agrees that if any Lender shall default in the
payment of any amount due from it under this Section, the Company shall promptly
pay the defaulted amount (to the extent so advanced by the Administrative Agent
on behalf of such defaulting Lender) to the Administrative Agent, together with
interest on such amount at the Alternate Base Rate from the Effectiveness Date
to the date of payment. Upon any such payment by the Company, the Company shall
have the right, at the defaulting Lender's expense, upon notice to the
defaulting Lender and to the Administrative Agent, to require such defaulting
Lender to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in Section 10.04 of the Restated Credit
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Agreement) all its interests, rights and obligations under the Restated Credit
Agreement to another financial institution which shall assume such interests,
rights and obligations; PROVIDED that (A) no such assignment shall conflict with
any law, rule or regulation or order of any Governmental Authority and (B) the
assignee shall pay to the defaulting Lender, in immediately available funds on
the date of such assignment, the outstanding principal of and interest accrued
to the date of payment on the Loans made or deemed made by such defaulting
Lender under the Restated Credit Agreement, if any, and all other amounts
accrued for such defaulting Lender's account or owed to it under the Restated
Credit Agreement.
SECTION 10. CONDITIONS. The consummation of the transactions
set forth in Sections 3 through 9 of this Effectiveness Agreement shall be
subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) counterparts of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed counterparts of this Agreement and the Restated Credit
Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effectiveness Date) of each of (i) ▇▇▇▇▇, Day, ▇▇▇▇▇▇ &
▇▇▇▇▇, special counsel for the Borrowers, substantially in the form of
Exhibit B-1, (ii) ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President and General Counsel
of the Company, substantially in the form of Exhibit B-2, and (iii)
local counsel in each jurisdiction where a Mortgaged Property is
located, in a form reasonably satisfactory to the Administrative Agent,
and, in the case of each such opinion required by this paragraph,
covering such other matters relating to the Loan Parties, the Loan
Documents or the Transactions as the Required Lenders shall reasonably
request. The Borrowers hereby request such counsel to deliver such
opinions.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of each Loan Party, the authorization of the Transactions and
any other legal matters relating to the Loan Parties, the Loan
Documents or the Transactions, all in form and substance satisfactory
to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effectiveness Date and signed by the President,
a Vice President or a Financial
8
Officer of each of the Borrowers, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.01 of the
Restated Credit Agreement.
(e) The Administrative Agent shall have received, or
contemporaneously therewith shall receive, all fees and other amounts
due and payable on or prior to the Effectiveness Date, including,
without limitation, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses (including, without limitation, fees,
charges and disbursements of counsel), required to be reimbursed or
paid by any Loan Party hereunder or under any other Loan Document.
(f) The Administrative Agent shall have received counterparts
of the Subsidiary Guaranty Agreement signed on behalf of each
Subsidiary Loan Party and counterparts of each of the Pledge Agreement
and the Security Agreement signed on behalf of each Borrower and each
Subsidiary Loan Party that is a party thereto, together with the
following:
(i) certificates representing all the outstanding
Equity Interests in each Subsidiary owned by or on behalf of
any Loan Party, including, without limitation, all the Equity
Interests in Cordant and each subsidiary of Cordant, as of the
Effectiveness Date after giving effect to the Transactions
(except that certificates representing common Equity Interests
in a Foreign Subsidiary may be limited to 65% of each class of
the outstanding voting Equity Interests in such Foreign
Subsidiary), promissory notes evidencing all intercompany
Indebtedness owed to any Loan Party by the Company or any
Subsidiary as of the Effectiveness Date after giving effect to
the Transactions other than Equity Interests in and assets of
Alliant Assurance Ltd. as excepted under the Pledge Agreement)
and stock powers, indorsements and other instruments of
transfer, endorsed in blank, with respect to such certificates
and promissory notes;
(ii) all documents and instruments, including,
without limitation, Uniform Commercial Code financing
statements, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to
continue, create or perfect the Liens intended to be continued
or created under the Security Documents (it being understood
that payment of any fees with respect to filings to be made in
Tennessee, Maryland and Alabama shall be made within 10
Business Days after the Effectiveness Date); and
(iii) a completed Perfection Certificate dated the
Effectiveness Date and signed by an executive officer or
Financial Officer of the Company, together with all
attachments contemplated thereby, including, to the extent
returns have been received, the results of a search of the
9
Uniform Commercial Code (or equivalent) filings made with
respect to the Loan Parties in the jurisdictions contemplated
by the Perfection Certificate and copies of the financing
statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent
that the Liens indicated by such financing statements (or
similar documents) are permitted by Section 6.02 of the
Restated Credit Agreement or have been released.
(g) The Administrative Agent shall have received (i)
counterparts of a Mortgage with respect to each Mortgaged Property
signed by each appropriate party (with a representation from Alcoa as
to the ownership of the property); (ii) for each Mortgaged Property so
identified on Schedule 5.10 of the Restated Credit Agreement, a policy
or policies of title insurance issued by a nationally recognized title
insurance company, insuring the Lien of each such Mortgage as a valid
first Lien on the Mortgaged Property described therein, free of any
other Liens except as permitted by Section 6.02 of the Restated Credit
Agreement, together with such endorsements, coinsurance and reinsurance
as the Administrative Agent or the Required Lenders may reasonably
request; PROVIDED that in the event that such policies of title
insurance are not available for delivery on the Effectiveness Date, the
Company shall use its reasonable best efforts to deliver such policies
within 60 days after the Effectiveness Date; (iii) for each Mortgaged
Property so identified on Schedule 5.10 of the Restated Credit
Agreement, either (A) a satisfactory certificate from a Responsible
Officer of the applicable owner of the Mortgaged Property certifying to
the applicable title company that, since the date of the most recent
surveys relating to the Mortgaged Properties of such owner delivered to
the Administrative Agent, there have been no material improvements or
alterations at such Mortgaged Properties, PROVIDED that such
certificate shall satisfy the title company's requirement for issuance
of a title insurance policy without any survey exception, or (B) a
current survey (or an update of a survey previously certified to the
Administrative Agent), in form and substance reasonably acceptable to
the Administrative Agent, of such Mortgaged Property, or (C) the
Company shall have used its reasonable best efforts to deliver the
survey materials described in (B) above within 90 days after the
Effectiveness Date; and (iv) to the extent available after the
Company's exercise of commercially reasonable efforts, one estoppel
certificate from each landlord of any Mortgaged Property that is or
includes a leasehold estate satisfactory in form and substance to the
Administrative Agent; PROVIDED that in the event that any such estoppel
certificate is not available for delivery on the Effectiveness Date,
the Company shall deliver such estoppel certificate within 60 days
after the Effectiveness Date.
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(h) The Administrative Agent shall have received evidence that
the insurance required by Section 5.03 of the Restated Credit Agreement
and the Security Documents is in effect.
(i) The Administrative Agent shall have received a certificate
of the chief financial officer of the Company, substantially in the
form of Exhibit F to the Restated Credit Agreement, with respect to the
solvency of the Loan Parties after giving effect to the Transactions on
the Effectiveness Date.
(j) The Transactions and the other transactions contemplated
hereby shall not violate any applicable law, statute, rule or
regulation or conflict with, or result in a default under, any material
agreement of any Borrower, Cordant or any of their subsidiaries. All
consents and approvals necessary or advisable to be obtained from any
Governmental Authority or other Person in connection with the
Transactions shall have been obtained, and all applicable waiting
periods and appeal periods shall have expired, in each case without the
imposition of any burdensome conditions.
(k) The Lenders shall have received a satisfactory pro forma
consolidated balance sheet of the Company as of the date of the
Company's most recently ended fiscal quarter for which financial
statements are available, adjusted to give effect to the consummation
of the Transactions and the other transactions contemplated thereby as
if they had occurred on such date, and such pro forma consolidated
balance sheet shall be consistent in all material respects with the
forecasts and other information provided to the Lenders prior to the
date hereof.
(l) The Acquisition shall have been or shall simultaneously be
consummated on the terms of and pursuant to the Acquisition Documents,
without modification or waiver of any material term or condition
thereof not approved by the Administrative Agent, and in a manner and
with results consistent in all material respects with the sources and
uses and the pro forma financial information furnished to the Lenders
prior to the date hereof and in compliance in all material respects
with all applicable laws.
(m) The Lenders shall be satisfied (i) with the
capitalization, structure and equity ownership of the Company and its
subsidiaries after giving effect to the Transactions, and (ii) that the
aggregate fees and expenses relating to the Transactions shall not
exceed $40,000,000.
(n) The Company shall have received gross proceeds of not less
than $125,000,000 from the issuance and sale of the Senior Subordinated
Notes or other Permanent Securities or the borrowing of loans under the
Bridge Facility. After giving effect to the Loans made on the
Effectiveness Date and the
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application of the proceeds thereof, the Company and the Subsidiaries
shall have no outstanding Indebtedness other than (i) Indebtedness
under this Agreement, (ii) Indebtedness consisting of Senior
Subordinated Notes, other Permanent Securities and/or loans under the
Bridge Facility in an aggregate principal amount not to exceed the sum
of $125,000,000 and the aggregate amount of reductions of the Term Loan
Commitments effected on or prior to the Effectiveness Date under
Section 2.08(d) and (iii) Indebtedness set forth on Schedule 6.01 to
the Restated Credit Agreement. The Lenders shall be satisfied in all
material respects with the terms of and the documentation for the
Senior Subordinated Notes (or other outstanding Permanent Securities)
or Bridge Facility, as applicable.
(o) All the outstanding 6-5/8% Senior Notes due 2008 of
Cordant shall have been assumed by Alcoa in accordance with the terms
of the indenture applicable thereto and Cordant shall have been
released from, and fully indemnified by Alcoa with respect to, all
obligations in respect thereof.
(p) The Company will have provided (a) audited consolidated
balance sheets and related statements of income, stockholders' equity
and cash flows of the Company for the most recent five Fiscal Years
ended prior to the Effectiveness Date (including such balance sheets
and statements for the fiscal year ended March 31, 2000) and (b)
unaudited consolidated balance sheets and related statements of income,
stockholders' equity and cash flows of the Company for (i) each
subsequent fiscal quarter ended 45 days or more before the
Effectiveness Date and (ii) except in the case of statements of
stockholders' equity, each fiscal month after the most recent fiscal
quarter for which financial statements were received by the Lenders as
described above and ended 30 days or more before the Effectiveness
Date, which financial statements shall not be materially adversely
inconsistent with the financial statements or forecasts provided to the
Lenders prior to the date hereof.
(q) The Company will have provided as soon as is available but
not later than the Effectiveness Date (a) an audited consolidated
statement of net assets and a related unaudited statement of income of
Thiokol as at, and for the fiscal year ended, December 31, 2000, and
(b) unaudited consolidated balance sheets and related statements of
income, stockholders' equity and cash flows of Thiokol for (i) each
subsequent fiscal quarter ended 45 days or more before the
Effectiveness Date and (ii) except in the case of statements of
stockholders' equity, each fiscal month after the most recent fiscal
quarter for which financial statements were received by the Lenders as
described above and ended 30 days or more before the Effectiveness Date
(it being understood that this clause (b)(ii) shall not be breached by
any failure to provide any financial statement required under (b)(ii)
so long as the Company shall have used its reasonable best efforts to
cause Thiokol and Thiokol's subsidiaries to assist the Company in the
preparation of such
12
financial statements), which financial statements shall not be
materially adversely inconsistent with the financial statements or
forecasts provided to the Lenders prior to the date hereof.
(r) There shall not have occurred or become known to the
Lenders: (i) any material adverse change in the business, financial
condition, results of operations, property or prospects of the Company
and its Consolidated Subsidiaries, taken as a whole, since March 31,
2000, or (ii) any material adverse change in the business, financial
conditions, results of operations or property of Thiokol and its
subsidiaries, taken as a whole, since December 31, 1999.
The Administrative Agent shall notify the Company and the Lenders of the
Effectiveness Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Banks to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.02 of the Restated Credit Agreement) at or prior to 3:00
p.m., New York City time, on April 30, 2001 (and, in the event such conditions
are not so satisfied or waived, the Commitments shall terminate at such time).
SECTION 11. EFFECTIVENESS; COUNTERPARTS. This Effectiveness
Agreement shall become effective when copies hereof which, when taken together,
bear the signatures of each of the parties hereto shall have been received by
the Administrative Agent. This Effectiveness Agreement may not be amended nor
may any provision hereof be waived except pursuant to a writing signed by the
Borrowers, the Administrative Agent and the Lenders. This Effectiveness
Agreement may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute but
one contract. Delivery of an executed counterpart of a signature page of this
Effectiveness Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Effectiveness Agreement.
SECTION 12. NO NOVATION. This Effectiveness Agreement shall
not extinguish the Loans outstanding under the Existing Credit Agreements.
Nothing herein contained shall be construed as a substitution or novation of the
Loans outstanding under the Existing Credit Agreements, which shall remain
outstanding as modified hereby. Notwithstanding any provision of this Agreement,
the provisions of Sections 2.15, 2.16, 2.17 and 9.03 of Existing Agreement A and
Sections 2.09, 2.10, 2.11 and 9.03 of Existing Agreement B, each as in effect
immediately prior to the Effectiveness Date, will continue to be effective as to
all matters arising out of or in any way related to facts or events existing or
occurring prior to the Effectiveness Date.
SECTION 13. NOTICES. All notices hereunder shall be given in
accordance with the provisions of Section 10.01 of the Restated Credit Agreement
or, in
13
the case of a notice to any Departing Lender, in accordance with Section 9.01 of
the applicable Existing Credit Agreement.
SECTION 14. APPLICABLE LAW; WAIVER OF JURY TRIAL. (A) THIS
EFFECTIVENESS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
14
(B) EACH PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTION
10.10 OF THE RESTATED CREDIT AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL
HEREIN.
ALLIANT TECHSYSTEMS INC.,
by /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President/
Chief Financial Officer
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent and Swingline Lender,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
CHASE MANHATTAN BANK
DELAWARE, as an Issuing Bank,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
LENDER: Credit Lyonnais New York Branch
By:
by /s/ ▇▇▇▇▇▇ ▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Senior Vice President
LENDER: The Bank of New York
by /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
LENDER: First Union National Bank
by /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
LENDER: Toronto Dominion (Texas), Inc.
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
LENDER: U.S. Bank National Association
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
LENDER: Fleet National Bank
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
LENDER: National City Bank
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
LENDER: Mellon Bank, N.A.
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
LENDER: BNP Paribas
by /s/ Jo ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: Jo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director and Central
Region Manager
LENDER: Credit Industriel Et Commercial
by /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President First Vice President
LENDER: The Mitsubishi Trust and Banking
Corporation
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
Head of Special Finance Group
LENDER: General Electric Capital
Corporation
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Duly Authorized Signatory
LENDER: Comerica Bank
by /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Vice President
LENDER: Erste Bank
by /s/ ▇▇▇▇ ▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇
Title: Vice President
Erste Bank
New York Branch
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Erste Bank
New York Branch
LENDER: Allied Irish Banks PLC
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
LENDER: IKB Capital Corporation
by /s/ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇. ▇▇▇▇▇▇
Title: Senior Vice President
LENDER: Natexis Banques Populaires
by /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
by /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Associate
LENDER: ▇▇▇ ▇▇▇▇▇▇
Prime Rate Income Trust
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager Operations & Compliance
LENDER: ▇▇▇ ▇▇▇▇▇▇
Senior Income Trust
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager Operations & Compliance
LENDER: ▇▇▇ ▇▇▇▇▇▇
Senior Floating Rate Fund
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager Operations & Compliance
LENDER: Emerald Orchard, Limited
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney-In-Fact
LENDER: Metropolitan Life Insurance
Company
by /s/ ▇▇▇▇▇ ▇. Dinghi
-----------------------------------------
Name: ▇▇▇▇▇ ▇. Dinghi
Title: Director
LENDER: KZH ING-1 LLC
by /s/ ▇▇▇▇▇ ▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
LENDER: Pilgrim Senior Income Fund
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
Title: Asst. Vice President
LENDER: Pilgrim Prime Rate Trust
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
Title: Asst. Vice President
LENDER: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Prime Income Trust
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
LENDER: KZH Soleil LLC
by /s/ ▇▇▇▇▇ ▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
LENDER: KZH Soleil-2-1 LLC
by /s/ ▇▇▇▇▇ ▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
LENDER: KZH Sterling LLC
by /s/ ▇▇▇▇▇ ▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
LENDER: KZH Cypresstree-1LLC
by /s/ ▇▇▇▇▇ ▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
LENDER: ▇▇▇▇▇ ▇▇▇ Floating Rate Limited
Liability Company
by /s/ ▇▇▇▇▇ ▇. Good
-----------------------------------------
Name: ▇▇▇▇▇ ▇. Good
Title: Senior Vice President
▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇
Incorporated, as Advisor to
the ▇▇▇▇▇ ▇▇▇ Floating Rate
Limited Liability Company
LENDER: SRF Trading, Inc.
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Vice President
LENDER: SRF 2000 LLC
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Vice President
LENDER: Liberty - ▇▇▇▇▇ ▇▇▇ Advisor
Floating Rate Advantage Fund
By: ▇▇▇▇▇ ▇▇▇ & Farnham Incorporated,
as Advisor
by /s/ ▇▇▇▇▇ ▇. Good
-----------------------------------------
Name: ▇▇▇▇▇ ▇. Good
Title: Sr. Vice President &
Portfolio Manager
LENDER: Muirfield Trading LLC
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Vice President
LENDER: Sequils-Cumberland I, LTD.
By: Deerfield Capital Management LLC
as its Collateral Manager
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
LENDER: Antares Capital Corporation
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
LENDER: Chase Manhattan Bank,
As Trustee of the Antares Funding
Trust Agreement dated as of
November 30, 1999, as Lender
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
LENDER: ▇▇▇▇▇▇ Floating Rate Fund
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice-President
LENDER: KZH Riverside LLC
by /s/ ▇▇▇▇▇ ▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
LENDER: Pinehurst Trading, Inc.
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Vice President
LENDER: Goldentree High Yield Opportunities I, L.P
by /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Partner
LENDER: ▇▇▇▇▇▇▇▇▇▇▇ Senior Floating Rate Fund
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
LENDER: The Sumitomo Trust & Banking Co.,
Ltd.,
New York Branch
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
LENDER: Nuveen Floating Rate Fund
By: Nuveen Senior Loan Asset Management
Inc.
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
15
EXHIBITS
EXHIBITS
Exhibit A -- Credit Agreement
EXHIBIT A
TO THE EFFECTIVENESS AGREEMENT
================================================================================
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
April 20, 2001
among
ALLIANT TECHSYSTEMS INC.
The Borrowing Subsidiaries Party Hereto
The Lenders Party Hereto
The Issuing Banks Party Hereto
CREDIT LYONNAIS
NEW YORK BRANCH
as Syndication Agent
and
BANK OF
NEW YORK
FIRST UNION NATIONAL BANK
THE TORONTO-DOMINION BANK
US BANK
as Documentation Agents
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
--------------------------------------------
JPMORGAN
as Sole Arranger and Sole Bookrunner
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS..................................................2
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS........................35
SECTION 1.03. TERMS GENERALLY...............................................35
SECTION 1.04. ACCOUNTING TERMS; GAAP........................................36
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS...................................................37
SECTION 2.02. LOANS AND BORROWINGS..........................................38
SECTION 2.03. REQUESTS FOR BORROWINGS.......................................38
SECTION 2.04. SWINGLINE LOANS...............................................39
SECTION 2.05. LETTERS OF CREDIT.............................................41
SECTION 2.06. FUNDING OF BORROWINGS.........................................46
SECTION 2.07. INTEREST ELECTIONS............................................47
SECTION 2.08. TERMINATION AND REDUCTION OF COMMITMENTS......................49
SECTION 2.09. REPAYMENT OF LOANS; EVIDENCE OF DEBT..........................50
SECTION 2.10. AMORTIZATION OF TERM LOANS....................................51
SECTION 2.11. PREPAYMENT OF LOANS...........................................52
SECTION 2.12. FEES..........................................................54
SECTION 2.13. INTEREST......................................................55
SECTION 2.14. ALTERNATE RATE OF INTEREST....................................56
SECTION 2.15. INCREASED COSTS...............................................57
SECTION 2.16. BREAK FUNDING PAYMENTS........................................58
SECTION 2.17. TAXES.........................................................59
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SETOFFS....60
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS................62
SECTION 2.20. OBLIGATIONS CONSTITUTE DESIGNATED SENIOR INDEBTEDNESS.........63
ARTICLE III
REPRESENTATIONS AND WARRANTIES
2
SECTION 3.01. EXISTENCE AND POWER...........................................63
SECTION 3.02. AUTHORIZATION; NO CONTRAVENTION...............................64
SECTION 3.03. BINDING EFFECT................................................64
SECTION 3.04. FINANCIAL INFORMATION.........................................64
SECTION 3.05. LITIGATION....................................................65
SECTION 3.06. COMPLIANCE WITH ERISA.........................................65
SECTION 3.07. ENVIRONMENTAL MATTERS.........................................66
SECTION 3.08. TAXES.........................................................66
SECTION 3.09. SUBSIDIARIES..................................................66
SECTION 3.10. NOT AN INVESTMENT COMPANY.....................................66
SECTION 3.11. FULL DISCLOSURE...............................................67
SECTION 3.12. COMPLIANCE WITH LAWS..........................................67
SECTION 3.13. SOLVENCY......................................................67
SECTION 3.14. SENIOR INDEBTEDNESS...........................................68
ARTICLE IV
CONDITIONS
SECTION 4.01. EACH CREDIT EVENT.............................................68
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION....................69
SECTION 5.02. PAYMENT OF OBLIGATIONS........................................72
SECTION 5.03. MAINTENANCE OF PROPERTY; INSURANCE............................72
SECTION 5.04. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE..............73
SECTION 5.05. COMPLIANCE WITH LAWS..........................................74
SECTION 5.06. INSPECTION OF PROPERTY, BOOKS AND RECORDS.....................74
SECTION 5.07. USE OF PROCEEDS AND LETTERS OF CREDIT.........................75
SECTION 5.08. ADDITIONAL SUBSIDIARIES.......................................75
SECTION 5.09. FURTHER ASSURANCES............................................77
SECTION 5.10. MAINTENANCE OF COLLATERAL; ALTERATIONS........................77
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. INDEBTEDNESS; CERTAIN EQUITY SECURITIES.......................78
SECTION 6.02. NEGATIVE PLEDGE...............................................81
SECTION 6.03. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS...................84
3
SECTION 6.04. INVESTMENTS...................................................86
SECTION 6.05. TRANSACTIONS WITH AFFILIATES..................................89
SECTION 6.06. CONSTITUTIONAL DOCUMENTS......................................90
SECTION 6.07. WAIVERS AND AMENDMENTS OF RELATED DOCUMENTS...................90
SECTION 6.08. RESTRICTED PAYMENTS...........................................90
SECTION 6.09. FOREIGN SUBSIDIARIES..........................................92
SECTION 6.10. MINIMUM CONSOLIDATED NET WORTH................................92
SECTION 6.11. LEVERAGE RATIO................................................92
SECTION 6.12. INTEREST COVERAGE.............................................93
SECTION 6.13. OUTSIDE LETTERS OF CREDIT.....................................93
SECTION 6.14. DESIGNATED SENIOR DEBT........................................93
SECTION 6.15. DERIVATIVES OBLIGATIONS.......................................94
SECTION 6.16. ADDITIONAL DEBT INCURRENCE....................................94
SECTION 6.17. CAPITAL EXPENDITURES..........................................94
ARTICLE VII
EVENTS OF DEFAULT...........................95
ARTICLE VIII
THE ADMINISTRATIVE AGENT........................98
ARTICLE IX
GUARANTEE............................... 101
ARTICLE X
MISCELLANEOUS
SECTION 10.01. NOTICES......................................................102
SECTION 10.02. WAIVERS; AMENDMENTS..........................................103
SECTION 10.03. EXPENSES; INDEMNITY; DAMAGE WAIVER...........................105
SECTION 10.04. SUCCESSORS AND ASSIGNS.......................................107
SECTION 10.05. SURVIVAL.....................................................110
SECTION 10.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS.....................111
SECTION 10.07. SEVERABILITY.................................................111
SECTION 10.08. RIGHT OF SETOFF..............................................111
SECTION 10.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS...112
SECTION 10.10. WAIVER OF JURY TRIAL.........................................112
SECTION 10.11. HEADINGS.....................................................113
4
SECTION 10.12. CONFIDENTIALITY..............................................113
SECTION 10.13. INTEREST RATE LIMITATION.....................................114
SECTION 10.14. INFORMATION CONCERNING FOREIGN PERSONS.......................114
SECTION 10.15. RELEASE OF LIENS AND GUARANTEES..............................114
SCHEDULES:
Schedule 1.01 -- Acquisition Documents
Schedule 2.01 -- Commitments
Schedule 2.05 -- Letters of Credit
Schedule 5.03 -- Insurance
Schedule 5.10 -- Mortgaged Property
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Existing Investments
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Perfection Certificate
Exhibit C -- Form of Pledge Agreement
Exhibit D -- Form of Security Agreement
Exhibit E -- Form of Subsidiary Guaranty Agreement
Exhibit F -- Solvency Certificate
AMENDED AND RESTATED CREDIT AGREEMENT dated
as of April 20, 2001 among
ALLIANT TECHSYSTEMS INC.,
a Delaware corporation (the "COMPANY"), the BORROWING
SUBSIDIARIES party hereto (each, a "BORROWING
SUBSIDIARY" and collectively with the Company, the
"BORROWERS"), the LENDERS party hereto, and THE CHASE
MANHATTAN BANK, as Administrative Agent.
The Borrowers have requested that (a) the Lenders extend
credit in the form of (i) Tranche A Term Loans to the Company on the
Effectiveness Date, in an aggregate principal amount not in excess of
$300,000,000, (ii) Tranche B Term Loans to the Company on the Effectiveness
Date, in an aggregate principal amount not in excess of $500,000,000, and (iii)
Revolving Loans and Swingline Loans to the Borrowers at any time and from time
to time commencing on the Effectiveness Date and ending on the Revolving
Maturity Date, in an aggregate principal amount at any time outstanding not in
excess of $250,000,000, of which not more than $20,000,000 may be in the form of
Swingline Loans, and (b) the Issuing Banks extend credit to the Borrowers by
issuing Letters of Credit for the respective accounts of the Borrowers at any
time and from time to time commencing on the Effectiveness Date and ending on
the Revolving Maturity Date, in an aggregate stated amount at any time
outstanding not in excess of $150,000,000.
All the proceeds of the Term Loans, together with the proceeds
of either the Senior Subordinated Notes (or other Permanent Securities) or the
Bridge Facility, and of Revolving Loans in an aggregate amount not in excess of
$95,000,000, will be used by the Company (a) to consummate the Acquisition, (b)
to refinance the indebtedness outstanding under the Existing Credit Agreements,
and (c) to pay related fees and expenses in connection with closing the
Transactions in an aggregate amount not to exceed $40,000,000. The proceeds of
Revolving Loans and Swingline Loans made after the Effectiveness Date will be
used for general corporate purposes, including to finance acquisitions and to
pay related fees and expenses. The Letters of Credit and the Lender Letters of
Credit will be used for general corporate purposes.
The Lenders are willing to extend such credit to the
Borrowers, and the Issuing Banks are willing to issue Letters of Credit for the
respective accounts of the Borrowers, on the terms and subject to the conditions
set forth herein. Accordingly, the parties hereto agree as follows:
2
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. The following terms, as used
herein, have the following meanings:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ACQUIRED INDEBTEDNESS" means any Indebtedness (i) of any
Subsidiary existing at the time of acquisition of such Subsidiary or (ii)
assumed by a Subsidiary in connection with the acquisition of assets or the
business of another Person, whether by purchase, merger, consolidation or
otherwise, in each case in clause (i) or (ii) above, which Indebtedness is not
incurred in contemplation of such acquisition, purchase, merger, consolidation
or other event.
"ACQUISITION" means the Company's acquisition of Thiokol from
Alcoa in a transaction in which Cordant will divest itself of all assets and
liabilities other than those of Thiokol and the Company will purchase all the
capital stock of Cordant for an aggregate cash purchase price of $685,000,000,
all in accordance with, and subject to adjustment as provided in, the Thiokol
Purchase Agreement and the other Acquisition Documents.
"ACQUISITION DOCUMENTS" means the Thiokol Purchase Agreement
and all agreements, documents and instruments executed and delivered pursuant
thereto or in connection therewith, in each case substantially in the form
delivered to the Lenders prior to the date hereof, and as amended from time to
time in accordance with the terms hereof and thereof. Schedule 1.01 sets forth a
complete list of the Acquisition Documents.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the Administrative Agent, duly completed by
each Lender and submitted to the Administrative Agent (with a copy to the
Company).
3
"AEROSPACE NOTES" means the $150,000,000 aggregate principal
amount of notes designated as "Aerospace Notes" on Schedule 6.01.
"AFFILIATE" means, with respect to any Person, (i) any Person
that directly, or indirectly through one or more intermediaries, controls such
former Person (a "Controlling Person") and (ii) any Person (other than a
Subsidiary of such former Person) which is controlled by or is under common
control with a Controlling Person; PROVIDED that, no officer or director of a
Person, who is not otherwise an Affiliate of such Person, will be considered an
Affiliate of such Person solely because of his or her position as an officer or
director of such Person. As used herein, the term "control" means possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise. For purposes of Section 6.05, "Affiliate"
shall include any Person that, by itself or as a member of a group of persons
(in each case within the meaning of Section 13 or 14 of the Securities Exchange
Act of 1934, as amended), other than any employee benefit plan (including any
stock ownership plan (including 401K plans, restricted stock plans, employee
stock purchase plans, performance sharing plans and incentive plans)) maintained
for the benefit of the employees of the Company or any Subsidiary, owns 10% or
more of the outstanding shares of common stock of the Company (including any
Affiliates of such Person).
"AGGREGATE NET INVESTMENT IN UNRESTRICTED SUBSIDIARIES" means,
at any date of determination, the excess of (x) all Investments (valued at the
fair market value of the consideration paid or given in respect of such
Investments at the time paid or given) after the Effectiveness Date by the
Company or any Subsidiary in all Unrestricted Subsidiaries (including any
designation of a Subsidiary as an Unrestricted Subsidiary, which shall be deemed
to constitute an Investment in an amount equal to the relevant Person's
shareholders' equity in such Subsidiary at the time of such designation) over
(y) the sum, without duplication, of (i) net proceeds of the disposition of the
Equity Interests and other Investments in Unrestricted Subsidiaries received by
the Company or any Subsidiary, plus (ii) principal payments and returns of
capital received on or in respect of Investments in Unrestricted Subsidiaries by
the Company or any Subsidiary, in each case since the Effectiveness Date.
"ALCOA" means Alcoa Inc., a Pennsylvania corporation.
"ALTERNATE BASE RATE" means, for any day, a rate per annum
equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Base
CD Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due
to a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective from and including the effective date of such change in
the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
4
"APPLICABLE PERCENTAGE" means, with respect to any Revolving
Lender, the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment. If the Revolving Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"APPLICABLE RATE" means, for any day, (a) with respect to ABR
Loans and Eurodollar Loans in the case of Tranche A Term Loans and Revolving
Loans and the commitment fee payable in respect of unused Commitments, the
applicable rate per annum set forth below under the caption "ABR Spread",
"Eurodollar Spread" or "Commitment Fee Rate", as the case may be, based upon the
Leverage Ratio as of the most recent determination date, PROVIDED that until the
date that is six months after the Effectiveness Date, the "Applicable Rate" for
ABR or Eurodollar Tranche A Term Loans and ABR or Eurodollar Revolving Loans
shall be 1.75% and 2.75%, respectively, and the "Applicable Rate" for the
commitment fee payable in respect of unused Commitments shall be 0.500%, and (b)
with respect to ABR Loans and Eurodollar Loans in the case of Tranche B Term
Loans, 2.00% and 3.00%, respectively.
=====================================================================================
ABR Eurodollar Commitment Fee
Leverage Ratio: Spread Spread Rate
--------------- ------ ------ ----
-------------------------------------------------------------------------------------
Category 1
----------
LESS THAN 3.50 2.00 3.00 0.500
-------------------------------------------------------------------------------------
Category 2
----------
LESS THAN OR EQUAL TO 3.50,
BUT GREATER THAN 3.00 1.75 2.75 0.500
-------------------------------------------------------------------------------------
Category 3
----------
LESS THAN OR EQUAL TO 3.00,
BUT GREATER THAN 2.50 1.50 2.50 0.500
-------------------------------------------------------------------------------------
Category 4
----------
LESS THAN OR EQUAL TO 2.50,
BUT GREATER THAN 2.00 1.25 2.25 0.450
-------------------------------------------------------------------------------------
Category 5
----------
LESS THAN OR EQUAL TO 2.00,
BUT GREATER THAN 1.75 1.00 2.00 0.375
-------------------------------------------------------------------------------------
Category 6
----------
LESS THAN OR EQUAL TO 1.75 0.75 1.75 0.250
=====================================================================================
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Company's fiscal year
based upon the Company's consolidated financial statements delivered pursuant to
Section 5.01(a) or (b)
5
and (ii) each change in the Applicable Rate resulting from a change in the
Leverage Ratio shall be effective during the period commencing on and including
the third Business Day after the date of delivery to the Administrative Agent of
such consolidated financial statements indicating such change and ending on the
date immediately preceding the effective date of the next such change; PROVIDED
that the Leverage Ratio shall be deemed to be in Category 1 (A) at any time that
an Event of Default has occurred and is continuing or (B) at the option of the
Administrative Agent or at the request of the Required Lenders if the Company
fails to deliver the consolidated financial statements required to be delivered
by it pursuant to Section 5.01(a) or (b), during the period from the expiration
of the time for delivery thereof until such consolidated financial statements
are delivered.
"ARROW AVAILABLE RESTRICTED PAYMENTS" means, at any time, the
Arrow Restricted Payments Basket at such time MINUS (a) all Restricted Payments
made by the Arrow Subsidiaries pursuant to Section 6.08(v)(C), MINUS (b) all
Investments made pursuant to Section 6.04(g)(i)(B)(z), MINUS (c) all Investments
made pursuant to Section 6.04(g)(ii)(B) or (C), and PLUS (d) all dividends or
distributions received by the Company or any Wholly-Owned Consolidated
Subsidiary from the Arrow Joint Venture to the extent in excess of any
substantially contemporaneous Restricted Payments made by the Arrow Subsidiaries
to the Arrow Joint Venture. For purposes of calculating the foregoing, (i) the
amount of any noncash Investment shall be deemed to be equal to the fair market
value of the consideration paid or given by the Company and the Subsidiaries in
respect of such Investment, (ii) the amount of any transaction described in
Section 6.04(g)(ii)(B) shall be deemed to be the maximum amount that could be
required to be paid under or in respect of any such Guarantee, letter of credit
or bonding by the Arrow Subsidiaries and (iii) the amount of any transaction
described in Section 6.04(g)(ii)(C) shall be deemed to be the fair market value
of the discrepancy between the terms and conditions that would apply in a
similar transaction with a Person not an Affiliate, in each case as determined
in good faith by the Company.
"ARROW JOINT VENTURE" means a joint venture formed by the
Company on substantially the terms contemplated by the Arrow term sheet dated
April 11 2001, heretofore delivered to the Lenders.
6
"ARROW RESTRICTED PAYMENTS BASKET" means, initially,
$25,000,000, and, for any day after the date that is six months after the
Effectiveness Date, the amount set forth below under the caption "Amount" based
upon the Leverage Ratio as of the most recent determination date.
================================================================
Leverage Ratio: Amount
--------------- ------
----------------------------------------------------------------
Category 1
----------
IS GREATER THAN 3.00 $25,000,000
----------------------------------------------------------------
Category 2
----------
LESS THAN OR EQUAL TO 3.00,
BUT GREATER THAN 2.50 $30,000,000
----------------------------------------------------------------
Category 3
----------
IS LESS THAN OR EQUAL TO 2.50 $35,000,000
================================================================
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Company's fiscal year
based upon the Company's consolidated financial statements delivered pursuant to
Section 5.01(a) or (b), (ii) no change resulting in a numerically greater
category shall become effective unless the financial statements for two
consecutive fiscal periods delivered under Section 5.01(a) or (b) shall have
indicated such change and (iii) each change in the Arrow Restricted Payments
Basket resulting from a change in the Leverage Ratio shall be effective during
the period commencing on and including the third Business Day after the date of
delivery to the Administrative Agent of such consolidated financial statements
indicating such change and ending on the date immediately preceding the
effective date of the next such change; PROVIDED that the Leverage Ratio shall
be deemed to be in Category 1 (A) at any time that an Event of Default has
occurred and is continuing or (B) at the option of the Administrative Agent or
at the request of the Required Lenders if the Company fails to deliver the
consolidated financial statements required to be delivered by it pursuant to
Section 5.01(a) or (b), during the period from the expiration of the time for
delivery thereof until such consolidated financial statements are delivered. Any
Restricted Payment permitted to be made pursuant to Section 6.08(v)(C) when made
shall not cease to be permitted by reason of any subsequent reduction in the
amount of the Arrow Restricted Payments Basket.
"ARROW SUBSIDIARIES" means, at all times after the formation
of the Arrow Joint Venture, each Borrowing Subsidiary, Equity Interests in which
have been contributed to the Arrow Joint Venture, and each subsidiary of each
such Borrowing Subsidiary.
7
"ASSESSMENT RATE" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; PROVIDED that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
substantially in the form of Exhibit A or any other form approved by the
Administrative Agent.
"BASE CD RATE" means the sum of (a) the Three-Month Secondary
CD Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"BENEFIT ARRANGEMENT" means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States of America.
"BORROWER" means the Company or any Borrowing Subsidiary.
"BORROWING" means Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect.
"BORROWING REQUEST" means a request by a Borrower for a
Borrowing in accordance with Section 2.03.
"BORROWING SUBSIDIARY" means each Subsidiary to be contributed
to the Arrow Joint Venture, as specified in the Arrow term sheet referred to in
the definition of "Arrow Joint Venture", in each case from and after the date
the Company and such Subsidiary shall have executed and delivered to the
Administrative Agent an agreement that such Subsidiary shall be bound by the
terms of this Agreement and such documents and certificates as the
Administrative Agent may request relating to the organization, existence and
good standing of such Subsidiary and the authorization of the Financing
8
Transactions to which it will be party, and each successor thereto permitted
under Section 5.04 or 6.03.
"BRIDGE CREDIT AGREEMENT" means the Bridge Credit Agreement
dated as of the date hereof among the Company, the lenders named therein and The
Chase Manhattan Bank, as administrative agent, substantially in the form made
available to the Lenders prior to the date hereof, as amended from time to time
in accordance with the terms hereof and thereof.
"BRIDGE FACILITY" means the senior subordinated credit
facility in a principal amount of up to $125,000,000 established under the
Bridge Credit Agreement.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; PROVIDED that, when used in connection with a
Eurodollar Loan, the term "BUSINESS DAY" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"BUSINESS ENTITY" means a partnership, limited partnership,
limited liability partnership, corporation (including a business trust), limited
liability company, unlimited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity.
"CAPITAL EXPENDITURES" means, for any period, the additions to
property, plant and equipment and other capital expenditures of the Company and
its Consolidated Subsidiaries that are (or would be) set forth in a consolidated
statement of cash flows of the Company for such period prepared in accordance
with GAAP.
"CAPITAL LEASE" means a lease that would be capitalized on a
balance sheet of the lessee prepared in accordance with GAAP.
"CAPITAL LEASE OBLIGATIONS" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as Capital Leases, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
any Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of
such Lender making or maintaining Loans or by such Lender's or such Issuing
Bank's holding company, if any) with any request, guideline
9
or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Tranche A Term Loans, Tranche B Term Loans or Swingline Loans
and, when used in reference to any Commitment, refers to whether such Commitment
is a Revolving Commitment, Tranche A Term Loan Commitment or Tranche B Term Loan
Commitment.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
"COLLATERAL" means any and all "Collateral", as defined in any
applicable Security Document.
"COMMITMENT" means a Revolving Commitment, Tranche A Term Loan
Commitment or Tranche B Term Loan Commitment, or any combination thereof (as the
context requires).
"COMPANY" means
Alliant Techsystems Inc., a Delaware
corporation, and its successors permitted under Section 5.04 or 6.03.
"CONSOLIDATED EBITDA" means, for any fiscal period,
Consolidated Net Income for such period PLUS, to the extent deducted in
determining Consolidated Net Income for such period, the aggregate amount of
Consolidated Interest Charges, income tax expense, depreciation, amortization,
other nonrecurring non-cash or extraordinary non-cash losses, charges and other
items and up to $20,000,000 of fees and expenses incurred in connection with
closing the Transactions and the issuance of the Senior Subordinated Notes or
any Permanent Securities issued in lieu or replacement thereof MINUS, to the
extent included in determining Consolidated Net Income for such period,
nonrecurring non-cash gains. For purposes of determining the Leverage Ratio or
compliance with Sections 6.11 and 6.12, Consolidated EBITDA for any fiscal
period shall be determined on a pro forma basis as if any acquisition or
disposition and any incurrence or repayment of Indebtedness during such period
were consummated on the first day of such period.
"CONSOLIDATED INTEREST CHARGES" means for any fiscal period
the aggregate consolidated interest charges incurred by the Company and its
Consolidated Subsidiaries for such period, whether expensed or capitalized,
including (a) the portion of any obligation under Capital Leases allocable to
interest expense in accordance with GAAP and (b) the portion of any debt
discount (but not expenses of issuance) that shall be amortized in such period,
but excluding interest charges on the Aerospace Notes. For
10
purposes of determining compliance with Section 6.12 as of the last day of each
of the first three fiscal quarters to end after the Effectiveness Date,
Consolidated Interest Charges shall for the four fiscal quarters ended on such
day shall be deemed to be equal, respectively, to (A) Consolidated Interest
Charges for such first fiscal quarter multiplied by 4, (B) Consolidated Interest
Charges for such first two fiscal quarters multiplied by 2 and (C) Consolidated
Interest Charges for such first three fiscal quarters multiplied by 4/3.
"CONSOLIDATED NET INCOME" means for any period the
consolidated net income (loss) of the Company and its Consolidated Subsidiaries
for such period.
"CONSOLIDATED NET WORTH" means at any date the consolidated
stockholders' equity of the Company and its Consolidated Subsidiaries.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or
other Business Entity the accounts of which would be consolidated with those of
the Company on the consolidated financial statements of the Company if such
statements were prepared in accordance with GAAP as of such date. At all times
after the formation of the Spear Joint Venture and prior to the Spear Final
Contribution Date, the Spear Joint Venture will be deemed to be a Consolidated
Subsidiary. At all times after the formation of the Arrow Joint Venture that the
Arrow Subsidiaries are Subsidiaries, the Arrow Subsidiaries will be deemed to be
Consolidated Subsidiaries.
"CONSTITUTIONAL DOCUMENTS" in relation to any Person means the
certificate or articles of incorporation and by-laws, certificate of formation,
limited liability company agreement, limited partnership agreement or other
constitutional documents of such Person.
"CORDANT" means Cordant Technologies Inc., a Delaware
corporation.
"DECEMBER 2000 10-Q" means the Company's report on Form 10-Q
for the period ended December 31, 2000, as filed with the Securities and
Exchange Commission.
"DEFAULT" means any event or condition that constitutes an
Event of Default or that upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"DERIVATIVES OBLIGATIONS" of any Person means all obligations
of such Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with
11
respect to any of the foregoing transactions) or any combination of the
foregoing transactions.
"DOLLARS" or "$" refers to lawful money of the United States
of America.
"EFFECTIVENESS AGREEMENT" means the Effectiveness Agreement
dated as of the date hereof, among the Company, the Borrowing Subsidiaries, the
Lenders (as defined therein) and the Administrative Agent.
"EFFECTIVENESS DATE" has the meaning given such term in the
Effectiveness Agreement.
"ENVIRONMENTAL LAWS" means any and all treaties, statutes,
laws, rules, regulations, codes, ordinances, judgments, orders, decrees,
injunctions, directives, notices, binding agreements, permits, licenses or
approvals issued, promulgated or entered into by any Governmental Authority
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release, threatened release or presence of any
Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITIES" means all liabilities,
obligations, damages, losses, claims, actions, suits, judgments, orders, fines,
penalties, fees, expenses and costs, (including administrative oversight costs,
natural resource damages and remediation costs), whether contingent or
otherwise, arising out of or relating to: (a) compliance or non-compliance with
any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release of any Hazardous Materials or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"EQUITY INTERESTS" means shares of capital stock, partnership,
joint venture, member or limited liability or unlimited liability company
interests, beneficial interests in a trust or other equity ownership interests
in a Person of whatever nature.
"EQUITY ISSUANCE" means any sale or issuance by the Company of
its capital stock other than (i) any Preference Stock to the extent of the
Maturing Amounts thereof, (ii) capital stock issued pursuant to employee stock
options or director stock options issued by the Company in the ordinary course
of business, or in connection with employee benefit plans (including stock
ownership plans (including 401K plans, restricted stock plans, employee stock
purchase plans, performance sharing plans and incentive plans)), (iii) capital
stock issued as consideration for the acquisition of operating assets or
business operations of any Person (whether through an acquisition of stock or
assets) and (iv) the issuance of warrants, or Equity Interests upon the exercise
of, or in connection with the issuance of, warrants, in connection with the
Bridge Facility.
12
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA GROUP" means the Company and all members of a
controlled group of Business Entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Company, are
treated as a single employer under Section 414 of the Internal Revenue Code.
"EURODOLLAR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in
Article VII.
"EXCESS CASH FLOW" means, for any Fiscal Year, the sum
(without duplication) of:
(a) Consolidated Net Income for such Fiscal Year, adjusted to
exclude any gains or losses attributable to Prepayment Events; PLUS
(b) depreciation, amortization and other non-cash charges or
non-cash losses to the extent deducted in determining such Consolidated
Net Income for such Fiscal Year; PLUS
(c) the sum of (i) the amount, if any, by which Net Working
Capital decreased during such Fiscal Year plus (ii) the net amount, if
any, by which the consolidated long-term deferred revenues and other
consolidated accrued long-term liability accounts of the Company and
its Consolidated Subsidiaries increased during such Fiscal Year plus
(iii) the net amount, if any, by which the consolidated accrued
long-term asset accounts of the Company and its Consolidated
Subsidiaries decreased during such Fiscal Year (in each case in clauses
(i), (ii) and (iii) above, except to the extent that the offset to such
increases or decreases, as applicable, were reflected in "other
comprehensive income" in accordance with GAAP); MINUS
(d) the sum of (i) any non-cash gains included in determining
such Consolidated Net Income for such Fiscal Year plus (ii) the amount,
if any, by which Net Working Capital increased during such Fiscal Year
plus (iii) the net amount, if any, by which the consolidated long-term
deferred revenues and other consolidated accrued long-term liability
accounts of the Company and its Consolidated Subsidiaries decreased
during such Fiscal Year plus (iv) the net amount, if any, by which the
consolidated accrued long-term asset accounts of the Company and its
Consolidated Subsidiaries increased during such Fiscal Year (in
13
each case in clauses (ii), (iii) and (iv) above, except to the extent
that the offset to such increases or decreases, as applicable, were
reflected in "other comprehensive income" in accordance with GAAP);
MINUS
(e) the sum of (i) Capital Expenditures for such Fiscal Year
(except to the extent financed by incurring Long-Term Indebtedness)
PLUS (ii) cash consideration paid during such Fiscal Year to make
acquisitions or other capital investments (except to the extent
financed by incurring Long-Term Indebtedness); MINUS
(f) the aggregate principal amount of Long-Term Indebtedness
repaid or prepaid by the Company and its Consolidated Subsidiaries
during such fiscal year, excluding (i) Indebtedness in respect of
Revolving Loans and Letters of Credit, and (ii) repayments or
prepayments of Long-Term Indebtedness to the extent financed by
incurring other Long-Term Indebtedness.
"EXISTING CREDIT AGREEMENTS" means the Company's Credit
Agreement dated as of November 23, 1998, and its Amended and Restated Credit
Agreement dated as of November 23, 1998.
"EXISTING LETTERS OF CREDIT" means the letters of credit
issued before the Effectiveness Date pursuant to the Existing Credit Agreements,
each of which is set forth on Schedule 2.05.
"EXCLUDED TAXES" means, with respect to the Administrative
Agent, any Lender, any Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of any Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Company
under Section 2.19(b)), (x) any withholding tax that (i) is in effect and would
apply to amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive
additional amounts from any Borrower with respect to any withholding tax
pursuant to Section 2.17(a), or (ii) is attributable to such Foreign Lender's
failure to comply with Section 2.17(e) and (y) any Tax imposed against, payable
by or withheld with respect to any Foreign Lender that is a direct or indirect
successor, transferee or assignee of any original Lender or Issuing Bank to the
extent that, based on applicable law in effect as of the date of the transfer or
assignment, the amount
14
of such Tax exceeds the amount of such Tax that would have been imposed against,
payable by or withheld with respect to such original Lender or Issuing Bank.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"FINANCIAL OFFICER" means the chief financial officer,
principal accounting officer, treasurer or controller of the Company.
"FINANCING TRANSACTIONS" means the execution, delivery and
performance by each Loan Party of the Loan Documents to which it is to be a
party, the borrowing of Loans, the use of the proceeds thereof, the issuance of
Letters of Credit hereunder, the execution, delivery and performance of the
Bridge Credit Agreement and the borrowing of loans thereunder, the issuance and
sale of the Senior Subordinated Notes or any Permanent Securities issued in lieu
or replacement thereof and the payment of related fees and expenses.
"FISCAL YEAR" means a fiscal year of the Company, and "Fiscal
Year" for any particular year means the fiscal year of the Company ended or
ending during the specified calendar year (for example, "Fiscal Year 2001" means
the fiscal year of the Company ending on March 31, 2001).
"FOREIGN LENDER" means, as to any Borrower, any Lender or
Issuing Bank that is a Business Entity incorporated or organized under the laws
of a jurisdiction other than that in which such Borrower is located or that is
an individual, trust or estate that, in the case of a U.S. Borrower, is not a
"United States Person" within the meaning of Section 7701(c)(30) of the Code.
For purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"FOREIGN PERSON" means (a) any government (a "FOREIGN
GOVERNMENT") other than the United States government or the government of any
political subdivision thereof, (b) any agency of a Foreign Government, (c) any
form of business enterprise organized under the laws of any country other than
the United States or its possessions or any political subdivision thereof or (d)
any form of business enterprise owned or controlled by any of the persons
described in clauses (a), (b) or (c).
15
"FOREIGN SUBSIDIARY" means any Subsidiary that is organized
under the laws of a jurisdiction other than the United States of America or any
State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
or other obligation of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (b) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); PROVIDED that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"HAZARDOUS MATERIALS" shall mean (A) petroleum products and
byproducts, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, radon gas, chlorofluorocarbons and all other ozone-depleting
substances; or (B) any chemical, material, substance, waste, pollutant or
contaminant that is prohibited, limited or regulated by or pursuant to any
Environmental Law.
"INDEBTEDNESS" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, (iv) all obligations of such Person as lessee
which are capitalized in accordance with GAAP and all Synthetic Lease
Obligations, (v) all Indebtedness of others secured by a Lien on any asset of
such Person, whether or not such Indebtedness is assumed by such Person (to the
extent of the lesser of the amount of such Indebtedness and the book value of
any assets subject to such Lien), (vi) all non-contingent obligations (and, for
purposes of Section 6.02 and the definitions
16
of Material Indebtedness and Material Financial Obligations, all contingent
obligations) of such Person to reimburse any bank or other Person in respect of
amounts paid under a letter of credit or similar instrument, including all
obligations to reimburse LC Disbursements, (vii) to the extent of any Maturing
Amount thereof, any Preference Stock, and (viii) all Indebtedness of others
Guaranteed by such Person (to the extent of the lesser of the amount of such
Indebtedness Guaranteed or the amount of such Guarantee).
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INFORMATION MEMORANDUM" means the Confidential Information
Memorandum dated March 2001 relating to the Company and the Transactions.
"INTEREST ELECTION REQUEST" means a request by a Borrower to
convert or continue a Revolving Borrowing or Term Borrowing in accordance with
Section 2.07.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"INTEREST PERIOD" means, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the applicable Borrower may elect; PROVIDED, that (i)
if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day and
(ii) any Interest Period that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes of this
definition only, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"INVESTMENT" means any investment in any Person, whether by
means of share purchase, capital contribution, loan, time deposit or otherwise,
except, in the case of the Company, for any investment to the extent made
utilizing common stock of the Company.
17
"ISSUING BANK" means The Chase Manhattan Bank, Chase Manhattan
Bank Delaware and each other Lender that shall agree to issue any Letter of
Credit, each in its capacity as the issuer of any Letter of Credit hereunder,
and its successors in such capacity as provided in Section 2.05(i). Each Issuing
Bank may, in its discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of such Issuing Bank, in which case the term "Issuing Bank"
shall include any such Affiliate with respect to Letters of Credit issued by
such Affiliate.
"JOINT VENTURE" means at any time (i) any Business Entity of
which not less than 20% nor more than 50% of each class of Equity Interests
therein having ordinary voting power to elect or appoint the board of directors
of such Business Entity or other persons performing similar functions are at the
time directly or indirectly owned by the Company and (ii) any other Business
Entity not less than 20% nor more than 50% of the Equity Interests in which are
at the time directly or indirectly owned by the Company, but excluding in any
event any Subsidiary of the Company. The Spear Joint Venture shall not
constitute a "Joint Venture" at any time prior to the Spear Final Contribution
Date. The Arrow Joint Venture will constitute a "Joint Venture" at any time that
it satisfies the test set forth in clause (ii) above.
"LC DISBURSEMENT" means a payment made by an Issuing Bank
pursuant to a Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrowers at such time. The LC Exposure of any Revolving Lender
at any time shall be its Applicable Percentage of the total LC Exposure at such
time.
"LENDER AFFILIATE" means, (a) with respect to any Lender, (i)
an Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a Lender or an
Affiliate of such Lender (with such Lender or Affiliate having the sole right
and responsibility with respect to approval of amendments and waivers to the
Loan Documents) and (b) with respect to any Lender that is a fund that invests
in bank loans and similar extensions of credit, any other fund that invests in
bank loans and similar extensions of credit and is managed or advised by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"LENDER LC EXPOSURE" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Lender Letters of Credit at such
time plus (b) the aggregate amount of all disbursements under Lender Letters of
Credit that have not been reimbursed by or on behalf of the Borrowers at such
time.
18
"LENDER LETTER OF CREDIT" means any letter of credit issued
for the account of any Borrower by any Person that is a Lender at the time such
letter of credit is issued pursuant to a separate agreement between such
Borrower, or the Company on its behalf, and such Lender; PROVIDED that the
Company shall have designated such letter of credit as a Lender Letter of Credit
by written notice to the Administrative Agent on or prior to the time of the
issuance of such letter of credit.
"LENDERS" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a Lender hereunder in accordance with
Section 10.04 and pursuant to an Assignment and Acceptance, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and
Acceptance. Unless the context otherwise requires, the term "Lenders" includes
the Swingline Lenders.
"LETTER OF CREDIT" means any letter of credit issued pursuant
to this Agreement.
"LEVERAGE RATIO" means, as of any date, the ratio of (i)
consolidated Indebtedness of the Company and its Consolidated Subsidiaries on
such date to (ii) Consolidated EBITDA for the four consecutive fiscal quarter
period ending on or most recently prior to such date for which financial
statements have been delivered pursuant to Section 5.01(a) or (b).
"LIBO RATE" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Dow ▇▇▇▇▇ Market
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO RATE"
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, a Loan Party or any Subsidiary of a
Loan Party shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
Synthetic Lease, conditional sale agreement,
19
capital lease or other title retention agreement relating to such asset or, in
the case of any securities, subject to any purchase option, call or similar
right of a third party with respect to such securities.
"LOAN DOCUMENTS" means this Agreement, the Effectiveness
Agreement, each document required to be delivered under Section 10 of the
Effectiveness Agreement, any Notes, the Subsidiary Guaranty Agreement and the
Security Documents.
"LOAN PARTIES" means each Borrower and the Subsidiary Loan
Parties.
"LOANS" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"LONG-TERM INDEBTEDNESS" means any Indebtedness that, in
accordance with GAAP, constitutes (or, when incurred, constituted) a long term
liability.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, assets, results of operations, prospects or condition,
financial or otherwise, of the Company and the Subsidiaries taken as a whole,
(b) the ability of any Loan Party to perform any of its obligations under any
Loan Document or (c) the rights of or benefits available to the Lenders under
any Loan Document.
"MATERIAL FINANCIAL OBLIGATIONS" means (a) Indebtedness under
the Bridge Credit Agreement, the Senior Subordinated Notes or the Permanent
Securities and (b) any other Indebtedness or a principal or face amount of
payment obligations or the net amount that would become due in the event of a
termination in respect of Derivatives Obligations of the Company and/or one or
more of its Subsidiaries, arising in one or more related or unrelated
transactions, exceeding in the aggregate $15,000,000.
"MATERIAL INDEBTEDNESS" means (a) Indebtedness under the
Bridge Credit Agreement, the Senior Subordinated Notes or the Permanent
Securities and (b) any other Indebtedness (other than the Indebtedness under the
Loan Documents) of the Company and/or one or more of its Subsidiaries, arising
in one or more related or unrelated transactions, in an aggregate principal or
face amount exceeding $15,000,000.
"MATERIAL PLAN" means a Plan or Plans having aggregate
Unfunded Liabilities in excess of $10,000,000.
"MATURING AMOUNT" means, with respect to any Preference Stock,
an amount equal to the lesser of (i) the aggregate amount of cash proceeds
received by the issuer of such Preference Stock from or in respect of such
Preference Stock less any expenses reasonably incurred by such Person in respect
of such Preference Stock and (ii) the aggregate amount of Preference Stock
thereby issued that will or may become due
20
before the Tranche B Term Loan Maturity Date as a result of any scheduled
maturity, amortization or mandatory redemption or any right on the part of any
holder thereof to require any repayment or prepayment of any portion thereof.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MORTGAGE" means a mortgage, deed of trust, assignment of
leases and rents, leasehold mortgage or other security document granting a Lien
on any Mortgaged Property to secure the Obligations or any part thereof. Each
Mortgage shall be satisfactory in form and substance to the Administrative
Agent.
"MORTGAGED PROPERTY" means, initially, each parcel of real
property and the improvements thereto owned by a Loan Party and identified on
Schedule 5.10, and includes each other parcel of real property and improvements
thereto with respect to which a Mortgage is granted pursuant to Section 5.08 or
5.09.
"MULTIEMPLOYER PLAN" means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any
member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the ERISA
Group during such five year period.
"NET PROCEEDS" means, with respect to any event, (a) the cash
proceeds received in respect of such event including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds, and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, net of (b) the sum
of (i) all reasonable fees and out-of-pocket expenses paid by the Company and
the Subsidiaries to third parties (other than Affiliates) in connection with
such event, (ii) in the case of a sale, transfer or other disposition of an
asset (including pursuant to a sale and leaseback transaction or a casualty or a
condemnation or similar proceeding), the amount of all payments required to be
made by the Company and the Subsidiaries as a result of such event to repay
Indebtedness (other than Loans) or statutory or other obligations secured by or
subject to any Lien on such asset or otherwise subject to mandatory prepayment
(or other application of such proceeds) as a result of such event, whether
pursuant to any contractual obligation, law, rule or regulation, and (iii) the
amount of all taxes paid (or reasonably estimated to be payable) by the Company
and the Subsidiaries, and the amount of any reserves established by the Company
and the Subsidiaries to fund contingent liabilities reasonably estimated to be
payable, in each case during the year that such event occurred or the next
succeeding year and that are directly attributable to such event (as determined
reasonably and in good faith by the treasurer or chief financial officer of the
Company); PROVIDED that the amount of such proceeds received by any
non-Wholly-Owned Consolidated Subsidiary shall be deemed for purposes of this
Agreement to be that percentage of such
21
proceeds that is equivalent to the percentage of the economic Equity Interests
of such Subsidiary that are owned directly or indirectly by the Company.
"NET WORKING CAPITAL" means, at any date, (a) the consolidated
current assets of the Company and its Consolidated Subsidiaries as of such date
(excluding cash and Temporary Cash Investments) minus (b) the consolidated
current liabilities of the Company and its Consolidated Subsidiaries as of such
date (excluding current liabilities in respect of Indebtedness). Net Working
Capital at any date may be a positive or negative number. Net Working Capital
increases when it becomes more positive or less negative and decreases when it
becomes less positive or more negative. For purposes of calculating any increase
or decrease in Net Working Capital under the definition of Excess Cash Flow, the
assets and liabilities of any business acquired or disposed of during the Fiscal
Year for which Excess Cash Flow is being determined shall be excluded.
"NOTE" shall mean any promissory note of any Borrower issued
pursuant to this Agreement.
"OBLIGATIONS" means (a) all principal of and interest
(including any interest that accrues after the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency or
reorganization of any Borrower, whether or not allowed or allowable in such
proceeding) on any Loan under this Agreement, (b) each payment required to be
made by any Borrower under this Agreement in respect of any Letter of Credit,
and any payment required to be made by any Borrower in respect of any Lender
Letter of Credit, in each case when and as due, including payments in respect of
reimbursement of disbursements, interest thereon and obligations to provide cash
collateral ("REIMBURSEMENT OBLIGATIONS"), (c) all other amounts payable by any
Loan Party hereunder or under any other Financing Document (as defined in the
Security Agreement), (d) any Hedging Obligations (as defined in the Security
Agreement), and (e) any renewals or extensions of any of the foregoing.
"OTHER TAXES" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document but excluding in any event Excluded Taxes.
"PARENT" means, with respect to any Lender, any Person as to
which such Lender is a subsidiary.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
22
"PERFECTION CERTIFICATE" means a certificate in the form of
Exhibit B or any other form approved by the Administrative Agent.
"PERMANENT SECURITIES" means the Senior Subordinated Notes or
any other securities issued in lieu thereof having terms, taken as a whole, that
are in no material respect less favorable to the Lenders than those required
hereby for the Senior Subordinated Notes (and that in any event constitute
Equity Interests or are subordinated to the Obligations on terms in no material
respect less favorable to the Lenders than customary market terms for senior
subordinated notes).
"PERMITTED LINES OF BUSINESS" means the business of
government-owned contractor-operated facilities management or research and
development for, or the development, manufacture, acquisition and distribution,
sale, treatment, dismantling and disposal of, and other businesses related to,
non-nuclear and non-biological weapons, defense, aerospace, navigation,
logistics, control and marine systems, and providing insurance or self-insurance
coverage for, or liability management or sales, marketing, development,
administrative and information management and logistical support services and
activities with respect to, the foregoing (including that described in Part I,
Item 1 of the Company's Form 10-K for the Fiscal Year ended March 31, 2000).
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PLAN" means at any time an employee pension benefit plan as
defined in Section 3(2) of ERISA (other than a Multiemployer Plan) which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and either (i) is maintained, or contributed to, by any
member of the ERISA Group for employees of any member of the ERISA Group or (ii)
has at any time within the preceding five years been maintained, or contributed
to, by any Person which was at such time a member of the ERISA Group for
employees of any Person which was at such time a member of the ERISA Group.
"PLEDGE AGREEMENT" means the Amended and Restated Pledge
Agreement among the Company, the Subsidiary Loan Parties and the Administrative
Agent, substantially in the form of Exhibit C.
"PREFERENCE STOCK" means, with respect to any issuer, an
Equity Interest in such issuer which under the Constitutional Documents of such
issuer is entitled to a preference over any other Equity Interest in such issuer
as to payment of dividends and/or distributions upon the voluntary or
involuntary liquidation of such issuer.
23
"PREPAYMENT EVENT" means:
(a) any sale, transfer or other disposition (including
pursuant to a sale and leaseback transaction) of any property or asset
of the Company or any Subsidiary (other than dispositions described in
clauses (i)-(xi) of Section 6.03(b) and other than any disposition of
Equity Interests in the Spear Joint Venture); PROVIDED that no sale,
transfer, or other disposition made in any fiscal year and subject to
this paragraph (a) shall constitute a "Prepayment Event" until the
aggregate Net Proceeds from all such sales, transfers and other
dispositions not otherwise applied in accordance with Section 2.11(c)
in respect of Net Proceeds received in respect of sales, transfers and
other dispositions during such fiscal year exceeds $10,000,000 (the
amount of the first prepayment after exceeding $10,000,000 being equal
to the aggregate Net Proceeds received in respect of sales, transfers
and other dispositions from all such sales, transfers and dispositions
during such fiscal year) and thereafter in such fiscal year no such
sale, transfer or other disposition shall constitute a "Prepayment
Event" until the aggregate Net Proceeds therefrom not otherwise applied
in accordance with Section 2.11(c) in respect of Net Proceeds received
in respect of sales, transfers and other dispositions during such
fiscal year exceeds $1,000,000 (the amount of each subsequent
prepayment being equal to the aggregate of such Net Proceeds not
previously applied in accordance with Section 2.11(c) in respect of Net
Proceeds received in respect of sales, transfers and other dispositions
during such fiscal year); or
(b) any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding
of, any property or assets, but only to the extent that an amount equal
to the amount of the Net Proceeds therefrom has not been applied to
repair, restore or replace such property or assets, or to acquire other
property or assets as contemplated in Section 2.11(c), within 270 days
after such event; or
(c) the incurrence by the Company or any of its Subsidiaries
of any Indebtedness of the type referred to in clauses (i) or (ii) of
the definition of "Indebtedness" or, to the extent of any Maturing
Amount thereof, the issuance by the Company or any of its Subsidiaries
of any Preference Stock, other than:
(i) Indebtedness under the Loan Documents,
(ii) Indebtedness in an aggregate principal amount at
any time not to exceed $125,000,000 under the Bridge Credit
Agreement, and Indebtedness consisting of Senior Subordinated
Notes and Permanent Securities, to the extent incurred or
issued in lieu or replacement of Indebtedness under the Bridge
Credit Agreement or to the extent the Net
24
Proceeds thereof are or were applied to prepay Indebtedness
under the Bridge Credit Agreement, and
(iii) Indebtedness created, incurred or assumed under
any clause of Section 6.01(a) (other than clause (iii) (B) or
(C)), (b) or (c)); or
(d) the issuance by the Company or any Subsidiary of any
Equity Interest to any Person other than the Company or a Wholly-Owned
Consolidated Subsidiary, other than pursuant to any employee or
director incentive or compensation program and other than as described
in paragraph (e) below and other than to the extent the Net Proceeds
thereof are or were applied to prepay Indebtedness under the Bridge
Credit Agreement; or
(e) the receipt by the Company or any Subsidiary of any
proceeds, directly or indirectly, in respect of any transaction or
series of related transactions resulting in a reduction in the
percentage of the Equity Interests in the Spear Joint Venture owned,
directly or indirectly, by the Company and the Subsidiaries to any
percentage below 85%.
"PRIME RATE" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"REGISTER" has the meaning set forth in Section 10.04.
"REIMBURSEMENT OBLIGATIONS" has the meaning assigned to such
term in the definition of "Obligations".
"RELATED PARTIES" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, Lenders having
Revolving Exposures, Term Loans and unused Commitments representing more than
50% of the sum of the total Revolving Exposures, outstanding Term Loans and
unused Commitments at such time.
"RESPONSIBLE OFFICERS" means the chief executive officer,
chief financial officer, president, treasurer, controller, secretary and any
executive or senior vice president of the Company.
25
"RESTRICTED PAYMENT" means (i) any dividend or other
distribution (whether in cash, securities or other property) with respect to any
Equity Interests in the Company or any Subsidiary, or (ii) any payment (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancelation or termination of any Equity Interests in the Company or any
Subsidiary or any option, warrant or other right to acquire any such Equity
Interests in the Company or any Subsidiary; PROVIDED that no such dividend,
distribution or payment shall constitute a "Restricted Payment" to the extent
made solely with common stock of the Company.
"RESTRICTED PAYMENTS BASKET" means, initially, $25,000,000,
and, for any day after the date that is six months after the Effectiveness Date,
the amount set forth below under the caption "Amount" based upon the Leverage
Ratio as of the most recent determination date.
================================================================
Leverage Ratio: Amount
--------------- ------
----------------------------------------------------------------
Category 1
----------
IS GREATER THAN 3.00 $25,000,000
----------------------------------------------------------------
Category 2
----------
LESS THAN OR EQUAL TO 3.00,
BUT GREATER THAN 2.50 $50,000,000
----------------------------------------------------------------
Category 3
----------
LESS THAN OR EQUAL TO 2.50 $75,000,000
================================================================
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Company's fiscal year
based upon the Company's consolidated financial statements delivered pursuant to
Section 5.01(a) or (b), (ii) no change resulting in a numerically greater
category shall become effective unless the financial statements for two
consecutive fiscal periods delivered under Section 5.01(a) or (b) shall have
indicated such change and (iii) each change in the Restricted Payments Basket
resulting from a change in the Leverage Ratio shall be effective during the
period commencing on and including the third Business Day after the date of
delivery to the Administrative Agent of such consolidated financial statements
indicating such change and ending on the date immediately preceding the
effective date of the next such change; PROVIDED that the Leverage Ratio shall
be deemed to be in Category 1 (A) at any time that an Event of Default has
occurred and is continuing or (B) at the option of the Administrative Agent or
at the request of the Required Lenders if the Company fails to
26
deliver the consolidated financial statements required to be delivered by it
pursuant to Section 5.01(a) or (b), during the period from the expiration of the
time for delivery thereof until such consolidated financial statements are
delivered. Any Restricted Payment permitted to be made pursuant to Section
6.08(vi) when made shall not cease to be permitted by reason of any subsequent
reduction in the amount of the Restricted Payments Basket.
"REVOLVING AVAILABILITY PERIOD" means the period from and
including the Effectiveness Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
"REVOLVING COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum permitted aggregate amount of such Lender's
Revolving Exposure hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.04. The
initial amount of each Lender's Revolving Commitment is set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Revolving Commitment, as applicable. The aggregate amount of
the Lenders' Revolving Commitments as of the Effectiveness Date is $250,000,000.
"REVOLVING EXPOSURE" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure and Swingline Exposure at such time.
"REVOLVING LENDER" means a Lender with a Revolving Commitment
or, if the Revolving Commitments have terminated or expired, a Lender with
Revolving Exposure.
"REVOLVING LOAN" means a Loan made or outstanding pursuant to
clause (c) of Section 2.01.
"REVOLVING MATURITY DATE" means April 20, 2007.
"SALE-LEASEBACK TRANSACTION" means any arrangement with any
Person providing for the leasing by a Loan Party or any Subsidiary of a Loan
Party of any property that, or of any property similar to and used for
substantially the same purposes as any other property that, has been or is to be
sold, assigned, transferred or otherwise disposed of by a Loan Party or any of
its Subsidiaries to such Person with the intention of entering into such a
lease.
27
"S&P" means Standard & Poor's.
"SECURITY AGREEMENT" means the Amended and Restated Security
Agreement among the Company, the Subsidiary Loan Parties and the Administrative
Agent, substantially in the form of Exhibit D.
"SECURITY DOCUMENTS" means the Pledge Agreement, the Security
Agreement, the Mortgages, each other security agreement or other instrument or
document executed and delivered pursuant to Section 5.08(a) or 5.09 to secure
any of the Obligations and each security agreement or other instrument or
document executed and delivered pursuant to Section 5.08(b) or 5.09 to secure
any of the Spear Obligations.
"SENIOR SUBORDINATED NOTES" means senior subordinated notes of
the Company that are unsecured, mature not sooner than the tenth anniversary of
the issuance thereof and are subordinated to the Loans on terms in no material
respect less favorable to the Lenders than customary market terms and any notes
having substantially the same terms issued in exchange therefor; and "Senior
Subordinated Note" means any of the foregoing.
"SENIOR SUBORDINATED NOTE INDENTURE" means the Senior
Subordinated Note Indenture to be executed by the Company with regard to the
issuance of the Senior Subordinated Notes, as such indenture may be amended from
time to time in accordance with the terms hereof and thereof.
"SP RATABLE SHARE AMOUNT" means, at any time, an amount equal
to the excess at such time of (x) the quotient obtained by dividing (i) the
aggregate principal amount of Indebtedness of the Spear Joint Venture
outstanding at any date of determination pursuant to Section 6.01(b)(ii) by (ii)
the percentage (expressed as a decimal) of the total Equity Interests of the
Spear Joint Venture owned by the Company and its Subsidiaries, over (y) the
amount referred to in clause (x)(i) above.
"SPEAR ARMY AMMUNITION PLANT" means the army ammunition
plant referred to in the Spear term sheet referred to in the definition of
the "Spear Joint Venture".
"SPEAR COLLATERAL" means all the assets of the Spear Joint
Venture pledged or made subject to security interests pursuant to Section 5.08
or 5.09 to secure the Spear Obligations.
"SPEAR FINAL CONTRIBUTION DATE" means the date on which the
Company ceases to own, directly or indirectly, a majority of the voting Equity
Interests in the Spear Joint Venture, whether as a result of an equity
contribution or a purchase of Equity Interests by the Spear Partner or
otherwise.
"SPEAR JOINT VENTURE" means a joint venture formed by the
Company and the Spear Partner on substantially the terms contemplated by the
term sheet dated April 11, 2001, heretofore delivered to the Lenders.
28
"SPEAR NOTE" means an intercompany note delivered by the Spear
Joint Venture to the Company on the date of the formation of the Spear Joint
Venture that (a) has terms reasonably satisfactory to the Administrative Agent
and (b) is secured by substantially all the Spear Collateral.
"SPEAR OBLIGATIONS" has the meaning assigned to such term in
Section 5.08(b).
"SPEAR PARTNER" means the co-venturer of the Company in the
Spear Joint Venture specified in the Spear term sheet referred to in the
definition of "Spear Joint Venture".
"SPEAR PARTNER PERMITTED INDEBTEDNESS" means Indebtedness of
the Spear Joint Venture or any of its subsidiaries owed to the Spear Partner or
any of its subsidiaries in an aggregate principal amount outstanding at any time
not to exceed the SP Ratable Share Amount at such time.
"SPEAR PLANT" means the plant referred to in the Spear term
sheet referred to in the definition of the "Spear Joint Venture".
"SPECIAL INVESTMENTS BASKET" means, initially, $25,000,000,
and, for any day after the date that is six months after the Effectiveness Date,
the amount set forth below under the caption "Amount" based upon the Leverage
Ratio as of the most recent determination date.
================================================================
Leverage Ratio: Amount
--------------- ------
----------------------------------------------------------------
Category 1
----------
GREATER THAN 3.00 $25,000,000
----------------------------------------------------------------
Category 2
----------
LESS THAN OR EQUAL TO 3.00,
BUT GREATER THAN 2.50 $50,000,000
----------------------------------------------------------------
Category 3
----------
LESS THAN OR EQUAL TO 2.50 $75,000,000
================================================================
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Company's fiscal year
based upon the Company's consolidated financial statements delivered pursuant to
Section 5.01(a) or (b),
29
(ii) no change resulting in a numerically greater category shall become
effective unless the financial statements for two consecutive fiscal periods
delivered under Section 5.01(a) or (b) shall have indicated such change and
(iii) each change in the Special Investments Basket resulting from a change in
the Leverage Ratio shall be effective during the period commencing on and
including the third Business Day after the date of delivery to the
Administrative Agent of such consolidated financial statements indicating such
change and ending on the date immediately preceding the effective date of the
next such change; PROVIDED that the Leverage Ratio shall be deemed to be in
Category 1 (A) at any time that an Event of Default has occurred and is
continuing or (B) at the option of the Administrative Agent or at the request of
the Required Lenders if the Company fails to deliver the consolidated financial
statements required to be delivered by it pursuant to Section 5.01(a) or (b),
during the period from the expiration of the time for delivery thereof until
such consolidated financial statements are delivered. Any Investment permitted
to be made pursuant to Section 6.04(a) when made shall not cease to be permitted
by reason of any subsequent reduction in the amount of the Special Investments
Basket.
"STATUTORY RESERVE RATE" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject (a) with respect to the Base CD Rate, for new negotiable nonpersonal
time deposits in dollars of over $100,000 with maturities approximately equal to
three months and (b) with respect to the Adjusted LIBO Rate, for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"SUBSIDIARY" means, with respect to any Person (the "PARENT")
at any date, any Business Entity the accounts of which would be consolidated
with those of the parent in the parent's consolidated financial statements if
such financial statements were prepared in accordance with GAAP as of such date,
as well as any other Business Entity (a) of which Equity Interests representing
more than 50% of the ordinary voting power or, in the case of a partnership,
more than 50% of the general partnership interests are, as of such date, owned,
controlled or held, or (b) that is, as of such date, otherwise controlled, in
each case in clause (a) and (b) above, by the parent or one or more subsidiaries
of the parent or by the parent and one or more subsidiaries of the parent.
30
"SUBSIDIARY" means any subsidiary of the Company (other than
an Unrestricted Subsidiary). At all times on and after the Effectiveness Date
(unless disposed of in accordance with this Agreement), Cordant and its
subsidiaries will constitute Subsidiaries. At all times after the formation of
the Spear Joint Venture and prior to the Spear Final Contribution Date (unless
disposed of in accordance with this Agreement), the Spear Joint Venture will be
a Subsidiary. At all times after the formation of the Arrow Joint Venture that
the Arrow Subsidiaries are subsidiaries of the Company, the Arrow Subsidiaries
will be Subsidiaries although the Arrow Joint Venture shall not be a Subsidiary
unless and until the Company shall own more than 50% of the Equity Interests
therein.
"SUBSIDIARY GUARANTY AGREEMENT" means the Amended and Restated
Subsidiary Guaranty Agreement among the Subsidiary Loan Parties and the
Administrative Agent, substantially in the form of Exhibit E.
"SUBSIDIARY LOAN PARTY" means any Subsidiary (other than
Alliant Assurance Ltd. and other than the Spear Joint Venture and any subsidiary
thereof) that is not a Foreign Subsidiary.
"SUPPORT AGREEMENT" means the Support Agreement dated May 28,
1999, by and between the Company and Alliant Assurance Ltd.
"SWINGLINE COMMITMENT" means, with respect to each Swingline
Lender, the commitment, if any, of such Swingline Lender to make Swingline
Loans, expressed as an amount representing the maximum aggregate amount of such
Swingline Lender's Swingline Loans, as such commitment may from time to time be
reduced or increased by agreement with the Company and the Administrative Agent.
The initial amount of each Swingline Lender's Swingline Commitment is set forth
on Schedule 2.01, or in the written agreement pursuant to which such Swingline
Lender shall have assumed its Swingline Commitment, as applicable. The aggregate
amount of the Swingline Lenders' Swingline Commitments as of the Effectiveness
Date is $20,000,000.
"SWINGLINE EXPOSURE" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
"SWINGLINE LENDER" means The Chase Manhattan Bank, each other
Lender that shall have executed this Agreement as a Swingline Lender and each
other Lender agreed to by each of the Company and the Administrative Agent that
shall have agreed after the date hereof in a writing satisfactory to the Company
and the Administrative Agent to serve as a Swingline Lender, each in its
capacity as a lender of Swingline Loans hereunder. Any Swingline Lender may be
replaced or removed or have its Swingline
31
Commitment reduced or assigned in whole or part to other Lenders upon three
Business Days' prior written notice executed by the Company and the
Administrative Agent, PROVIDED that after giving effect thereto, and to any
repayment of Swingline Loans made in connection therewith, the aggregate
outstanding Swingline Loans of such Swingline Lender shall not exceed its
Swingline Percentage of the total aggregate principal amount of Swingline Loans
outstanding.
"SWINGLINE LOAN" means a Loan made pursuant to Section 2.04.
"SWINGLINE PERCENTAGE" means, with respect to any Swingline
Lender, the percentage of the total Swingline Commitments represented by such
Swingline Lender's Swingline Commitment. If the Swingline Commitments have
terminated or expired, the Swingline Percentages shall be determined based upon
the Swingline Commitments most recently in effect, giving effect to any
assignments or replacements.
"SYNTHETIC LEASE" means, as to any Person, any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) (i) that is not a capital lease in
accordance with GAAP and (ii) in respect of which the lessee retains or obtains
ownership of the property so leased for federal income tax purposes, other than
any such lease under which such Person is the lessor.
"SYNTHETIC LEASE OBLIGATIONS" means, as to any Person, the
obligations of such Person to pay rent or other amounts under any Synthetic
Lease.
"TAXES" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TEMPORARY CASH INVESTMENT" means any Investment in (i) direct
obligations of the United States or any agency thereof, or obligations
guaranteed by the United States or any agency thereof, (ii) commercial paper
rated at least A-1 by S&P and P-1 by ▇▇▇▇▇'▇, (iii) time deposits with,
including certificates of deposit issued by, any office located in the United
States of any bank or trust company which is organized under the laws of the
United States or any state thereof and has capital, surplus and undivided
profits aggregating at least $1,000,000,000, (iv) shares of any money market or
mutual fund not less than 90% of the assets of which are invested solely in
securities or obligations of the type described in clauses (i) through (iii)
above and the remaining assets of which are invested solely in securities or
other obligations rated at least A-2 by S&P and P-2 by ▇▇▇▇▇'▇, and (v)
repurchase agreements with respect to securities described in clause (i) above
entered into with an office of a bank or trust company meeting the criteria
specified in clause (iii) above, PROVIDED in each case that such Investment
matures within one year from the date of acquisition thereof by the Company or a
Subsidiary.
32
"TERM LOANS" means Tranche A Term Loans and Tranche B Term
Loans.
"THIOKOL" means the Thiokol Propulsion business of Alcoa.
"THIOKOL PURCHASE AGREEMENT" means the Stock Purchase
Agreement dated as of January 30, 2001 between Alcoa and the Company, including
the exhibits and schedules thereto, as amended from time to time in accordance
with the terms hereof and thereof.
"THREE-MONTH SECONDARY CD RATE" means, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day is not a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day) or, if such rate is not so reported on such
day or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"TRANCHE A TERM LENDER" means a Lender with a Tranche A Term
Loan Commitment or an outstanding Tranche A Term Loan.
"TRANCHE A TERM LOAN" means a Loan made pursuant to clause (a)
of Section 2.01.
"TRANCHE A TERM LOAN COMMITMENT" means, with respect to each
Lender, the commitment, if any, of such Lender to retain, make or acquire a
Tranche A Term Loan hereunder on the Effectiveness Date, expressed as an amount
representing the maximum permitted principal amount of the Tranche A Term Loan
to be made by such Lender hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.08 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 10.04. The
initial amount of each Lender's Tranche A Term Loan Commitment is set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Tranche A Term Loan Commitment, as applicable. The
aggregate amount of the Lenders' Tranche A Term Loan Commitments as of the
Effectiveness Date is $300,000,000.
"TRANCHE A TERM LOAN MATURITY DATE" means April 20, 2007.
33
"TRANCHE B TERM LENDER" means a Lender with a Tranche B Term
Loan Commitment or an outstanding Tranche B Term Loan.
"TRANCHE B TERM LOAN" means a Loan made pursuant to clause (b)
of Section 2.01.
"TRANCHE B TERM LOAN COMMITMENT" means, with respect to each
Lender, the commitment, if any, of such Lender to make a Tranche B Term Loan
hereunder on the Effectiveness Date, expressed as an amount representing the
maximum principal amount of the Tranche B Term Loan to be made by such Lender
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 10.04. The initial amount
of each Lender's Tranche B Term Loan Commitment is set forth on Schedule 2.01,
or in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Tranche B Term Loan Commitment, as applicable. The aggregate amount
of the Lenders' Tranche B Term Loan Commitments as of the Effectiveness Date is
$500,000,000.
"TRANCHE B TERM LOAN MATURITY DATE" means April 20, 2009.
"TRANSACTIONS" means the Acquisition and the Financing
Transactions.
"TYPE", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all accumulated
benefit obligations under such Plan (based on the assumptions used to fund the
Plan) exceeds (ii) the fair market value of all Plan assets allocable to such
benefits (excluding any accrued but unpaid contributions), all determined as of
the then most recent valuation date for such Plan, but only to the extent that
such excess represents a potential liability of a member of the ERISA Group to
the PBGC or any other Person under Title IV of ERISA.
"UNRESTRICTED SUBSIDIARY" means any subsidiary of the Company
or any other Person in which the Company or any Subsidiary shall have a direct
or indirect Investment so long as (i) the Company shall have notified the
Administrative Agent of its acquisition or creation of such subsidiary or such
other Investment and its ownership interest therein or of its designation of an
existing Subsidiary as an Unrestricted Subsidiary concurrently with such
acquisition, creation, designation or Investment and of the intended purposes of
such subsidiary or Investment, (ii) any such subsidiary (unless it is a foreign
subsidiary) shall have entered into a tax sharing agreement containing terms
which, in the reasonable judgment of the Administrative Agent, are customary in
similar
34
circumstances to provide an appropriate allocation of tax liabilities and
benefits, (iii) except as permitted in the proviso below, none of the Company
and the Subsidiaries shall have any contingent liability in respect of such
subsidiary or Investment and (iv) any such subsidiary or Investment shall be
capitalized solely from the following sources: (A) any Investment by any Person
other than the Company and the Subsidiaries; (B) Indebtedness issued by such
subsidiary or any of its subsidiaries that is nonrecourse to the Company and the
Subsidiaries (except as otherwise permitted by the proviso below), or proceeds
thereof; and (C) Investments permitted to be made in Unrestricted Subsidiaries
pursuant to Section 6.04(e); PROVIDED that the Company may incur a contingent
liability or Indebtedness in a specified and limited amount in respect of such a
subsidiary or Investment if it would at the time of such incurrence be permitted
to make an additional Investment in such subsidiary or Investment in the amount
of such incurrence and the amount so incurred shall thereafter constitute an
Investment in such subsidiary or Investment in such amount for purposes of
calculating compliance with Section 6.04(e). Any subsidiary of an Unrestricted
Subsidiary is an Unrestricted Subsidiary.
"WHOLLY-OWNED CONSOLIDATED SUBSIDIARY" means, with respect to
any Person, any Consolidated Subsidiary of such Person all of the shares of
capital stock or other Equity Interests in which (except directors' qualifying
shares) are at the time directly or indirectly owned by such Person.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by Class
(E.G., a "Revolving Loan") or by Type (E.G., a "Eurodollar Loan") or by Class
and Type (E.G., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (E.G., a "Revolving Borrowing") or by Type
(E.G., a "Eurodollar Borrowing") or by Class and Type (E.G., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to
35
any Person shall be construed to include such Person's successors and assigns,
(c) the words "herein", "hereof" and "hereunder", and words of similar import,
shall be construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights. References herein to the taking of any
action hereunder of an administrative nature by any Borrower shall be deemed to
mean a reference to the Company taking such action on such Borrower's behalf and
the Administrative Agent is expressly authorized to accept any such action taken
by the Company as having the same effect as if taken by such Borrower, it being
understood and agreed that the Company shall deliver all Borrowing Requests,
Interest Election Requests and other notices, elections, and requests to be
delivered by any Borrowing Subsidiary on behalf of such Borrowing Subsidiary and
that no Borrowing Subsidiary shall deliver any such request, election or notice.
Any notice delivered to the Company in accordance with Section 10.01 shall be
deemed to have been simultaneously delivered to each Borrowing Subsidiary.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; PROVIDED
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith. For the avoidance of
doubt, (a)(i) at all times after the formation of the Spear Joint Venture and
prior to the Spear Final Contribution Date, the Spear Joint Venture will be
included, without duplication, in the calculation of the Leverage Ratio and the
financial covenants in accordance with GAAP (I.E., with the minority interest
(including in respect of income, total liabilities, total interest expense and
other relevant items for the Spear Joint Venture) backed out) and (ii) on and
after the Spear Final Contribution Date, the income of the Spear Joint Venture
will be included, without duplication, in the calculation of the Leverage Ratio
and the financial covenants solely to the extent of cash dividends or
distributions actually received therefrom by the Company or a Wholly-Owned
Consolidated Subsidiary and (b) at all times after the formation of the Arrow
Joint Venture that the Arrow Subsidiaries are Subsidiaries, the Arrow
Subsidiaries will be included in the calculation of the Leverage Ratio and the
financial covenants in
36
accordance with GAAP (I.E., with the minority backed out, except that the entire
principal amount of the Revolving Loans, and all interest expenses in respect
thereof, will be included in such calculation) and the income of the
subsidiaries of the co-venturer in the Arrow Joint Venture that shall have been
contributed to the Arrow Joint Venture will be included in such calculation
solely to the extent of cash dividends or distributions actually received
therefrom by the Company or a Wholly-Owned Consolidated Subsidiary.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions
set forth herein and in the Effectiveness Agreement, each Lender agrees (a) to
consummate the transactions with respect to Tranche A Term Loans contemplated by
the Effectiveness Agreement to be consummated by it on the Effectiveness Date
and to hold after giving effect thereto a Tranche A Term Loan to the Company on
the Effectiveness Date in a principal amount not exceeding its Tranche A Term
Loan Commitment, (b) to make a Tranche B Term Loan to the Company on the
Effectiveness Date in a principal amount not exceeding its Tranche B Term Loan
Commitment and (c) to consummate the transactions with respect to Revolving
Loans contemplated by the Effectiveness Agreement to be consummated by it on the
Effectiveness Date and to hold after giving effect thereto Revolving Loans to
the Company in an aggregate amount equal to its Applicable Percentage of the
Revolving Loans outstanding on the Effectiveness Date and thereafter to make
Revolving Loans to the Borrowers from time to time during the Revolving
Availability Period in an aggregate principal amount that will not result in (i)
such Lender's Revolving Exposure exceeding such Lender's Revolving Commitment or
(ii) the sum of the total Revolving Exposures and the Lender LC Exposure
exceeding the total Revolving Commitments. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrowers may borrow,
prepay and reborrow Revolving Loans. Amounts repaid in respect of Term Loans may
not be reborrowed.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Loan (other than
a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of
the same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; PROVIDED that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
applicable Borrower may request in accordance herewith; PROVIDED that all
Borrowings
37
made on the Effectiveness Date must be made as ABR Borrowings. Each Swingline
Loan shall be an ABR Loan. Each Lender at its option may make any Eurodollar
Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; PROVIDED that any exercise of such option shall not affect the
obligation of any Borrower to repay such Loan in accordance with the terms of
this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, and at the time that each ABR Revolving Borrowing is made,
such Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $10,000,000; PROVIDED that an ABR Revolving
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the total Revolving Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Each
Swingline Borrowing shall be in an amount that is an integral multiple of
$1,000,000. Borrowings of more than one Type and Class may be outstanding at the
same time; PROVIDED that there shall not at any time be more than a total of
thirteen Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Revolving Maturity Date, the Tranche A Term Loan Maturity Date or the
Tranche B Term Loan Maturity Date, as applicable.
SECTION 2.03. REQUESTS FOR BORROWINGS. To request a Revolving
Borrowing or Term Borrowing, the applicable Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 12:00 noon, New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of an
ABR Borrowing, not later than 11:30 a.m., New York City time, on the date of the
proposed Borrowing; PROVIDED that any such notice of an ABR Revolving Borrowing
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e) may be given not later than 11:00 a.m., New York City time, on the date
of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Company on behalf of the applicable
Borrower. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:
(i) the Borrower on whose behalf the Company is requesting
such Borrowing;
(ii) whether the requested Borrowing is to be a Revolving
Borrowing, Tranche A Term Borrowing or Tranche B Term Borrowing;
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(iii) the aggregate amount of such Borrowing;
(iv) the date of such Borrowing, which shall be a Business
Day;
(v) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(vi) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vii) the location and number of the applicable Borrower's
account to which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the applicable
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. SWINGLINE LOANS. (a) Subject to the terms and
conditions set forth herein, each Swingline Lender agrees to make Swingline
Loans to the Borrowers from time to time during the Revolving Availability
Period, in an aggregate principal amount at any time outstanding that will not
result in (i) the aggregate principal amount of such Swingline Lender's
Swingline Loans exceeding such Swingline Lender's Swingline Commitment, (ii) the
aggregate principal amount of outstanding Swingline Loans exceeding $20,000,000
or (iii) the sum of the total Revolving Exposures and the Lender LC Exposure
exceeding the total Revolving Commitments. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrowers may borrow,
prepay and reborrow Swingline Loans.
(b) To request a Swingline Borrowing, the applicable Borrower
shall notify the Administrative Agent of such request by telephone (confirmed by
telecopy), not later than 1:00 p.m., New York City time, on the day of a
proposed Swingline Borrowing. Each such notice shall be irrevocable and shall
specify the requested date (which shall be a Business Day) and amount of the
requested Swingline Borrowing. The Administrative Agent will promptly advise the
Swingline Lenders of any such notice received from such Borrower. Each Swingline
Lender shall make its Swingline Percentage of each Swingline Borrowing available
to such Borrower by means of a credit to the general deposit account of such
Borrower with such Swingline Lender (or, in the
39
case of a Swingline Borrowing made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e), by remittance to the applicable
Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such
Swingline Borrowing.
(c) Any Swingline Lender may by written notice given to the
Administrative Agent not later than 1:30 p.m., New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such
participations shall be made on a pro rata basis in the Swingline Loans of the
Swingline Lenders based upon their respective Swingline Percentages. Such notice
shall specify the aggregate amount of Swingline Loans in which Revolving Lenders
will participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Revolving Lender, specifying in such notice
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each
Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account of
each Swingline Lender, such Lender's Applicable Percentage of such Swingline
Loan or Loans. Each Revolving Lender acknowledges and agrees that its obligation
to acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each
Revolving Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall
apply, MUTATIS MUTANDIS, to the payment obligations of the Revolving Lenders),
and the Administrative Agent shall promptly pay to each Swingline Lender its
Swingline Percentage of the amounts so received from the Revolving Lenders. The
Administrative Agent shall notify the Company of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and not
to the Swingline Lenders. Any amounts received by any Swingline Lender from a
Borrower (or other party on behalf of a Borrower) in respect of a Swingline Loan
after receipt by such Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Revolving Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lenders, as their
interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve any Borrower of any default in the
payment thereof.
SECTION 2.05. LETTERS OF CREDIT. (a) GENERAL. Subject to the
terms and conditions set forth herein and in the Effectiveness Agreement and to
a separate agreement among the Company and the Administrative Agent regarding
the beneficiaries
40
of the Letters of Credit, each Borrower may request the issuance of Letters of
Credit for such Borrower's own account, in a form reasonably acceptable to the
Administrative Agent and the applicable Issuing Bank, at any time and from time
to time during the Revolving Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by a Borrower to, or entered into by a Borrower with, any Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement
shall control. On the Effectiveness Date, each Issuing Bank that has issued an
Existing Letter of Credit shall be deemed, without further action by any party
hereto, to have granted to each Revolving Lender and each Revolving Lender shall
have been deemed to have purchased from such Issuing Bank a participation in
such Letter of Credit in accordance with paragraph (d) below. The Company and
the Lenders that are also party to the Existing Credit Agreements agree that
concurrently with such grant, the participations in the Existing Letters of
Credit granted to such lenders under the Existing Credit Agreements shall be
automatically canceled without further action by any of the parties thereto. On
and after the Effectiveness Date each Existing Letter of Credit shall constitute
a Letter of Credit for all purposes hereof.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the applicable
Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the applicable
Issuing Bank) to the applicable Issuing Bank and the Administrative Agent (three
Business Days' in advance of the requested date of issuance, amendment, renewal
or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall be
a Business Day), the date on which such Letter of Credit is to expire and
whether such Letter of Credit is to be an "evergreen" Letter of Credit and the
relevant terms of such "evergreen" feature (which in each case shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit, the name
and address of the beneficiary thereof, the proposed Issuing Bank for such
Letter of Credit and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the applicable
Issuing Bank, the applicable Borrower also shall submit a letter of credit
application on such Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit each Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the
sum of the LC Exposure and the Lender LC Exposure shall not exceed $150,000,000
and (ii) the sum of the total Revolving Exposures and the Lender LC Exposure
shall not exceed the total Revolving Commitments.
41
(c) EXPIRATION DATE. No Letter of Credit shall have a term of
more than one year; PROVIDED that a Letter of Credit may contain a provision
pursuant to which it is deemed to be extended on an annual basis for successive
periods of not more than one year each unless notice of termination is given by
the Issuing Bank; PROVIDED FURTHER that no Letter of Credit shall have a term
extending or be so extendible beyond the fifth Business Day prior to the
Revolving Maturity Date.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the applicable Issuing Bank or the Lenders,
such Issuing Bank hereby grants to each Revolving Lender, and each Revolving
Lender hereby acquires from such Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Applicable Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
such Issuing Bank, such Lender's Applicable Percentage of each LC Disbursement
made by such Issuing Bank and not reimbursed by the Borrowers on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to any Borrower for any reason. Each Revolving Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
(e) REIMBURSEMENT. If any Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the applicable Borrower shall
reimburse such LC Disbursement by paying to the Administrative Agent an amount
equal to such LC Disbursement not later than 12:00 noon, New York City time, on
the date that such LC Disbursement is made, if such Borrower shall have received
notice of such LC Disbursement prior to 11:00 a.m., New York City time, on such
date, or, if such notice has not been received by such Borrower prior to such
time on such date, then not later than 12:00 noon, New York City time, on (i)
the Business Day that such Borrower receives such notice, if such notice is
received prior to 11:00 a.m., New York City time, on the day of receipt, or (ii)
the Business Day immediately following the day that such Borrower receives such
notice, if such notice is not received prior to such time on the day of receipt;
PROVIDED that a Borrower may (x) subject to the conditions to borrowing set
forth herein, request in accordance with Section 2.03 or 2.04 that such payment
be financed with an ABR Revolving Borrowing or Swingline Borrowing in an
equivalent amount and, to the extent so financed, such Borrower's obligation to
make such payment shall be discharged and replaced by the resulting ABR
Revolving Borrowing or Swingline Borrowing or (y) if no Event of Default shall
have occurred and be continuing,
42
give the Administrative Agent written notice electing to make such payment at a
subsequent time on or prior to the second Business Day after the date on which
such LC Disbursement is made and specifying such time. If a Borrower fails to
make such payment on or before the time required, the Administrative Agent shall
notify each Revolving Lender of the applicable LC Disbursement, the payment then
required to be made to the applicable Issuing Bank in respect thereof and such
Lender's Applicable Percentage thereof. Promptly following receipt of such
notice, each Revolving Lender shall pay to the Administrative Agent its
Applicable Percentage of such payment, in the same manner as provided in Section
2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply,
MUTATIS MUTANDIS, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank the
amounts so received by it from the Revolving Lenders. Promptly following receipt
by the Administrative Agent of any payment from a Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to this paragraph to reimburse such Issuing Bank, then to such
Lenders and such Issuing Bank as their interests may appear. Any payment made by
a Revolving Lender pursuant to this paragraph to reimburse an Issuing Bank for
any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Borrowing as contemplated above) shall not constitute a Loan and shall
not relieve the applicable Borrower of its obligation to reimburse such LC
Disbursement.
(f) OBLIGATIONS ABSOLUTE. Each Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any
draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, such Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
applicable Issuing Bank;
43
PROVIDED that the foregoing shall not be construed to excuse any Issuing Bank
from liability to a Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by each
Borrower to the extent permitted by applicable law) suffered by such Borrower
that are caused by such Issuing Bank's failure to (i) exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof or (ii) pay under any Letter of Credit
after the presentment to it of a request strictly complying with the terms and
conditions of the Letter of Credit; PROVIDED that this clause (ii) shall not
apply to any failure by the Issuing Bank to pay under such Letter of Credit to
the extent that such payment is prevented by an injunction or other legal
requirement. The parties hereto expressly agree that, in the absence of gross
negligence or wilful misconduct on the part of an Issuing Bank (as finally
determined by a court of competent jurisdiction), such Issuing Bank shall be
deemed to have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, an Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) DISBURSEMENT PROCEDURES. Each Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit issued by it. Such Issuing Bank
shall promptly notify the Administrative Agent and the applicable Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether such
Issuing Bank has made or will make an LC Disbursement thereunder and the
proposed LC Disbursement date; PROVIDED that any failure to give or delay in
giving such notice shall not relieve such Borrower of its obligation to
reimburse such Issuing Bank and the Revolving Lenders with respect to any such
LC Disbursement.
(h) INTERIM INTEREST. If an Issuing Bank shall make any LC
Disbursement, then, unless the applicable Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid amount
thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that such Borrower reimburses
such LC Disbursement, at the rate per annum then applicable to ABR Revolving
Loans; PROVIDED that, if a Borrower fails to reimburse such LC Disbursement when
due pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply
with respect to the overdue amount for each day overdue. Interest accrued
pursuant to this paragraph shall be for the account of the applicable Issuing
Bank, except that interest accrued on and after the date of payment by any
Revolving Lender pursuant to paragraph (e) of this Section to reimburse such
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
44
(i) REPLACEMENT OF ISSUING BANKS. Any Issuing Bank may be
replaced or removed at any time by written agreement among the Company and the
Administrative Agent. The Administrative Agent shall notify the Lenders of any
such replacement or removal of an Issuing Bank. At the time any such replacement
or removal shall become effective, the Borrowers shall pay all unpaid fees,
costs or expenses accrued for the account of the replaced or removed Issuing
Bank pursuant to Section 2.12(b). From and after the effective date of any such
replacement, (i) in the case of any replacement, the successor Issuing Bank
shall have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term "Issuing Bank" shall be deemed to refer to such
successor or to any previous Issuing Bank, or to such successor and all previous
Issuing Banks, as the context shall require. After the replacement or removal of
an Issuing Bank hereunder, the replaced or removed Issuing Bank shall remain a
party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement or removal, but shall not be required to issue
additional Letters of Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall
occur and be continuing, on the Business Day that the Company receives notice
from the Administrative Agent upon instruction of the Required Lenders (or, if
the maturity of the Loans has been accelerated, Revolving Lenders with LC
Exposure representing more than 50% of the total LC Exposure) demanding the
deposit of cash collateral pursuant to this paragraph, the Borrowers shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an aggregate amount in
cash equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon; PROVIDED that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the occurrence
of any Event of Default with respect to the Company described in clause (g) or
(h) of Article VII. The Borrowers also shall deposit cash collateral pursuant to
this paragraph as and to the extent required by Section 2.11(b). Each such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the Borrowers under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be in Temporary Cash
Investments made at the option and sole discretion of the Administrative Agent
and at the Borrowers' risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Banks for LC Disbursements which have not been reimbursed
and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrowers for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent of
Revolving Lenders with LC Exposure representing more than 50% of the
45
total LC Exposure), be applied to satisfy other obligations of the Borrowers
under this Agreement. If the Borrowers are required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to the
Borrowers within three Business Days after all Events of Default have been cured
or waived. If the Borrowers are required to provide an amount of cash collateral
hereunder pursuant to Section 2.11(b), such amount (to the extent not applied as
aforesaid) shall be returned to the Borrowers as and to the extent that, after
giving effect to such return, the Borrowers would remain in compliance with
Section 2.11(b) and no Default shall have occurred and be continuing.
SECTION 2.06. FUNDING OF BORROWINGS. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by (x) in the case of an ABR Borrowing,
1:00 p.m., New York City time, and (y) in the case of a Eurodollar Borrowing,
11:00 a.m., New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders; PROVIDED
that Swingline Loans shall be made as provided in Section 2.04. The
Administrative Agent will make such Loans available to the applicable Borrower
by promptly crediting the amounts so received, in like funds, to an account of
such Borrower maintained with the Administrative Agent in New York City and
designated by such Borrower in the applicable Borrowing Request; PROVIDED that
ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e) shall be remitted by the Administrative Agent to the
applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date (or in the case of an ABR Borrowing,
prior to 1:00 p.m., New York City time, on the date) of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender's share
of such Borrowing, the Administrative Agent may assume that such Lender has made
such share available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the
applicable Borrower a corresponding amount. In such event, if a Lender has not
in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the applicable Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to such Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of such Borrower, the interest rate applicable
to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing.
46
SECTION 2.07. INTEREST ELECTIONS. (a) Each Revolving Borrowing
and Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
applicable Borrower may elect to convert such Borrowing to a different Type or
to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The applicable
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall not apply to Swingline Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the
applicable Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if such Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative Agent
and signed by such Borrower, or by the Company on its behalf.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02 and
paragraph (f) of this Section:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the applicable Borrower shall be deemed to
have selected an Interest Period of one month's duration.
47
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If a Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Company, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
(f) A Borrowing of any Class may not be converted to or
continued as a Eurodollar Borrowing if after giving effect thereto (i) the
Interest Period therefor would commence before and end after a date on which any
principal of the Loans of such Class is scheduled to be repaid and (ii) the sum
of the aggregate principal amount of outstanding Eurodollar Borrowings of such
Class with Interest Periods ending on or prior to such scheduled repayment date
plus the aggregate principal amount of outstanding ABR Borrowings of such Class
would be less than the aggregate principal amount of Loans of such Class
required to be repaid on such scheduled repayment date.
SECTION 2.08. TERMINATION AND REDUCTION OF COMMITMENTS. (a)
Unless previously terminated, (i) the Tranche A Term Loan Commitments and the
Tranche B Term Loan Commitments shall terminate at 5:00 p.m., New York City
time, on the Effectiveness Date and (ii) the Revolving Commitments and the
Swingline Commitments shall terminate on the Revolving Maturity Date.
(b) The Company may at any time terminate, or from time to
time reduce, the Revolving Commitments, the Tranche A Term Loan Commitments or
the Tranche B Term Loan Commitments; PROVIDED that (i) each reduction of the
Commitments of any Class shall be in an amount that is an integral multiple of
$1,000,000 and not less than $10,000,000 and (ii) the Company shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11,
the sum of the total Revolving Exposures and the Lender LC Exposure would exceed
the total Revolving Commitments.
(c) If any prepayment of Term Borrowings is required pursuant
to Section 2.11 but cannot be made because there are no Term Borrowings
outstanding, or because the amount of the required prepayment exceeds the
outstanding amount of Term Borrowings, then, on the date that such prepayment is
required, the Revolving
48
Commitments shall be reduced by an aggregate amount equal to the amount of the
required prepayment, or the excess of such amount over the outstanding amount of
Term Borrowings, as the case may be.
(d) If the aggregate principal amount of the Senior
Subordinated Notes and other Permanent Securities issued on or prior to the
Effectiveness Date is in excess of $125,000,000, the Tranche A Term Loan
Commitment and the Tranche B Term Loan Commitment shall be reduced on a pro rata
basis by the amount of such excess.
(e) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section, or any required reduction of the Revolving Commitments under paragraph
(c) of this Section, at least three Business Days prior to the effective date of
such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Company pursuant to this Section shall be irrevocable; PROVIDED that a notice of
termination of the Revolving Commitments delivered by the Company may state that
such notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Company (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments of
any Class shall be permanent. Each reduction of the Commitments of any Class
shall be made ratably among the Lenders in accordance with their respective
Commitments of such Class.
SECTION 2.09. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) Each
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Maturity Date, (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Term Loan of such Lender as provided in Section 2.10 and (iii) to
the Swingline Lenders the then unpaid principal amount of each Swingline Loan on
the earlier of the Revolving Maturity Date and the first date after such
Swingline Loan is made that is the 15th or last day of a calendar month and is
at least two Business Days after such Swingline Loan is made; PROVIDED that on
each date that a Revolving Borrowing is made, the Borrowers shall repay all
Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the
49
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from each Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be PRIMA FACIE evidence of the
existence and amounts of the obligations recorded therein; PROVIDED that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of any Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it
be evidenced by a promissory note. In such event, each applicable Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 10.04) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.10. AMORTIZATION OF TERM LOANS. (a) Subject to
adjustment pursuant to paragraph (d) of this Section, the Company shall repay
Tranche A Term Borrowings in the aggregate annual principal amounts set forth
below for the specified Fiscal Years in consecutive equal quarterly installments
on each June 30, September 30, December 31 and March 31, commencing on June 30,
2001.
Fiscal Year Annual
Ended Amount
----------- ------
March 31, 2002 $35,000,000
March 31, 2003 $40,000,000
March 31, 2004 $45,000,000
March 31, 2005 $55,000,000
March 31, 2006 $60,000,000
Tranche A Term Loan Maturity Date $65,000,000
(b) Subject to adjustment pursuant to paragraph (d) of this
Section, the Company shall repay Tranche B Term Borrowings (i) in 24 consecutive
quarterly installments equal to 0.25% of the original principal amount of the
Tranche B Term Loans on each June 30, September 30, December 31 and March 31,
commencing on June 30, 2001, and (ii) in consecutive equal quarterly
installments on each June 30,
50
September 30, December 31 and March 31, thereafter and on the Tranche B Term
Loan Maturity Date in an aggregate amount for each of Fiscal Year 2008 and
Fiscal Year 2009 equal to 47% of the original principal amount of the Tranche B
Term Borrowings.
(c) To the extent not previously paid, (i) all Tranche A Term
Loans shall be due and payable by the Company on the Tranche A Term Loan
Maturity Date and (ii) all Tranche B Term Loans shall be due and payable by the
Company on the Tranche B Term Loan Maturity Date.
(d) If the initial aggregate amount of the Lenders' Tranche A
Term Loan Commitments or Tranche B Term Loan Commitments exceeds the aggregate
principal amount of Tranche A Term Loans or Tranche B Term Loans that are made
on the Effectiveness Date, then the scheduled repayments of such Term Borrowings
to be made pursuant to this Section shall be reduced ratably by an aggregate
amount equal to such excess. Any prepayment of a Term Borrowing of either Class
shall be applied to reduce the subsequent scheduled repayments of the Term
Borrowings of such Class to be made pursuant to this Section ratably, except as
otherwise provided in the penultimate sentence of Section 2.11(f).
(e) Prior to any repayment of any Term Borrowings of either
Class hereunder, the Company shall select the Borrowing or Borrowings of the
applicable Class to be repaid and shall notify the Administrative Agent by
telephone (confirmed by telecopy) of such selection not later than 11:00 a.m.,
New York City time, three Business Days before the scheduled date of such
repayment. Each repayment of a Borrowing shall be applied ratably to the Loans
included in the repaid Borrowing. Repayments of Term Borrowings shall be
accompanied by accrued interest on the amount repaid.
SECTION 2.11. PREPAYMENT OF LOANS. (a) The Borrowers shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part, subject to the requirements of this Section.
(b) In the event and on such occasion that the sum of the
total Revolving Exposures and the Lender LC Exposures exceeds the total
Revolving Commitments, the Borrowers shall prepay Revolving Borrowings or
Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash
collateral in an account with the Administrative Agent pursuant to Section
2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds
are received by or on behalf of any Borrower or any Subsidiary in respect of any
Prepayment Event, the Company shall, within three Business Days after such Net
Proceeds are received, prepay Term Borrowings in accordance with paragraph (e)
of this Section 2.11 in an aggregate amount equal to such Net Proceeds; PROVIDED
that to the extent any such repayment or reduction would otherwise require
repayment or prepayment of Eurodollar
51
Loans or portions thereof prior to the last day of the related Interest Period,
such portion of such repayment or reduction shall, unless a Default or Event of
Default exists, be deferred to such last day; PROVIDED FURTHER that, in the case
of any event described in clause (a) or (b) of the definition of the term
Prepayment Event, if the Company shall deliver to the Administrative Agent a
certificate of a Financial Officer to the effect that the Company and the
Subsidiaries intend to apply an amount equal to the Net Proceeds from such
event, within 270 days after receipt of such Net Proceeds, to acquire, directly
or indirectly, real property, equipment or other tangible assets to be used in
the business of the Company and the Subsidiaries and certifying that no Default
has occurred and is continuing, then no prepayment shall be required pursuant to
this paragraph in respect of such event except to the extent an amount equal to
any Net Proceeds therefrom that have not been so applied by the end of such
270-day period, at which time a prepayment shall be required in an amount equal
to the Net Proceeds that have not been so applied.
(d) Following the end of each Fiscal Year, commencing with the
Fiscal Year ending March 31, 2002, if the Leverage Ratio as of the last day of
such Fiscal Year is (i) less than or equal to 3.25, the Company shall prepay
Term Borrowings in an aggregate amount equal to 50% of Excess Cash Flow for such
Fiscal Year or (ii) more than 3.25, the Company shall prepay Term Borrowings in
an aggregate amount equal to 75% of Excess Cash Flow for such Fiscal Year,
PROVIDED that if the Leverage Ratio as of such last day is less than 2.75, the
Company shall not be required to prepay any Term Borrowings in respect of Excess
Cash Flow for such Fiscal Year. Each prepayment pursuant to this paragraph shall
be made within three Business Days after the date on which financial statements
are delivered pursuant to Section 5.01 with respect to the Fiscal Year for which
Excess Cash Flow is being calculated (and in any event within 100 days after the
end of such Fiscal Year).
(e) Prior to any optional or mandatory prepayment of
Borrowings, the Company shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (f) of this Section. In the event of any optional or mandatory
prepayment of Term Borrowings made at a time when Term Borrowings of both
Classes remain outstanding, the Company shall select Term Borrowings to be
prepaid so that the aggregate amount of such prepayment is allocated between the
Tranche A Term Borrowings and Tranche B Term Borrowings pro rata based on the
aggregate principal amount of outstanding Borrowings of each such Class. Any
Tranche B Lender may elect, by notice to the Administrative Agent by telephone
(confirmed by telecopy) at least one Business Day prior to the prepayment date,
to decline all or any portion of any prepayment of its Tranche B Term Loans
pursuant to this Section (other than an optional prepayment pursuant to
paragraph (a) of this Section, which may not be declined), in which case the
aggregate amount of the prepayment that was so declined shall be applied to
prepay on a ratable basis Tranche A Term Borrowings and Tranche B Term
Borrowings of Lenders that shall not have declined such prepayment; PROVIDED
that Tranche B Lenders shall be permitted to decline any
52
prepayment only to the extent the aggregate amount of the prepayment declined
shall not exceed the sum of the outstanding Tranche A Term Borrowings and the
outstanding Tranche B Term Loans as to which elections to decline such
prepayment shall not have been made (and any reduction of the amounts declined
shall be distributed ratably among the declining Lenders).
(f) The Company shall notify the Administrative Agent (and, in
the case of prepayment of a Swingline Loan, the Swingline Lenders) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 2:00 p.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; PROVIDED that, if a
notice of optional prepayment is given in connection with a conditional notice
of termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided
in Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Any optional prepayment of Term
Loans pursuant to Section 2.11(a) shall be applied to reduce the amount of
subsequent scheduled repayments of Term Loans required by Section 2.10 (i) if
such payment is made within 10 days prior to any date on which a repayment is
required under Section 2.10, first to such repayment and then ratably to all
remaining repayments, and (ii) otherwise, ratably to all the remaining
repayments. Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.13.
SECTION 2.12. FEES. (a) The Borrowers agree to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the relevant Commitment Fee Rate specified in the definition of
Applicable Rate on the average daily unused amount of each Commitment (other
than any Swingline Commitment) of such Lender during the period from and
including the date hereof to but excluding the date on which such Commitment
terminates. Accrued commitment fees shall be payable in arrears on the last day
of March, June, September and December of each year and, in respect of any Class
of Commitments, on the date on which such class of Commitments terminates,
commencing on the first such date to occur after the date
53
hereof. All commitment fees shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). For purposes of
computing commitment fees with respect to Revolving Commitments, a Revolving
Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline
Exposure of such Lender and the Lender LC Exposure shall be disregarded for such
purpose).
(b) The Borrowers agree to pay (i) to the Administrative Agent
for the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as interest on Eurodollar Revolving Loans on the average daily amount of
such Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effectiveness Date to but excluding the later of the date on which such Lender's
Revolving Commitment terminates and the date on which such Lender ceases to have
any LC Exposure, and (ii) to each Issuing Bank a fronting fee, which shall
accrue at the rate of 0.25% per annum (or any lesser rate that shall have been
separately agreed to by the Company and such Issuing Bank) on the average daily
amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) in respect of Letters of Credit of such Issuing
Bank during the period from and including the Effectiveness Date to but
excluding the later of the date of termination of the Revolving Commitments and
the date on which there ceases to be any LC Exposure, as well as such Issuing
Bank's standard fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit issued by it or processing of drawings
thereunder. Participation fees and fronting fees accrued through and including
the last day of March, June, September and December of each year shall be
payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effectiveness Date; PROVIDED that all such
fees shall be payable on the date on which the Revolving Commitments terminate
and any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to any Issuing Bank
pursuant to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) The Borrowers agree to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrowers and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent (or to an Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and
54
participation fees, to the Lenders entitled thereto. Fees paid shall not be
refundable under any circumstances.
SECTION 2.13. INTEREST. (a) The Loans comprising each ABR
Borrowing (including each Swingline Loan) shall bear interest at the Alternate
Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by any Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Revolving Loans as provided in paragraph (a) of
this Section.
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments; PROVIDED that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
55
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing
Bank; or
(ii) impose on any Lender or any Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or such
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or such
Issuing Bank hereunder (whether of principal, interest or otherwise), in each
case by an amount deemed by such Lender or Issuing Bank to be material, then the
Borrowers will pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or any Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return
56
on such Lender's or such Issuing Bank's capital or on the capital of such
Lender's or such Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a
level below that which such Lender or such Issuing Bank or such Lender's or such
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or such Issuing Bank's policies and the
policies of such Lender's or such Issuing Bank's holding company with respect to
capital adequacy), and by an amount deemed by such Lender or Issuing Bank to be
material, then from time to time the Borrowers will pay to such Lender or such
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or such Issuing Bank or such Lender's or such Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or such Issuing Bank
or its holding company, as the case may be, as specified in paragraph (a) or (b)
of this Section shall be delivered to the Company and shall be conclusive absent
manifest error. The Borrowers shall pay such Lender or such Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 15 days
after receipt thereof.
(d) Each Lender and each Issuing Bank will promptly notify the
Company and the Administrative Agent of any event of which it has knowledge,
occurring after the Effectiveness Date, which will entitle such Lender or
Issuing Bank to compensation pursuant to Section 2.15.
Notwithstanding the foregoing subsections (a) and (b) of this
Section 2.15, the Borrowers shall only be obligated to compensate any Lender or
Issuing Bank for any amount arising or accruing during (i) any time or period
commencing not more than (x) in the case of subsection (a), six months and (y)
in the case of subsection (b), three months, prior to the date on which such
Lender or Issuing Bank notifies the Administrative Agent and the Company that it
proposes to demand such compensation and identifies to the Administrative Agent
and the Company the statute, regulation or other basis upon which the claimed
compensation is or will be based and (ii) any time or period during which,
because of the retroactive application of such statute, regulation or other
basis, such Lender or Issuing Bank did not know that such amount would arise or
accrue.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(f) and is revoked in accordance therewith), or
57
(d) the assignment of any Eurodollar Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Company
pursuant to Section 2.19, then, in any such event, the Borrowers shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market increased by Statutory Reserves at the same rate
as utilized in computing such Adjusted LIBO Rate. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Company and shall be
conclusive absent manifest error. The Borrowers shall pay such Lender the amount
shown as due on any such certificate within 15 days after receipt thereof.
SECTION 2.17. TAXES. (a) Any and all payments by or on account
of any obligation of any Borrower hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; PROVIDED that if any Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Borrower shall make such deductions and (iii) such Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) If any Borrower fails to pay any Indemnified Taxes or
Other Taxes, then such Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of any Borrower
hereunder or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising
58
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Company by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by a Borrower to a Governmental Authority, such Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which a
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to such Borrower (with a
copy to the Administrative Agent), at least five Business Days prior to the
first date on which interest or fees are payable hereunder for the account of
any Foreign Lender, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Company as will
permit such payments to be made without withholding or at a reduced rate. Each
Foreign Lender further undertakes to deliver to the Borrowers (with a copy to
the Administrative Agent) properly completed and executed documentation on or
before the date that such prior documentation expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent
documentation so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Borrowers or the
Administrative Agent, unless an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such documentation
inapplicable or which would prevent such Foreign Lender from duly completing and
delivering any documentation with respect to it and such Foreign Lender advises
the Borrowers and the Administrative Agent that it is not capable of receiving
payments without any (or reduced) deduction or withholding of withholding tax.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING
OF SETOFFS. (a) Each Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 12:00 noon, New York City time), on the date when
due, in immediately available funds, without setoff or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the
59
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to any
Issuing Bank or Swingline Lender as expressly provided herein and except that
payments pursuant to Sections 2.15, 2.16, 2.17 and 10.03 shall be made directly
to the Persons entitled thereto and payments pursuant to other Loan Documents
shall be made to the Persons specified therein. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
under any Loan Document shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day, and, in
the case of any payment accruing interest, interest thereon shall be payable for
the period of such extension. All payments under each Loan Document shall be
made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Revolving Loans, Term Loans
and participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans; PROVIDED that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by any Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or
60
participant, other than to any Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). Each Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Company prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or any Issuing Bank
hereunder that the applicable Borrower will not make such payment, the
Administrative Agent may assume that such Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or any Issuing Bank, as the case may be, the amount
due. In such event, if such Borrower has not in fact made such payment, then
each of the Lenders or Issuing Banks, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender or Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) Subject to Section 2.06(a), if any Lender shall fail to
make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d)
or (e), 2.06(b), 2.18(d) or 10.03(c), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender
to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) If any Lender requests compensation under Section 2.15, or if any Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrowers
hereby agree to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
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(b) If any Lender requests compensation under Section 2.15, or
if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); PROVIDED that (i) if the
assignment is not to another Lender, the Company shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Commitment is
being assigned, the Issuing Banks and Swingline Lenders), which consent shall
not unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Company (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments required
to be made pursuant to Section 2.17, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Company to require
such assignment and delegation cease to apply.
SECTION 2.20. OBLIGATIONS CONSTITUTE DESIGNATED SENIOR
INDEBTEDNESS. The Obligations constitute "Designated Senior Indebtedness" under
and as defined in the Senior Subordinated Note Indenture.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Lenders that:
SECTION 3.01. EXISTENCE AND POWER. Each Loan Party is duly
incorporated, formed or organized, validly existing and (to the extent the
concept is applicable in its jurisdiction of organization and the failure to be
in good standing could give rise to a Material Adverse Effect) in good standing
under the laws of its jurisdiction of organization, and has all applicable
Business Entity powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
62
SECTION 3.02. AUTHORIZATION; NO CONTRAVENTION. The execution
and delivery by each Loan Party of each of the Loan Documents to which it is a
party and the performance by each such Loan Party of its obligations thereunder
and the other Transactions are within the applicable Business Entity power of
such Loan Party, have been duly authorized by all necessary applicable Business
Entity action, require no action by or in respect of, or filing with, any
governmental body, agency or official (except for any such action or filing that
has been taken and is in full force and effect) and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the Constitutional Documents of any Loan Party or of any material agreement,
judgment, injunction, order, decree or other material instrument binding upon
such Loan Party or result in the creation or imposition of any Lien on any asset
of any Loan Party other than Liens created pursuant to the Loan Documents. There
are no Acquisition Documents other than those set forth on Schedule 1.01.
SECTION 3.03. BINDING EFFECT. This Agreement constitutes a
valid and binding agreement of each Borrower, and the other Loan Documents, when
executed and delivered as contemplated by this Agreement, will constitute valid
and binding obligations of each Loan Party that is a party thereto, in each case
enforceable in accordance with its terms.
SECTION 3.04. FINANCIAL INFORMATION. (a) The consolidated
balance sheet of the Company and its Consolidated Subsidiaries as of March 31,
2000 and the related consolidated statements of income and of cash flows for the
Fiscal Year then ended, reported on by Deloitte & Touche LLP and set forth in
the Company's Form 10-K for Fiscal Year 2000, a copy of which has been delivered
to each of the Lenders, fairly present, in conformity with GAAP, the
consolidated financial position of the Company and its Consolidated Subsidiaries
as of such date and their consolidated results of operations and cash flows for
such Fiscal Year.
(b) The unaudited consolidated balance sheets of the Company
and its Consolidated Subsidiaries as of December 31, 2000, and the related
unaudited consolidated statements of income and cash flow for the nine months
then ended, set forth in the December 2000 10-Q, copies of which have been
delivered to each of the Lenders, fairly present, in conformity with GAAP
applied on a basis consistent with the financial statements referred to in
Section 3.04(a), the consolidated financial position of the Company and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such nine-month period (subject to normal year-end
adjustments).
(c) The Company has heretofore furnished to the Lenders its
pro forma consolidated balance sheet as of December 31, 2000, prepared giving
effect to the Transactions as if the Transactions had occurred on such date.
Such pro forma consolidated balance sheet (i) has been prepared in good faith
based on the same
63
assumptions used to prepare the pro forma financial statements included in the
Information Memorandum (which assumptions are believed by the Company to be
reasonable), (ii) is based on the best information available to the Company
after due inquiry, (iii) accurately reflects all adjustments necessary to give
effect to the Transactions and (iv) presents fairly, in all material respects,
the pro forma financial position of the Company and its Consolidated
Subsidiaries as of December 31, 2000 as if the Transactions had occurred on such
date.
(d) Since March 31, 2000, there has been no material adverse
change in the business, financial position, results of operations, property or
prospects of the Company and its Consolidated Subsidiaries, taken as a whole.
(e) The Company has heretofore furnished to the Lenders an
audited consolidated statement of net assets and a related unaudited statement
of income of Thiokol and its subsidiaries as at, and for the fiscal year ended,
December 31, 2000. Such financial statements fairly present, in conformity with
GAAP (excluding income statement footnotes), the consolidated financial position
of Thiokol and its subsidiaries as of such dates and their consolidated results
of operations for such periods. Since December 31, 2000, there has been no
material adverse change in the business, financial position, results of
operations or property of Thiokol and its subsidiaries, taken as a whole.
SECTION 3.05. LITIGATION. Except as described in the December
2000 10-Q, there is no action, suit or proceeding pending against, or to the
knowledge of the Company threatened against or affecting, any Loan Party or any
of its Subsidiaries before any court or arbitrator or any governmental body,
agency or official in which there is a reasonable possibility of an adverse
decision which would materially adversely affect the business, consolidated
financial position or consolidated results of operations of the Company and its
Consolidated Subsidiaries, or which in any manner draws into question the
validity of any Loan Document.
SECTION 3.06. COMPLIANCE WITH ERISA. Each member of the ERISA
Group has fulfilled its obligations in all material aspects under the minimum
funding standards of ERISA and the Code with respect to each Plan and is in
compliance in all material respects with the presently applicable provisions of
ERISA and the Code with respect to each Plan. No member of the ERISA Group has
(i) sought a waiver of the minimum funding standard under Section 412 of the
Code in respect of any Plan, (ii) failed to make any contribution or payment to
any Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or made
any amendment to any Plan or Benefit Arrangement, which in either event has
resulted or would reasonably be expected to result in the imposition of a Lien
or the posting of a bond or other security under ERISA or the Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums or similar items under Section 4007 of ERISA. The present
value of
64
all accumulated benefit obligations under all the Plans (based on the
assumptions used to fund the Plans), did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than 10% the fair
market value of the assets of all such Plans taken together. No member of the
ERISA Group has withdrawn (or expects to withdraw or partially withdraw) from
any Multiemployer Plan other than with respect to withdrawals that in the
aggregate would not be expected to result in withdrawal liabilities for the
Company and the Subsidiaries in excess of $10,000,000 for any Fiscal Year.
SECTION 3.07. ENVIRONMENTAL MATTERS. Except with respect to
any matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any of
its Subsidiaries (i) has failed to comply with any applicable Environmental Law
or to obtain, maintain or comply with any permit, license or other approval
required under any applicable Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with respect to
any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 3.08. TAXES. The Company and each of its Subsidiaries
have filed all United States Federal income tax returns and all other material
tax returns which are required to be filed by any of them and have paid all
taxes due pursuant to such returns or pursuant to any assessment received by any
of them, except for any such taxes which are being contested in good faith and
for which adequate reserves have been made on the books of the Company and its
Subsidiaries in accordance with GAAP. The charges, accruals and reserves on the
books of the Company and its Subsidiaries in respect of income taxes are, in the
opinion of the Company, adequate in accordance with GAAP.
SECTION 3.09. SUBSIDIARIES. Each Subsidiary of each Loan Party
is duly incorporated, formed or organized, validly existing and (to the extent
the concept is applicable in its jurisdiction of organization) in good standing
under the laws of its jurisdiction of organization, and has all applicable
Business Entity powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
SECTION 3.10. NOT AN INVESTMENT COMPANY. Neither the Company
nor any of its Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 3.11. FULL DISCLOSURE. (a) As of the Effectiveness
Date, the information contained in the Information Memorandum, the Company's
Form 10-K for the period ended March 31, 2000 and the December 2000 10-Q, taken
together, does not and will not contain any untrue statement of a material fact
and does not or will not omit to state a material fact necessary in order to
make the statements contained therein, in the
65
light of the circumstances under which they are made, not misleading. All
information hereafter furnished in writing by any Loan Party to any Agent or any
Lender will be, taken as a whole and considered together with all information
previously so furnished, true and accurate in all material respects on the date
as of which such information is stated or furnished.
(b) The Loan Parties have disclosed to each of the Lenders in
writing any and all facts which currently do or may have a Material Adverse
Effect (to the extent the Loan Parties can now reasonably foresee).
(c) Each of the representations and warranties of the
Borrowers made in or pursuant to the Loan Documents other than this Agreement is
true and correct.
(d) It is understood that the representations and warranties
set forth in clauses (a) and (b) above are limited to the extent that (i) any
projections or forecasts are represented to be based upon reasonable estimates
believed by the Loan Parties to be accurate, but are not warranted to be
obtained and (ii) no representation is made as to disclosure of matters of a
general economic nature or matters of public knowledge that generally affect any
of the industry segments included in the business of the Company and its
Consolidated Subsidiaries.
SECTION 3.12. COMPLIANCE WITH LAWS. Each Loan Party and each
of its Subsidiaries is in compliance in all material respects with all
applicable laws, rules and regulations, and is not in violation of, or in
default under, any term or provision of any charter, bylaw, mortgage, indenture,
agreement, instrument, statute, rule, regulation, judgment, decree, order, writ
or injunction applicable to it, except for any such violations, defaults or
failures to comply which would not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect.
SECTION 3.13. SOLVENCY. Immediately after the consummation of
the Transactions to occur on the Effectiveness Date and immediately following
the making of each Loan made on the Effectiveness Date and after giving effect
to the application of the proceeds of such Loans, (a) the fair value of the
assets of each Loan Party, at a fair valuation, will exceed its debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of each Loan Party will be greater than the
amount that will be required to pay the probable liability of its debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) each Loan Party will be able
to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) each Loan Party will
not have unreasonably small capital with which to conduct the business in which
it is engaged as such business is now conducted and is proposed to be conducted
following the Effectiveness Date.
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SECTION 3.14. SENIOR INDEBTEDNESS. The Obligations constitute
"Designated Senior Indebtedness" under and as defined in the Senior Subordinated
Note Indenture.
ARTICLE IV
CONDITIONS
SECTION 4.01. EACH CREDIT EVENT. The obligation of each Lender
to make a Loan on the occasion of any Borrowing, and of any Issuing Bank to
issue, amend, renew or extend any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material
respects on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Company on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements have been reimbursed, the Company covenants and agrees with the
Lenders as to itself and its subsidiaries, and each Borrowing Subsidiary
covenants and agrees with the Lenders as to itself and its subsidiaries, that:
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SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Company will furnish (by electronic or other means) to the Administrative Agent
and each Lender:
(a) as soon as available and in any event within 100 days
after the end of each fiscal year of the Company, a consolidated
balance sheet of the Company and its Consolidated Subsidiaries as of
the end of such fiscal year and the related consolidated statements of
income and of cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all
reported on in a manner acceptable to the Securities and Exchange
Commission by Deloitte & Touche LLP or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 50 days after
the end of each of the first three quarters of each fiscal year of the
Company, a consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter and the related
consolidated statements of income and of cash flows for such quarter
and for the portion of the Company's fiscal year ended at the end of
such quarter, setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of
the Company's previous fiscal year, all certified (subject to normal
year-end adjustments) as to fairness of presentation, GAAP and
consistency by the chief financial officer or the chief accounting
officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in subsections (a) and (b) of this Section, a
certificate of the treasurer, controller or chief financial officer of
the Company (i) setting forth in reasonable detail such calculations as
are required to establish (A) if the Arrow Joint Venture shall have
been formed on or prior to the date of such delivery, the amount as of
such date of delivery of the Arrow Available Restricted Payments, and
(B) whether the Company was in compliance with the requirements of
Sections 6.10 through 6.12 and 6.17, inclusive on the date of such
financial statements, (ii) stating whether, to the best of such
person's knowledge after due inquiry, there exists on the date of such
certificate any Default and, if any Default then exists, setting forth
the details thereof and the action that the Company is taking or
proposes to take with respect thereto and (iii) stating whether, since
the date of the most recent financial statements previously delivered
pursuant to subsection (a) or (b) of this Section, there has been a
change in the generally accepted accounting principles applied in
preparing the financial statements then being delivered from those
applied
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in preparing the most recent audited financial statements so delivered
which is material to the financial statements then being delivered;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i)
whether anything has come to their attention to cause them to believe
that any Default existed on the date of such statements and (ii)
confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to clause (c) above;
(e) within five Business Days after any Responsible Officer of
the Company obtains knowledge of any Default, if such Default is then
continuing, a certificate of the treasurer, controller or chief
financial officer of the Company setting forth the details thereof and
the action which the Borrower is taking or proposes to take with
respect thereto;
(f) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports and
proxy statements so mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) which the Company shall
have filed with the Securities and Exchange Commission;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of the incurrence of complete or partial
withdrawal liability with respect to any Multiemployer Plan under Title
IV of ERISA or notice that any Multiemployer Plan is in reorganization,
is insolvent or has been terminated, a copy of such notice; (iii)
receives notice from the PBGC under Title IV of ERISA of its intent to
terminate, impose liability (other than for premiums under Section 4007
of ERISA) in respect of, or appoint a trustee to administer any Plan, a
copy of such notice; (iv) applies for a waiver of the minimum funding
standard under Section 412 of the Code, a copy of such application; (v)
gives notice of intent to terminate any Plan
69
under Section 4041(c) of ERISA, a copy of such notice and other
information filed with the PBGC; (vi) gives notice of withdrawal from
any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or
(vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes
any amendment to any Plan or Benefit Arrangement which has resulted or
could result in the imposition of a Lien or the posting of a bond or
other security under ERISA or the Code, a certificate of the chief
financial officer or the chief accounting officer of the Company
setting forth details as to such occurrence and action, if any, which
the Company or applicable member of the ERISA Group is required or
proposes to take;
(i) as soon as reasonably practicable after any Responsible
Officer of the Company obtains knowledge of the commencement of, or of
a material threat of the commencement of, an action, suit or proceeding
against the Company or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official in which there
is a reasonable likelihood of an adverse decision which would
materially and adversely affect the business, financial position,
results of operations or prospects of the Company and its Consolidated
Subsidiaries, in each case considered as a whole, or which in any
manner questions the validity of any Loan Document, a written report
informing the Lenders in reasonable detail of the nature of such
pending or threatened action, suit or proceeding and will provide such
additional information as may be reasonably requested by the
Administrative Agent at the request of any Lender;
(j) except to the extent prohibited by applicable law, rule,
regulations or orders, from time to time such additional information
regarding the financial position or business of the Company and its
Subsidiaries as the Administrative Agent, at the request of any Lender,
may reasonably request;
(k) as soon as available and in any event within 60 days of
the Effectiveness Date, audited consolidated balance sheets and related
statements of income, stockholders' equity and cash flows of Thiokol
for the three fiscal years ended prior to the Effectiveness Date
(including such balance sheets and statements for the fiscal year ended
December 31, 2000);
(l) promptly upon the formation or acquisition of any
additional Foreign Subsidiary, notice of such formation or acquisition
and the amount of the Investment therein by the Company and the
Subsidiaries; and
70
(m) prior to or immediately following the issuance of any
Lender Letter of Credit, the cancelation or termination of any Lender
Letter of Credit, any drawing under any lender Letter of Credit, any
payment in respect of any drawing under any Lender Letter of Credit or
any other event that would result in a change in the Lender LC
Exposure, notice thereof.
SECTION 5.02. PAYMENT OF OBLIGATIONS. Each Loan Party will pay
and discharge, and will cause each of its Subsidiaries to pay and discharge, at
or before maturity, all their respective obligations and liabilities, including,
without limitation, tax liabilities, except where the same may be contested in
good faith by appropriate proceedings, and except where the failure to pay or
discharge such obligations and liabilities would not in the aggregate reasonably
be expected to have a Material Adverse Effect, and will maintain, and will cause
each Subsidiary to maintain, in accordance with GAAP, appropriate reserves for
the accrual of any of the same.
SECTION 5.03. MAINTENANCE OF PROPERTY; INSURANCE. (a) Each
Loan Party will keep, and will cause each of its Subsidiaries to keep, all
property materially useful and necessary in its business in good working order
and condition, ordinary wear and tear excepted.
(b) The Company will maintain, and will cause each of its
Subsidiaries to maintain, insurance from responsible companies in such amounts
and against such risks as is usually carried by owners of similar businesses and
properties in the same general areas in which the Company and its Subsidiaries
operate, PROVIDED that in any event the Company will maintain, and will cause
each of its Subsidiaries to maintain, (i) property and casualty insurance on all
real and personal property on an all risks basis (including the perils of flood
and quake), covering the repair or replacement cost of all such property and
consequential loss coverage for business interruption and extra expense (which
shall be limited to fixed continuing expenses and such other business
interruption expenses as are otherwise generally available to similar
businesses), covering such risks, for such amounts not less than those, and with
deductible and self-insurance amounts not greater than those, set forth in Part
I of Schedule 5.03, (ii) public liability insurance (including products
liability coverage) covering such risks, for such amounts not less than those,
and with deductible amounts not greater than those, set forth in Part II of
Schedule 5.03 and (iii) such other insurance coverage in such amounts and with
respect to such risks as the Required Lenders may reasonably request. All such
insurance shall be provided by insurers or reinsurers which (x) in the case of
United States insurers and reinsurers have an A.M. Best policyholders rating of
not less than A- with respect to primary insurance, and B+ with respect to
excess insurance, and (y) in the case of non-United States insurers or
reinsurers, the providers of at least 80% of such insurance have either an ISI
policyholders rating of not less than A, an A.M. Best policyholders rating of
not less than A-, or a surplus of not less than $500,000,000 with respect to
primary insurance, and an ISI policyholders rating of not less than BBB with
respect to excess insurance, or such
71
other insurers as the Required Lenders may approve in writing. Such insurers may
include a Subsidiary; PROVIDED that such Subsidiary need not satisfy the
foregoing requirements if all but $15,000,000 of the insurance provided by such
Subsidiary is reinsured by one or more reinsurers which satisfy such
requirements.
(c) The Company will deliver to the Administrative Agent on
behalf of the Lenders, (i) on the Effectiveness Date, a certificate dated such
date showing the amount of coverage as of such date, (ii) upon request of any
Lender through the Administrative Agent from time to time full information as to
the insurance carried, (iii) within five days of receipt of notice from any
insurer, a copy of any notice of cancelation or material change in coverage from
that existing on the Effectiveness Date, (iv) forthwith, notice of any
cancelation or nonrenewal of coverage by the Company or any Subsidiary, and (v)
within five days of filing, full information as to any claim for an amount in
excess of $5,000,000 with respect to any property and casualty insurance policy
maintained by the Company or any Subsidiary. The Administrative Agent shall be
named as additional insured on all property and casualty insurance policies and
a loss payee on all property insurance policies. Any proceeds from any such
insurance policy in respect of any claim, or any condemnation award or other
compensation in respect of a condemnation (or any transfer or disposition of
property in lieu of condemnation) for which the Company or any of its
Subsidiaries receives a condemnation award or other compensation shall be paid
to the Company or the Subsidiary; PROVIDED that, (A) the Company or the
Subsidiary will use such proceeds, condemnation award or other compensation in
accordance with Section 2.11(c) or (B) if, at the time of the receipt of such
proceeds, condemnation award or other compensation, a Default has occurred and
is continuing, the aggregate amount of all such proceeds, condemnation award or
other compensation shall be paid to the Administrative Agent and held as
collateral for application in accordance with the Security Documents.
SECTION 5.04. CONDUCT OF BUSINESS AND MAINTENANCE OF
EXISTENCE. Each Loan Party will continue, and will cause each Subsidiary to
continue, to engage in business of the same general type as now conducted by the
Company and its Subsidiaries and by Thiokol and its subsidiaries, and will
preserve, renew and keep in full force and effect, and will cause each of its
Subsidiaries to preserve, renew and keep in full force and effect their
respective Business Entity existence and, except for any such rights, privileges
and franchises the failure to preserve which would not in the aggregate have a
Material Adverse Effect, their respective rights, privileges and franchises
necessary or desirable in the normal conduct of business; PROVIDED that nothing
in this Section 5.04 shall prohibit (a) the merger of a Subsidiary into the
Company or the merger or consolidation of the Company or any Subsidiary with or
into another Person if the Business Entity surviving such consolidation or
merger is, in the case of any merger or consolidation involving the Company, the
Company, and in the case of any merger or consolidation involving any
Subsidiary, a Wholly-Owned Consolidated Subsidiary and if, in each case, after
giving effect thereto, no Default shall have occurred and be continuing
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or (b) the termination of the Business Entity existence of any Subsidiary or the
discontinuance of any line of business of the Company or any of its Subsidiaries
if the board of directors of the Company in good faith determines that such
termination is in the best interest of the Company and is not materially
disadvantageous to the Lenders; and PROVIDED FURTHER that the parties agree that
this Section 5.04 shall not prohibit the Company and its Subsidiaries from
engaging in the business of (or acquiring other businesses and assets not
otherwise prohibited by this Agreement if such businesses are engaged in, or
such assets are used to conduct the business of) any Permitted Lines of
Business. Notwithstanding anything to the contrary in this Agreement, (i)
Alliant Assurance Ltd. will not conduct any business other than providing
insurance or self- insurance for the businesses of the Company and the
Subsidiary Loan Parties, the Spear Joint Venture and other Joint Ventures and
(ii) any cash held at any time by Alliant Assurance Ltd. that is in excess of
its projected 45 day cash requirements will be lent to the Company under an
intercompany note pledged under the Pledge Agreement or will be dividended to
the Company.
SECTION 5.05. COMPLIANCE WITH LAWS. Each Loan Party will
comply, and cause each of its Subsidiaries to comply, in all material respects
with all applicable laws, ordinances, rules, regulations, and requirements of
Governmental Authorities (including Environmental Laws and ERISA and the rules
and regulations thereunder) the failure to comply with which would reasonably be
expected to have a Material Adverse Effect, except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings.
SECTION 5.06. INSPECTION OF PROPERTY, BOOKS AND RECORDS. Each
Loan Party will keep, and will cause each of its Subsidiaries to keep, proper
books of record and account in which full, true and correct entries shall be
made of all dealings and transactions in relation to its business and
activities; and, except to the extent prohibited by applicable law, rule,
regulations or orders, will permit, and will cause each of its Subsidiaries to
permit, representatives of any Lender at such Lender's expense to visit and
inspect any of their respective properties, to examine and make abstracts from
any of their respective books and records and to discuss their respective
affairs, finances and accounts with their respective officers, employees and
independent public accountants, all at such reasonable times and as often as may
reasonably be desired.
SECTION 5.07. USE OF PROCEEDS AND LETTERS OF CREDIT. Subject
to the immediately succeeding sentence, the proceeds of the Loans, the Letters
of Credit, and the Lender Letters of Credit will be used only for the purposes
set forth in the preamble to this Agreement. Not more than $125,000,000 in the
aggregate of principal amount of Revolving Loans may be used to purchase, invest
in or otherwise acquire (i) stock or other Equity Interests in entities the
principal businesses of which are one or more Permitted Lines of Business or
(ii) assets to be used in Permitted Lines of Business. No part of the proceeds
of any Loan will be used, whether directly or indirectly, for any
73
purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X. If any part of the proceeds of any Loan are to
be used to acquire margin stock, the Company shall deliver a Form U-1 to each
Lender demonstrating to the satisfaction of such Lender that such Loan, the use
of the proceeds thereof and the pledge of the margin stock so acquired if
required by Section 5.08 will not result in a violation of Regulation T, U or X.
SECTION 5.08. ADDITIONAL SUBSIDIARIES. (a) If after the
Effectiveness Date any additional Subsidiary (other than the Spear Joint
Venture) shall be formed or acquired, any Loan Party shall acquire any Equity
Interest in any Person or any Loan Party shall acquire any Indebtedness in an
aggregate principal amount for any obligor in excess of $1,000,000, the Company
will notify the Administrative Agent and the Lenders thereof and (i) if such
Subsidiary is a Subsidiary Loan Party, the Company will cause such Subsidiary to
become a party to the Subsidiary Guaranty Agreement and the Security Agreement
within five Business Days after such Subsidiary is formed or acquired and
promptly take such actions to create and perfect Liens on such Subsidiary's
assets to secure the Obligations as the Administrative Agent or the Required
Lenders shall reasonably request and (ii) if any Equity Interest in or
Indebtedness of such Subsidiary or Person shall be owned by or on behalf of any
Loan Party, the Company will cause such Equity Interests and any promissory
notes evidencing such Indebtedness in an aggregate principal amount for any
obligor in excess of $1,000,000 to be pledged pursuant to the Pledge Agreement
within five Business Days after such Subsidiary is formed or acquired or such
Equity Interest or Indebtedness is acquired (except that, if such Subsidiary is
a Foreign Subsidiary, the voting Equity Interests in such Subsidiary to be
pledged pursuant to the Pledge Agreement may be limited to 65% of the
outstanding voting Equity Interests in such Subsidiary), PROVIDED that no Loan
Party shall be required to pledge under the Security Documents any Aerospace
Note or any Equity Interest in Alliant Assurance Ltd. held by it.
(b) Upon the formation of the Spear Joint Venture, the Company
will notify the Administrative Agent and the Lenders thereof and within 15
Business Days after the Spear Joint Venture is formed (i) the Borrowers will
cause the Spear Joint Venture to deliver to the Administrative Agent each
security agreement, pledge agreement, mortgage and other document or instrument
required to cause substantially all the assets of the Spear Joint Venture to
secure the obligations of the Spear Joint Venture under the Spear Note and all
obligations in respect of Letters of Credit issued for the benefit of the Spear
Joint Venture or any of its subsidiaries (the "SPEAR OBLIGATIONS"), in each case
on terms reasonably satisfactory to the Administrative Agent, and promptly take
such other actions as may be required to create and perfect Liens on the Spear
Joint Venture's assets to secure the Spear Obligations as the Administrative
Agent or the Required Lenders shall reasonably request and (ii) the Borrowers
will cause all the Equity Interests in the Spear Joint Venture owned by any
Borrower or any Subsidiary and the Spear Note to be pledged pursuant to the
Pledge Agreement to secure the Obligations and
74
all the rights and interests of the Borrowers and the Subsidiaries in and to the
Spear Joint Venture to be assigned to the Administrative Agent, for the benefit
of the secured parties under the Security Agreement, to secure the Obligations.
In the event the Spear Joint Venture shall at any time own, directly or
indirectly, any Equity Interests in any Person, all such Equity Interests, and,
if such Person is a subsidiary of the Spear Joint Venture, substantially all the
assets of such subsidiary, shall within 15 Business Days of the acquisition,
creation or formation thereof be pledged under the foregoing documents and
instruments to secure the Spear Obligations. The Administrative Agent shall be
appointed as collateral agent under each such document and instrument for all
parties secured thereby (it being understood that the Spear Partner Permitted
Indebtedness may be secured thereby ratably with the Spear Obligations) and will
control all actions and decisions thereunder and with respect to the collateral
subject thereto; PROVIDED that in the event the Administrative Agent intends to
exercise any right to foreclose upon or otherwise cause the sale or transfer of
any portion of the Spear Collateral, the Administrative Agent will give the
Spear Partner 10 Business Days' notice prior to exercising such right and if
within such 10 Business Day period the Spear Partner shall make a written offer
to purchase such portion of the Spear Collateral, the Administrative Agent will
not be permitted to sell such portion of the Spear Collateral to any Person
other than the Spear Partner on or prior to the 60th day following receipt of
such offer unless it has sold such portion of the Spear Collateral to one or
more other Persons on terms in its judgment, taken as a whole, more favorable
than the terms of such offer (and if no sale is made within such 60-day period
to any third party, the Administrative Agent will sell such portion of the Spear
Collateral to the Spear Partner on the terms of such offer). The Company hereby
agrees that any sale to the Spear Partner pursuant to such offer, whether or not
the Administrative Agent shall have solicited or considered any offer from any
other Person, will be conclusively deemed to be for fair value and for adequate
consideration.
(c) Upon the formation of the Arrow Joint Venture, the Company
will notify the Administrative Agent and the Lenders thereof and within 15
Business Days after the Arrow Joint Venture is formed the Borrowers will cause
all the Equity Interests in the Arrow Joint Venture owned by the Company or any
Subsidiary to be pledged pursuant to the Pledge Agreement to secure the
Obligations and all the rights and interests of the Company and the Subsidiaries
in and to the Arrow Joint Venture to be assigned to the Administrative Agent,
for the benefit of the secured parties under the Security Agreement, to secure
the Obligations.
SECTION 5.09. FURTHER ASSURANCES. (a) The Borrowers will, and
will cause each Subsidiary Loan Party and, with respect to the Spear
Obligations, the Spear Joint Venture to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), which may be required
under any applicable law, or which the Administrative Agent or
75
the Required Lenders may reasonably request, to effectuate the transactions
contemplated by the Loan Documents or to grant, preserve, protect or perfect the
Liens created or intended to be created by the Security Documents or the
validity or priority of any such Lien, all at the expense of the Loan Parties
and the Spear Joint Venture, as applicable. The Company also agrees to provide
to the Administrative Agent (i) from time to time upon request, evidence
reasonably satisfactory to the Administrative Agent as to the perfection and
priority of the Liens created or intended to be created by the Security
Documents and (ii) upon request, survey updates in connection with the Mortgaged
Properties; PROVIDED that the Company shall not be required to provide such a
survey update with respect to a Mortgaged Property more than once in any
24-month period.
(b) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by any Borrower or
any Subsidiary Loan Party after the Effectiveness Date (other than assets
constituting Collateral under the Security Agreement that become subject to the
Lien of the Security Agreement upon acquisition thereof and as to which no
further actions are required to perfect such Lien), the Company will notify the
Administrative Agent and the Lenders thereof, and, if requested by the
Administrative Agent or the Required Lenders, the Company will cause such assets
to be subjected to a Lien securing the Obligations and will take, and cause the
Subsidiary Loan Parties to take, such actions as shall be necessary or
reasonably requested by the Administrative Agent to grant and perfect such
Liens, including actions described in paragraph (a) of this Section, all at the
expense of the Loan Parties.
(c) For the avoidance of doubt, (i) no Loan Party is required
by any Loan Document to pledge or ▇▇▇▇▇ ▇ ▇▇▇▇ on any Equity Interests in, or
any assets of, Alliant Assurance Ltd. and (ii) any Loan Party may limit its
pledge of any class of voting Equity Interests in any Foreign Subsidiary to 65%
of the outstanding voting Equity Interests of such class in such Foreign
Subsidiary.
SECTION 5.10. MAINTENANCE OF COLLATERAL; ALTERATIONS. No Loan
Party shall commit any waste of any Collateral or, except in the ordinary course
of its business, make any material change in the use of any Collateral, PROVIDED
that any Loan Party may lease to any other Person all or any portion of any item
of Collateral that the Company has determined in good faith is not used or
useful in such Loan Party's operating business. Each Loan Party granting a
security interest in any Mortgaged Property represents and warrants that, to the
best of its knowledge: (i) such Mortgaged Property is served by all utilities
required or necessary for the current use thereof; (ii) all streets necessary to
serve such Mortgaged Property are completed and serviceable and have been
dedicated and accepted as such by the appropriate governmental entities; and
(iii) such Loan Party has access to such Mortgaged Property from public roads
sufficient to allow such Loan Party to conduct its business at such Mortgaged
Property in accordance with sound commercial and industrial practices. The Loan
Parties shall, at all times, maintain all Collateral that is materially useful
or necessary in their respective businesses, in good operating order,
76
condition and repair, ordinary wear and tear excepted, and in compliance with
all applicable laws, rules and regulations, (including Environmental Laws) the
failure to comply with which would have a material adverse effect on the value
or usefulness of such Collateral, except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings. Each Loan Party
shall (a) not, except in the ordinary course of business or as provided in the
PROVISO to the first sentence of this Section, alter the occupancy or use of all
or any part of any Mortgaged Property without the prior written consent of the
Required Lenders, which consent shall not be unreasonably withheld and (b) do
what is deemed commercially reasonable to maintain and preserve the value of the
Collateral.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements have been reimbursed, the Company covenants and agrees with the
Lenders as to itself and its subsidiaries, and each Borrowing Subsidiary
covenants and agrees with the Lenders as to itself and its subsidiaries, that:
SECTION 6.01. INDEBTEDNESS; CERTAIN EQUITY SECURITIES. (a) The
Company will not and will not permit any Subsidiary (other than the Spear Joint
Venture and the Arrow Subsidiaries) to, create, incur, assume or permit to exist
any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness of the Company created under the Bridge
Credit Agreement in an aggregate principal amount not to exceed
$125,000,000, and any Guarantee thereof by any Subsidiary Loan Party;
PROVIDED that each such Subsidiary Loan Party shall be automatically
released from such Guarantee upon its release from its Guarantee under
the Subsidiary Guaranty Agreement;
(iii) Indebtedness of the Company consisting of Senior
Subordinated Notes and Permanent Securities constituting Indebtedness
in an aggregate amount not to exceed at any time the sum at such time
of (A) the aggregate principal amount thereof incurred or issued in
lieu of Indebtedness under the Bridge Credit Agreement or used to
prepay Indebtedness under the Bridge Credit Agreement, (B) the
aggregate amount of reductions of the Term Loan Commitments under
Section 2.08(d) in respect thereof and (C) the aggregate principal
amount of
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Senior Subordinated Notes and Permanent Securities the Net Proceeds of
which were applied to prepay Term Loans under Section 2.11(c), and any
Guarantee thereof by any Subsidiary Loan Party; PROVIDED that each such
Subsidiary Loan Party shall be automatically released from such
Guarantee upon its release from its Guarantee under the Subsidiary
Guaranty Agreement;
(iv) Indebtedness existing on the date hereof and set forth
in Schedule 6.01, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted
average life thereof or add any new obligor in respect thereof;
(v) Indebtedness of the Company to any Subsidiary and of any
Subsidiary to the Company or any other Subsidiary; PROVIDED that
Indebtedness of any Subsidiary that is not a Loan Party to the Company
or any Subsidiary Loan Party shall be subject to Section 6.04;
(vi) Guarantees by the Company of Indebtedness of any
Subsidiary and by any Subsidiary of Indebtedness of the Company or any
other Subsidiary; PROVIDED that Guarantees by the Company or any
Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a
Loan Party shall constitute Investments for purposes of Section 6.04
and shall be subject to Section 6.04;
(vii) Indebtedness of the Company or any Subsidiary incurred
to finance the acquisition, construction or improvement (including
purchase or construction costs, design, engineering, transportation,
installation, testing and analogous costs, and all related professional
costs and expenses) of any fixed or capital assets, including Capital
Lease Obligations, Synthetic Lease Obligations and any Indebtedness
assumed in connection with the acquisition of any such assets or
secured by a Lien on any such assets prior to the acquisition thereof,
and extensions, renewals and replacements of any such Indebtedness that
do not increase the outstanding principal amount thereof or result in
an earlier maturity date or decreased weighted average life thereof;
PROVIDED that (A) such original Indebtedness is incurred prior to or
within 180 days after such acquisition or the completion of such
construction or improvement and (B) the aggregate principal amount of
Indebtedness permitted by this clause (vii) shall not exceed
$50,000,000 at any time outstanding;
(viii) Acquired Indebtedness in an aggregate principal amount
not to exceed $50,000,000 at any time outstanding;
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(ix) Indebtedness in respect of (A) Lender Letters of Credit,
PROVIDED that the sum of the LC Exposure and the Lender LC Exposure
shall not at any time exceed $150,000,000, and (B) letters of credit
permitted under Section 6.13; and
(x) other unsecured Indebtedness in an aggregate principal
amount not exceeding $10,000,000 at any time outstanding; PROVIDED that
the aggregate principal amount of Indebtedness of the Company's
Subsidiaries permitted by this clause (x) shall not exceed $5,000,000
at any time outstanding.
(b) Notwithstanding anything to the contrary contained in
paragraph (a) above, neither the Spear Joint Venture nor any subsidiary thereof
shall at any time prior to the Spear Final Contribution Date create, incur,
assume or permit to exist any Indebtedness, except:
(i) Indebtedness in respect of Letters of Credit;
(ii) Indebtedness under the Spear Note in an aggregate
principal amount not exceeding $40,000,000 at any time
outstanding; and
(iii) Spear Partner Permitted Indebtedness.
Indebtedness incurred by the Spear Joint Venture and its subsidiaries will not
be counted against any of the limits set forth in paragraph (a) above.
(c) Notwithstanding anything to the contrary contained in
paragraph (a) above, no Arrow Subsidiary shall at any time that it is a
Subsidiary create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness under this Agreement (including Letters of
Credit), Lender Letters of Credit and letters of credit issued in
accordance with Section 6.13;
(ii) Indebtedness owing to the Company or its Subsidiaries
that constitutes a permitted Investment under Section 6.04(a) or
(g)(i); and
(iii) other unsecured Indebtedness in an aggregate principal
amount not to exceed $1,000,000.
Indebtedness incurred by the Arrow Subsidiaries and their subsidiaries will not
be counted against any of the limits set forth in paragraph (a) above.
(d) No Borrower will, nor will any Borrower permit any
Subsidiary to, issue any Preference Stock other than Preference Stock of the
Company the Net Proceeds
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of which are applied to prepay loans under the Bridge Credit Agreement or, after
all such loans have been prepaid in full, to prepay Term Loans in accordance
with Section 2.11(c).
SECTION 6.02. NEGATIVE PLEDGE. Neither any Borrower nor any of
the Subsidiaries will create, assume or suffer to exist any Lien on any asset
now owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:
(a) Liens (i) existing on the Effectiveness Date securing
Indebtedness or other obligations or liabilities outstanding on such
date and identified or referred to on Schedule 6.02 or (ii) disclosed
in title insurance policies delivered to the Administrative Agent prior
to the Effectiveness Date relating to the Mortgaged Properties;
(b) any Lien existing on any asset of any Person at the time
such Person becomes a Subsidiary of such Loan Party and not created in
contemplation of such event;
(c) any Lien on any asset (other than Equity Interests)
securing Indebtedness and other related obligations incurred or assumed
for the purpose of financing all or any part of the costs (including
purchase or construction costs, design, engineering, transportation,
installation, testing and analogous costs, and all related professional
costs and expenses) of acquiring, constructing or improving such asset;
PROVIDED that such Lien attaches to such asset concurrently with or
within 180 days after the completion of the acquisition, construction
or improvement thereof;
(d) any Lien on any asset of any Person existing at the time
such Person is merged or consolidated with or into such Loan Party or
any of the Subsidiaries and not created in contemplation of such event;
(e) any Lien existing on any asset, or on any asset of any
Person, prior to the acquisition of such asset or such Person, as the
case may be, by such Loan Party or any of the Subsidiaries and not
created in contemplation of such acquisition;
(f) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business and which are not overdue for a period of more than
30 days or which are being contested in good faith by appropriate
proceedings;
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(g) Liens for taxes, assessments or other governmental charges
not yet overdue or which are being contested in good faith and by
appropriate proceedings;
(h) pledges or deposits in connection with workmen's
compensation, unemployment insurance and other social security
legislation;
(i) deposits to secure the performance of bids, tenders, trade
or government contracts (other than for borrowed money), leases,
licenses, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(j) easements, right-of-way, zoning and similar restrictions
and other encumbrances or title defects incurred, or leases or
subleases granted to others, in the ordinary course of business which
do not in any material respect interfere with or adversely affect the
use or value of any Mortgaged Property or the ordinary conduct of the
business of any Borrower or such Subsidiary and the matters listed in
the policies of title insurance with respect to the Mortgaged
Properties delivered to the Administrative Agent prior to the
Effectiveness Date;
(k) Liens on property of the Company or any of the
Subsidiaries in favor of the Company or such Subsidiary, as the case
may be;
(l) Liens created by the Loan Documents;
(m) Liens arising under documentary letters of credit;
PROVIDED that such Liens attach only to the assets purchased thereunder
and documents relating thereto;
(n) Liens arising in the ordinary course of its business which
(i) do not secure Indebtedness or Derivatives Obligations, (ii) do not
secure any obligation in an amount exceeding $1,000,000 and (iii) do
not in the aggregate materially detract from the value of the assets of
any Borrower or Subsidiary or materially impair the use thereof in the
operation of their businesses;
(o) any interest or title of a lessor in assets or property
subject to a Capital Lease or Synthetic Lease of the Company or any
Subsidiary; PROVIDED that the aggregate of the capitalized value on the
consolidated balance sheet of the Company of all the Capital Leases and
the amount of all Synthetic Leases that
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would be so capitalized if such leases were Capital Leases at any
time does not exceed $50,000,000;
(p) any Lien arising out of the refinancing, extension,
renewal or refunding of any Indebtedness or obligation secured by any
Lien permitted by any of the foregoing clauses of this Section;
PROVIDED that such Indebtedness or obligation is not increased and is
not secured by any additional assets;
(q) Liens arising from the filing of Uniform Commercial Code
or personal property security financing statements (or substantially
equivalent filings outside the United States) regarding leases that are
neither Capital Leases nor Synthetic Leases;
(r) Liens encumbering property or assets under construction
(and proceeds and products thereof) arising from progress or partial
payments by a customer of the Company or the Subsidiaries relating to
such property or assets;
(s) Liens not otherwise permitted by this Section 6.02
securing obligations in an aggregate principal, stated or face amount
at any date not to exceed $10,000,000;
(t) Liens on the Spear Collateral securing Indebtedness
permitted under Section 6.01(b)(iii) ratably with the Spear Obligations
under the Security Documents executed and delivered pursuant to Section
5.08(b);
(u) any right of first refusal or first offer, redemption
right, or option or similar right in respect of Equity Interests in any
Joint Venture, in favor of any co-venturer of the Company or any
Subsidiary in such Joint Venture (or in favor of any other Person by
virtue of such Person's holding of any interest in the Equity Interests
of such co-venturer in such Joint Venture); and
(w) Liens on any proceeds (including insurance, condemnation
and eminent domain proceeds) or products of any collateral a Lien over
which is otherwise permitted by the foregoing clauses of this Section,
and on general intangibles relating to or embodied in such collateral.
SECTION 6.03. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. (a)
No Loan Party will, and no Loan Party will permit any of its Subsidiaries to,
consolidate or merge with or into any other Person except as permitted under
clause (a) of Section 5.04.
(b) No Loan Party will, or will permit any of its Subsidiaries
to, sell, transfer, lease or otherwise dispose of any asset, including any
Equity Interest, owned by it, nor will any Loan Party permit any of its
Subsidiaries to issue any additional Equity
82
Interest in such Subsidiary, except as permitted under clause (a) of Section
5.04 and except:
(i) sales of inventory in the ordinary course of business;
(ii) any disposition of surplus, discontinued or worn-out
equipment or other assets (including leasehold interests) no longer
used in the on-going business of the Company and the Subsidiaries;
(iii) (A) any disposition of cash or Temporary Cash
Investments or Investments referred to in Section 6.04(e) or (B) any
disposition resulting from the liquidation or dissolution of any
Subsidiary or Joint Venture to the extent made ratably in accordance
with the relative Equity Interests held by, or capital accounts of, the
owners thereof;
(iv) any sale or other disposition of readily marketable
securities in the ordinary course of business;
(v) any sale, transfer or other disposition (x) to the
Company or any Business Entity that is, or immediately after giving
effect to the foregoing will be, a Wholly-Owned Consolidated Subsidiary
or (y) to any other Business Entity that is, or immediately after
giving effect to the foregoing will be, a Subsidiary or Joint Venture
that would not be prohibited by Section 6.04(a) or (h) (it being
understood that the Company shall advise the Administrative Agent of
whether it shall have elected clause (a) or (h) to be applicable) if it
were an Investment; PROVIDED that any such sale, transfer or other
disposition involving a Subsidiary or Joint Venture that is not a Loan
Party shall be made in compliance with Section 6.05 (without regard to
clause (v) thereof) as if such Subsidiary or Joint Venture were an
Affiliate for purposes of such Section;
(vi) the grant of any Lien permitted under Section 6.02, any
Investment permitted under Section 6.04 (without regard to clause (b)
thereof) and any Restricted Payment permitted under Section 6.08;
(vii) sales, transfers and other dispositions of Equity
Interests in Subsidiaries which are solely engaged in the business of
providing insurance or self-insurance coverage for the businesses of
the Company and the Subsidiaries permitted by Section 5.04, or the
issuance of Equity Interests in such Subsidiaries to non-Affiliated
third Persons in an aggregate value (as determined by the Company in
good faith) in case of issuance, or aggregate book value in the case of
sales, transfers or other dispositions, not to exceed in the aggregate
$10,000,000 for all such Subsidiaries;
83
(viii) any disposition of assets with a fair market value of
$100,000 or less;
(ix) sales, transfers and dispositions to Joint Ventures of
assets with an aggregate fair market value in any Fiscal Year not in
excess of $10,000,000;
(x) any transaction expressly permitted under Section 6.04(f)
or (g);
(xi) sales, transfers or other dispositions of assets pursuant
to the Support Agreement in an aggregate amount during any Fiscal Year,
taken together with Investments under the second proviso to Section
6.04(a), not to exceed $2,000,000; and
(xii) sales, transfers and other dispositions of assets (other
than Equity Interests in a Subsidiary) that are not permitted by any
other clause of this Section; PROVIDED that the aggregate fair market
value of all assets sold, transferred or otherwise disposed of in
reliance upon this clause (xii) shall not during any Fiscal Year exceed
10% of consolidated total assets of the Company as of the last day of
the immediately preceding Fiscal Year;
PROVIDED that, other than in respect of consideration received in an aggregate
amount of up to $5,000,000 for any Fiscal Year, all sales, transfers, leases and
other dispositions permitted hereby (other than those permitted by clauses
(iii), (v), (vi), (x) and (xi) above) shall be made (A) for fair value and (B)
other than those permitted by clause (ix) above, for at least 80% cash
consideration. In the event any action governed by this Section 6.03(b) is
governed by more than one clause hereof, the Company shall advise the
Administrative Agent of the clause under which it shall have elected, in its
sole discretion, to treat such action.
SECTION 6.04. INVESTMENTS. Neither any Borrower nor any
Subsidiary will hold, make or acquire any Investment in any Person other than:
(a) Investments not otherwise permitted by any other paragraph
of this Section 6.04 in Persons that are, or as a result of such
Investments will become, Subsidiaries or Joint Ventures; PROVIDED that
the aggregate fair market value of all Investments by the Company and
its Consolidated Subsidiaries in, or in Persons that as a result of
such Investment will become, Joint Ventures and Subsidiaries of the
Company that are not, or will not as a result of such Investment
become, Wholly-Owned Consolidated Subsidiaries of the Company (other
than Investments made under clauses (i) and (ii) of paragraph (f) below
or under clauses (i) (other than subclause (B)(x) thereof) or (ii) of
paragraph (g) below), shall not at the time any such Investment is made
or acquired, after giving effect to such Investment (when taken
together, without duplication, with the aggregate value of assets sold,
transferred or otherwise disposed of to such Subsidiaries or
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Joint Ventures pursuant to Section 6.03(b)(v) (other than those
allocated by the Company to be governed under Section 6.04(h)) and net
of any cash consideration received by the Company or a Wholly-Owned
Consolidated Subsidiary in respect of and at the time of or
substantially contemporaneously with any such sale, transfer or
disposition or Investment), exceed the Special Investments Basket (with
the fair market value of each Investment being measured at the time
made and without giving effect to subsequent changes in value);
PROVIDED FURTHER that the Company may make additional Investments in
Alliant Assurance Ltd. in accordance with the Support Agreement in an
aggregate amount during any Fiscal Year, taken together, without
duplication, with sales, transfers and dispositions under Section
6.03(b)(xi), not to exceed $2,000,000;
(b) Investments acquired in the form of consideration received
from sales of assets permitted under Section 6.03(b) (without regard to
clause (vi) thereof);
(c) Investments acquired as part of the settlement of
litigation or claims or in satisfaction of claims made pursuant to a
reorganization, bankruptcy or liquidation of a Person, or as a good
faith settlement of Indebtedness owed by a Person to the Company or any
of the Subsidiaries;
(d) Temporary Cash Investments;
(e) Investments in Unrestricted Subsidiaries; PROVIDED that
the Aggregate Net Investments in Unrestricted Subsidiaries (other than
Arrow Subsidiaries) shall at no time exceed $500,000;
(f) Investments in the Spear Joint Venture:
(i) at any time prior to the Spear Final Contribution Date,
consisting of:
(A) the contribution in connection with the initial
formation of the Spear Joint Venture of the fixed assets and
working capital of the Spear Plant, PROVIDED that the Spear
Partner shall have acknowledged and consented to the
arrangements with respect to the Spear Joint Venture set forth
herein and in the Security Documents required to be delivered
under Section 5.08(b), including the pledge of the Spear Note
and the Equity Interests in the Spear Joint Venture owned by
the Company and the Subsidiaries, the security interests in
the Spear Collateral and the exercise of the Lenders' rights
thereunder following an Event of Default, or
(B) loans advanced and other extensions of credit by
the Company to the Spear Joint Venture under, or obligations
in respect of which are evidenced by, the Spear Note;
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(ii) at any time on or after the Spear Final Contribution
Date, consisting of the remaining Investment by the Company and the
Subsidiaries after giving effect to the reduction in ownership of
Equity Interests resulting in the occurrence of the Spear Final
Contribution Date, PROVIDED that the Net Proceeds of such reduction
shall have been applied to prepay Term Loans as contemplated by Section
2.11(c) and, if the Spear Final Contribution Date shall occur as a
result of a transaction other than the acquisition by the Spear Partner
as of or prior to January 1, 2005 of Equity Interests in the Spear
Joint Venture resulting in it holding 50% or more of the pro forma
outstanding Equity Interests in the Spear Joint Venture, no Default or
Event of Default shall have occurred and be continuing and the Company
and its Consolidated Subsidiaries shall be in compliance with Sections
6.10, 6.11 and 6.12 as at and for the four-fiscal-quarter period ending
on the last day of the most recent fiscal quarter for which financial
statements shall have been delivered under Section 5.01(a) or (b) on a
pro forma basis determined as if such reduction and the related
prepayment of Loans occurred as of the first day of such four-
fiscal-quarter period; or
(iii) at any time after the Spear Final Contribution Date,
additional Investments made in the resulting Joint Venture pursuant to
paragraph (a) above; and
(g) (i) Investments in the Arrow Joint Venture consisting of:
(A) the contribution in connection with the initial
formation of the Arrow Joint Venture of up to 98% of the
Equity Interests in each of the Arrow Subsidiaries, PROVIDED
that (I) the co-venturer in the Arrow Joint Venture shall have
acknowledged and consented to the arrangements with respect to
the Arrow Joint Venture set forth herein and in the Security
Documents required to be delivered under Section 5.08(c),
including the pledge of the Equity Interests in the Arrow
Joint Venture owned by the Company and the Subsidiaries and
the exercise of the Lenders' rights thereunder following an
Event of Default, including the right to remove the Arrow
Subsidiaries from the Arrow Joint Venture without penalty, and
(II) all filings and other actions required by any
Governmental Authority in connection with such contribution
and formation shall have been made or taken, all applicable
approvals shall have been obtained and all applicable waiting
periods and/or appeal periods shall have expired or been
terminated, or
(B) Investments made by the Company and the
Subsidiaries in the Arrow Joint Venture (x) pursuant to
paragraph (a) above, (y) in addition to those in clause (x),
in an aggregate amount not to exceed $25,000,000 or (z), if
not made pursuant to clause (x) or (y), that when made will
not
86
cause the Arrow Available Restricted Payments to be reduced
to an amount less than zero; or
(C) up to 2% of the outstanding Equity Interests in
the Arrow Subsidiaries; and
(ii) the Arrow Subsidiaries may:
(A) provide Guarantees, letters of credit or bonding
to the extent solely supporting performance obligations of the
Arrow Subsidiaries;
(B) provide Guarantees, letters of credit or bonding
to the extent solely supporting performance obligations of the
Arrow Joint Venture or the subsidiaries of the co-venturer in
the Arrow Joint Venture that shall have been contributed to
the Arrow Joint Venture, PROVIDED that after giving effect
thereto the Arrow Available Restricted Payments will not be
reduced to an amount below zero; or
(C) enter into transactions with the Arrow Joint
Venture or the subsidiaries of the co-venturer in the Arrow
Joint Venture that shall have been contributed to the Arrow
Joint Venture on a basis less favorable to the Arrow
Subsidiaries than the terms and conditions that would apply in
a similar transaction with a Person that is not an Affiliate,
PROVIDED that after giving effect thereto the Arrow Available
Restricted Payments will not be reduced to an amount below
zero;
(h) other Investments not otherwise permitted by any other
provision hereof in an aggregate amount (when taken together, without
duplication, with the aggregate value of assets sold, transferred or
otherwise disposed of pursuant to Section 6.03(b)(v) (other then those
allocated by the Company to be governed under Section 6.04(a))) not to
exceed $5,000,000; and
(i) Investments, in addition to any of the foregoing, existing
on the Effectiveness Date and set forth on Schedule 6.04.
SECTION 6.05. TRANSACTIONS WITH AFFILIATES. No Loan Party
will, or will permit any of its Subsidiaries to, directly or indirectly, pay any
funds to or for the account of, make any Investment in, lease, sell, transfer or
otherwise dispose of any assets, tangible or intangible, to, or participate in,
or effect any transaction in connection with any joint enterprise or other joint
arrangement with, any of its Affiliates other than Wholly-Owned Consolidated
Subsidiaries that are Loan Parties; PROVIDED, HOWEVER, that the foregoing
provisions of this Section shall not prohibit any Loan Party or any of its
Subsidiaries from (i) declaring or paying any lawful dividend (subject to
Section 6.08) so
87
long as, after giving effect to any such declaration, no Default shall have
occurred and be continuing, (ii) making sales to or purchases from any of its
Affiliates and, in connection therewith, extending credit or making payments, or
making payments for labor or material or services rendered by any of its
Affiliates, if such sales or purchases are made or such services are rendered in
the ordinary course of business and on terms and conditions at least as
favorable to such Loan Party or such Subsidiary as the terms and conditions
which would apply in a similar transaction with a Person not an Affiliate (other
than (A) in the case of contracts pursuant to which the Company or any
Subsidiary provides labor or materials or general and administrative services to
the Spear Joint Venture, which shall be permitted at any price equal to or
greater than the cost (including an allocation of overhead) to the Company and
the Subsidiaries of providing such labor or materials and (B) as permitted under
Section 6.04(g)(ii)), (iii) making payments of principal, interest and premium
on any Indebtedness of such Loan Party or such Subsidiary held by any of its
Affiliates if the terms of such Indebtedness are substantially as favorable to
such Loan Party or such Subsidiary as the terms which could have been obtained
at the time of the creation of such Indebtedness from a lender which was not an
Affiliate (other than as permitted under Section 6.04(g)(ii)), (iv) performing
its obligations pursuant to any Acquisition Document, (v) consummating any
disposition of assets to an Affiliate not prohibited by Section 6.03 (without
regard to clause (iii) or (vi) thereof), (vi) participating in, making
Investments in, or effecting any other transaction with or in connection with,
any Joint Venture (other than the Spear Joint Venture or the Arrow Joint
Venture) or other joint enterprise or joint arrangement that is an Affiliate
(regardless of whether the other party participating in such Joint Venture or
other joint enterprise or joint arrangement is an Affiliate) if such Loan Party
or such Subsidiary participates in the ordinary course of its business and on a
basis no less advantageous than the basis on which any other venturer
participates (taking into account the respective interests of such Loan Party or
Subsidiary and such other venturer or venturers), (vii) to the extent approved
by the board of directors of such Loan Party or Subsidiary, making payments of
money or issuances of securities pursuant to employment agreements and
arrangements and employee benefit plans and making payments for services
rendered by non-employee directors of the Company and its Affiliates, (viii)
providing overhead and other general and administrative services and expenses to
or for the Company and its Subsidiaries (subject in the case of the Arrow Joint
Venture, the Arrow Subsidiaries and the Spear Joint Venture, to the limits set
forth in Section 6.04), or (ix) to the extent the Spear Partner shall have
agreed to pay its ratable share of any payment required thereunder, providing to
unrelated parties performance guarantees in respect of obligations of the Spear
Joint Venture under commercial contracts for goods or services. Under no
circumstances whatsoever shall the Company permit the Spear Joint Venture or any
subsidiary thereof to be subject to any contractual restriction on its ability
to make any Restricted Payment to the Company or any Subsidiary. Under no
circumstances whatsoever shall the Company permit any Arrow Subsidiary to be
subject to any contractual restriction on its ability to make any Restricted
Payment to the Company or any Subsidiary.
88
SECTION 6.06. CONSTITUTIONAL DOCUMENTS. No Loan Party will, or
will permit any Subsidiary to, amend its Constitutional Documents in any manner
which could adversely affect the rights of the Lenders under the Loan Documents
or their ability to enforce the same.
SECTION 6.07. WAIVERS AND AMENDMENTS OF RELATED DOCUMENTS. The
Company will not and will not permit its Subsidiaries to, without the prior
written consent of the Required Lenders, modify or amend, or waive any provision
or condition contained in, any of the Acquisition Documents, the Bridge Credit
Agreement, the Senior Subordinated Note Indenture or the Senior Subordinated
Notes from the forms of each of the foregoing heretofore delivered to the
Lenders (or, in the case of the Senior Subordinated Note Indenture and the
Senior Subordinated Notes, delivered to the Lenders in connection with the
initial issuance of the Senior Subordinated Notes) in any manner that could
reasonably be expected to be adverse to the Lenders.
SECTION 6.08. RESTRICTED PAYMENTS. The Borrowers will not
declare or make, or permit any Subsidiary to declare or make, any Restricted
Payment other than:
(i) any Restricted Payments made by Subsidiaries (other than
by any Arrow Subsidiary at any time on or after the formation of the
Arrow Joint Venture) to the Company or any other Borrower or a
Wholly-Owned Consolidated Subsidiary (or with respect to a Subsidiary
other than a Wholly-Owned Consolidated Subsidiary, Restricted Payments
made ratably (or, if not ratably, on a basis more favorable to the
Company and its Subsidiaries than ratably) with respect to each class
of such Subsidiary's Equity Interests in respect of which such
Restricted Payment is being made);
(ii) any Restricted Payments made by the Company pursuant to
the terms of employee benefit plans and stock options (including stock
ownership plans (including 401K plans, restricted stock plans, employee
stock purchase plans, performance sharing plans and incentive plans)),
in each case as in effect on December 31, 2000, and as modified
thereafter, PROVIDED that the aggregate amount of Restricted Payments
made or declared pursuant to this clause (ii) after the Effectiveness
Date shall not exceed $25,000,000;
(iii) any Restricted Payment by the Company payable solely in
additional Equity Interests of the Company;
(iv) any Restricted Payment in respect of the $2,000,000
Series A 11% Preferred Stock of Alliant Assurance Ltd.;
89
(v) any Restricted Payment by any Arrow Subsidiary at any time
on or after the formation of the Arrow Joint Venture that such Arrow
Subsidiary is a Subsidiary:
(A) to the extent made solely to fund such Arrow
Subsidiary's ratable share of the ordinary expenses of the
Arrow Joint Venture's holding company activities up to an
aggregate amount for the Arrow Subsidiaries, taken as a whole,
made in any Fiscal Year not to exceed $3,000,000;
(B) to the extent the aggregate amount thereof, when
taken together with all other substantially contemporaneous
Restricted Payments made by all the Arrow Subsidiaries, does
not exceed the aggregate amount of dividends or distributions
paid or made substantially contemporaneously by the Arrow
Joint Venture's holding company to the Company or any
Wholly-Owned Consolidated Subsidiary; and
(C) in addition to the foregoing, so long as no
Default or Event of Default shall have occurred and be
continuing, to the extent the making of such Restricted
Payment shall not result in the Arrow Available Restricted
Payments being reduced to an amount below zero; and
(vi) any other Restricted Payments in addition to those
permitted above (and whether of the same or a different type, or in
addition to amounts for any type, provided above) made or declared
after the Effectiveness Date to the extent that immediately after
giving effect thereto (x) no Default or Event of Default shall have
occurred and be continuing and (y) the aggregate amount of all such
Restricted Payments made or declared pursuant to this clause (vi) after
the Effectiveness Date does not exceed the Restricted Payments Basket.
SECTION 6.09. FOREIGN SUBSIDIARIES. Notwithstanding any other
provision of this Agreement, the aggregate amount, without duplication, of
Investments made in Foreign Subsidiaries and of sales, transfers and other
dispositions to Foreign Subsidiaries under Section 6.03(b)(v), in each case by
the Company and its Subsidiaries (other than the Foreign Subsidiaries) after the
Effectiveness Date shall not at any time exceed $10,000,000 (valued as provided
in Section 6.04(a) and determined without duplication and net of repayments and
returns of capital (but not returns on capital)).
SECTION 6.10. MINIMUM CONSOLIDATED NET WORTH. Consolidated Net
Worth shall at no time be less than the sum of (i) $135,000,000 PLUS (ii) 50% of
cumulative Consolidated Net Income for each fiscal quarter beginning after March
31, 2001 for which the Company shall have delivered financial statements
pursuant to Section 5.01(a) or (b), but excluding any such fiscal quarter for
which Consolidated Net
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Income is negative, PLUS (iii) 50% of the increase in consolidated stockholders'
equity of the Company from any Equity Issuances by the Company after March 31,
2001.
SECTION 6.11. LEVERAGE RATIO. As of the last day of each
fiscal period of the Company ending most closely to the dates set forth below,
the Leverage Ratio as of such day shall not exceed the ratio set forth below
opposite such date:
Date Ratio
---- -----
June 30, 2001 3.85
September 30, 2001 3.85
December 31, 2001 3.85
March 31, 2002 3.85
June 30, 2002 3.50
September 30, 2002 3.50
December 31, 2002 3.50
March 31, 2003 3.50
June 30, 2003 3.25
September 30, 2003 3.25
December 31, 2003 3.25
March 31, 2004 3.25
June 30, 2004 3.00
September 30, 2004 3.00
December 31, 2004 3.00
March 31, 2005 3.00
each fiscal quarter end thereafter 2.75
SECTION 6.12. INTEREST COVERAGE. As of the last day of each
fiscal quarter of the Company ending most closely to the dates set forth below,
the ratio of aggregate Consolidated EBITDA to aggregate Consolidated Interest
Charges, in each case for the four consecutive fiscal quarters ending on such
day, shall not be less than the ratio set forth below opposite such date.
Date Ratio
---- -----
June 30, 2001 2.75
September 30, 2001 2.75
December 31, 2001 2.75
March 31, 2002 2.75
June 30, 2002 3.00
September 30, 2002 3.00
December 31, 2002 3.00
March 31, 2003 3.00
June 30, 2003 3.15
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September 30, 2003 3.15
December 31, 2003 3.15
March 31, 2004 3.15
each fiscal quarter end thereafter 3.25
SECTION 6.13. OUTSIDE LETTERS OF CREDIT. Neither any Borrower
nor any Subsidiary shall at any time have any letters of credit issued or
outstanding for its account other than (i) Letters of Credit hereunder, (ii)
Lender Letters of Credit and (iii) other letters of credit issued to secure the
performance of the Borrowers and the Subsidiaries under trade or government
contracts (other than for borrowed money); PROVIDED that (x) the aggregate
amount available for drawing and (without duplication) unpaid amount of all
reimbursement obligations under all letters of credit issued under clause (iii)
shall at no time exceed $15,000,000 and (y) neither any Borrower nor any
Subsidiary will create, assume or suffer to exist any Lien on any of its assets
with respect to their obligations under letters of credit issued under clause
(iii).
SECTION 6.14. DESIGNATED SENIOR DEBT. Without the consent of
the Required Lenders, the Company shall not designate any Indebtedness, other
than Indebtedness under the Loan Documents, as "Designated Senior Debt", as such
term is defined in the Senior Subordinated Note Indenture, or any comparable
designation that confers upon the holders of such Indebtedness (or any Person
acting on their behalf) the right to initiate blockage periods under the Senior
Subordinated Note Indenture (other than as a result of a payment default),
unless, prior to any such designation of such Indebtedness as "Designated Senior
Debt", the holders of such Indebtedness deliver a written agreement to the
Administrative Agent providing for the express benefit of the Lenders that
neither such holders nor any Person acting on their behalf will initiate any
such blockage period under the Senior Subordinated Note Indenture without the
prior written consent of the Required Lenders.
SECTION 6.15. DERIVATIVES OBLIGATIONS. The Borrowers will not,
and will not permit any of the Subsidiaries to, enter into any Derivatives
Obligations, other than Derivatives Obligations entered into in the ordinary
course of business to hedge or mitigate risks to which any Borrower or any
Subsidiary is exposed in the conduct of its business or the management of its
liabilities.
SECTION 6.16. ADDITIONAL DEBT INCURRENCE. No Indebtedness that
constituted a Prepayment Event when incurred (other than Indebtedness referred
to in clause (vii) of the definition of "Indebtedness") shall mature, or provide
for any amortization or other mandatory payment of principal, or other repayment
(in the absence of default) or right of redemption at the option of the holder
thereof, prior to the Tranche B Term Loan Maturity Date.
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SECTION 6.17. CAPITAL EXPENDITURES. The Company will not
permit the aggregate amount of Capital Expenditures made by the Company and the
Subsidiaries during any period set forth below to exceed the aggregate amount
set forth below opposite such period:
PERIOD AMOUNT
Effectiveness Date - March 31, 2002 $50,000,000
April 1, 2002 - March 31, 2003 $55,000,000
April 1, 2003 - March 31, 2004 $60,000,000
each Fiscal Year thereafter $65,000,000
PROVIDED that to the extent that the Capital Expenditures made in any period set
forth above are less than the amount set forth for such period, then after the
available amount for the next succeeding Fiscal Year has been fully used the
Company and the Subsidiaries may make additional Capital Expenditures during
such next succeeding Fiscal Year in an aggregate amount that at the time each
such Capital Expenditure is made is not in excess of the unused amount from the
immediately prior period set forth above.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall
occur:
(a) any Borrower shall fail to pay (i) any principal of any
Loan or any reimbursement obligation in respect of any LC Disbursement
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise, or
(ii) within five Business Days after the same shall become due, any
interest on any Loan or any fee or any other amount (other than an
amount referred to in clause (i) of this paragraph (a)) payable under
this Agreement or any other Loan Document;
(b) any Loan Party shall fail to observe or perform any
covenant contained in Section 5.01(e), 5.04 or 5.07 or in Article VI;
(c) any Loan Party shall fail to observe or perform any
covenant or agreement contained in any Loan Document (other than those
covered by clause (a) or (b) above) for 30 days after a Responsible
Officer of such Loan Party shall have become aware of such failure;
93
(d) any representation, warranty, certification or statement
made or deemed made by any Loan Party in any Loan Document or in any
certificate, financial statement or other document delivered pursuant
thereto shall prove to have been incorrect in any material respect when
made (or deemed made);
(e) any Loan Party or any of its Subsidiaries shall fail to
make any payment in respect of any Material Financial Obligation when
due or within any applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Indebtedness or Material
Financial Obligation or enables (or, with the giving of notice or lapse
of time or both, would enable) the holder of such Material Indebtedness
or Material Financial Obligation or any Person acting on such holder's
behalf to accelerate the maturity thereof;
(g) any Loan Party or any of its Subsidiaries shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any Business Entity action
to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against a Loan Party or any Subsidiary of a Loan Party seeking
liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against a Loan Party or
any Subsidiary of a Loan Party under the federal bankruptcy laws as now
or hereafter in effect;
(i) a Loan Party or any of its Subsidiaries shall admit its
inability to pay its debts as and when they fall due or becomes or is
deemed to be unable to pay its debts or insolvent, or convenes a
meeting for the purpose of proposing, or otherwise proposes or enters
into, any composition or arrangement with its creditors or any group or
class thereof, or anything analogous to, or having a substantially
similar effect to, any of the events specified in this paragraph or in
paragraph (g) or (h) above occurs in any jurisdiction;
94
(j) any member of the ERISA Group shall fail to pay when due
an amount or amounts aggregating in excess of $10,000,000 which it
shall have become liable to pay under Title IV of ERISA; or notice of
intent to terminate any Plan which is then a Material Plan shall be
filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA)
in respect of, or to cause a trustee to be appointed to administer any
Plan which is then a Material Plan; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Plan which is then a Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from,
or a default, within the meaning of Section 4219(c)(5) of ERISA, with
respect to, one or more Multiemployer Plans which could cause one or
more members of the ERISA Group to incur a current payment obligation,
that is, an obligation or series of obligations payable within 12
months, in excess of $5,000,000;
(k) a judgment or order for the payment of money in excess of
$5,000,000 (in excess of the amount for which liability for payment has
been acknowledged by a third party insurer) shall be rendered against
the Company or any Subsidiary and such judgment or order shall continue
unsatisfied and unstayed for a period of 30 consecutive days;
(l) any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended),
other than any employee stock ownership plan maintained for the benefit
of the employees of the Company, shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of 35% or more of
the outstanding shares of common stock of the Company; or, during any
period of 12 consecutive calendar months, individuals (i) who were
directors of the Company on the first day of such period or (ii) whose
nomination for election to the board of directors of the Company was
recommended or approved by a vote of at least a majority of the
directors then still in office who were directors of the Company on the
first day of such period, shall cease to constitute a majority of the
board of directors of the Company;
(m) any levy, seizure or attachment of or on any material
portion of the Collateral shall be made, or the loss, theft,
substantial damage to or destruction of a material portion of any
Collateral shall occur, the value of which not fully payable through
insurance or compensated for pursuant to a condemnation award shall
equal or exceed $5,000,000 in the aggregate;
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(n) any Lien created by any of the Security Documents shall at
any time fail to constitute a valid and (to the extent required by the
Security Documents) perfected Lien on any material portion of the
Collateral purported to be subject thereto, securing the obligations
purported to be secured thereby, with the priority required by the Loan
Documents, or the Company or any other Loan Party shall so assert in
writing; or
(o) the Subsidiary Guaranty Agreement shall at any time cease
to be a valid and binding obligation of any Subsidiary Loan Party, or
the Company or any Subsidiary Loan Party shall so assert in writing;
then, and in every such event (other than an event with respect to the Company
described in clause (g) or (h) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent (i) at the
request of the Required Lenders, shall, by notice to the Company, terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
at the request of Lenders representing more than 50% of the aggregate principal
amount of outstanding Loans, declare the Loans then out standing to be due and
payable in whole (or in part, in which case any principal not so declared to be
due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Company
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company; and in case of any event with respect to the
Company described in clause (g) or (h) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Company accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Banks hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise
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the same as though it were not the Administrative Agent, and such bank and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Company or any Subsidiary or other Affiliate thereof
as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated by the
Loan Documents that the Administrative Agent is required to exercise in writing
by the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 10.02), and
(c) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Company or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall not be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Company or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in the Effectiveness
Agreement, in Article IV or elsewhere in any Loan Document, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for any Borrower), independent
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accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Administrative Agent and any such sub- agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor the
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Banks and the Company.
Upon any such resignation, the Required Lenders shall have the right, with the
consent of the Company (which consent shall not unreasonably be withheld and may
not be withheld if an Event of Default is continuing, but which may in any event
be withheld (regardless of whether an Event of Default is continuing) if (a)
such proposed successor Administrative Agent fails to deliver evidence
reasonably satisfactory to the Company that such proposed successor
Administrative Agent is not a Foreign Person and (b) the Company in good faith
concludes that the appointment of such proposed successor Administrative Agent
could result in a violation of any law, rule guideline or regulation, or a
violation of, revocation of, failure to renew or modification of any, order,
facility security clearance or permit), to appoint a successor. If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on behalf
of the Lenders and the Issuing Banks, appoint a successor Administrative Agent
which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank, and which shall not be a Foreign Person. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrowers to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the
Borrowers and such successor. After the Administrative Agent's resignation
hereunder, the provisions of this Article and Section 10.03 shall continue in
effect for the benefit of such retiring Administrative Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and
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information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or
related agreement or any document furnished hereunder or thereunder.
None of the Syndication Agent nor the Documentation Agents, in
their capacity as a syndication agent or a documentation agent, shall have any
duties or responsibilities under this Agreement or any other Loan Document.
ARTICLE IX
GUARANTEE
In order to induce the Lenders to extend credit to the
Borrowing Subsidiaries hereunder, the Company hereby irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety, the
Obligations of the Borrowing Subsidiaries. The Company further agrees that the
due and punctual payment of the Obligations of the Borrowing Subsidiaries may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee hereunder
notwithstanding any such extension or renewal of any Obligation.
The Company waives presentment to, demand of payment from and
protest to any Borrowing Subsidiary of any of the Obligations, and also waives
notice of acceptance of its obligations and notice of protest for nonpayment.
The obligations of the Company hereunder shall not be affected by (a) the
failure of any Lender to assert any claim or demand or to enforce any right or
remedy against any Borrowing Subsidiary under the provisions of this Agreement,
any other Loan Document or otherwise; (b) any extension or renewal of any of the
Obligations; (c) any rescission, waiver, amendment or modification of, or
release from, any of the terms or provisions of this Agreement or any other Loan
Document or agreement; (d) the failure or delay of any Lender to exercise any
right or remedy against any other guarantor of the Obligations; (e) the failure
of any Lender to assert any claim or demand or to enforce any remedy under any
Loan Document or any other agreement or instrument; (f) any default, failure or
delay, wilful or otherwise, in the performance of the Obligations; or (g) any
other act, omission or delay to do any other act which may or might in any
manner or to any extent vary the risk of the Company or otherwise operate as a
discharge of the Company as a matter of law or equity or which would impair or
eliminate any right of the Company to subrogation.
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The Company further agrees that its guarantee hereunder
constitutes a promise of payment when due (whether or not any bankruptcy or
similar proceeding shall have stayed the accrual or collection of any of the
Obligations or operated as a discharge thereof) and not merely of collection,
and waives any right to require that any resort be had by any Lender to any
balance of any deposit account or credit on the books of any Lender in favor of
any Borrower or Subsidiary or any other Person.
The obligations of the Company hereunder shall not be subject
to any reduction, limitation, impairment or termination for any reason, and
shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations, any impossibility in the performance of the
Obligations or otherwise.
The Company further agrees that its obligations hereunder
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Lender upon the bankruptcy or reorganization of any
Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Lender may have at law or in equity against the Company by
virtue hereof, upon the failure of any Borrowing Subsidiary to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, the Company hereby
promises to and will, upon receipt of written demand by the Administrative
Agent, forthwith pay, or cause to be paid, to the Administrative Agent for
distribution to the Lenders in cash an amount equal the unpaid principal amount
of such Obligation.
Upon payment in full by the Company of any Obligation of any Borrowing
Subsidiary, each Lender shall, in a reasonable manner, assign to the Company the
amount of such Obligation owed to such Lender and so paid, such assignment to be
pro tanto to the extent to which the Obligation in question was discharged by
the Company, or make such disposition thereof as the Company shall direct (all
without recourse to any Lender and without any representation or warranty by any
Lender). Upon payment by the Company of any sums as provided above, all rights
of the Company against any Borrowing Subsidiary arising as a result thereof by
way of right of subrogation or otherwise shall in all respects be subordinated
and junior in right of payment to the prior indefeasible payment in full of all
the Obligations owed by such Borrowing Subsidiary to the Lenders (it being
understood that, after the discharge of all the Obligations due and payable from
such Borrowing Subsidiary, such rights may be exercised by the Company
notwithstanding that such Borrowing Subsidiary may remain contingently liable
for indemnity or other Obligations).
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ARTICLE X
MISCELLANEOUS
SECTION 10.01. NOTICES. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Company, to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇ (Telecopy No. (952)
931-5910);
(b) if to any Borrowing Subsidiary, to it in care of the
Company as provided in paragraph (a) above;
(c) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇), with a copy to The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), and to Chase Manhattan Bank
Delaware, Corporate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and
(d) if to an Issuing Bank, a Swingline Lender or any other
Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. WAIVERS; AMENDMENTS. (a) No failure or delay by
the Administrative Agent, any Issuing Bank or any Lender in exercising any right
or power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Banks and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent to
any departure by any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such
waiver
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or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the Administrative Agent, any
Lender or any Issuing Bank may have had notice or knowledge of such Default at
the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Company and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent and the Loan Party or Loan Parties that are
parties thereto, in each case with the consent of the Required Lenders; PROVIDED
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the date of any scheduled payment of the principal amount of any
Loan or LC Disbursement, or any interest thereon, or any fees payable hereunder,
or reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.18(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby (it being
understood that the addition of new tranches of loans or commitments that may be
extended under this Agreement shall not be deemed to alter such pro rata sharing
of payments) without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of "Required Lenders" or any other
provision of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder without the
written consent of each Lender (or each Lender of such Class, as the case may
be) (except, in each case, to provide for new tranches of loans or commitments
that are extended under this Agreement), (vi) release the Company from its
Guarantee of any Borrowing Subsidiary under Article IX or, except as set forth
in Section 10.15, release all or substantially all of the Subsidiary Loan
Parties from their Guarantees under the Subsidiary Guaranty Agreement, or limit
their liability in respect of such Guarantee, without the written consent of
each Lender, (vii) release all or substantially all of the Collateral from the
Liens of the Security Documents, without the written consent of each Lender,
(viii) change any provisions of any Loan Document in a manner that by its terms
adversely affects the rights in respect of payments due to Lenders holding Loans
of any Class differently than those holding Loans of any other Class, without
the written consent of Lenders holding a majority in interest of the outstanding
Loans and unused Commitments of each adversely affected Class and (ix) amend,
modify or waive any condition precedent set forth in Section 4.01 with respect
to the making of Revolving Loans, without the prior written consent of Revolving
Lenders holding a majority in
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interest of the Revolving Credit Commitments; PROVIDED FURTHER that (A) no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, any Issuing Bank or any Swingline Lender without the prior
written consent of the Administrative Agent, such Issuing Bank or such Swingline
Lender, as the case may be, and (B) any waiver, amendment or modification of
this Agreement that by its terms affects the rights or duties under this
Agreement of the Revolving Lenders (but not the Tranche A Term Lenders and
Tranche B Term Lenders), the Tranche A Term Lenders (but not the Revolving
Lenders and Tranche B Term Lenders) or the Tranche B Term Lenders (but not the
Revolving Lenders and Tranche A Term Lenders) may be effected by an agreement or
agreements in writing entered into by the Company and the requisite percentage
in interest of the affected Class of Lenders, as the case may be. In furtherance
of clause (ix) of this Section 10.02(b), (x) any amendment or modification to or
waiver of Section 6.10, 6.11 or 6.12 of this Agreement and (y) any amendment or
modification to or waiver of any provision of this Agreement or any other Loan
Document at a time when any Default or Event of Default has occurred and is
continuing that would have the effect of eliminating any such Default or Event
of Default shall not be deemed to be effective for purposes of determining
whether the conditions precedent set forth in Section 4.01 to the making of any
Revolving Loan have been satisfied unless the Revolving Lenders holding a
majority in interest of the Revolving Credit Commitments shall have consented to
such amendment, modification or waiver, PROVIDED that the foregoing shall not be
construed to affect any amendment or modification to any provision of this
Agreement or any other Loan Document (other than any amendment or modification
to Section 6.10, 6.11 or 6.12 of this Agreement) if no Default or Event of
Default has occurred and is continuing at the time of such amendment or
modification.
SECTION 10.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The
Borrowers shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation,
execution, delivery and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by each Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, any Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, any
Issuing Bank or any Lender, in connection with the enforcement or protection of
its rights in connection with the Loan Documents, including its rights under
this Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
103
(b) The Borrowers shall indemnify the Administrative Agent,
each Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "INDEMNITEE") against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Loan Document or any other agreement or instrument
contemplated hereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit
or the use of the proceeds therefrom (including any refusal by any Issuing Bank
to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any Environmental Liability related in any way
to the Company or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; PROVIDED that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee or any officer, director,
employee, affiliate, agent or controlling person of such Indemnitee (or of an
institution of which such Indemnitee is an officer, director, employee,
affiliate, agent or controlling person).
(c) To the extent that the Borrowers fail to pay any amount
required to be paid by them to the Administrative Agent, any Issuing Bank or any
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, such Issuing Bank or such
Swingline Lender, as the case may be, such Lender's pro rata share (determined
as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; PROVIDED that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent, such Issuing
Bank or such Swingline Lender in its capacity as such. For purposes hereof, a
Lender's "pro rata share" shall be determined based upon its share of the sum of
the total Revolving Exposures, outstanding Term Loans and unused Commitments at
the time.
(d) To the extent permitted by applicable law, no Borrower
shall assert, and each hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.
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(e) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. SUCCESSORS AND ASSIGNS. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby (including
any Affiliate of any Issuing Bank that issues any Letter of Credit), except that
no Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by a Borrower without such consent shall be null and
void) and except that no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except in compliance with the remaining
paragraphs of this Section 10.04. Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit) and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); PROVIDED that
(i) except in the case of an assignment to a Lender or a Lender Affiliate, each
of the Company and the Administrative Agent (and, in the case of an assignment
of all or a portion of a Revolving Commitment or any Lender's obligations in
respect of its LC Exposure or Swingline Exposure, each Issuing Bank and each
Swingline Lender) must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld), (ii) except in the case of
an assignment to a Lender or a Lender Affiliate or an assignment of the entire
remaining amount of the assigning Lender's Commitment or Loans, the amount of
the Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than (x)
$5,000,000, in the case of Tranche A Term Loans, Tranche A Term Loan
Commitments, Revolving Loans or Revolving Commitments and (y) $1,000,000, in the
case of Tranche B Term Loans or Tranche B Term Loan Commitments, unless each of
the Company and the Administrative Agent otherwise consent, (iii) except in the
case of an assignment to a Lender Affiliate, 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, except that this clause (iii) shall
not be construed to prohibit the assignment of a proportionate part of all the
assigning Lender's rights and obligations in respect of one Class of Commitments
or Loans, (iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, (v) any assignment to a Lender Affiliate will not
relieve the assigning Lender of its obligation to make Loans hereunder timely in
105
accordance with the terms hereof in the event such Lender Affiliate shall fail
to do so and (vi) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent and the Company an Administrative Questionnaire; and
PROVIDED FURTHER that any consent of the Company otherwise required under this
paragraph shall not be required if an Event of Default has occurred and is
continuing (except that any such consent shall be required and may in any event
be withheld (regardless of whether an Event of Default is continuing) if (x)
such proposed assignee fails to deliver evidence reasonably satisfactory to the
Company that such assignee is not a Foreign Person and (y) the Company in good
faith concludes that such assignment could result in a violation of any law,
rule or regulation, or a violation of, revocation of, failure to renew or
modification of any order, facility security clearance or permit). Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 10.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrowers, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "REGISTER"). The entries in
the Register shall be conclusive, and the Borrowers, the Administrative Agent,
the Issuing Banks and the Lenders may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrowers, the Issuing Banks and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the
106
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Any Lender may, without notice to or the consent of any
Borrower, the Administrative Agent, the Issuing Banks or the Swingline Lenders,
sell participations to one or more banks or other entities (a "PARTICIPANT") in
all or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
PROVIDED that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrowers, the
Administrative Agent, the Issuing Banks and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents
(and shall not grant such Participant any direct or indirect vote on or veto
power with respect to any of the foregoing) and shall contain an agreement by
the Participant to be bound by the provisions of Section 10.12; PROVIDED that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in clause (i), (ii), (iii), (iv), (v), (vi), (vii) or (viii) of the
first proviso to Section 10.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, each Borrower agrees that each Participant shall
be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15, 2.16 or 2.17 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Company's prior written consent.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; PROVIDED that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto. In the case of any Lender that is a fund that invests in bank
loans, such Lender may, without the consent of the Borrowers or the
Administrative Agent, pledge all or any portion of its Notes or any other
instrument evidencing its rights as a Lender under this Agreement to any trustee
for, or any other representative of, holders of obligations owed or securities
issued, by such fund, as security for such
107
obligations or securities; PROVIDED that any foreclosure or similar action by
such trustee or representative shall be subject to the provisions of this
Section 10.04 concerning assignments.
(h) Notwithstanding anything to the contrary contained herein,
any Lender (a "GRANTING LENDER") may grant to a special purpose funding vehicle
(an "SPC") of such Granting Lender, identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the Company, the
option to provide to any Borrower all or any part of any Loan that such Granting
Lender would otherwise be obligated to make to such Borrower; PROVIDED that (i)
nothing herein shall constitute a commitment to make any Loan by any SPC, (ii)
if an SPC elects not to exercise such option or otherwise fails to provide all
or any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof and (iii) no such grant, and no exercise of,
such option shall give rise to any obligation by the Borrowers to pay or
withhold amounts pursuant to Sections 2.15 or 2.17 that they would not have been
obligated to pay or withhold if such grant or exercise had not occurred. 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 the
Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for
any payment under this Agreement for which a Lender would otherwise be liable,
for so long as, and to the extent, the related Granting Lender makes such a
payment. In furtherance of the foregoing, each party hereto hereby agrees that,
prior to the date that is one year and one day after the payment in full of all
outstanding senior indebtedness of any SPC, it will not institute against, or
join any other person instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or similar
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section
10.04 any SPC may (i) with notice to, but without the prior written consent of,
the Company or the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to its Granting
Lender or to any financial institutions (if consented to by the Company and the
Administrative Agent) providing liquidity and/or credit facilities to or for the
account of such SPC to fund such Loans and (ii) disclose on a confidential basis
any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of a surety, guarantee or credit liquidity
enhancement to such SPC.
SECTION 10.05. SURVIVAL. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation made by any
such other party or on its behalf and notwithstanding that the Administrative
Agent, any Issuing Bank or any Lender may have had notice or knowledge of any
Default or
108
incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.15, 2.16, 2.17 and 10.03 and Article VIII shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans, the expiration
or termination of the Letters of Credit and the Commitments or the termination
of this Agreement or any provision hereof.
SECTION 10.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective as provided in the Effectiveness
Agreement.
SECTION 10.07. SEVERABILITY. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. RIGHT OF SETOFF. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the account
of any Borrower against any of and all the obligations of any Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 10.09. GOVERNING LAW; JURISDICTION; CONSENT TO
SERVICE OF PROCESS. (a) Pursuant to NYGOL Section .5-1401, this Agreement
shall be construed in accordance with and governed by the law of the State of
New York.
109
(b) Each Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to any Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent, any Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against any Borrower or its properties in the courts of any
jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
110
SECTION 10.11. HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. CONFIDENTIALITY. Each of the Administrative
Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement, (g) with the consent of
the Company, (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential
basis from a source other than a Loan Party, or (i) to any direct or indirect
contractual counterparty in any swap, hedge or similar agreement (or to any such
contractual counterparty's professional advisor), so long as such contractual
counterparty (or such professional advisor) agrees to be bound by the provisions
of this Section 10.12. For the purposes of this Section, "INFORMATION" means all
information received from any Loan Party relating to any Loan Party or its
business, operations, assets, liabilities, financial condition or position or
results of operations or prospects other than any such information that is
available to the Administrative Agent, any Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by any Loan Party. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 10.13. INTEREST RATE LIMITATION. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "CHARGES"), shall
exceed the maximum lawful rate (the "MAXIMUM RATE") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and
111
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.
SECTION 10.14. INFORMATION CONCERNING FOREIGN PERSONS. Each
Lender that is or becomes a Foreign Person after the Effectiveness Date, shall
deliver to each of the Company and the Administrative Agent promptly after
becoming a Foreign Person, written notice that such Lender is or has become a
Foreign Person and such other information concerning the ownership, jurisdiction
of organization or citizenship of such Lender or any Person directly or
indirectly controlling such Lender as the Company may reasonably request to
comply with any applicable laws, rules, regulations and orders (including any
applicable laws, rules, regulations and orders relating to national security).
If, upon receipt of any such notice, the Company in good faith concludes that,
as a consequence of such Lender's being or becoming a Foreign Person, there
could result a violation of any law, rule or regulation, or a violation of,
revocation of, failure to renew or modification of any order, facility security
clearance or permit, the Company shall have the right, with the assistance of
the Administrative Agent, to seek a substitute lender or lenders reasonably
satisfactory to the Administrative Agent, the Issuing Banks, the Swingline
Lenders and the Company (which may be one or more of the Lenders) to purchase
the Loans and assume the Commitments of such Lender, and the Company, the
Administrative Agent, such Lender and substitute lender or lenders shall execute
and deliver an appropriately completed Assignment and Acceptance pursuant to
Section 10.04(b) hereof to effect the assignment of rights to and assumption of
obligations by such substitute lender or lenders.
SECTION 10.15. RELEASE OF LIENS AND GUARANTEES. (a) In the
event that the Company or any Subsidiary sells, transfers or otherwise disposes
of all or any portion of any of the Equity Interests, assets or property owned
by the Company or such Subsidiary (other than to the Company or a Subsidiary or
Affiliate) in a transaction not prohibited by this Agreement, the Administrative
Agent shall promptly (and the Lenders hereby authorize and instruct the
Administrative Agent to) take such action and execute any such documents as may
be reasonably requested by the Company to release any Liens created by any Loan
Document in respect of such Equity Interests, assets or property, including the
release and satisfaction of record of any mortgage or deed of trust granted in
connection herewith, and, in the case of a disposition of all or substantially
all the Equity Interests or assets of any Subsidiary that is a Loan Party, to
terminate such Subsidiary's obligations under the Subsidiary Guaranty Agreement
and each other Loan Document.
(b) Promptly after the Spear Final Contribution Date and the
repayment in full of all amounts due under the Spear Note, the Administrative
Agent shall (and the
112
Lenders hereby authorize and instruct the Administrative Agent to) take such
action and execute any such documents as may be reasonably requested by the
Company to release the Liens created by the Security Documents under Section
5.08(b)(i) and the pledge of any Equity Interests in the Spear Joint Venture
being transferred to any third party in connection with the Spear Final
Contribution Date. The pledge of the Equity Interests owned by the Company and
the Subsidiaries in the Spear Joint Venture shall continue after the Spear Final
Contribution Date.
(c) The Administrative Agent will take such actions as are
reasonably requested by the Company to terminate the Liens and security
interests created by the Loan Documents when all the Obligations have been paid
in full and all Letters of Credit and Commitments have been terminated.
(d) The Company agrees to pay all out-of-pocket expenses of
the Administrative Agent in connection with releases of Liens and obligations
under the Subsidiary Guaranty Agreement provided for in this Section.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
ALLIANT TECHSYSTEMS INC.,
by
-----------------------------
Name:
Title:
CHASE MANHATTAN BANK
DELAWARE, as an Issuing Bank,
by
-----------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent and
Swingline Lender,
by
-----------------------------
Name:
Title:
(THE OTHER LENDERS, ISSUING
BANKS AND SWINGLINE LENDERS
THAT ARE SIGNATORIES TO THE
EFFECTIVENESS AGREEMENT),
by
-----------------------------
Name:
Title:
Exhibit A
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement
dated as of April 20, 2001 (as amended and in effect on the date hereof, the
"Amended and Restated Credit Agreement"), among
Alliant Techsystems Inc., the
Borrowing Subsidiaries party thereto, the Lenders named therein and The Chase
Manhattan Bank, as Administrative Agent for the Lenders. Terms defined in the
Amended and Restated Credit Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and
assigns, without recourse, to the Assignee named on the reverse hereof, and the
Assignee hereby purchases and assumes, without recourse, from the Assignor,
effective as of the Assignment Date set forth on the reverse hereof, the
interests set forth on the reverse hereof (the "Assigned Interest") in the
Assignor's rights and obligations under the Amended and Restated Credit
Agreement, including, without limitation, the interests set forth on the reverse
hereof in the Loans owing to the Assignor which are outstanding on the
Assignment Date, but excluding accrued interest and fees to and excluding the
Assignment Date. The Assignee hereby acknowledges receipt of a copy of the
Amended and Restated Credit Agreement. From and after the Assignment Date (i)
the Assignee shall be a party to and be bound by the provisions of the Amended
and Restated Credit Agreement and, to the extent of the Assigned Interest, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent of the Assigned Interest, relinquish its rights and be released
from its obligations under the Amended and Restated Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) any documentation required to be
delivered by the Assignee pursuant to Section 2.17(e) of the Amended and
Restated Credit Agreement, duly completed and executed by the Assignee, and (ii)
if the Assignee is not already a Lender under the Amended and Restated Credit
Agreement, an Administrative Questionnaire in the form supplied by the
Administrative Agent, duly completed by the Assignee. The [ASSIGNEE/ ASSIGNOR]
shall pay the fee payable to the Administrative Agent pursuant to Section
10.04(b) of the Amended and Restated Credit Agreement.
This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Date of Assignment: April 20, 2001
Legal Name of Assignor: The Chase Manhattan Bank
Legal Name of Assignee:
Assignee's Address for Notices: _______________________
_______________________
Effective Date of Assignment
("Assignment Date"):
Percentage Assigned of
Tranche B Term Loans (set
forth, to at least 8
decimals, as a percentage of all
Principal Tranche B Term Loans
Facility Amount Assigned of all Lenders thereunder)
-------- --------------- --------------------------
Tranch B Term Loan $ %
The terms set forth above and on the reverse side hereof are hereby agreed to:
The Chase Manhattan Bank,
as Assignor
By: ________________________________
Name:
Title:
, as Assignee
By: ________________________________
Name:
Title:
The undersigned hereby consent to the within assignment:(1)
Alliant Techsystems Inc., The Chase Manhattan Bank, as
Administrative Agent,
By: ________________________ By: ___________________________
Name: Name:
Title: Title:
--------
(1) Consents to be included to the extent required by Section 10.04(b) of
the Credit Agreement.
Chase Manhattan Bank Delaware, The Chase Manhattan Bank, as
as Issuing Bank, Issuing Bank,
By: ________________________ By: ___________________________
Name: Name:
Title: Title:
The Chase Manhattan Bank, as
Swingline Lender,
By: ________________________
Name:
Title:
Exhibit B
[FORM OF PERFECTION CERTIFICATE]
The undersigned, the Vice President and General Counsel of
ALLIANT
TECHSYSTEMS INC., a Delaware corporation ("ATK"), hereby certifies with
reference to the Amended and Restated Security Agreement, dated as of April 20,
2001 (the "AGREEMENT"), among ATK, the Borrowing Subsidiaries identified
therein, the Grantors identified therein and The Chase Manhattan Bank, as
Administrative Agent (the "ADMINISTRATIVE AGENT") (terms defined in the
Agreement being used herein as therein defined), to the Administrative Agent and
each Lender as follows:
1. NAMES. (a) Set forth below is the exact corporate name of
each Grantor as it appears in such Grantor's certificate of incorporation or
membership agreement, as the case may be (followed by the abbreviated name of
such Grantor used herein in parentheses) and the jurisdiction of incorporation
of each Grantor:
-------------------------------------------------------------------------
BORROWERS JURISDICTION OF
INCORPORATION
-------------------------------------------------------------------------
-------------------------------------------------------------------------
OTHER GRANTORS
-------------------------------------------------------------------------
-------------------------------------------------------------------------
(b) Set forth below is each other corporate name each Grantor has
had since its respective organization, together with the date of the relevant
change:
-------------------------------------------------------------------------
NAME DATE EVENT
-------------------------------------------------------------------------
-------------------------------------------------------------------------
(c) Except as set forth in SCHEDULE 1, no Grantor has changed its
respective identity or corporate structure in any way within the past five
years.1
(d) The following is a list of all other names (including trade
names or similar appellations) used by each Grantor or any of their respective
divisions or other business units at any time during the past five years:
----------
(1) Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization. If any such change has occurred, include
in SCHEDULE 1 the information required by paragraphs 1, 2 and 3 of this
certificate as to each acquiree or constituent party to a merger or
consolidation.
S-1
2. Current Locations. (a) The chief executive office(s) of each
Grantor is located at the following address:
-------------------------------------------------------------------------
NAME MAILING ADDRESS COUNTY STATE
-------------------------------------------------------------------------
Alliant Building C14, Freeport Center ▇▇▇▇▇ UT
Aerospace ▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Structures
-------------------------------------------------------------------------
(b) The following are all the locations where each Grantor maintains
any books or records relating to any Accounts:
-------------------------------------------------------------------------
NAME MAILING ADDRESS COUNTY STATE
-------------------------------------------------------------------------
-------------------------------------------------------------------------
(c) The following are all the places of business of each Grantor not
identified above:
-------------------------------------------------------------------------
NAME MAILING ADDRESS COUNTY STATE
-------------------------------------------------------------------------
-------------------------------------------------------------------------
(d) The following are all the locations where each Grantor maintains
any Inventory not identified above:
(e) The following are the names and addresses of all Persons other
than the Grantor which have possession of any of the Grantors' Inventory:
-------------------------------------------------------------------------
NAME (GRANTOR) MAILING ADDRESS COUNTY STATE
-------------------------------------------------------------------------
MN
-------------------------------------------------------------------------
3. Prior Locations. (a) Set forth below is the information
required by subparagraphs (a), (b) and (c) of paragraph 2 with respect to each
location or place of business maintained by each Grantor at any time during the
past five years:
S-2
--------------------------------------------------------------------------------
NAME(GRANTOR) MAILING ADDRESS COUNTY STATE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(b) Set forth below is the information required by subparagraphs (d)
and (e) of paragraph 2 with respect to each location or bailee where or with
whom Inventory has been lodged at any time during the past four months:
4. UNUSUAL TRANSACTIONS. Except as set forth in SCHEDULE 4, all
Accounts have been originated by a Grantor and all Inventory and Equipment has
been acquired by a Grantor in the ordinary course of its respective business.
5. FILE SEARCH REPORTS. Attached hereto as SCHEDULE 5(A) is a true
copy of a file search report from the Uniform Commercial Code filing officer in
each jurisdiction identified in paragraph 2 or 3 above with respect to each name
set forth in paragraph 1 above. Attached hereto as SCHEDULE 5(B) is a true copy
of each financing statement or other filing identified in such file search
reports.
6. UCC FILINGS. A duly signed financing statement on Form UCC-1 in
substantially the form of SCHEDULE 6(A) hereto has been delivered to the
Administrative Agent with respect to each jurisdiction identified in paragraph 2
hereof. Attached hereto as SCHEDULE 6(B) is a true copy of each such UCC-1
financing statement, each of which will be filed by the Administrative Agent in
the appropriate jurisdiction immediately following the Closing Date.
7. SCHEDULE OF FILINGS. Attached hereto as SCHEDULE 7 is a schedule
setting forth filing information with respect to the filings described in
paragraph 6 above, which SCHEDULE 7 will be completed upon receipt of the
acknowledged copies of such filings from the various filing jurisdictions
identified therein.
8. FILING FEES. All filing fees and taxes payable in connection with
the filings described in paragraph 6 above have been paid.
9. PATENTS. All Patents owned by any Grantor as of the date hereof
and all Patent Licenses to which any Grantor is a party as of the date hereof
are listed on Schedule 1 to the Patent Security Agreement, a true copy of which
is attached hereto as SCHEDULE 9.
IN WITNESS WHEREOF, we have hereunto set our hands this ___ day of April,
2001.
By:
---------------------------------
Name:
Title:
S-3
SCHEDULE 1
CHANGES IN IDENTITY/CORPORATE STRUCTURE
--------------------------------------------------------------------------------
NAME DATE EVENT
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
S-4
SCHEDULE 4
UNUSUAL TRANSACTIONS
S-5
SCHEDULE 5(A)
FILE SEARCH REPORTS
S-6
SCHEDULE 5(B)
FINANCING STATEMENTS
S-7
SCHEDULE 6(A)
DESCRIPTION OF COLLATERAL
(a) UCC-1 financing statements collateral description:
(b) Fixture filings collateral description:
S-8
SCHEDULE 6(B)
ACKNOWLEDGED FILE COPIES
S-9
SCHEDULE 7
SCHEDULE OF FILINGS
S-10
SCHEDULE 9
(A) PATENTS
[ List all Patents owned by the Grantor ]
(B) PATENT LICENSES
[ List all Patent Licenses owned by the Grantor ]
S-11
Exhibit C
CONFORMED COPY
AMENDED AND RESTATED
PLEDGE AGREEMENT
AGREEMENT dated as of April 20, 2001 among
ALLIANT TECHSYSTEMS INC.
(with its successors, the "Company"), the borrowing subsidiaries party hereto
(each, a "Borrowing Subsidiary" and collectively with the Company, the
"Borrowers"), each other subsidiary of the Company listed on the signature pages
hereof (collectively, with the Borrowing Subsidiaries, the "Subsidiary
Guarantors" and, together with the Company, the "Pledgors") and THE CHASE
MANHATTAN BANK, as Administrative Agent (the "Administrative Agent") amending
and restating in its entirety the Pledge Agreement dated as of March 15, 1995
and amended and restated by the Amended and Restated Pledge Agreement dated as
of November 23, 1998 among the Company, each other Pledgor thereunder and the
Administrative Agent (the "Existing Pledge Agreement").
Reference is made to the Amended and Restated Credit Agreement
dated as of April 20, 2001 (as amended, supplemented or otherwise modified from
time to time, the "Amended and Restated Credit Agreement") among the Company,
the Borrowing Subsidiaries, the Lenders party thereto and the Administrative
Agent.
In connection with the execution and delivery of the Amended
and Restated Credit Agreement, the parties wish to amend and restate the
Existing Pledge Agreement as set forth herein; PROVIDED that in no event shall
such amendment and restatement be deemed to extinguish the security interests
under the Existing Pledge Agreement.
The Lenders have agreed to continue and to make loans to the
Borrowers and the Issuing Banks (as defined in the Amended and Restated Credit
Agreement) have agreed to issue Letters of Credit (as defined in the Amended and
Restated Credit Agreement) for the account of the Borrowers pursuant to, and
upon the terms and subject to the conditions specified in, the Amended and
Restated Credit Agreement. Each of the Subsidiary Guarantors is a subsidiary of
the Company and acknowledges that it will derive substantial benefit from the
continuation of the loans and making of new loans by the Lenders under the
Amended and Restated Credit Agreement, and the issuance of the Letters of Credit
by the Issuing Banks. The obligations of the Amended and Restated Lenders to
continue loans, and to make loans, under the Amended and Restated Credit
Agreement to the extent provided therein and of the Issuing Banks to issue
Letters of Credit under the Amended and Restated Credit Agreement are
conditioned on, among other things, the execution and delivery by the Company
and the Subsidiary Guarantors of a Pledge Agreement in the form hereof and the
amendment and restatement of the Existing Pledge Agreement as provided herein.
As consideration therefor and in order to induce the Lenders
to continue and to make loans and to execute and deliver the Amended and
Restated Credit Agreement and the Issuing Banks to issue Letters of Credit under
the Amended and Restated Credit Agreement, the Company and the Subsidiary
Guarantors are willing to execute this Agreement.
Accordingly, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
Terms defined in the Amended and Restated Credit Agreement and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein. The following additional terms, as used herein, have the following
respective meanings:
"Classified Information" has the meaning set forth in Section
10(B).
"Collateral" has the meaning assigned to such term in Section
3(A).
"Effectiveness Date Issuer" means the entities set forth on
Schedule I.
"Hedging Obligations" means all obligations of the Borrowers
to any Lender or any Affiliate of a Lender under (i) any interest rate swap
agreement, interest rate cap agreement or interest rate collar agreement, (ii)
any foreign exchange contract or currency swap agreement or (iii) any similar
agreement or arrangement of a type designed to protect the Borrowers against
fluctuations in interest rates or currency exchange rates; PROVIDED that at or
prior to the time the agreement under which such obligations arise is entered
into (i) the Borrowers and such Lender or Affiliate thereof shall have expressly
agreed in writing that such obligations constitute "Hedging Obligations"
entitled to the benefits of the Security Documents and (ii) such Lender or
Affiliate shall have delivered a notice to the Administrative Agent (or, in the
case of an Affiliate of a Lender, an instrument in form and substance
satisfactory to the Administrative Agent) to the effect set forth in clause (i)
of this PROVISO, and acknowledging and agreeing to be bound by the terms of this
Agreement with respect to such obligations, including without limitation the
provisions of Sections 10 and 11 hereof.
"Intercompany Note" means each note substantially in the form
of Exhibit A evidencing indebtedness of any Effectiveness Date Issuer or
Subsequent Issuer to any Pledgor.
"Permitted Liens" means the Security Interests and the Liens
on the Collateral permitted to be created, assumed or exist pursuant to Section
6.02 of the Amended and Restated Credit Agreement.
"Pledged Instruments" means any instrument required to be
pledged to the Administrative Agent pursuant to Section 3(B).
"Pledged Securities" means the Pledged Instruments and the
Pledged Stock.
"Pledged Stock" means (i) the Subsidiary Shares and (ii) any
other Equity Interests required to be pledged to the Administrative Agent
pursuant to Section 3(B); PROVIDED that the Pledged Stock shall not include more
than 65% of the issued and outstanding voting Equity Interests of any Foreign
Subsidiary; PROVIDED FURTHER that the Pledged Stock shall not include any Equity
Interests in Alliant Assurance Ltd.
"Security Interests" means the security interests in the
Collateral granted hereunder securing the Secured Obligations.
"Secured Obligations" means obligations secured under this
Agreement including (a) all principal of and interest (including any interest
which accrues after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of any Borrower,
whether or not allowed or allowable in such proceeding) on any Loan under the
Amended and Restated Credit Agreement, (b) each payment required to be made by
any Borrower under the Amended and Restated Credit Agreement in respect of any
Letter of Credit, and any payment required to be made by any Borrower in respect
of any Lender Letter of Credit, in each case when and as due, including payments
in respect of reimbursement of disbursements, interest thereon and obligations
to provide cash collateral ("Reimbursement Obligations"), (c) all other amounts
payable by any Pledgor hereunder or under any other Loan Document, (d) any
Hedging Obligations, and (e) any renewals or extensions of any of the foregoing.
"Secured Parties" means the Lenders (including without
limitation with respect to any Hedging Obligations owed to such Lenders), any
Affiliate of any Lender to which Hedging Obligations are owed and the
Administrative Agent.
"Subsequent Issuer" means any Person that shall, at any time
after the date hereof, become a Subsidiary of the Company or Joint Venture of
the Company (other than any subsidiary of the ▇▇▇▇▇▇▇ Joint Venture).
"Subsidiary Shares" means all Equity Interests of the
Effectiveness Date Issuers issued to or otherwise acquired by any Pledgor by or
from any Effectiveness Date Issuer as set forth on Schedule I as of the date
hereof.
Unless otherwise defined herein, or unless the context
otherwise requires, all terms used herein which are defined in the New York
Uniform Commercial Code as in effect on the date hereof shall have the meanings
therein stated.
SECTION 2. REPRESENTATIONS AND WARRANTIES
The Pledgors jointly and severally represent and warrant as follows:
(A) TITLE TO PLEDGED SECURITIES. Each Pledgor owns all of the Pledged
Securities listed opposite such Pledgor's name on Schedule I hereto, free and
clear of any Liens other than the Security Interests and Permitted Liens. The
Pledged Stock represents the percentage as set forth on Schedule I of the issued
and outstanding Equity Interests of the applicable Subsidiary or Joint Venture
issuer with respect thereto. All of the Pledged Stock has been duly authorized
and validly issued, and is fully paid and non-assessable, and is subject to no
options to purchase or similar rights of any Person, other than such rights
permitted under Section 6.02(u) of the Amended and Restated Credit Agreement. No
Pledgor is or will become a party to or otherwise bound by any agreement, other
than this Agreement, which restricts in any manner the rights of any present or
future holder of any of the Pledged Securities with respect thereto, other than
such rights permitted under Section 6.02(u) of the Amended and Restated Credit
Agreement.
(B) VALIDITY, PERFECTION AND PRIORITY OF SECURITY INTERESTS. Upon the
delivery of (i) the Pledged Instruments, (ii) certificates representing the
shares of capital stock of any corporation listed on Schedule I hereto, and
(iii) any certificates representing units of interest of any limited liability
company listed on Schedule I hereto to the extent that the terms of such units
expressly provide that it is a security governed by Article 8 of the UCC, the
Administrative Agent in accordance with Section 4 hereof, the Administrative
Agent will have valid and perfected security interests in the Collateral, to the
extent such security interest can be perfected by possession of such
certificates, subject to no prior Lien. No registration, recordation or filing
with any governmental body, agency or official is required in connection with
the execution or delivery of this Agreement or necessary for the validity or
enforceability hereof or for the perfection or enforcement of the Security
Interests. None of the Pledgors or any of the Subsidiaries has performed or will
perform any acts which might prevent the Administrative Agent from enforcing any
of the terms and conditions of this Agreement or which would limit the
Administrative Agent in any such enforcement.
(C) UCC FILING LOCATIONS. The chief executive office of each Pledgor is
located at its address set forth in the Perfection Certificate. Under the
Uniform Commercial Code as in effect in the State in which such office is
located, as of the Effective Date, other than Virginia, Missouri and
Mississippi, no local (as opposed to State) filing is required to perfect a
security interest in collateral consisting of general intangibles.
SECTION 3. THE SECURITY INTERESTS
In order to secure the full and punctual payment of the Secured
Obligations in accordance with the terms thereof, and to secure the performance
of all the obligations of each Pledgor hereunder:
(A) Each Pledgor hereby assigns and pledges to and with the
Administrative Agent for the benefit of the Secured Parties and grants to the
Administrative Agent for the benefit of the Secured Parties security interests
in the Pledged Securities owned by it, and all of its rights and privileges with
respect to the Pledged Securities owned by it, and all income and profits
thereon, and all interest, dividends and other payments and distributions with
respect thereto, and all proceeds of the foregoing (the "Collateral").
Contemporaneously with the execution and delivery hereof, the applicable Pledgor
is delivering the certificates, if any, representing the Subsidiary Shares in
pledge hereunder.
(B) In the event that (i) any Effectiveness Date Issuer at any time
issues any additional or substitute Equity Interests of any class to any
Pledgor, or owes any Indebtedness to any Pledgor evidenced by an instrument
(including an Intercompany Note), or (ii) any Subsequent Issuer at any time
issues any Equity Interests to any Pledgor, or owes any debt to any Pledgor
evidenced by an instrument (including an Intercompany Note), such Pledgor will
immediately notify the Administrative Agent of such issuance or Indebtedness in
an aggregate principal amount for any Pledgor in excess of $1,000,000 evidenced
by an instrument (including an Intercompany Note) and, upon request of the
Administrative Agent, will immediately pledge and deposit with the
Administrative Agent certificates representing all such Equity Interests or the
instrument evidencing such Indebtedness in an aggregate principal amount for any
Pledgor in excess of $1,000,000 (including an Intercompany Note) as additional
security for the Secured Obligations; PROVIDED that no Pledgor shall be required
to pledge more than 65% of the issued and outstanding voting Equity Interests of
any Foreign Subsidiary. All such shares and instruments constitute Pledged
Securities and are subject to all provisions of this Agreement.
(C) The Security Interests are granted as security only and shall not
subject the Administrative Agent or any other Secured Party to, or transfer or
in any way affect or modify, any obligation or liability of any Pledgor with
respect to any of the Collateral or any transaction in connection therewith.
SECTION 4. DELIVERY OF PLEDGED SECURITIES
All Pledged Instruments shall be delivered to the Administrative Agent
by the applicable Pledgor pursuant hereto indorsed to the order of the
Administrative Agent, and accompanied by any required transfer tax stamps, all
in form and substance reasonably satisfactory to the Administrative Agent. All
certificates representing Pledged Stock delivered to the Administrative Agent by
any Pledgor pursuant hereto shall be in suitable form for transfer by delivery,
or shall be accompanied by duly executed instruments of transfer or assignment
in blank, with signatures appropriately guaranteed, and accompanied by any
required transfer tax stamps, all in form and substance reasonably satisfactory
to the Administrative Agent.
SECTION 5. FURTHER ASSURANCES
(A) Each Pledgor agrees that it will, at its expense and in such manner
and form as the Administrative Agent may require, execute, deliver, file and
record any financing statement, specific assignment or other paper and take any
other action that may be necessary or desirable, or that the Administrative
Agent may reasonably request, in order to create, preserve, perfect or validate
any Security Interest or to enable the Administrative Agent to exercise and
enforce its rights hereunder with respect to any of the Collateral. To the
extent permitted by applicable law, each Pledgor hereby authorizes the
Administrative Agent to execute and file, in the name of such Pledgor or
otherwise, financing statements (which may be carbon, photographic, photostatic
or other reproductions of this Agreement or of a financing statement relating to
this Agreement) which the Administrative Agent in its sole discretion may deem
necessary or appropriate to further perfect the Security Interests.
(B) Each Pledgor will cause any Indebtedness owed to such
Pledgor by a Effectiveness Date Issuer or a Subsequent Issuer to be evidenced by
an Intercompany Note duly executed by such Effectiveness Date Issuer or
Subsequent Issuer.
(C) Each Pledgor agrees that it will not change (i) its name,
identity or Business Entity structure in any manner or (ii) the location of its
chief executive office unless it shall have given the Administrative Agent not
less than 30 days' prior notice thereof.
SECTION 6. RECORD OWNERSHIP OF PLEDGED STOCK
At any time during the continuation of any Event of Default, the
Administrative Agent may, in its sole discretion (subject to any applicable
laws, rules, regulations and orders relating to national security), cause any or
all of the Pledged Stock to be transferred of record into the name of the
Administrative Agent or its nominee. Each Pledgor will promptly give to the
Administrative Agent copies of any notices or other communications received by
it with respect to Pledged Stock registered in the name of such Pledgor and the
Administrative Agent will promptly give to such Pledgor copies of any notices
and communications received by the Administrative Agent with respect to Pledged
Stock pledged by such Pledgor registered in the name of the Administrative Agent
or its nominee.
SECTION 7. RIGHT TO RECEIVE DISTRIBUTIONS ON COLLATERAL
The Administrative Agent shall have the right to receive and, during
the continuance of any Event of Default, to retain as Collateral hereunder all
dividends, interest and other payments and distributions made upon or with
respect to the Collateral and each Pledgor shall take all such action as the
Administrative Agent may deem necessary or appropriate to give effect to such
right. During the continuance of any Event of Default, all such dividends,
interest and other payments and distributions which are received by any Pledgor
with respect to the Collateral shall be received in trust for the benefit of the
Administrative Agent and the other Secured Parties and, if the Administrative
Agent so directs during the continuance of an Event of Default, shall be
segregated from other funds of such Pledgor and shall, forthwith upon demand by
the Administrative Agent during the continuance of an Event of Default, be paid
over to the Administrative Agent as Collateral in the same form as received
(with any necessary endorsement). After all Events of Defaults have been cured,
the Administrative Agent's right to retain dividends, interest and other
payments and distributions in respect of the Collateral under this Section 7
shall cease and the Administrative Agent shall pay over to the Pledgors any such
Collateral retained by it during the continuance of an Event of Default.
SECTION 8. RIGHT TO VOTE PLEDGED STOCK
Unless an Event of Default shall have occurred and be continuing, the
applicable Pledgor shall have the right, from time to time, to vote and to give
consents, ratifications and waivers with respect to the Pledged Stock, and the
Administrative Agent shall, upon receiving a written request from such Pledgor
accompanied by a certificate signed by its principal financial officer stating
that no Event of Default has occurred and is continuing, deliver to such Pledgor
or as specified in such request such proxies, powers of attorney, consents,
ratifications and waivers in respect of any of the Pledged Stock which is
registered in the name of the Administrative Agent or its nominee as shall be
specified in such request and be in form and substance reasonably satisfactory
to the Administrative Agent.
If an Event of Default shall have occurred and be continuing, the
Administrative Agent shall have the right to the extent permitted by law
(including any laws, rules, regulations and orders relating to national
security) and each Pledgor shall take all such action as may be necessary or
appropriate to give effect to such right, to vote and to give consents,
ratifications and waivers, and take any other action with respect to any or all
of the Pledged Stock pledged by it with the same force and effect as if the
Administrative Agent were the absolute and sole owner thereof.
SECTION 9. GENERAL AUTHORITY
Each Pledgor hereby irrevocably appoints the Administrative Agent its
true and lawful attorney, with full power of substitution, in the name of such
Pledgor, the Administrative Agent, any other Secured Party or otherwise, for the
sole use and benefit of the Administrative Agent and the other Secured Parties,
but at the expense of Pledgors, to the extent permitted by law, to exercise, at
any time and from time to time while an Event of Default has occurred and is
continuing, all or any of the following powers with respect to all or any of the
Collateral:
(i) to demand, ▇▇▇ for, collect, receive and give acquittance for
any and all monies due or to become due upon or by virtue thereof,
(ii) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal in or with the
same or the proceeds or avails thereof, as fully and effectually as if
the Administrative Agent were the absolute owner thereof, and
(iv) to extend the time of payment of any or all thereof and to
make any allowance and other adjustments with reference thereto;
PROVIDED that the Administrative Agent shall give applicable Pledgor not less
than ten days' prior written notice of the time and place of any sale or other
intended disposition of any of the Collateral, except any Collateral which is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market. The Administrative Agent and the Pledgors agree
that such notice constitutes "reasonable notification" within the meaning of
Section 9-504(3) of the Uniform Commercial Code.
SECTION 10. REMEDIES UPON EVENT OF DEFAULT
(A) If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, at the direction of the Required Lenders, exercise on
behalf of the Secured Parties all the rights of a secured party under the
Uniform Commercial Code (whether or not in effect in the jurisdiction where such
rights are exercised), subject to any applicable laws, rules and regulations and
orders relating to national security, and, in addition, the Administrative Agent
may, at the direction of the Required Lenders, without being required to give
any notice, except as herein provided or as may be required by mandatory
provisions of law, (i) apply the cash, if any, then held by it as Collateral as
specified in Section 13 and (ii) if there shall be no such cash or if such cash
shall be insufficient to pay all the Secured Obligations in full, sell the
Collateral (subject to any applicable laws, rules, regulations, and orders
relating to national security) or any part thereof at public or private sale or
at any broker's board or on any securities exchange, for cash, upon credit or
for future delivery, and at such price or prices as the Administrative Agent may
deem satisfactory. The Administrative Agent or any other Secured Party may be
the purchaser of any or all of the Collateral (subject to any applicable laws,
rules, regulations, and orders relating to national security) so sold at any
public sale (or, if the Collateral is of a type customarily sold in a recognized
market or is of a type which is the subject of widely distributed standard price
quotations, at any private sale). The Administrative Agent is authorized, in
connection with any such sale, if it deems it advisable so to do, (i) to
restrict the prospective bidders on or purchasers of any of the Pledged
Securities to a limited number of sophisticated investors who will represent and
agree that they are purchasing for their own account for investment and not with
a view to the distribution or sale of any of such Pledged Securities, (ii) to
cause to be placed on certificates for any or all of the Pledged Securities or
on any other securities pledged hereunder a legend to the effect that such
security has not been registered under the Securities Act of 1933 and may not be
disposed of in violation of the provision of said Act, and (iii) to impose such
other limitations or conditions in connection with any such sale as the
Administrative Agent deems necessary or advisable in order to comply with said
Act or any other law. Each Pledgor will execute and
deliver such documents and take such other action as the Administrative Agent
reasonably deems necessary or advisable in order that any such sale may be made
in compliance with law. Upon any such sale the Administrative Agent shall have
the right to deliver, assign and transfer to the purchaser thereof the
Collateral so sold (subject to any applicable laws, rules, regulations, and
orders relating to national security). Each purchaser at any such sale shall
(subject to any applicable laws, rules, regulations, and orders relating to
national security) hold the Collateral so sold absolutely and free from any
claim or right of whatsoever kind, including any equity or right of redemption
of the Pledgors which may be waived, and each Pledgor, to the extent permitted
by law, hereby specifically waives all rights of redemption, stay or appraisal
which it has or may have under any law now existing or hereafter adopted. The
notice (if any) of such sale required by Section 9 shall (1) in the case of a
public sale, state the time and place fixed for such sale, (2) in the case of a
sale at a broker's board or on a securities exchange, state the board or
exchange at which such sale is to be made and the day on which the Collateral,
or the portion thereof so being sold, will first be offered for sale at such
board or exchange, and (3) in the case of a private sale, state the day after
which such sale may be consummated. Any such public sale shall be held at such
time or times within ordinary business hours and at such place or places as the
Administrative Agent may fix in the notice of such sale. At any such sale the
Collateral may be sold in one lot as an entirety or in separate parcels, as the
Administrative Agent may determine. The Administrative Agent shall not be
obligated to make any such sale pursuant to any such notice. The Administrative
Agent may, without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the time and
place fixed for the sale, and such sale may be made at any time or place to
which the same may be so adjourned. In the case of any sale of all or any part
of the Collateral on credit or for future delivery, the Collateral so sold may
be retained by the Administrative Agent until the selling price is paid by the
purchaser thereof, but the Administrative Agent shall not incur any liability in
the case of the failure of such purchaser to take up and pay for the Collateral
so sold and, in the case of any such failure, such Collateral may again be sold
upon like notice. The Administrative Agent, instead of exercising the power of
sale herein conferred upon it (subject to any applicable laws, rules,
regulations and orders relating to national security), may, at the direction of
the Required Lenders, proceed by a suit or suits at law or in equity to
foreclose the Security Interests and sell the Collateral, or any portion
thereof, under a judgment or decree of a court or courts of competent
jurisdiction.
(B) The Administrative Agent will take the actions and
exercise the rights and remedies on behalf of the Secured Parties pursuant to
this Section 10 at the request of the Required Lenders and subject to any
applicable laws, rules, regulations and orders (including, without limitation,
any applicable laws, rules, regulations and orders relating to national
security) with respect to the sale or transfer of any of the Collateral.
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 remedies upon the occurrence of an
Event of Default that will require it to have access to classified information
or information which otherwise cannot be held by the Administrative Agent under
applicable
laws, rules, regulations or orders relating to national security ("Classified
Information"), and the Administrative Agent is unable to obtain a clearance or
other governmental approval required to have such access within a reasonable
time after seeking to exercise its remedies upon the occurrence of an Event of
Default, each Pledgor shall dispose of all Classified Information that is
Collateral 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 such applicable laws, rules, regulations and orders,
to the Administrative Agent for the benefit of the Secured Parties.
SECTION 11. EXPENSES
The Pledgors jointly and severally agree that they will forthwith upon
demand pay to the Administrative Agent:
(i) the amount of any taxes which the Administrative Agent may
have been required to pay by reason of the Security Interests or to
free any of the Collateral from any Lien thereon, and
(ii) the amount of any and all out-of-pocket expenses, including
the reasonable fees and disbursements of counsel and of any other
experts, which the Administrative Agent may incur in connection with
(w) the administration or enforcement of this Agreement, including such
expenses as are incurred to preserve the value of the Collateral and
the validity, perfection, rank and value of any Security Interest, (x)
the collection, sale or other disposition of any of the Collateral, (y)
the exercise by the Administrative Agent of any of the rights conferred
upon it hereunder or (z) any Default or Event of Default.
Any such amount not paid on demand shall bear interest at the rate applicable to
ABR Borrowings plus 2% and shall be an additional Secured Obligation hereunder.
SECTION 12. LIMITATION ON DUTY OF ADMINISTRATIVE AGENT
IN RESPECT OF COLLATERAL
Beyond the exercise of reasonable care in the custody thereof, the
Administrative Agent shall have no duty as to any Collateral in its possession
or control or in the possession or control of any agent or bailee or any income
thereon or as to the preservation of rights against prior parties or any other
rights pertaining thereto. The Administrative Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which it accords its own property, and shall not be liable or responsible
for any loss or damage to any of the Collateral, or for any diminution in the
value thereof, by reason of the act or omission of any agent or bailee selected
by the Administrative Agent in good faith.
SECTION 13. APPLICATION OF PROCEEDS
(A) Upon the occurrence and during the continuance of an Event
of Default, the proceeds of any sale of, or other realization upon, all or any
part of the Collateral and any cash held shall be applied by the Administrative
Agent in the following order of priorities:
FIRST, to payment of the expenses of such sale or other
realization, including reasonable compensation to agents and counsel
for the Administrative Agent, and all expenses, liabilities and
advances incurred or made by the Administrative Agent in connection
therewith, and any other unreimbursed expenses for which the
Administrative Agent is to be reimbursed pursuant to Section 11 hereof
or any Lender is to be reimbursed pursuant to, and unpaid fees owing to
the Administrative Agent under, the Amended and Restated Credit
Agreement;
SECOND, to the ratable payment of accrued but unpaid interest on
the Secured Obligations;
THIRD, to the ratable payment of unpaid principal of the Secured
Obligations;
FOURTH, to the ratable payment of all other Secured Obligations,
until all Secured Obligations shall have been paid in full; and
FINALLY, to payment to the Pledgors or their successors or
assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining from such proceeds.
The Administrative Agent may make distributions hereunder in cash or in kind to
the extent permitted by law (including without limitation applicable laws,
rules, regulations and orders relating to national security) or, on a ratable
basis, in any combination thereof. In determining allocations under this
Section, the amount of any Hedging Obligation shall be equal to the amount of
the unrealized net loss position owed to such Secured Party.
(B) In making the determinations and allocations required by
this Section, the Administrative Agent may rely upon information supplied by the
Secured Parties as to the amounts of the Secured Obligations held by them, and
the Administrative Agent shall have no liability to any of the Secured Parties
for actions taken in reliance on such information. All distributions made by the
Administrative Agent pursuant to this Section shall be final, absent manifest
error, and the Administrative Agent shall have no duty to inquire as to the
application by the Secured Parties of any amount distributed to them.
(C) If, through the operation of any bankruptcy,
reorganization, insolvency or other laws or otherwise, the Security Interests
are enforced with respect to some, but not all, of the Secured Obligations, the
Administrative Agent shall nonetheless apply the proceeds to all the
Secured Obligations, in the proportions and subject to the priorities specified
in this Section. To the extent that the Administrative Agent distributes
proceeds collected with respect to one Secured Obligation to or on behalf of the
holder of another Secured Obligation, the holder of the former Secured
Obligation shall be deemed to have purchased a participation in the latter
Secured Obligation, or shall be subrogated to the rights of the holder thereof
to receive any subsequent payments and distributions made with respect to the
portion thereof paid or to be paid by the application of such proceeds.
SECTION 14. HEDGING OBLIGATIONS
As a condition to accepting the benefits of this Agreement,
each Lender and each Affiliate thereof that is owed Hedging Obligations agrees
with each of the other Lenders, each Affiliate of a Lender that is owed Hedging
Obligations and the Administrative Agent that it will from time to time (i)
provide such information to the Administrative Agent as may be necessary to
enable the Administrative Agent to make any determination of the amount of
Secured Obligations held by such Lender or Affiliate thereof or otherwise as
requested by the Administrative Agent for any other purpose of the Financing
Documents and (ii) otherwise cooperate in taking action or enforcing rights with
respect to such Hedging Obligations and rights hereunder as may be reasonably
requested by the Administrative Agent at the direction of the Required Lenders.
SECTION 15. CONCERNING THE ADMINISTRATIVE AGENT
(A) Each Secured Party irrevocably appoints and authorizes the
Administrative Agent to take such action and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with all such powers as are reasonably incidental thereto. As to any
matters not expressly provided for herein (including, without limitation, the
timing and methods of realization upon the Collateral) the Administrative Agent
shall act or refrain from acting in accordance with written instructions from
the Required Lenders or, in the absence of such instructions, in accordance with
its discretion.
(B) The Administrative Agent shall have the same rights and
powers under this Agreement as any other Secured Party and may exercise or
refrain from exercising the same as though it were not the Administrative Agent,
and the Administrative Agent and its Affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with the Pledgors or any
Subsidiary or Affiliate of the Pledgors as if it were not the Administrative
Agent hereunder.
(C) The obligations of the Administrative Agent are only those
expressly set forth herein. Without limiting the generality of the foregoing,
the Administrative Agent shall not be required to take any action with respect
to any Event of Default. The Administrative Agent shall not be responsible for
the existence, genuineness or value of any of the Collateral or for the
validity, perfection, priority or enforceability of the Security Interests in
any of the Collateral, whether impaired by operation of law or by reason of any
action or omission to act on its part hereunder. The Administrative Agent shall
have no duty to ascertain or inquire as to the performance or observance of any
of the terms of this Agreement by the Pledgors.
(D) The Administrative Agent may consult with legal counsel
(who may be counsel for the Pledgors), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
(E) Neither the Administrative Agent nor any of its directors,
officers, agents, or employees shall be liable for any action taken or not taken
by it in connection herewith (i) with the consent or at the request of the
Required Lenders or (ii) in the absence of its own gross negligence or willful
misconduct. Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation or
observance of any of the covenants or agreements of the Pledgors; or (iii) the
validity, effectiveness or genuineness of this Agreement or any other instrument
or writing furnished in connection herewith. The Administrative Agent shall not
incur any liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex, facsimile or
similar writing) reasonably believed by it to be genuine or to be signed by the
proper party or parties.
(F) The Chase Manhattan Bank may resign as Administrative
Agent at any time by giving written notice thereof to the Secured Parties and
the Company. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Administrative Agent with the consent of the
Company (which consent shall not unreasonably be withheld, but which may in any
event be withheld if such proposed successor Administrative Agent fails to
deliver evidence reasonably satisfactory to the Company that such proposed
successor Agent is not a Foreign Person). If no successor Administrative Agent
shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 60 days after the retiring Administrative Agent's
giving of notice of resignation, then the retiring Administrative Agent may
appoint a successor Administrative Agent, which shall (i) be a commercial bank
organized under the laws of the United States of America or of any State
thereof, (ii) not be a Foreign Person and (iii) have a combined capital and
surplus of at least $100,000,000. Upon the acceptance of its appointment as
Administrative Agent by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations. After
any retiring Administrative Agent's resignation as Administrative Agent, the
provisions of this Agreement shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent.
SECTION 16. APPOINTMENT OF ADMINISTRATIVE CO-AGENTS
At any time or times, in order to comply with any legal
requirement in any jurisdiction, the Administrative Agent may appoint another
bank or trust company or one or more other persons, either to act as co-agent or
co-agents, jointly with the Administrative Agent, or to act as separate agent or
agents on behalf of the Secured Parties with such power and authority as may be
necessary for the effectual operation of the provisions hereof and may be
specified in the instrument of appointment (which may, in the discretion of the
Administrative Agent, include provisions for the protection of such co-agent or
separate agent similar to the provisions of Section 15).
SECTION 17. TERMINATION OF SECURITY INTERESTS;
RELEASE OF COLLATERAL
Upon the repayment in full of all Secured Obligations and the
termination of the Commitments under the Amended and Restated Credit Agreement,
the Security Interests and the obligations of the Pledgors under this Agreement
shall terminate and all rights to the Collateral shall revert to the Pledgors.
At any time and from time to time prior to such termination of the Security
Interests, the Administrative Agent may release any of the Collateral with the
prior written consent of the Required Lenders; PROVIDED that the Administrative
Agent may release all or substantially all of the Collateral prior to the
termination of the obligations of the Pledgors under this Agreement only with
the prior written consent of all the Lenders. Upon any such termination of the
Security Interests or release of Collateral, the Administrative Agent will, at
the expense of the Pledgors, execute and deliver to the Company such documents
as the Company shall reasonably request to evidence the termination of the
Security Interests or the release of such Collateral, as the case may be, and
take such action as may be reasonably necessary to deliver to the Company any
Collateral previously delivered to the Administrative Agent under this
Agreement.
SECTION 18. NOTICES
All notices, communications and distributions to any party hereunder
shall be in writing (including bank wire, telex, facsimile transmission or
similar writing) and shall be given to such party at its address set forth on
the signature pages hereof or such other address or telecopier number as such
party may hereafter specify for the purpose by notice to the other. Each such
notice, request or other communication shall be effective (i) if given by telex,
when such telex is transmitted to the telex number specified below and the
appropriate answerback is received, (ii) if given by facsimile, when delivered
to the number specified below (and followed by a copy sent by mail or other
courier addressed as aforesaid) or (iii) if given by any other means, when
delivered at the address or telecopier number specified below.
SECTION 19. WAIVERS; NON-EXCLUSIVE REMEDIES
No failure on the part of the Administrative Agent to exercise, and no
delay in exercising and no course of dealing with respect to, any right under
this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise by the Administrative Agent of any right under any Loan
Document preclude any other or further exercise thereof or the exercise of any
other right. The rights in this Agreement and the Amended and Restated Credit
Agreement are cumulative and are not exclusive of any other remedies provided by
law.
SECTION 20. SUCCESSORS AND ASSIGNS
This Agreement is for the benefit of the Administrative Agent and the
other Secured Parties and their successors and assigns, and in the event of an
assignment of all or any of the Secured Obligations, the rights hereunder, to
the extent applicable to the indebtedness so assigned, may be transferred with
such indebtedness. This Agreement shall be binding on each Pledgor and their
respective successors and assigns.
SECTION 21. CHANGES IN WRITING
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, but only in writing signed by each Pledgor and
the Administrative Agent with the consent of the Required Lenders.
SECTION 22. NEW YORK LAW
This Agreement shall be construed in accordance with and governed by
the laws of the State of New York, except as otherwise required by mandatory
provisions of law and except to the extent that remedies provided by the laws of
any jurisdiction other than New York are governed by the laws of such
jurisdiction.
SECTION 23. SEVERABILITY
If any provision hereof is invalid or unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the Administrative Agent and the other
Secured Parties in order to carry out the intentions of the parties hereto as
nearly as may be possible; and (ii) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
SECTION 24. ADDITIONAL SUBSIDIARY GUARANTORS
Pursuant to the Amended and Restated Credit Agreement, any
additional Subsidiary Loan Party that is formed or acquired after the date
hereof is required to enter into this Agreement as a Subsidiary Guarantor and
Pledgor upon becoming a Subsidiary Loan Party. Upon execution and delivery after
the date hereof by the Administrative Agent and such a Subsidiary Loan Party of
an instrument in the form of Annex 1, such Subsidiary Loan Party shall become a
Subsidiary Guarantor and Pledgor hereunder with the same force and effect as if
originally named as a Subsidiary Guarantor and Pledgor herein. The execution and
delivery of any instrument adding an additional Subsidiary Guarantor and Pledgor
as a party to this Agreement shall not require the consent of any other Pledgor
hereunder. The rights and obligations of each Pledgor hereunder shall remain in
full force and effect notwithstanding the addition of any new Subsidiary
Guarantor and Pledgor as a party to this Agreement.
SECTION 25. COUNTERPARTS; INTEGRATION
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement constitutes the
entire agreement and understanding among the parties hereto and supersedes any
and all prior agreements and understandings, oral or written, relating to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
ALLIANT TECHSYSTEMS INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Federal tax identification
number:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SUBSIDIARY GUARANTORS:
ALLIANT AMMUNITION SYSTEMS
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
NEW RIVER ENERGETICS, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Federal tax identification
number:
ALLIANT HOLDINGS LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT SOUTHERN COMPOSITES
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT DEFENSE LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT AMMUNITION AND POWDER
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT PRECISION FUZE COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT INTEGRATED DEFENSE
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT INTERNATIONAL HOLDINGS INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT MISSILE PRODUCTS COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT AEROSPACE COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT AEROSPACE PROPULSION COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT AEROSPACE COMPOSITE STRUCTURES
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT LAKE CITY SMALL CALIBER
AMMUNITION COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
THIOKOL PROPULSION CORP.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
THIOKOL TECHNOLOGIES INTERNATIONAL, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT PROPULSION AND COMPOSITES LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
SCHEDULE I
A. BORROWER
Percentage
Issued and
Certificate Outstanding
Entity No. No. of Shares Shares
------ ---------- ------------- ---------
1. New River Energetics, Inc. 1 100 shares of 100%
Common Stock, par
value $1.00 per
share
2. Alliant Ammunitions
System Company LLC
3. Alliant Holdings LLC
4. Alliant Propulsion and
Composites LLC
5. Alliant Southern Composites
Company LLC
6. Alliant Defense LLC
7. Alliant Ammunitions and
Powder Company LLC
8. Alliant Precision Fuze
Company LLC
9. Alliant Integrated
Defense Company LLC
10. Alliant International
Holdings Inc.
11. Alliant Missile
Products Company LLC
12. Alliant Aerospace
Company
13. Alliant Aerospace
Propulsion Company LLC
14. Alliant Aerospace
Composite Structures
Company LLC
15. Alliant Lake City Small
Caliber Ammunition Company
LLC
16. Thiokol Propulsion Corp.
17. Thiokol Technologies
International, Inc.
B. NEW RIVER ENERGETICS, INC.
C. ALLIANT AMMUNITIONS SYSTEM COMPANY LLC
D. ALLIANT HOLDINGS LLC
E. ALLIANT PROPULSION AND COMPOSITES LLC
F. ALLIANT SOUTHERN COMPOSITES COMPANY LLC
G. ALLIANT DEFENSE LLC
H. ALLIANT AMMUNITIONS AND POWDER COMPANY LLC
I. ALLIANT PRECISION FUZE COMPANY LLC
J. ALLIANT INTEGRATED DEFENSE COMPANY LLC
K. ALLIANT INTERNATIONAL HOLDINGS INC.
L. ALLIANT MISSILE PRODUCTS COMPANY LLC
M. ALLIANT AEROSPACE COMPANY LLC
N. ALLIANT AEROSPACE PROPULSION COMPANY LLC
O. ALLIANT AEROSPACE COMPOSITE STRUCTURES COMPANY LLC
P. ALLIANT LAKE CITY SMALL CALIBER AMMUNITION COMPANY LLC
Q. THIOKOL PROPULSION CORP.
R. THIOKOL TECHNOLOGIES INTERNATIONAL, INC.
ANNEX 1 TO THE
PLEDGE AGREEMENT
SUPPLEMENT NO. dated as of ,
to the Amended and Restated Pledge Agreement
dated as of April 20, 2001 (as amended or
modified from time to time, the "Pledge
Agreement"), among ALLIANT TECHSYSTEMS, INC.
(the "Company"), the borrowing subsidiaries
party thereto (each, a "Borrowing Subsidiary"
and collectively with the Company, the
"Borrowers"), each other subsidiary of the
Company listed on the signature pages thereof
(collectively, with the Borrowing
Subsidiaries, the "Subsidiary Guarantors"
and, together with the Company, the
"Pledgors"), and THE CHASE MANHATTAN BANK, as
Administrative Agent (the "Administrative
Agent") for the Lenders (as defined below).
A. Reference is made to the Amended and Restated Credit
Agreement dated as of April 20, 2001 (as amended, supplemented or otherwise
modified from time to time, the "Amended and Restated Credit Agreement") among
the Company, the Borrowing Subsidiaries, the Lenders party thereto (the
"Lenders") and the Administrative Agent.
B. Pursuant to the Amended and Restated Credit Agreement, any
additional Subsidiary Loan Party that is formed or acquired after the date of
the Pledge Agreement is required to enter into the Pledge Agreement as a
Subsidiary Guarantor and Pledgor upon becoming a Subsidiary Loan Party. Section
24 of the Pledge Agreement provides that additional Subsidiary Loan Parties may
become Subsidiary Guarantors and Pledgors under the Pledge Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary Loan Party (the "New Subsidiary Guarantor") is executing
this Supplement in accordance with the requirements of the Amended and Restated
Credit Agreement to become a Subsidiary Guarantor and Pledgor under the Pledge
Agreement.
Accordingly, the Administrative Agent and the New Subsidiary
Guarantor agree as follows:
SECTION 1. In accordance with Section 24 of the Pledge
Agreement, the New Subsidiary Guarantor by its signature below becomes a
Subsidiary Guarantor and a Pledgor under the Pledge Agreement with the same
force and effect as if originally named therein as a Subsidiary Guarantor and
the New Subsidiary Guarantor hereby (a) agrees to all the terms and provisions
of the Pledge Agreement applicable to it as a Subsidiary
2
Guarantor thereunder and (b) represents and warrants that the representations
and warranties made by it as a Subsidiary Guarantor thereunder are true and
correct on and as of the date hereof. Each reference to a "Subsidiary Guarantor"
or "Pledgor" in the Pledge Agreement shall be deemed to include the New
Subsidiary Guarantor. The Pledge Agreement is hereby incorporated herein by
reference.
SECTION 2. The New Subsidiary Guarantor represents and
warrants to the Administrative Agent and the Lenders that this Supplement has
been duly authorized, executed and delivered by it and constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its
terms.
SECTION 3. The New Subsidiary Guarantor hereby represents and
warrants that set forth on Schedule I attached hereto is a true and correct
schedule of all its Pledged Securities (and such Schedule shall constitute a
part of Schedule I to the Pledge Agreement).
SECTION 4. This Supplement may be executed in counterparts,
each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Supplement shall become effective when
the Administrative Agent shall have received counterparts of this Supplement
that, when taken together, bear the signatures of the New Subsidiary Guarantor
and the Administrative Agent. Delivery of an executed signature page to this
Supplement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Supplement.
SECTION 5. Except as expressly supplemented hereby, the Pledge
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained
in this Supplement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and in the Pledge Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-
3
faith negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be
in writing and given as provided in Section 18 of the Pledge Agreement. All
communications and notices hereunder to the New Subsidiary Guarantor shall be
given to it at the address set forth under its signature below.
SECTION 9. The New Subsidiary Guarantor agrees to reimburse
the Administrative Agent for its out-of-pocket expenses in connection with this
Supplement, including the fees, disbursements and other charges of counsel for
the Administrative Agent.
4
IN WITNESS WHEREOF, the New Subsidiary Guarantor and the
Administrative Agent have duly executed this Supplement to the Pledge Agreement
as of the day and year first above written.
[Name Of New Subsidiary
Guarantor],
by
-------------------------------------
Name:
Title:
Address:
-----------------------------
-------------------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent,
by
-------------------------------------
Name:
Title:
EXHIBIT A
[FORM OF]
INTERCOMPANY NOTE
$[DOLLAR AMOUNT] [DATE]
FOR VALUE RECEIVED, the undersigned, [BORROWER], a
[JURISDICTION] corporation (the "BORROWER"), promises to pay to the order of
[LENDING PERSON], a [JURISDICTION] corporation (the "COMPANY"), at the Company's
offices at [ADDRESS], or such other address as the holder shall have designated
to the Borrower, on demand, [DOLLAR AMOUNT IN WORDS] Dollars ($[DOLLAR AMOUNT])
or such lesser amount as may from time to time be owing by the Borrower to the
Company, together with such interest, if any, as shall from time to time be
agreed to be payable by the Borrower and the Company on the unpaid principal
amount hereof.
Capitalized terms used herein but not defined shall have the
meanings assigned to such terms in the Pledge Agreement (as hereinafter
defined).
The Company shall, and is hereby authorized to, record on the
schedule attached hereto, or to otherwise record in accordance with its usual
practice, the date and amount of each principal and interest payment hereunder;
PROVIDED, HOWEVER, that the failure of the Company to so record such information
shall not affect the Borrower's obligations hereunder. All payments of principal
of and interest on this Intercompany Note shall be payable in lawful currency of
the United States of America, in immediately available funds.
This Intercompany Note is one of the Intercompany Notes
pledged under the Amended and Restated Pledge Agreement dated as of April 20,
2001 (as amended, supplemented or modified from time to time, the "PLEDGE
AGREEMENT"), among Alliant Techsystems Inc. ("Alliant"), the Borrowing
Subsidiaries party thereto, each other subsidiary of Alliant party thereto and
The Chase Manhattan Bank, as Administrative Agent, for the benefit of the
Secured Parties as security for the Secured Obligations (as defined in the
Pledge Agreement).
In addition to and not in limitation of the foregoing and the
provisions of the Pledge Agreement, the undersigned further agrees, subject only
to any limitation imposed by
applicable law, to pay all expenses, including reasonable attorneys' fees and
legal expenses, incurred by the holder of this Intercompany Note in endeavoring
to collect any amounts payable hereunder which are not paid when due, whether by
acceleration or otherwise.
No delay on the part of the Company or any other holder of
this Intercompany Note in the exercise of any right, power or remedy shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or remedy preclude any other or further exercise thereof, or the
exercise of any other right, power or remedy. No amendment, modification or
waiver of, or consent with respect to, any provision of this Intercompany Note
shall in any event be effective unless the same shall be in writing and signed
and delivered by the Company or any other holder hereof.
All parties hereto, whether as makers, endorsers, or
otherwise, severally waive presentment for payment, demand, protest, notice of
dishonor and notice of the existence, creation or nonpayment of all or any of
the loans or advances evidenced hereby.
THIS INTERCOMPANY NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Address: [BORROWER],
[ADDRESS OF BORROWER] by
-------------------
Name:
Title:
Pay to the order of
------------------.
[COMPANY],
by
-------------------
Name:
Title:
Exhibit D
CONFORMED COPY
AMENDED AND RESTATED
SECURITY AGREEMENT
AGREEMENT dated as of April 20, 2001 among ALLIANT TECHSYSTEMS INC. (with
its successors, the "Company"), the borrowing subsidiaries party hereto (each, a
"Borrowing Subsidiary" and collectively with the Company, the "Borrowers"), each
other subsidiary of the Company listed on the signature pages hereof
(collectively, with the Borrowing Subsidiaries, the "Subsidiary Guarantors" and,
together with the Company, the "Grantors") and THE CHASE MANHATTAN BANK, as
Administrative Agent (the "Administrative Agent") amending and restating in its
entirety the Security Agreement dated as of March 15, 1995 and amended and
restated by the Amended and Restated Security Agreement dated as of November 23,
1998 among the Company, each other Grantor thereunder and the Administrative
Agent (the "Existing Security Agreement").
Reference is made to the Amended and Restated Credit Agreement dated as
of April 20, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Amended and Restated Credit Agreement") among the Company, the
Borrowing Subsidiaries, the Lenders party thereto and the Administrative Agent.
In connection with the execution and delivery of the Amended and Restated
Credit Agreement, the parties wish to amend and restate the Existing Security
Agreement as set forth herein; PROVIDED that in no event shall such amendment
and restatement be deemed to extinguish the security interests under the
Existing Security Agreement.
The Lenders have agreed to continue and to make loans to the Borrowers
and the Issuing Banks (as defined in the Amended and Restated Credit Agreement)
have agreed to issue Letters of Credit (as defined in the Amended and Restated
Credit Agreement) for the account of the Borrowers pursuant to, and upon the
terms and subject to the conditions specified in, the Amended and Restated
Credit Agreement. Each of the Subsidiary Guarantors is a subsidiary of the
Company and acknowledges that it will derive substantial benefit from the
continuation of the loans and the making of new loans by the Lenders under the
Amended and Restated Credit Agreement, and the issuance of the Letters of Credit
by the Issuing Banks. The obligations of the Lenders to continue loans and to
make loans under the Amended and Restated Credit
Agreement to the extent provided therein and of the Issuing Banks to issue
Letters of Credit under the Amended and Restated Credit Agreement are
conditioned on, among other things, the execution and delivery by the Company
and the Subsidiary Guarantors of a security agreement in the form hereof and the
amendment and restatement of the Existing Security Agreement as provided herein.
As consideration therefor and in order to induce the Lenders to continue
and to make loans and to execute and deliver the Amended and Restated Credit
Agreement and the Issuing Banks to issue Letters of Credit under the Amended and
Restated Credit Agreement, the Company and the Subsidiary Guarantors are willing
to execute this Agreement.
Accordingly, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. DEFINITIONS
Terms defined in the Amended and Restated Credit Agreement and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein. The following additional terms, as used herein, have the following
respective meanings:
"Accounts" means, with respect to each Grantor, all "accounts" (as
defined in the UCC) now owned or hereafter acquired by such Grantor, and shall
also mean and include all accounts receivable, contract rights, book debts,
notes, drafts and other obligations or indebtedness owing to such Grantor
arising from the sale, lease or exchange of goods or other property by it and/or
the performance of services by it (including, without limitation, any such
obligation that might be characterized as an account, contract right or general
intangible under the Uniform Commercial Code in effect in any jurisdiction) and
all of such Grantor's rights in, to and under all purchase orders for goods,
services or other property, and all of such Grantor's rights to any goods,
services or other property represented by any of the foregoing (including
returned or repossessed goods and unpaid sellers' rights of rescission,
replevin, reclamation and rights to stoppage in transit) and all monies due to
or to become due to such Grantor under all contracts for the sale, lease or
exchange of goods or other property and/or the performance of services by it
(whether or not yet earned by performance on the part of such Grantor), in each
case whether now in existence or hereafter arising or acquired including,
without limitation, the right to receive the proceeds of said purchase orders
and contracts and all collateral security
and guarantees of any kind given by any Person with respect to any of the
foregoing.
"Assignable Government Contract Claim" means a Government Contract Claim
(i) that the Grantor party thereto has the present right to assign to a third
Person (other than a Subsidiary) pursuant to the terms thereof, (ii) that is
reassignable to a third Person by the terms thereof, and (iii) with respect to
which the conditions set forth in 48 CFR subpart 32.8 are satisfied in all
respects pursuant to all applicable requirements for assignments under the
Assignment of Claims Act of 1940, as amended, 31 U.S.C. Section 3727 and 41
U.S.C. Section 15 (the "Assignment of Claims Act").
"Classified Information" has the meaning set forth in Section 7(D).
"Collateral" has the meaning set forth in Section 3.
"Collateral Account" has the meaning set forth in Section 5.
"Commodity Account" means an account maintained by a Commodity
Intermediary in which a Commodity Contract is carried for a Commodity Customer.
"Commodity Contract" means a commodity futures contract, an option on a
commodity futures contract, a commodity option or other contract that, in each
case, is (a) traded on or subject to the rules of a board of trade that has been
designated as a contract market for such a contract pursuant to the federal
commodities laws or (b) traded on a foreign commodity board of trade, exchange
or market, and is carried on the books of a Commodity Intermediary for a
Commodity Customer.
"Commodity Customer" means a Person for whom a Commodity Intermediary
carries a Commodity Contract on its books.
"Commodity Intermediary" means (a) a Person who is registered as a
futures commission merchant under the federal commodities laws or (b) a Person
who in the ordinary course of its business provides clearance or settlement
services for a board of trade that has been designated as a contract market
pursuant to the federal commodities laws.
"Documents" means, with respect to each Grantor, all "documents" (as
defined in the UCC) or other receipts covering, evidencing or representing
goods, now owned or hereafter acquired by such Grantor.
"Entitlement Holder" means a Person identified in the records of a
Securities Intermediary as the Person having a Security Entitlement against the
Securities Intermediary. If a Person acquires a Security Entitlement by virtue
of Section 8-501(b)(2) or (3) of the UCC, such Person is the Entitlement Holder.
"Equipment" means, with respect to each Grantor, except as otherwise
provided in Section 8-103 of the UCC, all "equipment" (as defined in the UCC)
now owned or hereafter acquired by such Grantor, including without limitation
all motor vehicles, trucks, trailers, railcars and barges, but excluding
Excluded Equipment.
"Excluded Equipment" means "equipment" and "fixtures" (each as defined in
the UCC) only to the extent (i) such "equipment" or "fixture" is subject to a
Permitted Lien described in clause (a), (b), (c), (d), (e), (m), (o) and, to the
extent relating to the foregoing, (p) of Section 6.02 of the Amended and
Restated Credit Agreement and (ii) the agreements governing or relating to the
Indebtedness secured by such Permitted Liens prohibit or would be violated by,
or a default, event of default, cancellation or required prepayment under such
agreements would occur as a result of, a Lien pursuant to any Security Document.
"Event of Default" has the meaning set forth in the Amended and Restated
Credit Agreement.
"Financial Asset" means (a) a Security, (b) an obligation of a Person or
a share, participation or other interest in a Person or in property or an
enterprise of a Person, which is, or is of a type, dealt in or traded on
financial markets, or which is recognized in any area in which it is issued or
dealt in as a medium for investment or (c) any property that is held by a
Securities Intermediary for another Person in a Securities Account if the
Securities Intermediary has expressly agreed with the other Person that the
property is to be treated as a Financial Asset under Article 8 of the UCC. As
the context requires, the term "Financial Asset" shall mean either the interest
itself or the means by which a Person's claim to it is evidenced, including a
certificated or uncertificated Security, a certificate representing a Security
or a Security Entitlement.
"Financing Documents" means the Loan Documents, and all other instruments
and agreements evidencing or governing any Hedging Obligations, and "Financing
Document" means any one of them.
"General Intangibles" means, with respect to each Grantor, all "general
intangibles" (as defined in the UCC) now owned or hereafter acquired by such
Grantor, including, without limitation, (i) all obligations or indebtedness
owing to such
Grantor (other than Accounts) from whatever source arising, (ii) all Patents,
Patent Licenses, Trademarks, Trademark Licenses, rights in intellectual
property, goodwill, trade names, service marks, trade secrets, copyrights,
permits and licenses, (iii) all rights or claims in respect of refunds for taxes
paid, and (iv) to the extent granting a security interest therein is permitted
by applicable law, all rights to amounts received or receivable by such Grantor
in respect of any pension plan or similar arrangement maintained for employees
of any member of the ERISA Group.
"Government" means the federal government of the United States of America
or any relevant agency thereof.
"Government Contract" means each of the "contracts" (as that term is
defined in 48 CFR Part 2.101) between any Grantor and the Government.
"Government Contract Claim" means any claim for the payment of monies due
under an effective Government Contract.
"Hedging Obligations" means all obligations of the Borrowers to any
Lender or any Affiliate of a Lender under (i) any interest rate swap agreement,
interest rate cap agreement or interest rate collar agreement, (ii) any foreign
exchange contract or currency swap agreement or (iii) any similar agreement or
arrangement of a type designed to protect the Borrowers against fluctuations in
interest rates or currency exchange rates; PROVIDED that at or prior to the time
the agreement under which such obligations arise is entered into (i) the
Borrowers and such Lender or Affiliate thereof shall have expressly agreed in
writing that such obligations constitute "Hedging Obligations" entitled to the
benefits of the Security Documents and (ii) such Lender or Affiliate shall have
delivered a notice to the Administrative Agent (or, in the case of an Affiliate
of a Lender, an instrument in form and substance satisfactory to the
Administrative Agent) to the effect set forth in clause (i) of this proviso, and
acknowledging and agreeing to be bound by the terms of this Agreement with
respect to such obligations, including without limitation the provisions of
Sections 10 and 11 hereof.
"Instruments" means, with respect to any Grantor, all "instruments",
"chattel paper" or "letters of credit" (each as defined in the UCC) evidencing,
representing, arising from or existing in respect of, relating to, securing or
otherwise supporting the payment of, any of the Accounts, including (but not
limited to) promissory notes, drafts, bills of exchange and trade acceptances,
now owned or hereafter acquired by such Grantor.
"Inventory" means, with respect to any Grantor, all "inventory" (as
defined in the UCC), now owned or hereafter acquired by such Grantor, wherever
located, and shall also mean and include, without limitation, all raw materials
and other materials and supplies, work-in-process and finished goods and any
products made or processed therefrom and all substances, if any, commingled
therewith or added thereto.
"Investment Property" means, with respect to any Grantor, all Securities
(whether certificated or uncertificated), Security Entitlements, Securities
Accounts, Commodity Contracts and Commodity Accounts of such Grantor, whether
now owned or hereafter acquired by such Grantor.
"Liquid Investments" has the meaning set forth in Section 5(D).
"Patents" means, with respect to any Grantor, all the following: (i) all
letters patent of the United States or any other country, all registrations and
recordings thereof, and all applications for letters patent of the United States
or any other country, including registrations, recordings and applications in
the United States Patent and Trademark Office or in any similar office or agency
of the United States or any other country or any political subdivision thereof,
including those described in the Perfection Certificate, in each case owned by
such Grantor and (ii) all reissues, continuations, continuation-in-part or
extensions thereof.
"Patent License" means, with respect to any Grantor, any written
agreement now or hereafter in existence granting to such Grantor any right to
practice any invention on which a Patent is in existence.
"Patent Security Agreement" means the Patent Security Agreement executed
and delivered by the Grantors in favor of the Administrative Agent, for the
benefit of the Secured Parties, substantially in the form of Exhibit D hereto,
as the same may be amended from time to time.
"Perfection Certificate" means the certificate, substantially in the form
of Exhibit A, completed and supplemented with the schedules and attachments
contemplated thereby to the satisfaction of the Administrative Agent, and duly
executed by the Company.
"Permitted Liens" means the Security Interests and the Liens on the
Collateral permitted to be created, assumed or exist
pursuant to Section 6.02 of the Amended and Restated Credit Agreement.
"Proceeds" means, with respect to any Grantor, all proceeds of, and all
other profits, rentals or receipts, in whatever form, arising from the
collection, sale, lease, exchange, assignment, licensing or other disposition
of, or realization upon, collateral of such Grantor, including without
limitation all claims of such Grantor against third parties for loss of, damage
to or destruction of, or for proceeds payable under, or unearned premiums with
respect to, policies of insurance in respect of, any collateral of such Grantor,
and any condemnation or requisition payments with respect to any collateral of
such Grantor, in each case whether now existing or hereafter arising.
"Reimbursement Obligations" has the meaning set forth in the definition
of "Secured Obligations".
"Securities" means, except as otherwise provided in Section 8-103 of the
UCC, any obligations of an issuer or any shares, participations or other
interests in an issuer or in property or an enterprise of an issuer which (a)
are represented by a security certificate in bearer or registered form, or the
transfer of which may be registered upon books maintained for that purpose by or
on behalf of the issuer, (b) are one of a class or series or by their terms are
divisible into a class or series of shares, participations, interests or
obligations and (c)(i) are, or are of a type, dealt in or traded on securities
exchanges or securities markets or (ii) are a medium for investment and by their
terms expressly provide that they are a security governed by Article 8 of the
UCC.
"Securities Account" means an account to which a Financial Asset is or
may be credited in accordance with an agreement under which the Person
maintaining the account undertakes to treat the Person for whom the account is
maintained as entitled to exercise rights that comprise the Financial Asset.
"Security Entitlements" means the rights and property interests of an
Entitlement Holder with respect to a Financial Asset.
"Securities Intermediary" means (a) a clearing corporation or (b) a
Person, including a bank or broker, that in the ordinary course of its business
maintains securities accounts for others and is acting in that capacity.
"Secured Obligations" means obligations secured under this Agreement
including (a) all principal of and interest (including
any interest which accrues after the commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency or reorganization of any
Borrower, whether or not allowed or allowable in such proceeding) on any Loan
under the Amended and Restated Credit Agreement, (b) each payment required to be
made by any Borrower under the Amended and Restated Credit Agreement in respect
of any Letter of Credit, and any payment required to be made by any Borrower in
respect of any Lender Letter of Credit, in each case when and as due, including
payments in respect of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral ("Reimbursement Obligations"), (c) all
other amounts payable by any Grantor hereunder or under any other Financing
Document, (d) any Hedging Obligations, and (e) any renewals or extensions of any
of the foregoing.
"Secured Parties" means the Lenders (including without limitation with
respect to any Hedging Obligations owed to such Lenders), any Affiliate of any
Lender to which Hedging Obligations are owed and the Administrative Agent.
"Security Interests" means the security interests in the Collateral
granted hereunder securing the Secured Obligations.
"Trademarks" means, with respect to any Grantor, all of the
following: (i) all trademarks, trade names, corporate names, company names,
business names, logos, other source or business identifiers, goodwill, designs
and general intangibles of like nature of such Grantor, now existing or
hereafter adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, including registrations, recordings and
applications in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any State thereof or any other country or
any political subdivision thereof and (ii) all extensions or renewals thereof.
"Trademark License" means, with respect to any Grantor, any written
agreement now or hereafter in existence granting to such Grantor any right to
use any Trademark.
"UCC" means the Uniform Commercial Code as in effect on the date hereof
in the State of New York; provided that if by reason of mandatory provisions of
law, the perfection or the effect of perfection or non-perfection of the
Security Interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than New York, "UCC" means the Uniform
Commercial Code as in effect in such other jurisdiction for purposes of the
provisions hereof relating to such perfection or effect of perfection or
non-perfection.
SECTION 2. REPRESENTATIONS AND WARRANTIES
The Grantors jointly and severally represent and warrant as follows:
(A) Each Grantor has good and marketable title to all of the Collateral
owned by it, free and clear of any Liens other than the Permitted Liens. Each
Grantor has taken all actions necessary under the UCC to perfect its interest in
any Accounts purchased or otherwise acquired by it from third Persons, as
against its assignors and creditors of its assignors.
(B) No Grantor has performed any acts which would be reasonably likely to
prevent the Administrative Agent from enforcing any of the terms of this
Agreement or which would limit the Administrative Agent in any such enforcement.
Other than financing statements or other similar or equivalent filings,
documents or instruments with respect to the Security Interests and Permitted
Liens, no financing statement, mortgage, security agreement or similar or
equivalent document or instrument covering all or any part of the Collateral is
on file or of record in any jurisdiction in which such filing or recording would
be effective to perfect a Lien on such Collateral. No Collateral is in the
possession of any Person (other than a Grantor or the Government) asserting any
claim thereto (other than claims for possession of Inventory held by contract
vendors pursuant to applicable contracts with any Grantor) or security interest
therein, except for Permitted Liens and except that the Administrative Agent or
its designee may have possession of Collateral as contemplated in the Existing
Security Agreement and hereby.
(C) The Company has delivered the Perfection Certificate to the
Administrative Agent. The information set forth therein is correct and complete
in all material respects. Not later than 60 days following the date of the first
Borrowing, the Company shall furnish to the Administrative Agent acknowledgment
copies of the filings set forth in Schedule 7 to the Perfection Certificate.
(D) The Security Interests constitute valid security interests under the
UCC securing the Secured Obligations to the extent the UCC is applicable
thereto. When UCC financing statements in the form specified in Exhibit A shall
have been filed in the offices specified in the Perfection Certificate for a
jurisdiction, the Security Interests shall constitute perfected security
interests in the Collateral located in such jurisdiction (except Inventory and
Equipment in transit or temporarily in the possession of contract vendors
pursuant to an applicable
contract) to the extent that a security interest therein may be perfected by
filing pursuant to the UCC, prior to all other Liens and rights of others
therein except for the Permitted Liens, and the Collateral located in such
jurisdictions constitutes not less than 95% of all the Collateral. When a Patent
Security Agreement has been recorded with the United States Patent and Trademark
Office, the Security Interests shall constitute perfected Security Interests in
all right, title and interest of the applicable Grantor in the United States
Patents listed in Schedule 1 to such Agreement, prior to all other Liens and
rights of others therein except for Permitted Liens to the extent that a
security interest therein may be perfected by filing such agreement in the
United States Patent and Trademark Office. Notwithstanding anything to the
contrary contained in any Loan Document, no Grantor shall be required to take
any action outside the United States to perfect any foreign Patent.
(E) The Inventory and Equipment are insured in accordance with the
requirements of the Amended and Restated Credit Agreement.
(F) All Inventory has or will have been produced in compliance with the
applicable requirements of the Fair Labor Standards Act, as amended.
(G) No later than August 31, 2001, each Grantor shall have executed and
delivered to the Administrative Agent assignments and notices of assignment
substantially in the forms of Exhibits C-2 and C-3, respectively, with respect
to (i) each Assignable Government Contract Claim in effect on the Effectiveness
Date and having an initial stated contract value to such Grantor in excess of
$5,000,000, and (ii) in any event, Assignable Government Contract Claims such
that the aggregate initial stated contract value to the Grantors, taken as a
whole, of the Assignable Government Contract Claims for which the Grantors have
executed and delivered to the Administrative Agent assignments and notices of
assignment substantially in the forms of Exhibits C-2 and C-3, respectively, is
at least 90% of the aggregate initial stated contract value to the Grantors,
taken as a whole, of all Assignable Government Contract Claims in effect on the
Effectiveness Date. Upon the filing by the Administrative Agent in accordance
with Section 4(C), with (i) the proper contracting officer or the proper agency
head, as applicable, (ii) the proper disbursing officer designated for the
applicable Assignable Government Contract Claim and (iii) where applicable, the
proper surety on any bond applicable to the relevant Assignable Government
Contract Claim (in each case, as specified by the Grantor with respect to each
Assignable Government Contract Claim in accordance with Section 4(P)), of a duly
executed and attested and otherwise duly completed true copy of an assignment,
either bearing the corporate seal of the Grantor or accompanied by a true copy
of the board resolution authorizing the execution of such assignment, in the
form of Exhibit C-2 and a duly completed original and three copies of a notice
of assignment in the form of Exhibit C-3 with respect to each Assignable
Government Contract Claim, the Security Agreement, together with such assignment
and notices of assignment, shall constitute valid assignment of such Assignable
Government Contract Claim to the extent that such validity and assignment are
governed by, and subject to the provisions of, the Assignment of Claims Act.
SECTION 3. THE SECURITY INTERESTS
(A) In order to secure the full and punctual payment of the Secured
Obligations in accordance with the terms thereof, and to secure the performance
of all of the obligations of each Grantor hereunder and under each other
Financing Document, each Grantor hereby grants to the Administrative Agent for
the ratable benefit of the Secured Parties a continuing security interest in and
to all of the right, title and interest of such Grantor in the following
property, whether now owned or existing or hereafter acquired or arising and
regardless of where located (all being collectively referred to as the
"Collateral"):
(1) Accounts;
(2) Inventory;
(3) General Intangibles (other than General Intangibles
relating to Excluded Equipment);
(4) Documents;
(5) Instruments;
(6) Equipment;
(7) Investment Property;
(8) Financial Assets;
(9) The Collateral Account, all cash deposited therein from time to time,
the Liquid Investments made pursuant to Section 5(D) and other monies and
property of any kind of such Grantor in the possession or under the control
of the Administrative Agent;
(10) All books and records (including, without limitation, customer
lists, credit files, computer programs, printouts and other computer
materials and records) of such Grantor pertaining to any of the Collateral;
and
(11) All Proceeds of all or any of the Collateral described in Clauses 1
through 10 hereof.
(B) The Security Interests are granted as security only and shall not
subject the Administrative Agent or any other Secured Party to, or transfer or
in any way affect or modify, any obligation or liability of any Grantor with
respect to any of the Collateral or any transaction in connection therewith.
SECTION 4. FURTHER ASSURANCES; COVENANTS
(A) No Grantor will change its name, identity or form of Business Entity
organization in any manner unless it shall have given the Administrative Agent
prior notice thereof and made all filings under the Uniform Commercial Code or
otherwise that are required in order for the Administrative Agent to continue at
all times following such change to have a valid, legal and perfected first
priority security interest in all the Collateral and, except where such action
would not adversely affect the validity or perfection of the security interests
created hereby, delivered an opinion of counsel with respect thereto in
accordance with Section 4(L). No Grantor will change the location of (i) its
chief executive office or chief place of business, or (ii) the locations where
it keeps or holds any Collateral or any records relating thereto from the
locations described in the Perfection Certificate unless it shall have given the
Administrative Agent prior notice thereof and made all filings under the Uniform
Commercial Code or otherwise that are required in order for the Administrative
Agent to continue at all times following such change to have a valid, legal and
perfected first priority security interest in all the Collateral and, except
where such action would not adversely affect the validity or perfection of the
security interests created hereby, delivered an opinion of counsel with respect
thereto in accordance with Section 4(L); PROVIDED that this provision shall not
be deemed to be breached so long as at least 95% of the Collateral is subject to
a perfected security interest. No Grantor shall in any event change the location
of any Collateral (other than (i) Inventory of such Grantor with an aggregate
fair market value not in excess of $2,500,000 at any time temporarily in the
possession of contract vendors pursuant to applicable contracts with such
Grantor or (ii) loans made to third parties in the ordinary course of business
of Equipment with a fair market value not in
excess of $2,500,000) if such change would cause the Security Interests in such
Collateral to lapse or cease to be perfected.
(B) Each Grantor will, from time to time, at its expense, execute,
deliver, file and record any statement, notice, assignment, instrument,
document, agreement or other paper and take any other action, (including,
without limitation, any filings of financing or continuation statements under
the UCC, registration in the United States Patent and Trademark Office of any
unregistered Patent or Trademark of such Grantor, now owned or later acquired by
such Grantor, filings with the United States Patent and Trademark Office, and,
subject to the provisions of Section 2(B) and 4(C), anything required under the
Assignment of Claims Act) that from time to time may be necessary or desirable,
or that the Administrative Agent may reasonably request, in order to create,
preserve, perfect, confirm or validate the Security Interests or to enable the
Administrative Agent and the Secured Parties to obtain the full benefits of this
Agreement, or to enable the Administrative Agent to exercise and enforce any of
its rights, powers and remedies hereunder with respect to any of the Collateral.
To the extent permitted by applicable law, each Grantor hereby authorizes the
Administrative Agent to execute and file financing statements or continuation
statements without such Grantor's signature appearing thereon. Each Grantor
agrees, to the extent permitted by applicable law, that a carbon, photographic,
photostatic or other reproduction of this Agreement or of a financing statement
is sufficient as a financing statement. The Grantors shall pay the costs of, or
incidental to, any recording or filing of any financing or continuation
statements concerning the Collateral.
(C) If an Event of Default shall have occurred and be continuing for 10
days (or, (i) if such Event of Default is an Event of Default under clause (a),
(g) or (h) of Article VII of the Amended and Restated Credit Agreement and is
with respect to any Borrower and (ii) if the maturity of the Loans (as defined
in the Amended and Restated Credit Agreement) or the Loans shall have been
accelerated under the Amended and Restated Credit Agreement, immediately upon
such acceleration) then upon the request of the Required Lenders, the
Administrative Agent shall, at the Grantors' expense, file, deliver and record
with the Government in accordance with the Assignment of Claims Act any
statement, notice, assignment, instrument, document, agreement or other paper
executed or delivered pursuant to Section 2(G), Section 4(B) or Section 4(P)
with respect to Assignable Government Contract Claims.
(D) If any Collateral is at any time in the possession or control of any
warehouseman or bailee or any of a Grantor's
agents or processors, such Grantor shall, at the request of the Administrative
Agent upon the occurrence and during the continuance of an Event of Default,
notify such warehouseman, bailee, agent or processor of the Security Interests
created hereby and to hold all such Collateral for the Administrative Agent's
account subject to the Administrative Agent's instructions.
(E) Each Grantor shall keep full and accurate books and records relating
to the Collateral owned by it, and stamp or otherwise ▇▇▇▇ such books and
records in such manner as the Administrative Agent may reasonably require, upon
the occurrence and during the continuance of an Event of Default, in order to
reflect the Security Interests.
(F) Upon the occurrence and during the continuance of an Event of
Default, each Grantor will immediately deliver and pledge each Instrument owned
by it to the Administrative Agent, appropriately endorsed to the Administrative
Agent.
(G) Each Grantor shall use its best efforts to cause to be collected from
its account debtors, as and when due, any and all amounts owing under or on
account of each of its Accounts (including, without limitation, Accounts which
are delinquent, such Accounts to be collected in accordance with lawful
collection procedures) and shall apply forthwith upon receipt thereof all such
amounts as are so collected to the outstanding balance of such Account. Subject
to the rights of the Administrative Agent and the Secured Parties hereunder if
an Event of Default shall have occurred and be continuing, each Grantor may
allow in the ordinary course of business as adjustments to amounts owing under
its Accounts (i) an extension or renewal of the time or times of payment, or
settlement for less than the total unpaid balance, which such Grantor finds
appropriate in accordance with sound business judgment and (ii) a refund, credit
or other adjustment due as a result of returned or damaged merchandise, all in
accordance with such Grantor's ordinary course of business consistent with its
historical collection practices. The costs and expenses (including, without
limitation, reasonable attorney's fees) of collection, whether incurred by any
Grantor or the Administrative Agent, shall be borne by such Grantor.
(H) Upon the occurrence and during the continuance of any Event of
Default, upon the direction of the Administrative Agent at the request of the
Required Lenders, each Grantor will promptly notify (and such Grantor hereby
authorizes the Administrative Agent so to notify) each account debtor (subject,
in the case of any account debtor that is the Government, to the
provisions of Section 4(C)) in respect of any of its Accounts or Instruments
that such Collateral has been assigned to the Administrative Agent hereunder,
and that any payments due or to become due in respect of such Collateral are to
be made directly to the Administrative Agent or its designee.
(I) Each Grantor shall, if so directed by the Administrative Agent at the
request of the Required Lenders, deliver to the Administrative Agent any and all
certificates of title, applications for title or similar evidence of ownership
of Equipment and shall cause the Administrative Agent to be named as lienholder
on any such certificate of title or other evidence of ownership. Each Grantor
shall promptly inform the Administrative Agent of any additions to or deletions
from the Equipment owned by it and subject to a certificate of title,
application for title or similar instrument embodying ownership (provided that
no such notice shall be required until the aggregate amount of such additions or
deletions shall exceed $1,500,000) and shall not permit any such items to become
a fixture to real estate or an accession to other personal property.
(J) Prior to the first Borrowing under the Amended and Restated Credit
Agreement, each Grantor will cause the Administrative Agent to be named as loss
payee on each insurance policy covering risks relating to any of its Inventory
and Equipment as required by Section 5.03 of the Amended and Restated Credit
Agreement. Each Grantor will deliver to the Administrative Agent, upon request
of the Administrative Agent, the insurance policies for such insurance. Each
such insurance policy shall comply with the terms of the Amended and Restated
Credit Agreement and all insurance proceeds shall be paid in accordance with the
terms of the Amended and Restated Credit Agreement.
(K) Each Grantor will, promptly upon request, provide to the
Administrative Agent all information and evidence it may reasonably request
concerning such Grantor's Collateral to enable the Administrative Agent to
enforce the provisions of this Agreement.
(L) Not more than six months nor less than 30 days prior to each date on
which any Grantor proposes to take any action in connection with which an
opinion of counsel is to be delivered pursuant to Section 4(A), the Company
shall, at its cost and expense, cause to be delivered to the Secured Parties an
opinion of counsel, satisfactory to the Administrative Agent, substantially in
the form of the opinions with respect to the Collateral delivered on the
Effectiveness Date under the Amended and Restated Credit Agreement, to the
effect that all financing
statements and amendments or supplements thereto, continuation statements and
other documents required to be recorded or filed in order to perfect and protect
the Security Interests in the Collateral affected by such action against all
creditors of and purchasers from such Grantor have been filed in each filing
office necessary for such purpose, together with evidence that all filing fees
and taxes, if any, payable in connection with such filings have been paid in
full.
(M) From time to time upon the reasonable request by the Administrative
Agent, the Company shall, at its cost and expense, cause to be delivered to the
Secured Parties an opinion of counsel reasonably satisfactory to the
Administrative Agent as to such matters relating to the transactions
contemplated hereby as the Required Lenders may reasonably request.
(N) Each Grantor shall permit the Administrative Agent, to the extent
permitted by applicable law, rule, regulation or order, to have access to,
examine and make abstracts from and otherwise use such Grantor's books and
records relating to the Collateral at such reasonable times and as often as may
reasonably be desired for the purpose of enforcing the provisions of this
Agreement.
(O) Each Grantor shall notify the Administrative Agent immediately if it
knows that any application or registration relating to any material Patent or
Trademark may become abandoned or dedicated (other than applications or
registrations (x) with respect to any such Patents or Trademarks that are no
longer used or useful in the business of such Grantor, or (y) that have been
refused by the applicable patent or trademark registry) or of any adverse
determination or development (including the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office, or any court) regarding such Grantor's ownership of any
material Patent or Trademark, its right to register the same, or to keep and
maintain the same. In the event that any material Patent, Trademark,
Patent License or Trademark License that is used or useful in the business of
any Grantor is infringed, misappropriated or diluted by a third party, such
Grantor shall notify the Administrative Agent promptly after it learns thereof
and shall promptly take all reasonable actions appropriate to stop such
infringement, misappropriation or dilution consistent with the significance
thereof to the business of such Grantor including, if necessary, suing for
infringement, misappropriation or dilution and to recover any and all damages
for such infringement, misappropriation or dilution, and take such other actions
as such Grantor shall reasonably deem appropriate under the circumstances to
protect such material Patent, Trademark, Patent License or Trademark License. In
no event shall any Grantor, either itself or through any agent, employee or
licensee, file an application for the registration of any material Patent or
Trademark with the United States Patent and Trademark Office, or with any
similar office or agency in any other country or any political subdivision
thereof, unless it promptly informs the Administrative Agent, and, upon request
of the Administrative Agent, executes and delivers any and all agreements,
instruments, documents and papers the Administrative Agent may request to
evidence the Security Interest in such material Patent or Trademark and the
goodwill and general intangibles of such Grantor relating thereto or represented
thereby, and such Grantor hereby constitutes the Administrative Agent its
attorney-in-fact to execute and file all such writings for the foregoing
purposes, all acts of such attorney being hereby ratified and confirmed; such
power, being coupled with an interest, shall be irrevocable until the Secured
Obligations are paid in full.
(P) Within 120 days after any Government Contract Claim becomes an
Assignable Government Contract Claim having an initial stated contract value to
the Grantor party thereto in excess of $5,000,000, such Grantor shall execute
and deliver to the Administrative Agent an assignment and notice of assignment
substantially in the forms of Exhibits C-2 and C-3, respectively, with respect
to such Assignable Government Contract Claim. Within 120 days after any date on
which the aggregate initial stated contract value to the Grantors, taken as a
whole, of the Assignable Government Contract Claims in effect on such date for
which the Grantors have executed and delivered to the Administrative Agent
assignments and notices of assignment substantially in the forms of Exhibits C-2
and C-3, respectively, is less than 90% of the aggregate initial stated contract
value to the Grantors, taken as a whole, of all Assignable Government Contract
Claims in effect on such date, one or more of the Grantors shall execute and
deliver to the Administrative Agent assignments and notices of assignment
substantially in the forms of Exhibits C-2 and C-3, respectively, with respect
to Assignable Government Contract Claims such that the aggregate initial stated
contract value to the Grantors, taken as a whole, of the Assignable Government
Contract Claims for which the Grantors have
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executed and delivered to the Administrative Agent assignments and notices of
assignment substantially in the forms of Exhibits C-2 and C-3, respectively, is
at least 90% of the aggregate initial stated contract value to the Grantors,
taken as a whole, of all Assignable Government Contract Claims. The notices of
assignment required by this Section 4(P), along with the appropriate number of
copies and attachments as required by 48 CFR Subpart 32.8, shall be filed by the
Administrative Agent
only in accordance with, and in circumstances contemplated by, Section 4(C) and
shall include with respect to each Assignable Government Contract Claim a notice
of assignment addressed to (i) the proper contracting officer or the proper
agency head, as applicable, (ii) the proper disbursing officer designated for
the applicable Assignable Government Contract Claim and (iii) where applicable,
the proper surety on any bond applicable to the Assignable Government Contract
Claim.
SECTION 5. COLLATERAL ACCOUNT
(A) There is hereby established with The Chase Manhattan Bank, a cash
collateral account (the "Collateral Account") in the name and under the control
of the Administrative Agent into which there shall be deposited from time to
time the cash proceeds of the Collateral required to be delivered to the
Administrative Agent pursuant to subsection (B) of this Section 5 or any other
provision of this Agreement. Any income received by the Administrative Agent
with respect to the balance from time to time standing to the credit of the
Collateral Account, including any interest or capital gains on Liquid
Investments, shall remain, or be deposited, in the Collateral Account. All
right, title and interest in and to the cash amounts on deposit from time to
time in the Collateral Account together with any Liquid Investments from time to
time made pursuant to subsection (D) of this Section shall vest in the
Administrative Agent, shall constitute part of the Collateral hereunder and
shall not constitute payment of the Secured Obligations until applied thereto as
hereinafter provided. Notwithstanding any other provisions hereof to the
contrary, so long as no Event of Default is continuing, any balance standing to
the credit of the Collateral Account shall be distributed to the Grantors upon
the order of the Company.
(B) If an Event of Default has occurred and is continuing, at the
direction of the Administrative Agent upon the request of the Required Lenders,
each Grantor shall instruct all account debtors (other than those subject to the
provisions of Section 4(C)) and other Persons obligated in respect of all
Accounts to make all payments in respect of the Accounts either (i) directly to
the Administrative Agent (by instructing that such payments be remitted to a
post office box which shall be in the name and under the control of the
Administrative Agent) or (ii) to one or more other banks in any state in the
United States (by instructing that such payments be remitted to a post office
box which shall be in the name and under the control of such bank) under a
Lockbox Letter substantially in the form of Exhibit B hereto duly executed by
each Grantor and such bank or under
other arrangements, in form and substance reasonably satisfactory to the
Administrative Agent, pursuant to which such Grantor shall have irrevocably
instructed such other bank (and such other bank shall have agreed) to remit all
proceeds of such payments directly to the Administrative Agent for deposit into
the Collateral Account or as the Administrative Agent may otherwise instruct
such bank. All such payments made to the Administrative Agent shall be deposited
in the Collateral Account. In addition to the foregoing, each Grantor agrees
that, if an Event of Default has occurred and is continuing and the proceeds of
any Collateral hereunder (including the payments made in respect of Accounts)
shall be received by it, at the direction of the Administrative Agent upon the
request of the Required Lenders, such Grantor shall as promptly as possible
deposit such proceeds into the Collateral Account. Until so deposited, and
during the continuance of any Event of Default, all such proceeds shall be held
in trust by such Grantor for and as the property of the Administrative Agent and
the Secured Parties and shall not be commingled with any other funds or property
of such Grantor.
(C) During the continuance of any Event of Default, the Administrative
Agent shall, if so instructed by the Required Lenders, apply or cause to be
applied (subject to collection) any or all of the balance from time to time
standing to the credit of the Collateral Accounts in the manner specified in
Section 9.
(D) Amounts on deposit in the Collateral Account shall be invested and
re-invested from time to time in such Liquid Investments as the Company shall
determine, which Liquid Investments shall be held in the name and be under the
control of the Administrative Agent; PROVIDED that, during the continuance of
any Event of Default, the Administrative Agent shall, if instructed by the
Required Lenders, liquidate any such Liquid Investments and apply or cause to be
applied the proceeds thereof to the payment of the Secured Obligations in the
manner specified in Section 9. For this purpose, "Liquid Investments" means
Temporary Cash Investments; provided that (i) each Liquid Investment shall
mature within 30 days after it is acquired by the Administrative Agent and (ii)
in order to provide the Administrative Agent, for the benefit of the Secured
Parties, with a perfected security interest therein, each Liquid Investment
shall be either:
(i) evidenced by negotiable certificates or instruments, or if
non-negotiable then issued in the name of the Administrative Agent, which
(together with any appropriate instruments of transfer) are delivered to,
and held by, the Administrative Agent or an agent thereof (which shall not
be any Grantor or any of its Affiliates) in the State of New York; or
(ii) in book-entry form and issued by the United States and subject to
pledge under applicable state law and Treasury regulations and as to which
(in the opinion of counsel to the Administrative Agent) appropriate measures
shall have been taken for perfection of the Security Interests.
SECTION 6. GENERAL AUTHORITY
Each Grantor hereby irrevocably appoints the Administrative Agent its
true and lawful attorney, with full power of substitution, in the name of such
Grantor, the Administrative Agent, any other Secured Parties or otherwise, for
the sole use and benefit of the Administrative Agent and the Secured Parties,
but at the Grantor's expense, to the extent permitted by law (including, without
limitation, applicable laws, rules, regulations and orders relating to national
security) to exercise, at any time and from time to time while an Event of
Default has occurred and is continuing, all or any of the following powers with
respect to all or any of the Collateral:
(i) to demand, ▇▇▇ for, collect, receive and give acquittance for any
and all monies due or to become due thereon or by virtue thereof,
(ii) to settle, compromise, compound, prosecute or defend any action or
proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal in or with the same or
the proceeds or avails thereof, as fully and effectually as if the
Administrative Agent were the absolute owner thereof, and
(iv) to extend the time of payment of any or all thereof and to make any
allowance and other adjustments with reference thereto;
PROVIDED that the Administrative Agent shall give the applicable Grantor not
less than ten days' prior written notice of the time and place of any sale or
other intended disposition of any of the Collateral, except any Collateral which
is perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market. Each Grantor agrees that such notice
constitutes "reasonable notification" within the meaning of Section 9-504(3) of
the UCC.
SECTION 7. REMEDIES UPON EVENT OF DEFAULT
(A) If any Event of Default has occurred and is continuing, the
Administrative Agent may at the direction of the Required Lenders, exercise on
behalf of the Secured Parties all rights of a secured party under the UCC (or,
if the UCC is not in effect in the jurisdiction where such rights are exercised,
the UCC as in effect in the State of New York to the extent not prohibited by
the laws of such jurisdiction), subject to any applicable laws, rules,
regulations and orders relating to national security, and, in addition, the
Administrative Agent may, at the direction of the Required Lenders, without
being required to give any notice, except as herein provided or as may be
required by mandatory provisions of law, (i) withdraw all cash and Liquid
Investments in the Collateral Account and apply such cash and Liquid Investments
and other cash, if any, then held by it as Collateral as specified in Section 9
and (ii) if there shall be no such cash or Liquid Investments or if such cash
and Liquid Investments shall be insufficient to pay all the Secured Obligations
in full, sell the Collateral (subject to any applicable laws, rules, regulations
and orders relating to national security) or any part thereof at public or
private sale or at any broker's board or on any securities exchange, for cash,
upon credit or for future delivery, and at such price or prices as the
Administrative Agent may reasonably deem satisfactory. To the extent any
Collateral consists of Securities, the Administrative Agent shall be authorized
at any such sale (if it deems it advisable to do so) to restrict the prospective
bidders or purchasers to persons who will represent and agree that they are
purchasing such Collateral
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for their own account for investment and not with a view to the distribution or
sale thereof, and upon consummation of any such sale the Administrative Agent
shall have the right (subject to any applicable laws, rules, regulations and
orders relating to national security) to assign, transfer and deliver to the
purchaser or purchasers thereof the Collateral so sold. The Administrative Agent
or any other Secured Party may be the purchaser of any or all of the Collateral
(subject to any applicable laws, rules, regulations and orders relating to
national security) so sold at any public sale (or, if the Collateral is of a
type customarily sold in a recognized market or is of a type which is the
subject of widely distributed standard price quotations, at any private sale).
Each Grantor will execute and deliver such documents and take such other action
as the Administrative Agent reasonably deems necessary or advisable in order
that any such sale may be made in compliance with law. Upon any such sale the
Administrative Agent shall have the right to deliver, assign and transfer to the
purchaser thereof the Collateral so sold (subject to any applicable laws, rules,
regulations and orders relating to national security).
Each purchaser at any such sale shall (subject to any applicable laws, rules,
regulations and orders relating to national security) hold the Collateral so
sold to it absolutely and free from any claim or right of whatsoever kind,
including any equity or right of redemption of any Grantor which may be waived,
and each Grantor, to the extent permitted by law, hereby specifically waives all
rights of redemption, stay or appraisal which it has or may have under any law
now existing or hereafter adopted. The notice (if any) of such sale required by
Section 6 shall (1) in the case of a public sale, state the time and place fixed
for such sale, and (2) in the case of a sale at a broker's board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be
offered for sale at such board or exchange and (3) in the case of any other
private sale, state the day after which such sale may be consummated. Any such
public sale shall be held at such time or times within ordinary business hours
and at such place or places as the Administrative Agent may fix in the notice of
such sale. At any such sale the Collateral may be sold in one lot as an entirety
or in separate parcels, as the Administrative Agent may determine. The
Administrative Agent shall not be obligated to make any such sale pursuant to
any such notice. The Administrative Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for the sale, and such
sale may be made at any time or place to which the same may be so adjourned. In
case of any sale of all or any part of the Collateral on credit or for future
delivery, the Collateral so sold may be retained by the Administrative Agent
until the selling price is paid by the purchaser thereof, but the Administrative
Agent shall not incur any liability in case of the failure of such purchaser to
take up and pay for the Collateral so sold and, in case of any such failure,
such Collateral may again be sold upon like notice. The Administrative Agent,
instead of exercising the power of sale herein conferred upon it (subject to any
applicable laws, rules, regulations and orders relating to national security)
may, at the direction of the Required Lenders, proceed by a suit or suits at law
or in equity to foreclose the Security Interests and sell the Collateral, or any
portion thereof, under a judgment or decree of a court or courts of competent
jurisdiction.
(B) Upon the occurrence and during the continuance of an Event of
Default, for the purpose of enforcing any and all rights and remedies under this
Agreement the Administrative Agent may in each case, to the extent permitted by
applicable law, rule, regulation or order (including, without limitation, any
applicable national laws, rules, regulations and orders relating
to national security) (i) require any Grantor to, and each Grantor agrees that
it will, at its expense and upon the request of the Administrative Agent,
forthwith assemble all or any part of the Collateral as directed by the
Administrative Agent and make it available at a place designated by the
Administrative Agent which is, in its opinion, reasonably convenient to the
Administrative Agent and such Grantor, whether at the premises of such Grantor
or otherwise, (ii) enter, with or without process of law and without breach of
the peace, any premise where any of the Collateral is or may be located, and
without charge or liability to it seize and remove such Collateral from such
premises and (iii) prior to the disposition of the Collateral, store or transfer
it without charge in or by means of any storage or transportation facility owned
or leased by any Grantor, process, repair or recondition it or otherwise prepare
it for disposition in any manner and to the extent the Administrative Agent
reasonably deems appropriate and, in connection with such preparation and
disposition, use without charge by any Grantor any trademark, trade name,
copyright, patent or technical process used by such Grantor.
(C) Without limiting the generality of the foregoing, if any
Event of Default has occurred and is continuing,
(i) the Administrative Agent may, at the direction of the Required
Lenders, license, or sublicense, whether general, special or otherwise, and
whether on an exclusive or non- exclusive basis, any Patents or Trademarks
included in the Collateral throughout the world for such term or terms, on
such conditions and in such manner as the Administrative Agent shall in its
sole discretion determine;
(ii) the Administrative Agent may (without assuming any obligations or
liability thereunder), at any time and from time to time, enforce (and shall
have the exclusive right to enforce) against any licensor, licensee or
sublicensee all rights and remedies of any Grantor, to and under any Patent
Licenses or Trademark Licenses and take or refrain from taking any action
under any thereof, and each Grantor hereby releases the Administrative Agent
and each of the other Secured Parties from, and agrees to hold the
Administrative Agent and each of the other Secured Parties free and harmless
from and against any claims arising out of, any lawful action so taken or
omitted to be taken with respect thereto, except any such claim to the
extent that it arises solely as the result of the gross negligence or
willful misconduct of any Secured Party; and
(iii) upon request by the Administrative Agent, each Grantor will
execute and deliver to the Administrative Agent a further
power of attorney, in form and substance satisfactory to the Administrative
Agent, for the implementation of any lease, assignment, license, sublicense,
grant of option, sale or other disposition of a Patent, Trademark, Patent
License or Trademark License. In the event of any such disposition pursuant
to this Section, each Grantor shall supply its know-how and expertise
relating to the manufacture and sale of the products bearing Trademarks or
the products or services made or rendered in connection with Patents, and
its customer lists and other records relating to such Patents or Trademarks
and to the distribution of said products, to the Administrative Agent.
(D) The Administrative Agent will take the actions and exercise the
rights and remedies on behalf of the Secured Parties pursuant to this Section 7
at the request of the Required Lenders and subject to any applicable laws,
rules, regulations and orders (including, without limitation, any applicable
laws, rules, regulations and orders relating to national security) with respect
to the use or transfer of any of the Collateral. 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 Financing Documents,
seeks to exercise any remedies upon the occurrence of an Event of Default that
will require it to have access to classified information or information which
otherwise cannot be held by the Administrative Agent under applicable laws,
rules, regulations or orders relating to national security ("Classified
Information"), and the Administrative Agent is unable to obtain a clearance or
other governmental approval required to have such access 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 that is
Collateral 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.
SECTION 8. LIMITATION ON DUTY OF ADMINISTRATIVE AGENT
IN RESPECT OF COLLATERAL
Beyond the exercise of reasonable care in the custody thereof, the
Administrative Agent shall have no duty as to any Collateral in its possession
or control or in the possession or control of any agent or bailee or any income
thereon or as to the preservation of rights against prior parties or any other
rights pertaining thereto. The Administrative Agent shall be deemed to
have exercised reasonable care in the custody of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which it accords its own property, and shall not be liable or responsible for
any loss or damage to any of the Collateral, or for any diminution in the value
thereof, by reason of the act or omission of any warehouseman, carrier,
forwarding agency, consignee or other agent or bailee selected by the
Administrative Agent in good faith.
SECTION 9. APPLICATION OF PROCEEDS
(A) Upon the occurrence and during the continuance of an Event of
Default, the proceeds of any sale of, or other realization upon, all or any part
of the Collateral and any cash held in the Collateral Account shall be applied,
subject to applicable law, by the Administrative Agent in the following order of
priorities:
FIRST, to payment of the expenses of such sale or other realization,
including reasonable compensation to agents and counsel for the
Administrative Agent, and all expenses, liabilities and advances incurred or
made by the Administrative Agent in connection therewith, and any other
unreimbursed expenses for which the Administrative Agent is to be reimbursed
pursuant to Section 13 hereof, or any Lender is to be reimbursed pursuant
to, and unpaid fees owing to the Administrative Agent under, the Amended and
Restated Credit Agreement;
SECOND, to the ratable payment of accrued but unpaid interest on the
Secured Obligations;
THIRD, to the ratable payment of unpaid principal of the Secured
Obligations;
FOURTH, to the ratable payment of all other Secured Obligations, until
all Secured Obligations shall have been paid in full; and
FINALLY, to payment to the Grantors or their successors or assigns, or as
a court of competent jurisdiction may direct, of any surplus then remaining
from such proceeds.
The Administrative Agent may make distributions hereunder in cash or in kind to
the extent permitted by law (including without limitation applicable laws,
rules, regulations and orders relating to national security) or, on a ratable
basis, in any combination thereof. In determining allocations under this
Section, the amount of any Hedging Obligation shall be equal to the amount of
the unrealized net loss position owed to such Secured Party.
(B) In making the determinations and allocations required by this
Section, the Administrative Agent may rely upon information supplied by the
Secured Parties as to the amounts of the Secured Obligations held by them, and
the Administrative Agent shall have no liability to any of the Secured Parties
for actions taken in reliance on such information. All distributions made by the
Administrative Agent pursuant to this Section shall be final, absent manifest
error, and the Administrative Agent shall have no duty to inquire as to the
application by the Secured Parties of any amount distributed to them.
(C) If, through the operation of any bankruptcy, reorganization,
insolvency or other laws or otherwise, the Security Interests are enforced with
respect to some, but not all, of the Secured Obligations, the Administrative
Agent shall nonetheless apply the proceeds to all the Secured Obligations, in
the proportions and subject to the priorities specified in this Section. To the
extent that the Administrative Agent distributes proceeds collected with respect
to one Secured Obligation to or on behalf of the holder of another Secured
Obligation, the holder of the former Secured Obligation shall be deemed to have
purchased a participation in the latter Secured Obligation, or shall be
subrogated to the rights of the holder thereof to receive any subsequent
payments and distributions made with respect to the portion thereof paid or to
be paid by the application of such proceeds.
SECTION 10. HEDGING OBLIGATIONS
As a condition to accepting the benefits of this Agreement, each Lender
and each Affiliate thereof that is owed Hedging Obligations agrees with each of
the other Lenders, each Affiliate of a Lender that is owed Hedging Obligations
and the Administrative Agent that it will from time to time (i) provide such
information to the Administrative Agent as may be necessary to enable the
Administrative Agent to make any determination of the amount of Secured
Obligations held by such Lender or Affiliate thereof or otherwise as requested
by the Administrative Agent for any other purpose of the Financing Documents and
(ii) otherwise cooperate in taking action or enforcing rights with respect to
such Hedging Obligations and rights hereunder as may be reasonably requested by
the Administrative Agent at the direction of the Required Lenders.
SECTION 11. CONCERNING THE ADMINISTRATIVE AGENT
(A) Each Secured Party irrevocably appoints and authorizes the
Administrative Agent to take such action and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with all such powers as are reasonably incidental thereto. As to any
matters not expressly provided for herein (including, without limitation, the
timing and methods of realization upon the Collateral) the Administrative Agent
shall act or refrain from acting in accordance with written instructions from
the Required Lenders or, in the absence of such instructions, in accordance with
its discretion.
(B) The Administrative Agent shall have the same rights and powers under
this Agreement as any other Secured Party and may exercise or refrain from
exercising the same as though it were not the Administrative Agent, and the
Administrative Agent and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with any Grantor or any Subsidiary
or Affiliate of any Grantor as if it were not the Administrative Agent
hereunder.
(C) The obligations of the Administrative Agent are only those expressly
set forth herein. Without limiting the generality of the foregoing, the
Administrative Agent shall not be required to take any action with respect to
any Event of Default. The Administrative Agent shall not be responsible for the
existence, genuineness or value of any of the Collateral or for the validity,
perfection, priority or enforceability of the Security Interests in any of the
Collateral, whether impaired by operation of law or by reason of any action or
omission to act on its part hereunder. The Administrative Agent shall have no
duty to ascertain or inquire as to the performance or observance of any of the
terms of this Agreement by any Grantor.
(D) The Administrative Agent may consult with legal counsel (who may be
counsel for any Grantor), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
(E) Neither the Administrative Agent nor any of its directors, officers,
agents, or employees shall be liable for any action taken or not taken by it in
connection herewith (i) with the consent or at the request of the Required
Lenders or (ii) in the absence of its own gross negligence or willful
misconduct. Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
or observance of any of the covenants or agreements of any Grantor; or (iii) the
validity, effectiveness or genuineness of this Agreement or any other instrument
or writing furnished in connection herewith. The Administrative Agent shall not
incur any liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex, facsimile or
similar writing) reasonably believed by it to be genuine or to be signed by the
proper party or parties.
(F) The Chase Manhattan Bank may resign as Administrative Agent hereunder
and under the Mortgages at any time by giving written notice thereof to the
Secured Parties and the Company. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Administrative Agent hereunder and
under the Mortgages with the consent of the Company (which consent shall not
unreasonably be withheld, but which may in any event be withheld if such
proposed successor Administrative Agent fails to deliver evidence reasonably
satisfactory to the Borrower that such proposed successor Agent is not a Foreign
Person). If no successor Administrative Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment within 60 days
after the retiring Administrative Agent's giving of notice of resignation, then
the retiring Administrative Agent may appoint a successor Administrative Agent,
which shall (i) be a commercial bank organized under the laws of the United
States of America or of any State thereof, (ii) not be a Foreign Person and
(iii) have a combined capital and surplus of at least $100,000,000. Upon the
acceptance of its appointment as Administrative Agent by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
Administrative Agent hereunder and under the Mortgages, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the Mortgages. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Agreement and the
Mortgages shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent hereunder and under the Mortgages.
SECTION 12. APPOINTMENT OF ADMINISTRATIVE CO-AGENTS
At any time or times, in order to comply with any legal requirement in
any jurisdiction, the Administrative Agent may appoint another bank or trust
company or one or more other persons (none of which shall in any event be a
Foreign Person), either to act as administrative co-agent or administrative
co-agents, jointly with the Administrative Agent, or to act as separate
Administrative Agent or Administrative Agents on behalf of the Secured Parties
with such power and authority as may be necessary for the effectual operation of
the provisions hereof and may be specified in the instrument of appointment
(which may, in the discretion of the Administrative Agent, include provisions
for the protection of each such collateral co-agent or separate Administrative
Agent similar to the provisions of Section 11).
SECTION 13. EXPENSES
In the event that any Grantor fails to comply with the provisions of any
Financing Document, such that the value of any Collateral or the validity,
perfection, rank or value of any Security Interest is thereby materially
diminished or potentially diminished or put at risk, the Administrative Agent if
requested by the Required Lenders may, but shall not be required to, effect such
compliance on behalf of such Grantor, and the Grantors jointly and severally
shall reimburse the Administrative Agent for the reasonable costs thereof on
demand. All insurance expenses and all expenses of protecting, storing,
warehousing, appraising, insuring, handling, maintaining, and shipping the
Collateral, any and all excise, property, sales, and use taxes imposed by any
state, federal, or local authority on any of the Collateral, or in respect of
appraisals and periodic inspections of the Collateral to the extent the same may
be reasonably requested by the Required Lenders from time to time, or in respect
of the sale or other disposition thereof shall be borne and paid by the
Grantors; and if the Grantors fail to promptly pay any portion thereof when due,
any Secured Party may, at its option, but shall not be required to, pay the same
and charge the Grantor's account therefor, and the Grantors jointly and
severally agree to reimburse such Secured Party therefor on demand. All sums so
paid or incurred by any Secured Party for any of the foregoing and any and all
other sums for which any Grantor may become liable hereunder and all costs and
expenses (including attorneys' fees, legal expenses and court costs) reasonably
incurred by the Administrative Agent or any other Secured Party in enforcing or
protecting the Security Interests or any of their rights or remedies under this
Agreement, shall, together with interest thereon until paid at the rate
applicable
to ABR Borrowings (as defined in the Amended and Restated Credit Agreement), be
additional Secured Obligations hereunder.
SECTION 14. TERMINATION OF SECURITY
INTERESTS; RELEASE OF COLLATERAL
Upon the repayment in full of all Secured Obligations and the termination
of the Commitments (as defined in the Amended and Restated Credit Agreement)
under the Amended and Restated Credit Agreement, the Security Interests and all
obligations of the Grantors under this Agreement shall terminate and all rights
to the Collateral shall revert to the Grantors. At any time and from time to
time prior to such termination of the Security Interests, the Administrative
Agent may release any of the Collateral with the prior written consent of the
Required Lenders; provided that the Administrative Agent may release all or
substantially all of the Collateral prior to the termination of the obligations
of the Grantors under this Agreement only with the prior written consent of all
of the Lenders. In addition, the Administrative Agent shall release any and all
Collateral required in connection with any transaction, or sale, transfer,
assignment or other disposition of Collateral, that is consummated by any
Grantor and that is not prohibited by any Financing Document, and shall be fully
protected in relying upon a certificate of an authorized officer of the Company
to such effect. Upon any such termination of the Security Interests or release
of Collateral, the Administrative Agent will promptly, at the expense of the
Grantors, execute and deliver to the Company such documents as the Company shall
reasonably request to evidence the termination of the Security Interests or the
release of such Collateral, as the case may be, including UCC termination
statements, and will duly assign, transfer and deliver to the Grantors or to
whomever lawfully shall be entitled to receive the same, such of the Collateral
as may be in the possession of the Administrative Agent.
SECTION 15. NOTICES
All notices, communications and distributions to any party hereunder
shall be in writing (including bank wire, telex, facsimile transmission or
similar writing) and shall be given to such party at its address set forth on
the signature pages hereof or such other address or telecopier number as such
party may hereafter specify for the purpose by notice to the other. Each such
notice, request or other communication shall be effective (i) if given by telex,
when such telex is transmitted to the telex number specified below and the
appropriate answerback is
received, (ii) if given by facsimile, when delivered to the number specified
below (and followed by a copy sent by mail or other courier addressed as
aforesaid) or (iii) if given by any other means, when delivered at the address
or telecopier number specified below.
SECTION 16. WAIVERS; NON-EXCLUSIVE REMEDIES
No failure on the part of the Administrative Agent to exercise, and no
delay in exercising and no course of dealing with respect to, any right under
this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise by the Administrative Agent of any right under this Agreement
preclude any other or further exercise thereof or the exercise of any other
right. The rights in the Financing Documents are cumulative and are not
exclusive of any other remedies provided by law.
SECTION 17. SUCCESSORS AND ASSIGNS
This Agreement is for the benefit of the Administrative Agent and the
other Secured Parties and their successors and assigns, and in the event of an
assignment of all or any of the Secured Obligations, the rights hereunder, to
the extent applicable to the indebtedness so assigned, may be transferred with
such indebtedness. This Agreement shall be binding on each Grantor and the
Administrative Agent and their respective successors and assigns.
SECTION 18. CHANGES IN WRITING
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, but only in writing signed by each Grantor and
the Administrative Agent with the consent of the Required Lenders.
SECTION 19. NEW YORK LAW
This Agreement shall be construed in accordance with and governed by the
laws of the State of New York, except as otherwise required by mandatory
provisions of law and except to the extent that remedies provided by the laws of
any jurisdiction other than New York are governed by the laws of such
jurisdiction.
SECTION 20. SEVERABILITY
If any provision hereof is invalid or unenforceable in any jurisdiction,
then, to the fullest extent permitted by law, (i) the other provisions hereof
shall remain in full force and effect in such jurisdiction and shall be
liberally construed in favor of the Administrative Agent and the other Secured
Parties in order to carry out the intentions of the parties hereto as nearly as
may be possible; and (ii) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
SECTION 21. ADDITIONAL SUBSIDIARY GUARANTORS
Pursuant to the Amended and Restated Credit Agreement, any additional
Subsidiary Loan Party that is formed or acquired after the date hereof is
required to enter into this Agreement as a Subsidiary Guarantor and Grantor upon
becoming a Subsidiary Loan Party. Upon execution and delivery after the date
hereof by the Administrative Agent and such a Subsidiary Loan Party of an
instrument in the form of Annex 1, such Subsidiary Loan Party shall become a
Subsidiary Guarantor and Grantor hereunder with the same force and effect as if
originally named as a Subsidiary Guarantor and Grantor herein. The execution and
delivery of any instrument adding an additional Subsidiary Guarantor and Grantor
as a party to this Agreement shall not require the consent of any other Grantor
hereunder. The rights and obligations of each Grantor hereunder shall remain in
full force and effect notwithstanding the addition of any new Subsidiary
Guarantor and Grantor as a party to this Agreement.
SECTION 22. COUNTERPARTS; INTEGRATION
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement constitutes the entire
agreement and understanding among the parties hereto and supersedes any and all
prior agreements and understandings, oral or written, relating to the subject
matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
ALLIANT TECHSYSTEMS INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
Federal tax identification
number: ▇▇-▇▇▇▇▇▇▇
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SUBSIDIARY GUARANTORS:
ALLIANT AMMUNITION SYSTEMS
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
NEW RIVER ENERGETICS, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
Telephone number: ▇▇▇-▇▇▇-▇▇▇▇
ALLIANT HOLDINGS LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT PROPULSION AND COMPOSITES
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT SOUTHERN COMPOSITES
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT DEFENSE LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT AMMUNITION AND POWDER
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT PRECISION FUZE COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT INTEGRATED DEFENSE
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT INTERNATIONAL HOLDINGS INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT MISSILE PRODUCTS COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT AEROSPACE COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT AEROSPACE PROPULSION COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT AEROSPACE COMPOSITE STRUCTURES
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT LAKE CITY SMALL CALIBER
AMMUNITION COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
THIOKOL PROPULSION CORP.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
THIOKOL TECHNOLOGIES INTERNATIONAL, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT PROPULSION AND COMPOSITES LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ANNEX 1 TO THE
SECURITY AGREEMENT
SUPPLEMENT NO. dated as of
, to the Amended and Restated Security
Agreement dated as of April 20, 2001 (as
amended or modified from time to time, the
"Security Agreement"), among ALLIANT
TECHSYSTEMS, INC. (the "Company"), the
borrowing subsidiaries party thereto (each, a
"Borrowing Subsidiary" and collectively with
the Company, the "Borrowers"), each other
subsidiary of the Company listed on the
signature pages thereof (collectively, with the
Borrowing Subsidiaries, the "Subsidiary
Guarantors" and, together with the Company, the
"Grantors"), and THE CHASE MANHATTAN BANK, as
Administrative Agent (the "Administrative
Agent") for the Lenders (as defined below).
A. Reference is made to the Amended and Restated Credit Agreement dated
as of April 20, 2001 (as amended, supplemented or otherwise modified from time
to time, the "Amended and Restated Credit Agreement") among the Company, the
Borrowing Subsidiaries, the Lenders party thereto (the "Lenders") and the
Administrative Agent.
B. Pursuant to the Amended and Restated Credit Agreement, any additional
Subsidiary Loan Party that is formed or acquired after the date of the Security
Agreement is required to enter into the Security Agreement as a Subsidiary
Guarantor and Grantor upon becoming a Subsidiary Loan Party. Section 21 of the
Security Agreement provides that additional Subsidiary Loan Parties may become
Subsidiary Guarantors and Grantors under the Security Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned
Subsidiary Loan Party (the "New Subsidiary Guarantor") is executing this
Supplement in accordance with the requirements of the Amended and Restated
Credit Agreement to become a Subsidiary Guarantor and Grantor under the Security
Agreement.
Accordingly, the Administrative Agent and the New Subsidiary Guarantor
agree as follows:
SECTION 1. In accordance with Section 21 of the Security Agreement, the
New Subsidiary Guarantor by its signature below becomes a Subsidiary Guarantor
and a Grantor under the Security Agreement with the same force and effect as if
originally named therein as a Subsidiary Guarantor and the New Subsidiary
Guarantor hereby (a) agrees to all the terms and provisions of the Security
Agreement applicable to it as a Subsidiary Guarantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a
Subsidiary Guarantor thereunder are true and correct on and as of the date
hereof. Each reference to a "Subsidiary Guarantor" or "Grantor" in the Security
Agreement shall be deemed to include the New Subsidiary Guarantor. The Security
Agreement is hereby incorporated herein by reference.
SECTION 2. The New Subsidiary Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of which
shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Subsidiary Guarantor and the
Administrative Agent. Delivery of an executed signature page to this Supplement
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Security
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Security Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties hereto shall endeavor in good- faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 15 of the Security Agreement. All
communications and notices hereunder to the New Subsidiary Guarantor shall be
given to it at the address set forth under its signature below.
SECTION 8. The New Subsidiary Guarantor agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Supplement, including the fees, disbursements and other charges of counsel for
the Administrative Agent.
IN WITNESS WHEREOF, the New Subsidiary Guarantor and the Administrative
Agent have duly executed this Supplement to the Security Agreement as of the day
and year first above written.
[Name Of New Subsidiary
Guarantor],
by
-------------------------------------
Name:
Title:
Address:
-----------------------------
------------------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent,
by
-------------------------------------
Name:
Title:
Exhibit E
CONFORMED COPY
AMENDED AND RESTATED
SUBSIDIARY GUARANTY AGREEMENT
AGREEMENT dated as of April 20, 2001 among each of the subsidiaries of
Alliant Techsystems Inc. (the "Company") listed on the signature pages hereof
(collectively, the "Subsidiary Guarantors"), and The Chase Manhattan Bank, as
Administrative Agent (the "Administrative Agent") amending and restating in its
entirety the Subsidiary Guaranty Agreement dated as of March 15, 1995, amended
and restated as of November 14, 1996 and amended and restated as of November 23,
1998 among Alliant Defense Electronics Systems, Inc., New River Energetics, Inc.
and the Administrative Agent (the "Existing Subsidiary Guaranty Agreement").
Reference is made to the Amended and Restated Credit Agreement dated as of
April 20, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Amended and Restated Credit Agreement") among the Company, the
borrowing subsidiaries party thereto (each, a "Borrowing Subsidiary" and
collectively with the Company, the "Borrowers"), the Lenders party thereto and
the Administrative Agent.
In connection with the execution and delivery of the Amended and Restated
Credit Agreement, the parties wish to amend and restate the Existing Subsidiary
Guaranty Agreement as set forth herein; PROVIDED that in no event shall such
amendment and restatement be deemed to extinguish or constitute a novation of
the obligations under the Existing Subsidiary Guaranty Agreement.
The Lenders have agreed to continue and to make loans to the Borrowers and
the Issuing Banks (as defined in the Amended and Restated Credit Agreement) have
agreed to issue Letters of Credit (as defined in the Amended and Restated Credit
Agreement) for the account of the Borrowers pursuant to, and upon the terms and
subject to the conditions specified in, the Amended and Restated Credit
Agreement. Each of the Subsidiary Guarantors is a subsidiary of the Company and
acknowledges that it will derive substantial benefit from the continuation of
the loans and making of new loans by the Lenders under the Amended and Restated
Credit Agreement, and the issuance of the Letters of Credit by the Issuing
Banks. The obligations of the Lenders to continue loans and to make loans under
the Amended and Restated Credit Agreement to the extent provided therein and of
the Issuing Banks to issue Letters of Credit under the Amended and Restated
Credit Agreement are conditioned on, among other things, the execution and
delivery by the Subsidiary Guarantors of a subsidiary guaranty agreement in the
form hereof and the amendment and restatement of the Existing Subsidiary
Guaranty Agreement as provided herein.
As consideration therefor and in order to induce the Lenders to continue
and to make loans and to execute and deliver the Amended and Restated Credit
Agreement and the Issuing Banks to issue Letters of Credit under the Amended and
Restated Credit Agreement, the Subsidiary Guarantors are willing to execute this
Agreement.
Accordingly, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. DEFINITIONS. Terms defined in the Amended and Restated Credit
Agreement and not otherwise defined herein have, as used herein, the respective
meanings provided for therein.
SECTION 2. REPRESENTATIONS AND WARRANTIES. Each of the Subsidiary
Guarantors represents that:
(a) Such Subsidiary Guarantor has been duly incorporated, formed or
organized and is validly existing as a Business Entity and in good standing
under the laws of its jurisdiction of organization, with all applicable Business
Entity powers to carry on its business as presently conducted.
(b) The execution, delivery and performance by such Subsidiary Guarantor
of this Agreement are within such Subsidiary Guarantor's applicable Business
Entity powers, have been duly authorized by all necessary applicable Business
Entity action, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
Constitutional Documents of such Subsidiary Guarantor or of any agreement,
judgment, injunction, order, decree or other instrument binding upon such
Subsidiary Guarantor or result in the creation or imposition of any Lien on any
asset of such Subsidiary Guarantor or any of its Subsidiaries.
(c) This Agreement constitutes a valid and binding agreement of such
Subsidiary Guarantor, enforceable in accordance with its terms except as (i) the
enforceability hereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
SECTION 3. THE GUARANTY. The Subsidiary Guarantors, jointly and severally,
hereby unconditionally guarantee the full and punctual payment (whether at
stated maturity, upon acceleration or otherwise) of (i) all principal of and
interest (including any interest that accrues after the commencement of any
case, proceeding or other action relating to the bankruptcy, insolvency or
reorganization of any Borrower, whether or not allowed or allowable in such
proceeding) on any Loan under the Amended and Restated Credit Agreement, (ii)
each payment required to be made by any Borrower under the Amended and Restated
Credit Agreement in respect of any Letter of Credit, and any payment required to
be made by any Borrower in respect of any Lender Letter of Credit, in each case
when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral
("Reimbursement Obligations"), (iii) all other amounts payable by any Subsidiary
Guarantor hereunder or under any other Financing Documents (as defined in the
Security Agreement), (iv) any Hedging Obligations (as defined in the Security
Agreement) and (v) any renewals or extensions of any of the foregoing, in each
case whether now outstanding or hereafter arising (such obligations, the
"Guaranteed Obligations"). Upon failure by any Borrower to pay punctually any
such amount, each Subsidiary Guarantor agrees jointly and severally that it
shall forthwith on demand pay the amount not so paid at the place and in the
manner specified in the Amended and Restated Credit Agreement.
SECTION 4. GUARANTIES UNCONDITIONAL. The obligations of the Subsidiary
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(a) any extension, renewal, settlement, compromise, waiver or release in
respect of any obligation of any other Loan Party under any Loan Document, by
operation of law or otherwise;
(b) any modification or amendment of or supplement to any Loan Document;
(c) any release, impairment, non-perfection or invalidity of any direct or
indirect security for any obligation of any other Loan Party under any Loan
Document;
(d) any change in the Business Entity existence, structure or ownership of
such Subsidiary Guarantor or any other Loan Party, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting such
Subsidiary Guarantor or any other Loan Party or its assets or any resulting
release or discharge of any obligation of any other Loan Party contained in
any Loan Document;
(e) the existence of any claim, set-off or other rights which any
Subsidiary Guarantor may have at any time against any other Loan Party, the
Administrative Agent, any Lender, any Issuing Bank or any other Person,
whether in connection herewith or any unrelated transactions, PROVIDED that
nothing herein shall prevent the assertion of any such claim by separate suit
or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against any other
Loan Party for any reason of any Loan Document, or any provision of
applicable law or regulation purporting to prohibit the payment by any other
Loan Party of the principal of or interest on any Loan or Reimbursement
Obligation or any other amount payable by any other Loan Party under the Loan
Documents; or
(g) any other act or omission to act or delay of any kind by any other
Loan Party, the Administrative Agent, any Lender, any Issuing Bank or any
other Person or any other circumstance whatsoever which might, but for the
provisions of this paragraph, constitute a legal or equitable discharge of or
defense to such Subsidiary Guarantor's obligations hereunder.
SECTION 5. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. Each Subsidiary Guarantor's obligations hereunder shall remain in
full force and effect until the Commitments shall have terminated, the LC
Exposure of all of the Lenders shall have been reduced to zero, and the
Guaranteed Obligations shall have been paid in full. If at any time any payment
of the principal of or interest on any Loan or Reimbursement Obligation or any
other amount payable by any Borrower under any Loan Document is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, the Subsidiary Guarantor's
obligations hereunder with respect to such payment shall be reinstated as though
such payment had been due but not made at such time.
SECTION 6. WAIVER. Each Subsidiary Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein, as
well as any requirement that at any time any action be taken by any Person
against any other Loan Party or any other Person.
SECTION 7. WAIVER OF SUBROGATION. Each Subsidiary Guarantor waives any
right or claim of exoneration, reimbursement, subrogation, contribution or
indemnity and any other similar right or claim arising out of any payment by
such Subsidiary Guarantor hereunder.
SECTION 8. STAY OF ACCELERATION. If acceleration of the time for payment
of any amount payable by any Borrower under the Loan Documents is stayed upon
the insolvency, bankruptcy or reorganization of the Company, all such amounts
otherwise subject to acceleration under the terms of the Loan Documents shall
nonetheless be payable by the Subsidiary Guarantor hereunder forthwith on demand
by the Administrative Agent made at the request of the Required Lenders.
SECTION 9. LIMITATION ON EACH SUBSIDIARY GUARANTOR'S OBLIGATIONS. The
obligations of each Subsidiary Guarantor hereunder shall be limited to an
aggregate amount that is equal to the largest amount that would not render its
obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or any applicable provisions of comparable state law.
SECTION 10. NOTICES. Unless otherwise specified herein, all notices,
requests and other communications to any party hereunder shall be in writing
(including bank wire, telex, facsimile transmission or similar writing) and
shall be given to such party at its address or telex or facsimile transmission
number set forth on the signature pages hereof or such other address or telex or
facsimile transmission number as such party may hereafter specify for the
purpose by notice to the Administrative Agent. Each such notice, request or
other communication shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in or pursuant to this Section 10 and
the appropriate answerback is received, (ii) if given by facsimile transmission,
when such facsimile is transmitted to the facsimile transmission number
specified in or pursuant to this Section 10 and confirmation of receipt is
received, (iii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as
aforesaid, or (iv) if given by any other means, when delivered at the address
specified in or pursuant to this Section 10.
SECTION 11. NO WAIVER. No failure or delay by the Administrative Agent,
any Issuing Bank or any Lender in exercising any right, power or privilege under
any Loan Document shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 12. AMENDMENTS AND WAIVERS. Any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and is
signed by each Subsidiary Guarantor and is consented to in writing by the
Administrative Agent with the prior written consent of the Required Lenders
(except as otherwise provided in the Amended and Restated Credit Agreement).
SECTION 13. SUCCESSORS AND ASSIGNS. This Agreement is for the benefit of
the Lenders, any Issuing Bank and the Administrative Agent and their respective
successors and assigns and in the event of an assignment of the Loans or other
amounts payable under the Loan Documents, the rights hereunder, to the extent
applicable to the indebtedness so assigned, may be transferred with such
indebtedness. All of the provisions of this Agreement shall be binding upon the
parties hereto and their respective successors and assigns, except that no
Subsidiary Guarantor may assign or transfer any of its rights or obligations
under this Agreement.
SECTION 14. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which shall be an original, and all of which
taken together shall constitute a single instrument, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when the Administrative Agent shall have received a
counterpart hereof signed by one or more of the Subsidiary Guarantors and when
the Amended and Restated Credit Agreement shall become effective in accordance
with its terms. Thereafter, upon execution and delivery of this Agreement on
behalf of any other Subsidiary Guarantor, this Agreement shall become effective
with respect to such Subsidiary Guarantor as of the date of such delivery.
SECTION 15. ADDITIONAL SUBSIDIARY GUARANTORS. Pursuant to the Amended and
Restated Credit Agreement, any additional Subsidiary Loan Party that is formed
or acquired after the date hereof is required to enter into this Agreement as a
Subsidiary Guarantor upon becoming a Subsidiary Loan Party. Upon execution and
delivery after the date hereof by the Administrative Agent and such a Subsidiary
Loan Party of an instrument in the form of Annex 1, such Subsidiary Loan Party
shall become a Subsidiary Guarantor hereunder with the same force and effect as
if originally named as a Subsidiary Guarantor herein. The execution and delivery
of any instrument adding an additional Subsidiary Guarantor as a party to this
Agreement shall not require the consent of any other Subsidiary Guarantor
hereunder. The rights and obligations of each Subsidiary Guarantor hereunder
shall remain in full force and effect notwithstanding the addition of any new
Subsidiary Guarantor as a party to this Agreement.
SECTION 16. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. EACH OF THE SUBSIDIARY GUARANTORS HEREBY SUBMITS
TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW
YORK CITY FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE SUBSIDIARY
GUARANTORS IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE SUBSIDIARY GUARANTORS AND
THE ADMINISTRATIVE AGENT HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date first above
written.
THE CHASE MANHATTAN BANK,
as Administrative Agent,
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SUBSIDIARY GUARANTORS:
ALLIANT AMMUNITION SYSTEMS
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
NEW RIVER ENERGETICS, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
Telephone number: ▇▇▇-▇▇▇-▇▇▇▇
ALLIANT HOLDINGS LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT SOUTHERN COMPOSITES
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT DEFENSE LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT AMMUNITION AND POWDER
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT PRECISION FUZE COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT INTEGRATED DEFENSE
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT INTERNATIONAL HOLDINGS INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT MISSILE PRODUCTS COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT AEROSPACE COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT AEROSPACE PROPULSION COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT AEROSPACE COMPOSITE STRUCTURES
COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT LAKE CITY SMALL CALIBER
AMMUNITION COMPANY LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
THIOKOL PROPULSION CORP.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
THIOKOL TECHNOLOGIES INTERNATIONAL, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ALLIANT PROPULSION AND COMPOSITES LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
[address]
[address]
Facsimile number:
Telephone number:
ANNEX 1 TO THE
SUBSIDIARY GUARANTY AGREEMENT
SUPPLEMENT NO. dated as of , to the Amended and
Restated Subsidiary Guaranty Agreement dated as of April 20, 2001 (as
amended or modified from time to time, the "Guaranty Agreement"), among
each of the subsidiaries of Alliant Techsystems Inc. (the "Company")
listed on the signature pages thereof collectively, the "Subsidiary
Guarantors") and THE CHASE MANHATTAN BANK, as Administrative Agent (the
"Administrative Agent") for the Lenders (as defined below).
A. Reference is made to the Amended and Restated Credit Agreement dated as
of April 20, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Amended and Restated Credit Agreement") among the Company, the
borrowing subsidiaries party thereto (each, a "Borrowing Subsidiary" and
collectively with the Company, the "Borrowers"), the Lenders party thereto and
the Administrative Agent.
B. Pursuant to the Amended and Restated Credit Agreement, any additional
Subsidiary Loan Party that is formed or acquired after the date of the Guaranty
Agreement is required to enter into the Guaranty Agreement as a Subsidiary
Guarantor upon becoming a Subsidiary Loan Party. Section 15 of the Guaranty
Agreement provides that additional Subsidiary Loan Parties may become Subsidiary
Guarantors under the Guaranty Agreement by execution and delivery of an
instrument in the form of this Supplement. The undersigned Subsidiary Guarantor
(the "New Subsidiary Guarantor") is executing this Supplement in accordance with
the requirements of the Amended and Restated Credit Agreement to become a
Subsidiary Guarantor under the Guaranty Agreement.
Accordingly, the Administrative Agent and the New Subsidiary Guarantor
agree as follows:
SECTION 1. In accordance with Section 15 of the Guaranty Agreement, the
New Subsidiary Guarantor by its signature below becomes a Subsidiary Guarantor
under the Guaranty Agreement with the same force and effect as if originally
named therein as a Subsidiary Guarantor and the New Subsidiary Guarantor hereby
(a) agrees to all the terms and provisions of the Guaranty Agreement applicable
to it as a Subsidiary Guarantor thereunder and (b) represents and warrants that
the representations and warranties made by it as a Subsidiary Guarantor
thereunder are true and correct on and as of the date hereof. Each reference to
a "Subsidiary Guarantor" in the Guaranty Agreement shall be
deemed to include the New Subsidiary Guarantor. The Guaranty Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Subsidiary Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of which
shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Subsidiary Guarantor and the
Administrative Agent. Delivery of an executed signature page to this Supplement
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guaranty Agreement
shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guaranty Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good- faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 10 of the Guaranty Agreement. All
communications and notices hereunder to the New Subsidiary Guarantor shall be
given to it at the address set forth under its signature below.
SECTION 8. The New Subsidiary Guarantor agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Supplement, including the fees, disbursements and other charges of counsel for
the Administrative Agent.
IN WITNESS WHEREOF, the New Subsidiary Guarantor and the Administrative
Agent have duly executed this Supplement to the Guaranty Agreement as of the day
and year first above written.
[Name Of New Subsidiary
Guarantor],
by
-------------------------------------
Name:
Title:
Address:
-----------------------------
------------------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent,
by
-------------------------------------
Name:
Title:
Exhibit F
CHIEF FINANCIAL OFFICER'S SOLVENCY CERTIFICATE
ALLIANT TECHSYSTEMS INC.
Reference is made to the Amended and Restated Credit Agreement dated as of
April 20, 2001 (the "AMENDED AND RESTATED CREDIT AGREEMENT"), among Alliant
Techsystems Inc. (the "COMPANY"), the Borrowing Subsidiaries party thereto, the
Lenders party thereto and The Chase Manhattan Bank, as Administrative Agent (the
"Administrative Agent"). This certificate is being delivered pursuant to Section
10(i) of the Effectiveness Agreement dated as of April 20, 2001, among the
Borrowers, the lenders listed on Schedule I thereto as Original Lenders (the
"ORIGINAL LENDERS"), the lenders listed on Schedule II thereto as Continuing
Lenders (the "CONTINUING LENDERS" and, together with the Original Lenders, the
"LENDERS"), and the Administrative Agent, to which the Amended and Restated
Credit Agreement is attached as Exhibit A. All capitalized terms used but not
defined herein shall have the meaning set forth in the Amended and Restated
Credit Agreement.
1. The undersigned is the duly elected, qualified and acting Chief
Financial Officer of the Company and is executing and delivering this
Certificate solely in his capacity as such officer.
2. The undersigned does hereby certify to the best of his knowledge after
due inquiry that immediately after the consummation of the Transactions to occur
on the Effectiveness Date and immediately following the making of each Loan and
issuing of each Letter of Credit made on the Effectiveness Date and after giving
effect to the application of the proceeds of such Loans and Letters of Credit,
(i) the fair value of the assets of the Loan Parties and each of their
respective Subsidiaries on a combined consolidated basis (collectively, on such
basis, the "SUBJECT PARTIES") will exceed their debts and liabilities,
subordinated, contingent or otherwise; (ii) the present fair saleable value of
the property of the Subject Parties will be greater than the amount that will be
required to pay the probably liability of their debts and other liabilities,
subordinated, contingent or otherwise as such debts and other liabilities become
absolute and matured; (iii) the Subject Parties do not intend to incur and do
not believe they will incur debts and liabilities, subordinated, contingent or
otherwise that are beyond their ability to pay such debts and liabilities as
they become absolute and matured; and (iv) the Subject Parties will not have
unreasonably small capital with which to conduct the business in which they are
engaged as such business is now conducted and is proposed to be conducted
following the Effectiveness Date.
- SIGNATURE ON FOLLOWING PAGE -
Certified this 20th day of April 2001
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Chief Financial Officer
ALLIANT TECHSYSTEMS INC.
-2-
