10-Q

UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 10-Q

(Mark One)
[X]	Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the quarterly period ended: August 31, 2002
	or
[   ]	Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the transition period from _______________________ to _______________________

Commission File Number 1-1520

GenCorp Inc.
(Exact name of registrant as specified in its charter)

Ohio	34-0244000
(State of Incorporation)	(I.R.S. Employer Identification No.)
Highway 50 and Aerojet Road
Rancho Cordova, California	95670
(Address of Principal Executive Offices)	(Zip Code)
P.O. Box 537012
Sacramento, California	95853-7012
(Mailing Address)	(Zip Code)

Registrant’s telephone number, including area code (916) 355-4000

     Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934 during the preceding 12 months, (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [x] No [  ]

     As of September 30, 2002, there were 43,234,894 outstanding shares of the Company’s Common Stock, $0.10 par value.

TABLE OF CONTENTS

Part I – FINANCIAL INFORMATION
	Item 1. Financial Statements
	Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
	Item 3. Quantitative and Qualitative Disclosures About Market Risk
	Item 4. Controls and Procedures
PART II – OTHER INFORMATION
	Item 1. Legal Proceedings
	Item 5. Other Information
	Item 6. Exhibits and Reports on Form 8-K
Signatures
CERTIFICATIONS
Restricted Stock Agreement
Asset Purchase Agreement
Agreement to Amend and Restate

GenCorp Inc.

Quarterly Report on Form 10-Q
For the Quarterly Period Ended August 31, 2002

Table of Contents

Item Number		Page
	PART I – FINANCIAL INFORMATION
1	Financial Statements	1
2	Management’s Discussion and Analysis of Financial Condition and Results of Operations	27
3	Quantitative and Qualitative Disclosures About Market Risk	37
4	Controls and Procedures	38
	PART II – OTHER INFORMATION
1	Legal Proceedings	38
5	Other Information	38
6	Exhibits and Reports on Form 8-K	38
	SIGNATURES
	Signatures	40
	CERTIFICATIONS
	Certifications	41

Part I – FINANCIAL INFORMATION

Item 1. Financial Statements

GenCorp Inc.

Condensed Consolidated Statements of Income
(Unaudited)

	Three months ended					Nine months ended
	August 31,					August 31,
	2002		2001			2002		2001
			(Restated)					(Restated)
	(In millions, except per share amounts)
Net Sales	$	266	$	356		$	818	$	1,119
Costs and Expenses
Cost of products sold		223		313			683		979
Selling, general and administrative		8		12			33		32
Depreciation and amortization		18		21			48		58
Interest expense		4		10			11		28
Other (income) expense, net		1		(5	)		7		(9	)
Foreign exchange gain		–		–			–		(11	)
Restructuring charge		–		–			–		19
Unusual items, net		–		–			9		8
Income Before Income Taxes		12		5			27		15
Provision (credit) for income taxes		4		2			10		(7	)
Net Income	$	8	$	3		$	17	$	22
Earnings Per Share of Common Stock
Basic	$	0.19	$	0.07		$	0.40	$	0.52
Diluted	$	0.19	$	0.07		$	0.40	$	0.51
Weighted average shares of common stock outstanding		42.9		42.3			42.8		42.1
Weighted average shares of common stock outstanding, assuming dilution		51.4		42.8			43.2		42.5
Dividends Declared Per Share of Common Stock	$	0.03	$	0.03		$	0.09	$	0.09

See Notes to Unaudited Condensed Consolidated Financial Statements.

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GenCorp Inc.

Condensed Consolidated Balance Sheets

		August 31			November 30,
		2002			2001
		(unaudited)
		(Dollars in millions,
		except per share amounts)
Current Assets
Cash and cash equivalents		$	37		$	44
Accounts receivable			128			173
Inventories, net			184			167
Recoverable from the U.S. Government and other third parties for environmental remediation			18			18
Current deferred income taxes			7			14
Prepaid expenses and other			5			4
	Total Current Assets		379			420
Noncurrent Assets
Property, plant and equipment, net			453			454
Recoverable from the U.S. Government and other third parties for environmental remediation			217			140
Deferred income taxes			–			6
Prepaid pension asset			326			287
Goodwill, net			83			65
Other noncurrent assets, net			74			96
	Total Assets	$	1,532		$	1,468
Current Liabilities
Short-term borrowings and current portion of long-term debt		$	20		$	17
Accounts payable			79			87
Reserves for environmental remediation			30			35
Income taxes payable			6			29
Other current liabilities			242			301
	Total Current Liabilities		377			469
Noncurrent Liabilities
Convertible subordinated notes			150			–
Other long-term debt, net of current portion			122			197
Reserves for environmental remediation			316			244
Postretirement benefits other than pensions			177			194
Deferred income taxes			11			–
Other noncurrent liabilities			33			54
	Total Liabilities		1,186			1,158
Commitments and Contingent Liabilities
Shareholders’ Equity
Preference stock, par value of $1.00 per share; 15 million shares authorized; none issued or outstanding			–			–
Common stock, par value of $0.10 per share; 150 million shares authorized; 43.5 million shares issued, 43.0 million outstanding as of August 31, 2002 (43.3 million shares issued, 42.6 million shares outstanding as of November 30, 2001)			4			4
Other capital			13			9
Retained earnings			344			331
Accumulated other comprehensive loss, net of income taxes			(15	)		(34	)
	Total Shareholders’ Equity		346			310
	Total Liabilities and Shareholders’ Equity	$	1,532		$	1,468

See Notes to Unaudited Condensed Consolidated Financial Statements.

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GenCorp Inc.

Condensed Consolidated Statements of Cash Flows
(Unaudited)

				Nine months ended
				August 31
				2002			2001
							(Restated)
				(Dollars in millions)
Operating Activities
Net income				$	17		$	22
Adjustments to reconcile net income to net cash used in operating activities:
	Net loss related to reacquisition of minority ownership interest in subsidiary				2			–
	Foreign exchange gain				–			(11	)
	Depreciation, amortization and gain on asset disposition				48			55
	Deferred income taxes				15			33
	Changes in assets and liabilities, net of effects of acquisitions of businesses:
		Current assets			36			(3	)
		Noncurrent assets			(110	)		(45	)
		Current liabilities			(101	)		(62	)
		Noncurrent liabilities			53			(33	)
			Net Cash Used in Operating Activities		(40	)		(44	)
Investing Activities
Capital expenditures					(31	)		(29	)
Proceeds from sale of fixed assets					4			5
Acquisition of businesses, net of cash acquired					(8	)		(179	)
			Net Cash Used in Investing Activities		(35	)		(203	)
Financing Activities
Proceeds from issuance of convertible debt, net of issuance costs					144			–
Repayments on revolving credit facility, net					(60	)		(104	)
Net short-term debt (repayments) incurred					(6	)		20
Proceeds from the issuance of long-term debt					25			350
Repayments of long-term debt					(37	)		–
Dividends paid					(4	)		(4	)
Other equity transactions					4			4
			Net Cash Provided by Financing Activities		66			266
Effect of exchange rate fluctuations on cash and cash equivalents					2			–
Net (Decrease) Increase in Cash and Cash Equivalents					(7	)		19
Cash and Cash Equivalents at Beginning of Period					44			17
Cash and Cash Equivalents at End of Period				$	37		$	36

See Notes to Unaudited Condensed Consolidated Financial Statements.

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GenCorp Inc.

Notes to Unaudited Condensed Consolidated Financial Statements

1. Basis of Presentation and Nature of Operations

     The accompanying unaudited Condensed Consolidated Financial Statements of GenCorp Inc. (GenCorp or the Company) include the accounts of the parent company and its wholly-owned and majority-owned subsidiaries. These interim financial statements have been prepared in accordance with the instructions to Form 10-Q and therefore do not include all of the information and notes required by accounting principles generally accepted in the United States (GAAP). These interim financial statements should be read in conjunction with the financial statements and accompanying notes included in the GenCorp Annual Report on Form 10-K for the fiscal year ended November 30, 2001, as filed with the Securities and Exchange Commission (SEC).

     In the opinion of management, the accompanying Unaudited Condensed Consolidated Financial Statements reflect all adjustments, consisting only of normal recurring accruals, necessary for a fair presentation of the Company’s financial position, results of operations and cash flows for the periods presented. All significant intercompany balances and transactions have been eliminated in consolidation. The preparation of financial statements in conformity with GAAP requires management to make certain assumptions and estimates that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities as of the date of the financial statements and the reported amount of revenues and expenses during the reporting period. Actual results could differ from those estimates. In addition, our operating results for interim periods may not be indicative of the results of operations for a full fiscal year.

     Certain reclassifications have been made to financial information for prior periods to conform to the current period’s presentation.

     Headquartered in Sacramento, California, GenCorp is a multinational manufacturing company operating primarily in North America and Europe. The Company’s operations are organized into three segments: GDX Automotive, Aerospace and Defense and Fine Chemicals. The Company’s GDX Automotive segment is a major automotive supplier, engaged in the development, manufacture and sale of highly engineered extruded and molded rubber and plastic sealing systems for vehicle bodies and windows for automotive original equipment manufacturers. The Aerospace and Defense segment includes the operations of Aerojet-General Corporation (Aerojet). Aerojet’s business primarily serves high technology markets that include Space and Strategic Rocket Propulsion and Tactical Weapons. Primary customers served include major prime contractors to the U.S. Government, the Department of Defense and the National Aeronautics and Space Administration (NASA). In addition, Aerojet has significant undeveloped real estate holdings in Sacramento, California. The Company’s real estate business is a component of its Aerospace and Defense segment. The Company’s Fine Chemicals segment consists of the operations of Aerojet Fine Chemicals LLC (AFC). AFC supplies special intermediates and active pharmaceutical ingredients primarily to commercial customers in the pharmaceutical industry. See Note 11 for financial information for the Company’s operating segments.

     See Note 3 for information related to the acquisition and disposition of businesses for the periods covered by this report.

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2. Restatement of Previously Issued Financial Statements

     In January 2002, the Company became aware of certain potential accounting issues at two of its GDX Automotive manufacturing plants in North America. The Company promptly notified both its Audit Committee and its independent accountants. Under the direction and oversight of the Audit Committee and with the assistance of outside legal advisors and accounting consultants, the Company conducted an inquiry into these and related accounting issues as well as a more complete evaluation of accounting practices and internal control processes throughout the Company. As a result of this process, due primarily to activities at one GDX Automotive manufacturing plant, the Company restated its previously issued financial statements for the years ended November 30, 2000 and November 30, 1999. Unaudited quarterly financial information for the first three quarters of the year ended November 30, 2001 was also restated.

     The revisions primarily arose from the correction of certain balance sheet and income statement items, which among other things, related to the accounting for customer-owned tooling and recognition of liabilities at one of the Company’s GDX Automotive manufacturing plants that the Company has determined were not properly recorded in the Company’s accounting records.

     Unless otherwise expressly stated, all financial information in this Quarterly Report on Form 10-Q is presented inclusive of these revisions.

Condensed Consolidated Statements of Income

								2001
		First Quarter						Second Quarter						Third Quarter
		Previously						Previously						Previously
		Reported*			Restated			Reported*			Restated			Reported*			Restated
					(Dollars in millions, except per share amounts)
Net Sales		$	353		$	353		$	410		$	410		$	356		$	356
Costs and Expenses
Cost of products sold			309			314			354			352			309			313
Selling, general and administrative			11			11			10			9			13			12
Depreciation and amortization			18			17			20			20			21			21
Interest expense			9			9			9			9			10			10
Other income, net			(1	)		(1	)		(3	)		(3	)		(5	)		(5	)
Foreign exchange gain			(11	)		(11	)		–			–			–			–
Restructuring charge			–			–			19			19			–			–
Unusual items, net			6			6			2			2			–			–
			341			345			411			408			348			351
Income (Loss) Before Income Taxes			12			8			(1	)		2			8			5
Provision (credit) for income taxes			(5	)		(6	)		(4	)		(3	)		3			2
	Net Income	$	17		$	14		$	3		$	5		$	5		$	3
Earnings Per Share of Common Stock
	Basic	$	0.39		$	0.33		$	0.08		$	0.12		$	0.12		$	0.07
	Diluted	$	0.39		$	0.33		$	0.08		$	0.12		$	0.12		$	0.07

* The amounts shown as previously reported for the first, second and third quarters of fiscal year 2001 are as reported in the Company’s Quarterly Report on Form 10-Q for those interim periods. These amounts were restated in the Company’s Annual Report on Form 10-K for the fiscal year ended November 30, 2001.

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3. Acquisitions and Disposition of Businesses

     On December 27, 2001, the Company reacquired the 40 percent minority ownership interest in AFC previously held by NextPharma Technologies USA Inc. (NextPharma) for approximately $25 million. The consideration included cash of $13 million and the return of the common stock in NextPharma’s parent company held by GenCorp, which represented approximately 31 percent of the common stock interest in that entity. As part of the transaction, other agreements between the two companies were terminated, including a comprehensive sales and marketing agreement. The sales and marketing agreement included minimum annual cash payments of approximately $3 million regardless of sales levels. With the termination of these agreements, AFC reassumed responsibility for sales, marketing and customer interface. The acquisition agreement also contains a provision for a contingent payment of up to $12 million in the event of a disposition of AFC by GenCorp on or before November 30, 2003.

     A net charge of $2 million resulted from a gain on the disposition of the common stock in NextPharma’s parent company held by GenCorp and a loss attributable to terminating the sales and marketing agreement. The net charge was considered an unusual item for financial reporting purposes in the first quarter of fiscal year 2002.

     Aerojet finalized the sale of its Electronic and Information Systems (EIS) business to Northrop Grumman Corporation (Northrop Grumman) for $315 million in cash on October 19, 2001, subject to certain working capital adjustments as defined in the agreement. In December 2001, Northrop Grumman proposed adjustments to the purchase price and in April 2002, the parties reached an agreement whereby Aerojet reduced the purchase price by approximately $6 million. A $3 million payment was paid in September 2002 and the remaining balance is due in December 2002. The EIS business had revenues of approximately $398 million and pre-tax income of approximately $30 million for the period from December 1, 2000 through October 19, 2001. The results of operations for EIS are included in the Company’s Aerospace and Defense segment for all periods presented in the Consolidated Statements of Income through the sale date. The pre-tax gain on the transaction after the April 2002 purchase price adjustment was $200 million.

     On December 29, 2000, the Company acquired The Laird Group Public Limited Company’s (The Laird Group) Draftex International Car Body Seals Division (the Draftex business or Draftex). An independent arbitrator decided certain adjustments to the purchase price of the Draftex business in February 2002. The Company and The Laird Group reached an agreement on the remaining purchase price adjustments in March 2002, resulting in a final purchase price of $205 million.

     Draftex is included as part of the Company’s GDX Automotive segment. As part of the transaction, 11 manufacturing plants in Spain, France, Germany, Czech Republic, China, and the U.S. were acquired. The acquisition was accounted for under the purchase method of accounting and the excess of cost over the fair value of the identified assets acquired and liabilities assumed was classified as goodwill. The allocation of purchase price included a reserve for certain anticipated exit costs, including involuntary employee terminations and associated benefits and facility closure costs of approximately $17 million. This restructuring plan was completed in December 2001.

     The Company entered into several forward exchange contracts related to the Draftex acquisition in December 2000. Settlement of these contracts, in December 2000, resulted in a pre-tax gain of $11 million. Other than this transaction, the Company has not entered into any significant foreign currency forward exchange contracts or any other transaction involving derivative financial instruments.

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4. Earnings Per Share of Common Stock

     A reconciliation of the numerator and denominator used to calculate basic and diluted earnings per share of common stock (EPS) is presented in the following table (dollars in millions, except per share amounts; shares in thousands):

		Three months ended August 31				Nine months ended August 31
		2002		2001		2002		2001
Numerator for Basic EPS
	Net income	$	8	$	3	$	17	$	22
Numerator for Diluted EPS
	Net income	$	8	$	3	$	17	$	22
	Interest on convertible notes		1		–		–		–
		$	9	$	3	$	17	$	22
Denominator for Basic EPS
	Weighted average shares of common stock outstanding		42,919		42,254		42,788		42,134
Denominator for Diluted EPS
	Weighted average shares of common stock outstanding		42,919		42,254		42,788		42,134
	Employee stock options		320		538		410		364
	Convertible Notes		8,143		–		–		–
	Other		–		–		–		46
			51,382		42,792		43,198		42,544
Basic EPS		$	0.19	$	0.07	$	0.40	$	0.52
Diluted EPS		$	0.19	$	0.07	$	0.40	$	0.51

     The effect of the conversion of the Company’s $150 million convertible subordinated notes into common stock was not included in the computation of diluted earnings per share for the nine months ended August 31, 2002 because the effect would be antidilutive for the period. These notes are convertible at an initial conversion rate of 54.29 shares per $1,000 outstanding. See Note 7.

5. Inventories

	August 31,			November 30,
	2002			2001
	(Millions)
Raw materials and supplies	$	35		$	31
Work-in-process		24			20
Finished goods		9			17
Approximate replacement cost of inventories		68			68
LIFO reserves		(4	)		(5	)
		64			63
Long-term contracts at average cost		153			245
Progress payments		(33	)		(141	)
Inventories	$	184		$	167

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6. Property, Plant and Equipment

		August 31			November 30
		2002			2001
		(Millions)
Land		$	39			$	37
Buildings and improvements			285				277
Machinery and equipment			670				629
Construction-in-progress			42				26
			1,036				969
Less: accumulated depreciation			(583	)			(515	)
	Total property, plant and equipment, net	$	453			$	454

7. Long-term Debt

		August 31			November 30
		2002			2001
		(Millions)
Revolving credit facility		$	60			$	120
Term loan A			76				88
Convertible subordinated notes			150				—
Other			6				6
	Total debt		292				214
Less: amounts due within one year			(20	)			(17	)
	Long term debt	$	272			$	197

     Credit Facility

     On December 28, 2000, the Company entered into a five-year, senior credit facility (Credit Facility) which provides for a revolving credit facility and a Term Loan A. As of August 31, 2002, the available borrowing limit under the revolving credit facility was $137 million (excluding outstanding letters of credit of $22 million), of which the Company had drawn-down $60 million. The average interest rate on the outstanding balance of the revolving credit facility was 4.6 percent as of August 31, 2002. As of August 31, 2002 the outstanding Term Loan A balance was $76 million and the interest rate was 4.4 percent. As of August 31, 2002, pursuant to Amendment No. 2, the scheduled repayments remaining on Term Loan A are ten equal quarterly principal payments of $5 million through December 2004, and four equal quarterly payments of $7 million through December 2005. The quarterly principal repayment dates for Term Loan A are March 28, June 28, September 28, and December 28 along with associated interest payments.

     On February 28, 2002, the Company amended the Credit Facility to provide an additional $25 million term loan (Term Loan C). The $25 million was repaid on April 5, 2002. The Company does not have the ability to re-borrow these funds

     Subsequent to the end of the third quarter, on October 2, 2002, the Company amended and restated its Credit Facility. The restatement provides for a new Term Loan B in the amount of $115 million. Proceeds of the Term Loan B were used to finance the acquisition discussed in Note 14 Subsequent Events, and repay revolving loans outstanding under the Credit Facility. Repayments of Term Loan B consist of 13 quarterly payments of $287,500 through December 2005, four quarterly payments of $8 million through December 2006 and a balloon payment of $79 million due in

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March 2007. The maturity of Term Loan B may be extended to June 2009 upon repayment of the Convertible Subordinated Notes discussed below.

     Convertible Subordinated Notes

     On April 5 and April 17, 2002, GenCorp sold $150 million aggregate principal amount of its 5.75 percent Convertible Subordinated Notes (Notes) due 2007 in a private placement pursuant to Rule 144A under the Securities Act of 1933. The Notes are initially convertible into 54.29 shares of the Company’s Common Stock per $1,000 principal amount of Notes at any time on or after 90 days following the date on which the notes were originally issued. Interest accrues on the Notes at a rate of 5.75 percent per annum payable October 15 and April 15. The Notes are redeemable at the option of the holder upon a change of control and at the option of the Company if the closing price of the Company’s Common Stock exceeds 125 percent of the conversion price then in effect for at least 20 trading days within a period of 30 consecutive trading days ending on the trading day before the day of the mailing of the optional redemption notice. The Notes are general unsecured obligations of the Company and rank junior in right of payment to all of the Company’s other existing and future senior indebtedness, including all of its obligations under its Credit Facility.

     Issuance of the Notes generated net proceeds of $144 million. The Company used $25 million of the net proceeds to repay in full Term Loan C and $119 million to repay outstanding debt under the revolving credit facility. Amounts repaid against the outstanding debt under the revolving credit facility may be reborrowed at any time or from time to time and may be used for any purpose, subject to the limits contained in the Credit Facility.

8. Commitments and Contingencies

a.   Legal proceedings

     From time to time, GenCorp and its operating subsidiaries are subject to various legal proceedings, including litigation in federal and state courts, which arise out of, and are incidental to the ordinary course of business. The Company is also subject to governmental investigations by various state and federal agencies. While the Company cannot predict the outcome of such proceedings with any degree of certainty, the potential liabilities that may result could have a material adverse effect on its financial position or the results of operations.

     Groundwater Cases

     Along with other industrial Potentially Responsible Parties (PRPs) and area water purveyors, Aerojet was sued in 17 cases by approximately 1,700 private plaintiffs residing in the vicinity of the defendants’ manufacturing facilities in Sacramento, California, and the Company’s former facility in Azusa, California. The Azusa cases have been coordinated for judicial proceedings in Los Angeles. The Sacramento cases have been stayed through December 2002. The individual plaintiffs generally seek damages for illness, death, and economic injury allegedly caused by their ingestion of groundwater contaminated or served by defendants, without specifying actual damages. Aerojet and other industrial defendants involved in the litigation are the subject of certain investigations under The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA), as described in Note 8(b) below.

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     The 17 cases are denominated as follows: Santamaria, et al. v. Suburban Water Systems, et al., Case No. KC025995 (CIV180894); Anderson, et al. v. Suburban Water Systems, et al., (Case No. KC028524); Brooks, et al. v. Suburban Water Systems et al., (Case No. KC032915); Alexander, et al. v. Suburban Water Systems, et al., (Case No. KC031130); Alvarado, et al. v. Suburban Water System (Case No. KC034953); Arenas v. Suburban Water Systems, et al. (Case No. KC037559); Adler, et al. v. Southern California Water Company, et al., (Case No. KC169892); Boswell, et al. v. Suburban Water Systems, et al., (Case No. KC027318); Celi, et al. v. San Gabriel Valley Water Company, et al., (Case No. GC020622); Criner, et al. v. San Gabriel Valley Water Company, et al., (Case No. GC021658); Demciuc, et al. v. Suburban Water Systems, et al., (Case No. KC028732); Dominguez, et al. v. Southern California Water Company, et al., (Case No. GC021657); Adams, Daphne et al. v. Aerojet-General Corporation, et al., (Case No. 98AS01025, Sacramento County Superior Court); Allen, et al. v. Aerojet-General Corporation, et al., (Case No. 97AS06295, Sacramento County Superior Court); and Pennington v. Aerojet-General Corporation, et al., (Case No. OOAS02622, Sacramento County Superior Court).

     On February 4, 2000, the California Supreme Court held that causes of action may not be filed against water purveyors regulated by the Public Utilities Commission (PUC) when the water purveyors served complied with state and federal drinking water standards (Hartwell Corporation vs. The Superior Court of Ventura County, 38 P. 3d 1098 (Cal. 2002). The Court further held that the claims against the PUC regulated defendants were barred where the federal and state water standards have been met. In addition, the court held that the claims against defendants not subject to PUC regulation were not preempted. The cases had been stayed pending investigation by the PUC; however, following the decision in Hartwell, two master complaints were filed in the proceedings and discovery was approved and is in process. The Company currently anticipates that the trial court in Los Angeles will hold an evidentiary hearing to determine whether the PUC regulated water entity defendants served water in violation of state or federal drinking water standards. Aerojet has notified its insurers, retained outside counsel and intends to conduct a vigorous defense against all claims.

     McDonnell Douglas Cost Recovery for Environmental Remediation Dispute

     As described in greater detail under Environmental Matters, McDonnell Douglas Corporation (MDC), an operating unit of the Boeing Corporation, and Aerojet are engaged in a dispute in federal court over the costs associated with the environmental contamination of the Inactive Rancho Cordova Test Sites (IRCTS). The IRCTS site was transferred by Aerojet to MDC and subsequently reacquired by the Company in 1984. The dispute involves the appropriate share of responsibility for environmental contamination by MDC and Aerojet, and therefore the extent of each company’s liability for the offsite perchlorate groundwater contamination identified near Mather Field. MDC has agreed it is liable and currently responsible for 50% of the cost of remediation. MDC and Aerojet are currently unable to agree as to the appropriate share of costs allocated to Aerojet for the remaining 50% of the costs anticipated under the orders to investigate and clean up the environmental contamination. A mediation session is scheduled for November 4, 2002.

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     Air Pollution Toxic Tort Cases

     Aerojet and more than 30 other defendants have been sued by private homeowners residing in the vicinity of Chino and Chino Hills, California. The cases have been consolidated and are pending in federal court — Baier, et al. v. Aerojet-General Corporation, et al., Case No. EDCV 00 618VAP (RNBx) U.S. District Court, Central District, CA; Kerr, et al. v. Aerojet-General Corporation, Case No. EDCV 01-19VAP (SGLx), U.S. District Court, Central District, CA; and Taylor, et al., v. Aerojet-General Corporation, et al., Case No. EDCV 01-106 VAP (RNBx), U.S. District Court, Central District, CA. Plaintiffs generally allege that defendants released hazardous chemicals into the air at their manufacturing facilities, which allegedly caused illness, death, and economic injury. Discovery is proceeding in the cases. Aerojet has notified its insurers and is vigorously defending the actions.

     Water Entity Cases

     In October 1999, Aerojet was sued by American States Water Company, a local water purveyor, and certain of its affiliates to recover $50 million in damages, including unspecified past costs and replacement water relating to contamination of drinking water wells near Aerojet’s Sacramento, California, manufacturing facility. The plaintiffs also sued the State of California for inverse condemnation and both cases were consolidated in July 2001. Discovery has been ongoing and trial is currently expected to occur in the spring or summer of 2003.

     Separately, between April 2000 and October 2001, six local water agencies and water purveyors sued Aerojet and other named defendants to recover damages relating to alleged contamination of drinking water wells in the Baldwin Park Operable Unit (BPOU) of the San Gabriel Basin Superfund (BPOU drinking water well law suits). The plaintiffs included the San Gabriel Basin Water Quality Authority (WQA), the Upper San Gabriel Valley Municipal Water District (Upper District), the Valley County Water District (Valley), the Cal Domestic Water Company and San Gabriel Valley Water Company who were seeking, among other things, funding for a water treatment plant at the La Puente Valley County Water District (La Puente) well field. In January 2001, Aerojet and certain cooperating potentially responsible parties (PRPs) reimbursed these plaintiffs and one other funding agency $4 million for the cost of the treatment plant. Since that time, Aerojet and the cooperating PRPs have continued to pay all operating and related costs for treatment at the La Puente site. The plaintiffs also sued to recover past costs in placing treatment facilities at the Big Dalton well site in the San Gabriel Basin. Plaintiffs claimed that Aerojet was responsible for contamination of their drinking water wells. While Aerojet was served in the case filed by Valley, the case has been inactive. The primary claim in these cases is for the recovery of past and future CERCLA response costs for treatment plants at plaintiffs’ well sites.

     All of the BPOU drinking water well law suits were settled and dismissed by the plaintiffs without prejudice on or about September 16, 2002. While plaintiffs’ claims against the Company have been dismissed, Aerojet has filed third party claims against certain of the PRPs that remain before the court. The settlement of plaintiffs’ claims was approved by the United States Environmental Protection Agency (EPA). The settlement agreement requires the cooperating PRPs to fund the construction, maintenance and operation of certain water treatment facilities and to reimburse certain costs of the various water purveyors under a Definitive Agreement. As a consequence, all the past cost claims in those actions are settled and released. (See note 8b.)

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     Aerojet has been advised that in mid-August 2002, four civil suits were filed in the U.S. District Court for the Central District of California that seek recovery of costs allegedly incurred in response to the contamination present at the South El Monte Operable Unit (SEMOU) of the San Gabriel Valley Superfund site. Aerojet was informed that two of the suits were filed by private drinking water purveyors, San Gabriel Valley Water Company and Southern California Water Company, and two were filed by local government agencies, San Gabriel Basin Water Quality and the City of Monterey Park. Aerojet has not been served with any of these complaints.

     Vinyl Chloride Toxic Tort Cases

     Between the early 1950’s and 1985, GenCorp produced PVC resin at its former Ashtabula, Ohio facility. A building block compound of PVC is vinyl chloride (VC), now listed as a known carcinogen by several governmental agencies. OSHA has strictly regulated workplace exposure to VC since 1974.

     Since 1996, GenCorp has been named in 17 toxic tort cases involving alleged exposure to VC. Five of these cases have been filed since May 2002. With the exception of one case, brought by the family of a former Ashtabula employee, GenCorp is alleged to be a “supplier/manufacturer” of PVC and/or a civil co-conspirator with other VC and PVC manufacturers. Plaintiffs allege that GenCorp suppressed information about the carcinogenic risk of VC to industry workers, and placed VC or PVC into commerce without sufficient warnings. Of these 17 cases, nine have been settled or dismissed on terms favorable to the Company, including the case where GenCorp was the employer (McKinley, et al. v. GenCorp Inc.). During the second quarter of 2002, Valentine, et al. v. PPG Industries of Ohio, Inc., et al., was voluntarily dismissed when Plaintiff could not establish any evidence of VC exposure. During the third quarter, 2002, another case, Mayor, et al. v. Ford Motor Co., Inc., et al., was dismissed on statute of limitations grounds. The dismissal has been appealed; however, the Company intends to defend the lower Court ruling.

     Of the remaining eight pending cases, there were three cases, Bland, et al. v. Air Products & Chemicals, Inc., et al., Jefferson County Dist. Ct. (Beaumont, TX), Case No. D-160,599; Meaux, et al. v. Accra-Pak, Inc., et al., Jefferson County Dist. Ct. (Beaumont, TX), Case No. D-166,971; and Parris v. Airco, Inc., et al., Duval County Cir. Ct. (Jacksonville, FL), Case No. 02-05955-CA, alleging VC exposure from various aerosol consumer products. (Parris was filed during the third quarter, 2002.) In these cases, VC is alleged to have been used as an aerosol propellant during the 1960’s, and the suits name numerous consumer product manufacturers, in addition to more than 30 chemical manufacturers. GenCorp used VC internally, but never supplied VC for aerosol or any other use. The other five cases, Bogner, et al. v. Airco, Inc., et al., U.S.D.C., C.D. Ill. (Peoria, IL), Case No. 02-1157, Frye, et al. v. Airco, Inc., et al., U.S.D.C., S.D. Miss. (Jackson, MS), Case No. 3:02CV462LN, Miller, et al. v. Air Products & Chemicals, Inc., Harris County Dist. Ct., 151^st Jud. Dist. (Houston, TX), Case No. 2002-39249, Taylor, et al. v. Airco, Inc., et al., U.S.D.C., D. Mass (Springfield, MA), Case No. CA-02-30014-KPN and Zerby v. Allied Signal, Inc., et al., Newcastle County Superior Ct. (Wilmington, DE), Case No. 00C-07-68 FSS, involve employees at VC or PVC facilities which had no connection to GenCorp. (Miller was also filed during the third quarter, 2002.) GenCorp’s involvement in the alleged conspiracy in these cases stems from GenCorp’s participation in various trade associations. GenCorp is vigorously defending its position in each of these cases.

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     TNS, Inc. v. NLRB et al.

     TNS, Inc., a wholly-owned subsidiary of Aerojet, is now known as Aerojet Ordnance Tennessee, Inc. (AOT). AOT has long manufactured armor piercing projectiles and ordnance from depleted uranium (DU) under contracts with the U.S. Department of Defense.

     In 1981, a labor strike occurred at the Jonesborough, Tennessee, facility during which the Oil, Chemical and Atomic Workers Union (Union) claimed that the employees had the legal right to strike due to “abnormally dangerous” working conditions under Section 502 of the National Labor Relations Act. The alleged “abnormally dangerous” conditions purportedly existed due to the radioactive nature of DU. The Union claimed this made the strike an “unfair labor practice strike,” which prevented permanent replacement of the 200 strikers. AOT replaced the strikers and, as a consequence, the Union filed its unfair labor practice charge with the National Labor Relations Board (NLRB) in 1982.

     In 1992, after extended proceedings before the NLRB, the Board found that AOT did not violate Section 502, and thus dismissed the complaint. The Union appealed the dismissal to the D.C. Circuit Court of Appeals (Case No. 93-1299), which remanded the case to the NLRB in 1995 for reconsideration of the standards to be applied in determining “abnormally dangerous” working conditions.

     On September 30, 1999, the NLRB held that AOT committed an unfair labor practice when it refused to reinstate striking workers that had made an unconditional offer to return to work if reinstated. AOT appealed the NLRB Order to the Sixth Circuit Court of Appeals (Case No. 99-6379). On July 10, 2002, the Sixth Circuit Court of Appeals reversed the NLRB. The appeals court held that the record in the litigation did not fully resolve the factual issue as to “abnormally dangerous” conditions in the plant, but at the same time, the NLRB’s delay in rendering its final decision more than 20 years later was “inexcusable” and no further proceedings were warranted. Therefore, the appeals court vacated the NLRB’s prior ruling against the Company. On October 8, 2002, the Union filed a petition for writ of certiorari with the U.S. Supreme Court, on the grounds that the Sixth Circuit Court had no authority to vacate the NLRB’s order due solely to the extensive delay in the final resolution of the proceedings. The Company will vigorously defend the judgment of the Sixth Circuit Court of Appeals before the Supreme Court.

     Wotus, et al. v. GenCorp Inc. and OMNOVA Solutions Inc.

     In October 2000, a group of hourly retirees filed a class action lawsuit naming GenCorp as a defendant. The retirees sought rescission of the then current Hourly Retiree Medical Plan established in spring 1994 and reinstatement of the pre-1994 benefit plan terms, in Wotus, et al. v. GenCorp Inc., et al., U.S.D.C., N.D. Ohio, (Case No. CV-2604). The crux of the dispute relates to Union and GenCorp negotiated modifications in retiree benefits that, in exchange for other consideration, now require retirees to make benefit contributions as a result of the cost caps implemented in fall, 1993. A retiree’s failure to pay contributions results in a termination of benefits.

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     The class representatives consist of three hourly retirees from the Jeannette, Pennsylvania facility of OMNOVA, the company spun-off from GenCorp on October 1, 1999, and one hourly retiree from GenCorp’s former Akron tire plant. The putative class encompasses all eligible hourly retirees formerly represented by the URW or USWA. The Unions, however, are not party to the suit and have agreed not to support such litigation pursuant to an agreement negotiated with GenCorp.

     The retirees also challenge the creation of the OMNOVA Plan, which has terms identical to the prior GenCorp Plan. The case is now before the court on cross motions for summary judgment. GenCorp prevailed in a similar class action filed in 1995, arising at its Wabash, Indiana location. Divine, et al. v. GenCorp Inc., U.S.D.C., N.D. Ind., (Case No. 96-CV-0394-AS). In this case, the parties have filed motions for summary judgment and briefing of the cross motions should be completed before November 2002. GenCorp and OMNOVA have given notice to their insurance carriers. GenCorp intends to vigorously defend against the retirees’ claims.

     OMNOVA has requested indemnification from GenCorp should plaintiffs prevail in this matter. GenCorp has denied this request. However, OMNOVA’s claim could ultimately be decided through binding arbitration pursuant to agreements entered into during the GenCorp-OMNOVA spin-off in 1999.

     Olin Corporation

     In August 1991, Olin Corporation (Olin) advised GenCorp that it believed GenCorp to be jointly and severally liable for certain Superfund remediation costs, estimated by Olin to be $70 million. The costs are associated with a former Olin manufacturing facility and its waste disposal sites in Ashtabula County, Ohio. In 1993, GenCorp sought a declaratory judgment in federal court that the Company is not responsible for such environmental remediation costs. Olin counterclaimed seeking a judgment that GenCorp is jointly and severally liable for a share of remediation costs. In July of 1999, the Court rendered its interim decision on liability, finding GenCorp 30 percent liable for remediation costs at “Big D Campground” landfill (Big D site) and 40 percent liable for remediation costs attributable to the Olin TDI facility, a plant built and operated by Olin near the Big D site.

     On May 9, 2002, the federal court issued a memorandum opinion stating that final judgment will be entered in Olin’s favor in the amount of approximately $19 million, plus prejudgment interest. The court gave the parties until June 8, 2002 to reach an agreement on the amount of prejudgment interest or until June 23, 2002 to submit their own calculations to the court in the event the parties could not agree.

     Because GenCorp believes that the court did not properly address the insurance issue in the memorandum opinion, GenCorp filed a motion for judgment on the pleadings and sought, among other things, relief based on Olin’s obligation to secure proceeds under its insurance coverage. In addition, the motion requested: (1) reconsideration of any ruling denying GenCorp relief on the insurance issues; and, (2) a stay of entry of final judgment pending complete relief with respect to GenCorp’s insurance related claims and defenses.

     On June 14, 2002, GenCorp asked the court to reconsider its conclusions regarding: (1) GenCorp’s liability for Olin’s costs at two offsite disposal sites and (2) whether award of prejudgment interest is mandatory in a CERCLA contribution action.

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     On September 5, 2002, Olin advised the court and GenCorp that on August 27, 2002, the U.S. District Court for the Southern District of New York had ruled that as a matter of law Olin had no insurance coverage for the Big D site. The federal court based its ruling on the fact that Olin had failed to timely notify the insurance carrier of its claim. Olin told the court it would appeal the insurance coverage decision and pressed the court to enter judgment in this case.

     GenCorp believes the ruling of the New York federal court is favorable to its legal arguments and is evidence that Olin has breached its insurance obligations to GenCorp. On September 13, 2002, GenCorp filed a “Motion Relating to the Entry of Judgment Against Olin in the New York Coverage Litigation,” asking the court to enter judgment as a matter of law in favor of GenCorp. In the alternative, GenCorp requested the court to order that Olin produce documents from the New York coverage litigation which are under seal and grant GenCorp an additional thirty days to be heard on this insurance issue. GenCorp is waiting for the court to rule on its motions and will appeal any adverse judgment issued by the court. If an adverse judgment is issued the Company will evaluate whether to adjust its reserves for this matter.

     The Company continues to vigorously litigate this matter and believes that it has meritorious defenses to Olin’s claims.

     Other Legal Matters

     The Company and its subsidiaries are subject to various other legal actions, governmental investigations, and proceedings relating to a wide range of matters in addition to those discussed above. In the opinion of management, after reviewing the information which is currently available with respect to such matters and consulting with the Company’s counsel, any liability which may ultimately be incurred with respect to these additional matters will not materially affect the consolidated financial condition of the Company. The effect of resolution of these matters on results of operations cannot be predicted because any such effect depends on both future results of operations and the amount and timing of the resolution of such matters.

b.   Environmental Matters

     Sacramento, California

     In 1989, a federal district court in California approved a Partial Consent Decree (Decree) requiring Aerojet to conduct a Remedial Investigation/Feasibility Study (RI/FS) of Aerojet’s Sacramento, California site. The Decree required Aerojet to prepare a RI/FS report on specific environmental conditions present at the site and alternatives available to remediate such conditions. Aerojet also is required to pay for certain governmental oversight costs associated with Decree compliance. Beginning in the mid 1990s, the State of California expanded its surveillance of perchlorate and nitrosodimethylamine (NDMA). Under the RI/FS, traces of these chemicals were detected in public water supply wells near Aerojet’s Sacramento site using new testing protocols.

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     Aerojet has substantially completed its efforts under the Decree to determine the nature and extent of contamination at the facility. Aerojet has preliminarily identified the technologies that will likely be used to remediate the site and it has estimated costs using generic remedial costs from Superfund remediation databases. Aerojet will continue to conduct feasibility studies to refine technical approaches and costs to remediate the site. The remediation costs are principally for design, construction, enhancement and operation of groundwater and soil treatment facilities, ongoing project management and regulatory oversight, and are expected to be incurred over a period of approximately 15 years. Aerojet is also addressing groundwater contamination both on and off its facilities through the development of an operable unit feasibility study. On August 19, 2002, the U.S. Environmental Protection Agency (EPA) issued an administrative order requiring Aerojet to implement the EPA approved remedial action for the Western Groundwater Operable Unit. A nearly identical order was issued by the California Regional Water Quality Control Board. A discussion of Aerojet’s efforts to estimate these costs is contained under the heading “Environmental Reserves and Estimated Recoveries.”

     On April 15, 2002, the United States District Court approved and entered a Stipulation and Order Modifying the Partial Consent Decree. Among other things, the Stipulation and Order removed approximately 2,600 acres of Aerojet’s property from the requirements of the Decree and from the Superfund site designation, enabling the Company to put the 2,600 acres to more productive use. The stipulated order also requires GenCorp to provide a $75 million guarantee to assure that remediation activities at the Sacramento site are fully funded; requires Aerojet to provide a short-term and long-term plan to replace lost water supplies; and divides the Superfund site into “Operable Units” to allow Aerojet and the regulatory agencies to more efficiently address and restore priority areas.

     Aerojet leased a portion of its Sacramento facility to Douglas Aircraft for rocket assembly and testing from 1957 to 1961 and sold approximately 3,800 acres, including the formerly leased portion, to Douglas Aircraft in 1961. Aerojet reacquired the property from the McDonnell Douglas Corporation (MDC), the successor to Douglas Aircraft and now an operating unit of the Boeing Corporation, in 1984. Both MDC and Aerojet were ordered to investigate and remediate environmental contamination by certain orders issued in 1991 and 1994 by the California Department of Toxic Substance Control (DTSC) and a similar 1997 order of the California Regional Water Quality Control Board (RWQCB). Aerojet filed suit against MDC to recover costs Aerojet incurred resulting from compliance with the orders (Aerojet-General Corporation v. McDonnell Douglas Corporation, et al., Case No. CVS 94-1862 WBS JFM). In 1999, Aerojet and MDC entered into a settlement agreement to allocate responsibility for a portion of the costs incurred under the orders and to eventually negotiate responsibility for the remaining costs. MDC subsequently brought suit against Aerojet alleging breach of the settlement agreement and seeking specific performance and declaratory relief. (McDonnell Douglas Corp., v. Aerojet General Corp., Civ.S-01-2245, in the U.S. District Court for the Eastern District of California filed December 7, 2001.) The alleged breach involves interpretation of the 1999 settlement agreement between MDC and Aerojet pertaining to the contribution by each company toward investigation and remediation costs ordered by the California Department of Toxic Substances Control (DTSC) and the California Regional Water Quality Control Board (RWQCB). DTSC and RWQCB issued their orders alleging both companies were responsible for environmental contamination allegedly existing at and migrating onto and from the IRCTS facility in Rancho Cordova, CA, an approximately 3,800 acre portion of Aerojet’s approximately 12,000 acre Sacramento facility.

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     Aerojet and MDC still do not agree on the allocation of costs required to address off-site groundwater contamination located on the adjacent Mather facility. The district court has ordered the parties to attempt to resolve the dispute without a trial. A mediation session is scheduled for November 4, 2002.

     San Gabriel Valley Basin, California

     Aerojet, through its former Azusa, California site, has been named by EPA as a PRP in the portion of the San Gabriel Valley Superfund Site known as the BPOU. A Record of Decision (ROD) regarding regional groundwater remediation was issued and Aerojet and 18 other PRPs received Special Notice Letters requiring groundwater remediation. All of the Special Notice PRPs are alleged to have contributed volatile organic compounds (VOCs). Aerojet’s investigation demonstrated that the groundwater contamination by VOCs is principally upgradient of Aerojet’s property and that lower concentrations of VOC contaminants are present in the soils of Aerojet’s presently and historically owned properties. EPA contends that of the 19 PRPs identified by EPA, Aerojet is one of the four largest sources of VOC groundwater contamination at the BPOU. Aerojet contests the EPA’s position regarding the source of contamination and the number of responsible PRPs. Aerojet has participated in a steering committee comprised of 14 of the PRPs.

     In May 1997, as a result of the development of more sensitive measuring methods, perchlorate was detected in wells in the BPOU. More recently, NDMA was also detected using newly developed measuring methods. Suspected sources of perchlorate include Aerojet’s solid rocket development and manufacturing activities in the 1940s and 1950s, military ordnance produced by a facility adjacent to the Aerojet facilities in the 1940s, the burning of confiscated fireworks by local fire departments, and fertilizer used in agriculture. NDMA is a suspected byproduct of liquid rocket fuel activities by Aerojet in the same time period. It is also a contaminant in cutting oils used by many businesses and is found in many foods. In addition, new regulatory standards for a chemical known as 1,4 dioxane require additional treatment. Aerojet may be a minor contributor of this chemical. Aerojet is in the process of developing new, low cost technologies for the treatment of perchlorate, NDMA and 1,4 dioxane.

     On September 10, 1999, 11 of the 19 Special Notice PRPs, including Aerojet (the Offering Parties), submitted a Good Faith Offer to EPA to implement an EPA-approved remedy, which was accepted by the agency as a basis for negotiating a Consent Decree. The remedy, as proposed, would employ low cost treatment technologies being developed by Aerojet to treat perchlorate, NDMA, and 1,4 dioxane, as well as traditional treatment for VOCs. The Offering Parties continued negotiations with the court-appointed Watermaster and local water purveyors regarding an agreement that would provide for use of the remediation project’s treated water. Due to lack of progress in the negotiations, on June 30, 2000, EPA issued a Unilateral Administrative Order (UAO) ordering the PRPs to implement a remedy consistent with the ROD, but still encouraging the PRPs to attempt to negotiate an agreement with the local purveyors. The PRPs agreed to comply.

     On November 23, 1999 the California Regional Water Quality Control Board (Regional Board) issued orders to Aerojet and other PRPs to conduct groundwater investigations on their respective sites. As a result, the Regional Board ordered Aerojet to conduct limited soil gas extraction, which Aerojet is implementing, and evaluation of remedies for perchlorate contamination in soils.

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     In January 2001, a Memorandum of Understanding (MOU) was executed by eight of the Special Notice PRPs, including Aerojet, and the Watermaster and certain local water purveyors to resolve controversies between them and to provide for the implementation of the EPA approved remedy for the BPOU. The MOU provided for an interim allocation agreement among the eight PRPs pending completion of a final allocation procedure.

     Following extended negotiations, Aerojet, along with seven other PRPs (collectively, the “Cooperating Respondents”) signed a Project Agreement in late March 2002 with Water Quality Authority (WQA), Watermaster, Valley County Water District, La Puente Valley Water District, San Gabriel Valley Water Company, Suburban Water Systems and California Domestic Water Company (collectively, the “Water Entities”). The Project Agreement became effective on May 9, 2002, following approval by a California Superior Court and the finalization of policy language on the $100 million Baldwin Park Operable Unit Manuscript Environmental Site Liability Policy from Chubb Custom Insurance Company covering certain Project risks.

     The basic structure of the Project Agreement is for the Cooperating Respondents to fund and financially assure (in the form of cash or letters of credit) the cost of certain treatment and water distribution facilities to be owned and operated by the Water Entities. Actual funding would be provided by funds placed in escrow at the start of each three-month period to cover anticipated costs for the succeeding quarter.

     The Cooperating Respondents will also fund operation and maintenance of treatment facilities (not including ordinary operating expenses of the local water purveyors, certain costs for replacement water that may be incurred by such Water Entities and related administrative costs, collectively, “O&M” costs). The Cooperating Respondents are required to maintain sufficient financial assurance to cover the estimated O&M for two years. Actual O&M payments would be made at the start of each three-month period to cover anticipated costs for the succeeding six-month period. When fully constructed, six treatment facilities will be treating in excess of 25,000 gallons per minute for the purposes of ROD implementation and to provide potable water supply. The Project Agreement has a term of 15 years. The Project Agreement also settles the past environmental claims of the Water Entities.

     Aerojet and the other Cooperating Respondents have entered into an interim allocation agreement that establishes the interim payment obligations of Aerojet and the remaining Cooperating Respondents for the costs of the Project Agreement. Aerojet anticipates that the parties may seek to mediate final allocation, but, if unsuccessful, litigation could occur. Aerojet is responsible for approximately two-thirds of all project costs, pending completion of any allocation proceeding. All project costs are subject to reallocation among the Cooperating Respondents.

     The total non-recurring cost of all the projects, including costs already incurred, is estimated at approximately $116 million. The total project cost (including non-recurring costs and operation and maintenance costs), is estimated to be approximately $295 million. (A discussion of Aerojet’s efforts to estimate these costs is contained below under the heading “Environmental Reserves and Estimated Recoveries.”) Based upon Aerojet’s interim allocation and taking into account funds that Aerojet has already paid, this would require future funding by Aerojet of approximately $143 million over the 15 years term of the agreement. A significant amount of public funding is available to offset project costs. To date, Congress has appropriated approximately $40 million (so called Title 16 and Dreier funds), which is potentially available for payment of project costs. All such funding will require Water Quality Authority (WQA) action to allocate funds to the project, which the WQA is currently considering. Based upon WQA preliminary actions to date, Aerojet anticipates that at least $25 million of the funding

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will be allocated to the project in 2002 or 2003 and that additional funds may follow in later years.

     As part of the EIS sale to Northrop Grumman in October 2001, EPA approved a Prospective Purchaser Agreement with Northrop Grumman to absolve it of pre-closing liability for contamination caused by the Azusa facility, which liability will remain with Aerojet. As part of that agreement, Aerojet agreed to put $40 million into an irrevocable escrow for the BPOU project to implement the EPA UAO, and GenCorp agreed to provide a $25 million guarantee for Aerojet’s share of remediation costs in the BPOU. The $40 million is being used to fund Aerojet’s obligations under the Project Agreement and the funds not already expended for that purpose have been transferred to the escrow under the Project Agreement to pay Aerojet’s share of future non-recurring costs and O&M. A separate $9 million payment was made by Aerojet to EPA for its past costs. EPA will maintain these funds for possible use on the BPOU project.

     As part of the agreement to sell the EIS business to Northrop Grumman, Aerojet has paid EPA $9 million to be offset against Aerojet’s share of EPA’s claimed past costs of approximately $22 million. A very substantial share of EPA’s past costs related to the period prior to 1997 when the sole contamination being considered involved VOCs. Aerojet believes that it is responsible for less than ten percent of these costs. As a result, in the allocation with the other PRPs, Aerojet will seek to recover a significant portion of the $9 million paid to EPA from the other PRPs. Unresolved at this time is the issue of California’s past costs which were last estimated at approximately $4 million.

     Aerojet intends to defend itself vigorously to assure that it is appropriately treated with other PRPs and that costs of any remediation are properly spread over all users of the San Gabriel Valley aquifer. In addition, Aerojet is also pursuing its insurance remedies.

     On November 9, 2001, GenCorp received a General Notice Letter from EPA asserting that GenCorp is a PRP for the BPOU. This General Notice Letter was received more than ten years after the General Notice given to GenCorp’s subsidiary, Aerojet. EPA alleged that in the 1940s and early 1950s GenCorp’s predecessor, The General Tire & Rubber Company, participated in a joint venture with Aerojet Engineering Corporation, a predecessor to Aerojet-General Corporation, sharing 50 percent of the profits on certain U.S. Navy contracts for JATO rockets and that it had some role in managing the joint venture at the Azusa facility. GenCorp strongly disagrees with EPA designation. EPA is factually incorrect; at all times, Aerojet was the sole party that owned or operated the Azusa site during the early production of the JATO rockets. GenCorp strongly disagrees with EPA’s PRP designation and plans to resist the designation at every level possible.

     On February 28, 2002, EPA issued a unilateral First Amended Administrative Order For Remedial Design and Remedial Action (Amended Order) for the BPOU. The Amended Order does not materially alter the obligations of Aerojet under the earlier UAO; however, the Amended Order names GenCorp as a Respondent on the basis of the allegations made in the General Notice Letter. The Amended Order does not require GenCorp to undertake any action unless Aerojet fails to perform its obligations under the UAO. It states that GenCorp is being added to the Amended Order “as a backup” to Aerojet’s performance; and it provides that GenCorp is deemed to be in compliance with the Amended Order on the effective date of the Amended Order. Because GenCorp does not believe it was properly designated a PRP at the site, the Company is evaluating an appropriate response to the Amended Order.

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     El Monte, California

     On December 21, 2000, Aerojet received an order from the Los Angeles Region office of the California Regional Water Quality Control Board (the Regional Board) requiring a work plan for investigation of Aerojet’s former El Monte facility. On January 22, 2001, Aerojet filed an appeal of the order with the Regional Board asserting selective enforcement. The appeal is in abeyance pending negotiations with the Regional Board. In March 2001, Aerojet submitted a limited work plan to the Regional Board in light of the Regional Board’s failure to adequately seek similar investigations by lessees and owners of the facility following Aerojet’s ownership. On February 21, 2001, Aerojet received a General Notice Letter from EPA Region IX naming Aerojet as a PRP to the SEMOU of the San Gabriel Valley Superfund site. Aerojet continues to negotiate with the Regional Board for a limited investigation of this former facility. Aerojet has begun the process of obtaining access agreements should the Regional Board approve Aerojet’s work plan.

     On April 1, 2002, Aerojet received a special notice letter from EPA (dated March 28, 2002) that requested that Aerojet enter into negotiations with EPA regarding the performance of a remedial design and remedial action for the SEMOU. In light of this letter, Aerojet performed a limited site investigation of the East Flair Drive Site. The data collected and summarized in the Field Investigation Report showed that chemicals including TCE and PCE were present in the soil and groundwater at and near the East Flair Drive Site. The Field Investigation Report also showed that the hydraulic gradient at the East Flair Drive Site is oriented toward the northeast. This finding indicates that the site is not a likely source of contamination at the SEMOU, as the ground water flow at the site is away from the SEMOU and not toward it. In light of the data indicating that the East Flair Drive Site is not a source of the contamination at the SEMOU, Aerojet requested that EPA reconsider its issuance of the SEMOU special notice letter.

     To date, Aerojet has not received a response to the Field Investigation Report from either the Regional Board or EPA. Aerojet continues to work cooperatively with the Regional Board for a limited investigation of the East Flair Drive Site and with EPA regarding the SEMOU.

     Aerojet was informed that in mid-August 2002, four civil suits were filed in the U.S. District Court for the Central District of California that seek recovery of costs allegedly incurred in response to the contamination present at the SEMOU. Aerojet was informed that two of the suits were filed by private drinking water purveyors, San Gabriel Valley Water Company and Southern California Water Company, and two were filed by local government agencies, the San Gabriel Basin Water Quality Authority and the City of Monterey Park. Aerojet has not been served with any of these complaints.

     Other Sites

     The Company has studied remediation alternatives for its closed Lawrence, Massachusetts facility, which was contaminated with PCBs, and has begun site remediation and off-site disposal of debris. Estimates of future remediation costs could range from $10 million to as high as $37 million depending on the results of future testing and the ultimate remediation alternatives undertaken at the site. The time frame for remediation is currently estimated to range from three to five years.

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     The Company is also currently involved, together with other companies, in approximately 21 other Superfund and non-Superfund remediation sites. In many instances, the Company’s liability and proportionate share of costs have not been determined largely due to uncertainties as to the nature and extent of site conditions and the Company’s involvement. While government agencies frequently claim PRPs are jointly and severally liable at such sites, in the Company’s experience, interim and final allocations of liability costs are generally made based on relative contributions of waste. Based on the Company’s previous experience, its allocated share has frequently been minimal, and in many instances, has been less than one percent. Also, the Company is seeking recovery of its costs from its insurers.

Environmental Reserves and Estimated Recoveries

     Estimating environmental remediation costs is difficult due to the significant uncertainties inherent in these activities, including the extent of the remediation required, changing governmental regulations and legal standards regarding liability, evolving technologies and the long periods of time over which most remediation efforts take place. The Company accounts for identified or potential environmental remediation liabilities in accordance with the American Institute of Certified Public Accountants’ Statement of Position 96-1, “Environmental Remediation Liabilities” (SOP 96-1) and Staff Accounting Bulletin No. 92, “Accounting and Disclosure Relating to Loss Contingencies.” The Company accrues for costs associated with the remediation of environmental pollution when it becomes probable that a liability has been incurred, and its proportionate share of the costs can be reasonably estimated.

     (i)  Reserves

     Since 1991, management has periodically prepared complete reexaminations of the estimated future remediation costs that could be incurred by the Company. These periodic reexaminations take into consideration the investigative work and analysis of the Company’s engineers, engineering studies performed by outside consultants, and the advice of its legal staff and outside attorneys regarding the status and anticipated results of various administrative and legal proceedings. In some cases only a range of reasonably possible costs can be estimated. In establishing the Company’s reserves, the most probable estimate amount is used when determinable and the minimum is used when no single amount is more probable.

     As disclosed in the Company’s Form 10Q filed with the Securities and Exchange Commission for the three months ended May 31, 2002, the Company planned to complete in the third quarter its most recent periodic reexamination (tri-annual “bottom-up” environmental remediation cost evaluation) of estimated future environmental costs. That review was based on a range of technical information and reasonable scientific assumptions, which incorporated, but are not limited to the following: (i) environmental engineering studies to determine the scope of possible remediation scenarios and related cost estimates based on currently available technologies and current regulatory requirements; and, (ii) assumptions based on current regulatory practices. In addition, other environmental events occurred during the third quarter of 2002, including receipt of EPA’s Unilateral Administrative Order to implement remedial actions for the Western Groundwater Operable Unit in Sacramento and the status of the dispute between Aerojet and MDC involving remediation of the IRCTS facility in Sacramento.

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     In light of the reexamination of estimated future remediation costs and based on events occurring in the third quarter, the Company increased its reserves for environmental costs by $107 million to a total of $323 million. The $107 million reserve increase is the net result of a number of decreases and increases in previous cost estimates. Decreases result from: (i) status of work completed since the last estimate in 1999; and, (ii) expected cost savings related to the substitution of new remediation technology and to information not available previously. Increases include additions for: (i) obligations for reimbursement of regulatory agency past costs; (ii) additional BPOU costs; (iii) Western Groundwater UAO costs including replacement water and remediation upgrades; (iv) estimated revisions related to the IRCTS site and to the periodic reexamination of estimated future environmental costs of Aerojet’s Sacramento site; (v) new information related to the extent and location of previously identified contamination; and (vi) additional construction contingencies.

     A summary of the Company’s environmental reserve activity is shown below (in millions):

		November 30, 2001							August 31, 2002
		Reserve		Additions		Expenditures			Reserve
Aerojet		$	252	$	107	$	(36	)	$	323
Other Sites			27		–		(4	)		23
	Total	$	279	$	107	$	(40	)	$	346

     (ii)  Estimated Recoveries

     On January 12, 1999, Aerojet and the U.S. Government implemented the October 1997 Agreement in Principle (“Global Settlement”) resolving certain prior environmental and facility disagreements, with retroactive effect to December 1, 1998. The Global Settlement covered all environmental contamination at the Sacramento and Azusa sites. Under the Global Settlement, Aerojet and the U.S. Government resolved disagreements about an appropriate cost-sharing ratio. The Global Settlement contemplates that the cost-sharing ratio will continue for a substantial number of years.

     Pursuant to the Global Settlement covering environmental costs associated with Aerojet’s Sacramento and Azusa operating sites, the Company can recover up to 88% of its environmental remediation costs for these sites through the establishment of prices for Aerojet’s products and services sold to the U.S. Government. The ability of Aerojet to continue recovering these costs from the U.S. Government depends on Aerojet’s sustained business volume under U.S. Government contracts and programs and the relative size of Aerojet’s commercial business.

     Aerojet entered into an agreement with Northrop Grumman in conjunction with the sale of EIS, whereby Aerojet will be reimbursed by Northrop Grumman for 50% of environmental expenditures eligible for recovery under the Global Settlement. Amounts reimbursed are subject to annual limitations, with excess amounts carrying over to subsequent periods, the total of which will not exceed $190 million over the term of the agreement, which ends in 2028. As of August 31, 2002, $181 million in potential future reimbursements was available over the remaining life of the agreement.

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     In conjunction with the review of its environmental obligations the Company also revised its estimate of costs that will be recovered under the Global Settlement, increasing its estimated cost recoveries in the third quarter to $235 million from $142 million at the end of the second quarter. The adjustments to the environmental remediation reserves and estimated future cost recoveries did not affect operating results in the third quarter as the impact of increases to the reserves was offset by estimated increased recoveries in the future. Aerojet’s historical environmental cost recovery has been higher than that reflected in its previous recovery estimates. The Company believes that, due to the proportion of Aerojet’s business expected to be conducted under contracts with the U.S. Government and its agencies in the future, its environmental cost recoveries will continue to be higher than previously estimated.

     (iii)  Environmental Reserves and Estimated Recoveries

     The Company’s net environmental obligation, the excess of environmental reserves over expected cost recoveries, was $111 million as of August 31, 2002 and May 31, 2002. The effect of the final resolution of environmental matters and the Company’s obligations for environmental remediation and compliance cannot be predicted due to the uncertainty concerning both the amount and timing of future expenditures due to regulatory or technological changes. However, management believes, on the basis of presently available information, that the resolution of environmental matters and the Company’s obligations for environmental remediation and compliance will not have a material adverse effect on the Company’s results of operations, liquidity or financial condition. The Company will continue its efforts to mitigate past and future costs through pursuit of claims for recoveries from insurance coverage and other PRPs and continued investigation of new and more cost effective remediation alternatives and associated technologies.

     9. Shareholders’ Equity

     On July 12, 2002, the Company’s Board of Directors declared a quarterly dividend of three cents per share on the Company’s ten cents par value common stock. The dividends were paid on August 30, 2002.

     10.     Accumulated Other Comprehensive Income, Net of Income Taxes

     Comprehensive income encompasses net income and other comprehensive income items, which includes all other non-owner transactions and events that change shareholders’ equity. The Company’s other comprehensive loss includes the effects of foreign currency translation adjustments. The components of other comprehensive income and the related income tax effects are presented in the following table:

		Three months ended August 31				Nine months ended August 31
		2002		2001		2002		2001
		(Millions)				(Millions)
Net income		$	8	$	3	$	17	$	22
Other comprehensive income, net of income taxes: effects of foreign currency translation adjustments			9		12		19		(2	)
	Total comprehensive income	$	17	$	15	$	36	$	20

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11. Operating Segments and Related Disclosures

     The Company’s continuing operations are organized into three segments based primarily on the types of products and customers: GDX Automotive, Aerospace and Defense, and Fine Chemicals. See Note 1 for additional information related to the Company’s operating segments.

     The Company evaluates segment performance based on several factors, of which the primary financial measure is segment operating profit. Segment operating profit represents net sales from continuing operations less applicable costs, expenses and provisions for restructuring and unusual items relating to operations. Segment operating profit also excludes corporate income and expenses, provisions for unusual items, interest expense, income taxes and any minority interest. See Note 12 related to unusual items reflected in the Company’s financial results and Note 3 related to the acquisition of Draftex in December 2000, Aerojet’s sale of its EIS business in October 2001 and GenCorp’s reacquisition of the minority ownership interest in AFC in December 2001.

			Three months ended August 31,						Nine months ended August 31,
			2002			2001			2002			2001
			(Millions)						(Millions)
Net Sales
	GDX Automotive		$	190		$	190		$	589		$	598
	Aerospace and Defense			63			161			201			511
	Fine Chemicals			13			5			28			10
			$	266		$	356		$	818		$	1,119
Income (Loss) Before Income Taxes
	GDX Automotive		$	5		$	(5	)	$	25		$	(2	)
	Aerospace and Defense			14			30			44			86
	Fine Chemicals			3			(6	)		(1	)		(15	)
	Segment restructuring charges			–			–			–			(19	)
	Segment unusual items			–			–			(6	)		(9	)
		Segment operating profit		22			19			62			41
	Interest expense			(4	)		(10	)		(11	)		(28	)
	Corporate, other expenses and foreign exchange gains and losses			(6	)		(4	)		(21	)		1
	Other unusual items			–			–			(3	)		1
			$	12		$	5		$	27		$	15

12. Restructuring and Unusual Items, Net

     In April 2002, as discussed in Note 3, Aerojet reached an agreement with Northrop Grumman on purchase price adjustments related to the sale of its EIS business whereby Aerojet reduced the purchase price by approximately $6 million. The purchase price reduction was recorded as an unusual expense item in segment operating profit for the second quarter of 2002. The Company recorded an unusual expense item of $1 million in the second quarter of 2002 for the write-off of bank fees associated with the termination of Term Loan C.

     In December 2001, as discussed in Note 3, the Company reacquired the minority ownership interest in its AFC subsidiary and certain agreements between AFC and the minority ownership interest holder were terminated. The net result of the transaction was an unusual expense item of $2 million in the first quarter of 2002.

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     The Company recorded a charge in earnings from continuing operations of $19 million during the second quarter of 2001 related to a restructuring and consolidation of its GDX Automotive segment. The restructuring program included the closure of the Marion, Indiana and Ballina, Ireland manufacturing facilities and resulted in the elimination of approximately 760 employee positions. The decision to close these facilities was precipitated by excess capacity and deterioration of performance and losses at these sites. The decision to close the Ballina, Ireland plant was also due to difficulty in retaining plant personnel in light of record employment levels in the region. Remaining programs from these facilities were transferred to other facilities.

     During the second quarter of 2001, the Company settled outstanding claims with the Internal Revenue Service and the State of California. The benefit of the tax refund, $4 million on an after tax basis, was recorded in the income tax provision in the second quarter. The portion of the tax refunds that will be repaid to the Company’s defense customers is reflected as an unusual expense item of $2 million in segment income ($1 million after tax). Accordingly, after repayment to the Company’s defense customers, the Company will retain $3 million of the claims settled in the second quarter.

     Similarly, during the first quarter of 2001, the Company reached a settlement with the State of California on an outstanding tax claim. The benefit of the tax refund, $9 million on an after tax basis, was recorded in the income tax provision in the first quarter. The portion of the tax refund that will be repaid to the Company’s defense customers is reflected as an unusual expense item of $7 million in segment income ($4 million after tax). Accordingly, after repayment to the Company’s defense customers, the Company will retain $5 million of the claims settled in the first quarter.

     In the first quarter of 2001, the Company received a $2 million insurance settlement for an environmental claim related to discontinued operations.

13. New Accounting Pronouncements

     Effective July 1, 2001, the Company adopted the provisions of SFAS No. 141, “Business Combinations” (SFAS 141), which is effective for all business combinations initiated after June 30, 2001. SFAS 141 prohibits the use of the pooling-of-interest method for business combinations and establishes the accounting and financial reporting requirements for business combinations accounted for by the purchase method. SFAS 141 also changes the criteria to recognize intangible assets apart from goodwill. The Company adopted the provisions of SFAS No. 142, “Goodwill and Other Intangible Assets” (SFAS 142) effective December 1, 2001. Under SFAS 142, goodwill and indefinite lived intangible assets are no longer amortized but are reviewed annually, or more frequently if indications of possible impairment exist, for impairment. The Company has performed the requisite transitional impairment tests for goodwill and other intangible assets as of December 1, 2001 and has determined that these assets are not impaired as of that date. Annual impairment tests for goodwill and other intangible assets will be performed as of September 1, or as necessary if indicators of possible impairment are present. The adoption of SFAS 142 results in a reduction of annual amortization expenses of approximately $4 million related to goodwill and other indefinite lived intangible assets. Net income for the three and nine month periods ended August 31, 2001, adjusted to exclude amortization expense related to goodwill and other indefinite lived intangible assets would be $4 million and $25 million, respectively. The adoption of these standards did not have a material impact on the Company’s results of operations, liquidity or financial condition.

     In October 2001, the FASB issued SFAS No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets” (SFAS 144) that provides accounting guidance for financial accounting and reporting for the impairment or disposal of long-lived assets. The statement supercedes SFAS No. 121, “Accounting for the Impairment of Long-Lived Assets and for the Long-Lived Assets to be

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Disposed Of.” SFAS 144 also supersedes the accounting and reporting provisions of Accounting Principal Board’s Opinion No. 30, “Reporting the Results of Operations – Reporting the Effects of Disposal of a Segment of a Business, and Extraordinary, Unusual and Infrequently Occurring Events and Transactions” related to the disposal of a segment of a business. SFAS 144 is effective for fiscal years beginning after December 15, 2001, with early adoption encouraged. The Company has adopted the provisions of SFAS 144 as of December 1, 2001. The adoption of SFAS 144 did not have a material effect on the Company’s results of operations, liquidity or financial condition.

14. Subsequent Events

     On September 5, 2002, the Company’s Board of Directors declared a quarterly dividend of three cents per share on the Company’s ten cents par value common stock. The dividends are payable on November 29, 2002 to shareholders of record on November 1, 2002.

     On October 2, 2002, the Company announced that Aerojet had completed the acquisition of the assets of General Dynamics’ Ordnance and Tactical Systems Space Propulsion and Fire Suppression (“GDSS”) business. The cost of the acquisition was approximately $90 million, which was funded from the proceeds of a new term loan established in conjunction with the amended and restated Credit Facility described in Note 7.

     During October 2002, the Company announced a restructuring in the GDX Automotive segment. The plan includes closure of a plant in Germany, with existing production moving to another existing plant in Germany and a reduction in workforce at GDX Automotive headquarters in Farmington Hills, Michigan. A charge for the $2 million cost of the restructuring will be included in fourth quarter operating results.

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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

Forward-Looking Statements

     Certain information contained in this report should be considered “forward-looking statements” as defined by the Private Securities Litigation Reform Act of 1995. These statements present (without limitation) the expectations, beliefs, plans and objectives of management and future financial performance and/or assumptions underlying or judgments concerning matters discussed in this document. The words “believe,” “estimate,” “anticipate,” “project,” and “expect,” and similar expressions are intended to identify forward-looking statements. All forward-looking statements involve certain risks, estimates, assumptions and uncertainties with respect to future revenues and activity levels, cash flows, contract performance, the outcome of contingencies including environmental remediation, and anticipated costs of capital. In particular, this pertains to management’s comments on financial resources, capital spending and the outlook for each of the Company’s business segments.

     Some important risk factors that could cause the Company’s actual results or outcomes to differ from those expressed in its forward-looking statements include, but are not limited to, the following:

• General economic conditions and trends affecting the Company’s markets and product offerings;

• Changes in the short-term and long-term plans of major customers and potential customers;

• Intensified competition;

• Governmental policies and regulatory practices, including environmental regulations, and increases in the amount or timing of environmental remediation and compliance costs (see “Other Information – Environmental Matters” below);

• An unexpected adverse result or required cash outlay in the toxic tort cases, environmental or other litigation, or change in proceedings or investigations pending against the Company (see “Other Information – Environmental Matters” below and Notes 8(a) and 8(b) in Notes to Unaudited Condensed Consolidated Financial Statements included in Part I, Item 1 of this report);

• Potential liabilities which could arise from any release or explosion of dangerous or hazardous materials;

• Work stoppages at a Company facility or in the facility of one of the Company’s significant customers;

• Cost escalation and availability of power in Northern California;

• The ability of the Company to achieve the anticipated savings from ongoing restructuring and other financial management programs;

(list is continued on following page)

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(list is continued from previous page)

• Restrictions on the Company’s operating activities imposed from time to time by the agreements relating to its indebtedness;

• The Company’s ability to secure additional financing as needed (see “Liquidity and Capital Resources” below);

• The Company’s liquidity and financial condition will continue to be affected by changes in prevailing interest rates as a portion of its debt bears interest at variable rates;

• The Company’s acquisition, disposition and joint venture activities;

• The Company’s ability to complete development of Atlas V Solid Rocket Motors and begin production deliveries in 2003 is dependent on successful additional tests scheduled to be completed by year-end;

• The ability of the Company to maintain a high level of product performance, particularly related to the continued success of the Company’s launch vehicle platforms;

• A reduction in appropriations or other spending by the Department of Defense or NASA or other funding for aerospace and defense programs for which the Company is a supplier or competes for new business;

• The Company’s mix of fixed price and cost-plus contracts;

• Future funding for commercial launch vehicles and propulsion systems;

• Fluctuations in exchange rates of foreign currencies and other risks associated with foreign operations, particularly in the GDX Automotive segment, which delivers a significant amount of sales overseas;

• The ability of the Company to satisfy contract performance criteria;

• Vehicle sales and production rates of major automotive programs in the U.S. and abroad, particularly vehicles for which the Company supplies components;

• Pricing pressures from the Company’s major customers, particularly in the GDX Automotive segment;

• Adverse changes in foreign laws or regulations that impact European and other operations of GDX Automotive;

• An unexpected adverse decision in any patent infringement suit, or settlement of a patent infringement suit impacting the Company’s right to utilize technology, particularly in the Fine Chemicals segment;

• The ability of the Company to successfully complete the entitlement process for its real property and related pre-development activities for its real estate in Northern California and,

• The market for the Company’s real estate in Northern California.

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     Additional risk factors may be described from time to time in the Company’s filings with the SEC. All such risk factors are difficult to predict, contain material uncertainties that may affect actual results, and may be beyond the Company’s control.

Results of Operating Segments

     The following section pertains to activity included in the Company’s unaudited Condensed Consolidated Statements of Income, which are contained in Part I, Item 1 of this report, and focuses on the Company’s continuing operations. See Note 11 to the Unaudited Condensed Consolidated Financial Statements for financial results for each of the Company’s operating segments. This section also includes information related to unusual items included in the Company’s financial results.

Restatement of Previously Issued Financial Statements

     In January 2002, the Company became aware of certain potential accounting issues at two of its GDX Automotive manufacturing plants in North America. The Company promptly notified both its Audit Committee and its independent accountants. Under the direction and oversight of the Audit Committee and with the assistance of outside legal advisors and accounting consultants, the Company conducted an inquiry into these and related accounting issues as well as a more complete evaluation of accounting practices and internal control processes throughout the Company. As a result of this process, due primarily to activities at one GDX Automotive manufacturing plant, the Company restated its previously issued financial statements for the years ended November 30, 2000 and November 30, 1999. Unaudited quarterly financial information for the first three quarters of the year ended November 30, 2001 was also restated (see Note 2 in Notes to Unaudited Condensed Consolidated Financial Statements contained in Part I, Item 1 of this report). For additional information see Notes 2 and 12 in Notes to Consolidated Financial Statements included in Part II, Item 8 of the Company’s Annual Report on Form 10-K for the year ended November 30, 2001 filed with the SEC.

     The revisions primarily arose from the correction of (i) certain balance sheet and income statement items, which among other things, related to the accounting for customer-owned tooling, inventories and recognition of liabilities at one of the Company’s GDX Automotive manufacturing plants that the Company has determined were not properly recorded in the Company’s books and records; and (ii) an oversight in collecting data for the calculation for certain postretirement benefit liabilities at one of GDX Automotive’s non-U.S. facilities in the year ended November 30, 1996 with no material impact on fiscal years 1998 and 1997. At the direction of the Audit Committee of the GenCorp Board of Directors, the Company has implemented certain enhancements to its financial organization, systems and controls primarily at its GDX Automotive segment in response to issues raised by the restatement and identified by the Company’s independent accountants as material weaknesses.

     For the first nine months of fiscal year 2001, net income was reduced to $22 million from $25 million, basic EPS was reduced to $0.52 from $0.59 and diluted EPS was reduced to $0.51 from $0.58.

     Unless otherwise expressly stated, all financial information in this Quarterly Report on Form 10-Q is presented inclusive of these revisions.

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Anticipated Cost Savings from Restructuring Programs

     The Company continues to focus on cost-reduction initiatives in each of its operating segments as well as at the GenCorp corporate level. The Company announced a voluntary enhanced retirement program for certain employees in September 2001. During 2001, AFC’s workforce was reduced by approximately 40%. In December 2001, a comprehensive sales and marketing agreement between AFC and NextPharma was terminated (see related discussion below). In the GDX Automotive segment, as part of the Company’s strategy to realize synergies between its historical operations and those acquired with the acquisition of Draftex, four manufacturing facilities have been closed, three in fiscal 2001 and one in fiscal 2002. In addition, as recently announced, an additional facility will be closed in Germany.. The GDX Automotive segment is implementing “lean manufacturing” principles and other programs aimed at improving operational efficiency at the segment’s remaining manufacturing facilities. Since December 2000, GDX Automotive has eliminated approximately 1,600 full-time and temporary positions, including positions at GDX Automotive’s corporate headquarters.

GDX Automotive Segment

     On December 29, 2000, the Company acquired The Laird Group Public Limited Company’s (The Laird Group) Draftex International Car Body Seals Division (the Draftex business or Draftex). Draftex had revenues of $437 million for the year ended December 29, 2000. The sales added by the Draftex acquisition are primarily outside the U.S. See Note 3 in Notes to Unaudited Condensed Consolidated Financial Statements contained in Part I, Item 1 of this report for additional information related to the acquisition of the Draftex business, including a final adjustment to the purchase price recorded in March 2002.

     Net sales for the Company’s GDX Automotive segment totaled $190 million for the third quarter of fiscal 2002 and fiscal 2001. Net sales for the segment for the nine months ended August 31, 2002, decreased to $589 million from $598 million for the comparable period in the prior year. Year-to-date net sales are lower than the previous year due to $15 million in price adjustments offset by favorable exchange rate impacts of $4 million and $2 million in increased sales volumes. Net sales attributable to the Draftex business for the first nine months were $284 million in 2002 and $260 million in 2001. The results for Draftex for the first nine months of 2001 include eight months of activity subsequent to the acquisition date.

     The GDX Automotive segment recorded an operating profit of $5 million for the third quarter of fiscal 2002 versus an operating loss of $5 million for the comparable period in fiscal 2001. Operating margins were higher at three percent in the quarter compared to negative three percent for third quarter 2001 reflecting improved plant productivity driven by cost and personnel reductions. Operating profit for the nine months ended August 31, 2002 was $25 million compared to an operating loss of $2 million in 2001 with operating profit margins increasing to four percent as compared to a negative one percent in the first nine months of fiscal 2001. Overall improvement in operating margins reflects the impact of the restructuring that took place in 2001. During the first nine months of fiscal 2001, operating margins were negatively affected by pricing and volume mix issues and higher health care costs. Historically, GDX Automotive has experienced higher margins in its second and fourth quarters.

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Aerospace and Defense Segment

     Net sales for the Company’s Aerospace and Defense segment totaled $63 million for the third quarter of fiscal 2002 as compared to $161 million in the third quarter of 2001. Excluding results from Aerojet’s divested EIS business in October 2001, sales increased approximately $11 million due primarily to increased volume on its Divert and Attitude Control System programs. Net sales for the nine months ended August 31, 2002 were $201 million compared with $511 million in 2001 and reflects the impact of the EIS divestiture as described in more detail in Note 3 in Notes to Unaudited Condensed Consolidated Financial Statements. Excluding the results of the EIS business, net sales for the segment increased $39 million for the nine-month period ending August 31, 2002 as compared to the same period in 2001. Increased net sales are related to delivery of a NASA X-38 De-Orbit Propulsion Stage, increased volume on the COBRA booster engine and other NASA technology programs, assembly and electron beam welding of the forward boom in the aft fuselage for Boeing’s F-22 Raptor program.

     Operating profit for the Aerospace and Defense segment was $14 million for the third quarter of fiscal 2002. Operating profit for the segment was $30 million for the third quarter of fiscal 2001. Excluding the results of the EIS business and a decrease in net pension income, segment operating profit and associated margin increased from the comparable quarter in 2001. Operating profit for the nine months ended August 31, 2002 was $44 million compared with $86 million in 2001. Excluding the results of the EIS business and lower pension income, year-to-date operating profit for the segment increased as compared to the same nine-month period of fiscal 2001. The segment recorded approximately $18 million less pre-tax pension income for the first nine months of fiscal 2002 as compared with the same period of fiscal 2001, primarily due to the sale of EIS and declines in the market value of pension assets. See Note 8 in Notes to Consolidated Financial Statements included in Part II, Item 8 of the Company’s Annual Report on Form 10-K for the year ended November 30, 2001 filed with the SEC.

     Significant events during the quarter included the successful demonstration of Lockheed Martin’s Atlas V core launch vehicle, certain versions of which will eventually utilize Aerojet’s Solid Rocket Booster Motors, and a $43 million sole source contract award from Boeing Phantom works to develop “HyFly” dual combustion ramjet test flight engines for the Defense Advanced Research Projects Agency and Office of Naval Research. In addition, Aerojet received notice that, due to funding constraints, the customer will not exercise its option to extend the COBRA contract beyond September 2002. This change will not have a significant affect on Aerojet’s 2002 operating results or the 2003 business plan.

     On March 15, 2002, an Atlas V solid rocket motor undergoing testing experienced an anomaly which has undergone investigation by Aerojet and its customer Lockheed Martin. The review is complete and the required modifications have taken place. An additional test has been scheduled , and absent any unknown delays, qualification testing should be complete by year-end.

     As of August 31, 2002, Aerojet’s contract backlog was $563 million. The comparable amount as of August 31, 2001, excluding those programs that were part of the former EIS business, was approximately $738 million. Backlog in 2001 included orders from a commercial customer who was subsequently unable to raise additional required funding to complete the orders resulting in a decrease of $146 million in contract backlog during 2002. Funded backlog, which includes only the amount of those contracts for which money has been directly authorized by the U.S. Congress, or for which a firm purchase order has been received by a commercial customer, was approximately $350 million as

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of August 31, 2002. As of August 31, 2001, the comparable amount, excluding those programs that were part of the EIS business, was $376 million.

Fine Chemicals Segment

     The Fine Chemicals segment consists of the operations of AFC, a business that supplies final active pharmaceutical ingredients and registered intermediates to both pharmaceutical and biotechnology customers.

     In December 2001, the Company reacquired the 40 percent minority ownership interest in AFC held by NextPharma Technologies USA (NextPharma). As part of the transaction, other agreements between the two companies were terminated, including a comprehensive sales and marketing agreement (see related discussion above). With the termination of these agreements, AFC reassumed responsibility for sales, marketing and customer interface. See Note 3 in Notes to Unaudited Condensed Consolidated Financial Statements for additional information related to this transaction.

     The segment operating results for the Fine Chemicals segment for fiscal 2001 include the results of AFC before considering NextPharma’s 40 percent minority interest. The minority ownership position in AFC is reflected in the consolidated results for GenCorp as a component of corporate and other expenses through December 27, 2001, the date GenCorp reacquired NextPharma’s minority ownership interest in AFC.

     Net sales for AFC in the third quarter of 2002 totaled $13 million compared with $5 million for the third quarter of 2001. For the first nine months of fiscal 2002, net sales totaled $28 million compared with $10 million for the first nine months of fiscal 2001. AFC reported an operating profit of $3 million for the third quarter of fiscal 2002 versus an operating loss of $6 million for the comparable quarter in fiscal 2001. AFC’s operating loss for the first nine months of fiscal 2002 was $1 million compared with an operating loss of $15 million for the first nine months of fiscal 2001. Operating margins in fiscal 2002 continue to improve reflecting higher production volumes, operational improvements and the realization of cost savings resulting from the restructuring program completed in November of 2001. In addition, AFC’s financial performance in fiscal 2001 was negatively affected by beginning production of several new products, a process that typically includes a period of inefficiency.

     As of August 31, 2002, AFC’s contract backlog was $43 million versus $32 million as of November 30, 2001.

Interest and Other Expenses

     For the third quarter of fiscal 2002, interest expense decreased to $4 million from $10 million for the comparable period in fiscal 2001. Interest expense for the nine months ended August 31, 2002 decreased to $11 million from $28 million in 2001. The decrease was due primarily to a lower average outstanding debt level and lower average interest rates in the first nine months of fiscal 2002. Debt outstanding at November 2001 of $214 million reflected debt reduction in the fourth quarter of 2001 from the sale of EIS. During 2002, debt increased to $292 million at the end of the third quarter due primarily to working capital requirements, including needs for Aerojet’s Atlas V Solid Rocket Motor contract.

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     Corporate and other expenses and foreign exchange gains and losses increased in the third quarter of fiscal 2002 to $6 million compared to $4 million for the comparable period in fiscal 2001. As compared to the same period in the prior year, the change is principally related to increased professional fees, lower pension income and increased net minority interest expense. For the nine-month period ended August 31, 2002, the Company recorded corporate and other expenses of $21 million compared with corporate and other income of $1 million for the same nine-month period in 2001. The net change of $22 million is attributable to an $11 million foreign exchange gain in the first quarter of 2001, approximately $6 million related to the cost of outside legal advisors and accounting consultants to assist with the inquiry related to the accounting issues mentioned above and increased overall professional services expenses and increased net minority interest expense. The foreign exchange gain in fiscal 2001 resulted from foreign currency forward purchase contracts that were entered into to hedge against fluctuations in the U.S. dollar-euro exchange rate in anticipation of the Draftex acquisition.

Provision (Credit) for Income Taxes

     During the quarter the Company contributed property in Michigan to the County of Muskegon. The Company will receive a tax deduction for this contribution that has reduced its year to date effective tax rate by two percentage points to 37%. The income tax provision for the first nine months of fiscal 2001 included a benefit of approximately $9 million related to the settlement of certain income tax claims with the State of California.

Restructuring and Unusual Items, Net

     In April 2002, as discussed in Note 3 in Notes to Unaudited Condensed Consolidated Financial Statements, Aerojet reached an agreement with Northrop Grumman on purchase price adjustments related to the sale of its EIS business whereby Aerojet reduced the purchase price by $6 million. The purchase price reduction was recorded as an unusual expense item in segment operating profit for the second quarter of 2002. The Company recorded an unusual expense item of $1 million in the second quarter of 2002 for the write-off of bank fees associated with the termination of Term Loan C.

     In December 2001, as discussed above and in Note 3 to Unaudited Condensed Consolidated Financial Statements, the Company reacquired the minority ownership interest in its AFC subsidiary and certain agreements between AFC and the minority ownership interest holder were terminated. The net result of the transaction was an unusual expense item of $2 million in the first quarter of 2002.

     The Company recorded a charge in earnings from continuing operations of $19 million during the second quarter of 2001 related to a restructuring and consolidation of its GDX Automotive segment. The restructuring program included the closure of the Marion, Indiana and Ballina, Ireland manufacturing facilities and resulted in the elimination of approximately 760 employee positions. The decision to close these facilities was precipitated by excess capacity and deterioration of performance and losses at these sites. The decision to close the Ballina, Ireland plant was also due to difficulty in retaining plant personnel in light of record employment levels in the region. Remaining programs from these facilities were transferred to other facilities.

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     During the second quarter of 2001, the Company settled additional outstanding claims with the Internal Revenue Service and the State of California. The benefit of the tax refunds, $4 million on an after tax basis, was recorded in the income tax provision in the second quarter. The portion of the tax refunds that will be repaid to the Company’s defense customers is reflected as an unusual expense item of $2 million in segment income ($1 million after tax). Accordingly, after repayment to the Company’s defense customers, the Company will retain $3 million of the claims settled in the second quarter.

     Similarly, during the first quarter of 2001, the Company reached a settlement with the State of California on an outstanding tax claim. The benefit of the tax refund, $9 million on an after tax basis, was recorded in the income tax provision in the first quarter. The portion of the tax refund that will be repaid to the Company’s defense customers is reflected as an unusual expense item of $7 million in segment income ($4 million after tax). Accordingly, after repayment to the Company’s defense customers, the Company will retain $5 million of the claims settled in the first quarter.

     In the first quarter of 2001, the Company received a $2 million insurance settlement for an environmental claim related to discontinued operations.

Other Information

Environmental Matters

     GenCorp’s policy is to conduct its businesses with due regard for the preservation and protection of the environment. The Company devotes a significant amount of resources and management attention to environmental matters and actively manages its ongoing processes to comply with extensive environmental laws and regulations. The Company is involved in the remediation of environmental conditions that resulted from generally accepted manufacturing and disposal practices in the 1950’s and 1960’s followed at certain GenCorp plants. In addition, the Company has been designated a PRP with other companies at third party sites undergoing investigation and remediation.

     The majority of GenCorp’s environmental liabilities relate to its Aerojet business. Aerojet has executed agreements for substantial cost recovery from the U.S. Government. In addition, Aerojet will be reimbursed for allowable site restoration costs at the BPOU via a pass through recovery agreement with Northrop Grumman. The company currently estimates that expenditures for environmental compliance and protection will range between $48 million and $52 million in 2002.

     In April 2002, the Company announced that Aerojet had signed a definitive agreement settling environmental claims related to the BPOU. The claims and the agreement are discussed in Note 8(b) to the Unaudited Condensed Consolidated Financial Statements.

     The nature of environmental investigation and cleanup activities often makes it difficult to determine the timing and amount of any estimated future costs that may be required for remediation measures. The Company reviews these matters and accrues for costs associated with the environmental remediation when it becomes probable that a liability has been incurred and the amount of the Company’s liability can be reasonably estimated. The Company’s Unaudited Condensed Consolidated Balance Sheet (which are included in Part I, Item 1 of this report) as of August 31, 2002 reflects accruals of $346 million and amounts recoverable of $235 million from the U.S. Government and other third parties for such costs. Pursuant to U.S. Government procurement regulations and a Global Settlement covering environmental contamination at the Company’s Sacramento and Azusa, California sites, Aerojet can recover a substantial portion of its environmental costs for its Aerospace and Defense segment through the establishment of prices for the Company’s

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products and services sold to the U.S. Government. The ability of Aerojet to continue recovering these costs from the U.S. Government depends on Aerojet’s sustained business volume under U.S. Government contracts and programs and is subject to the limitations of the Northrop Grumman agreement. The adjustment to the environmental remediation reserves and estimated future recoveries did not affect operating results for the quarter. Aerojet’s net environmental obligation, the excess of environmental reserves over future cost recoveries, was $111 million at August 31, 2002 and May 31, 2002.

     The effect of the final resolution of environmental matters and Aerojet’s obligations for environmental remediation and compliance cannot be predicted due to the uncertainty concerning both the amount and timing of future expenditures due to regulatory or technological changes. However, management believes, on the basis of presently available information, that the resolution of environmental matters and the Company’s obligations for environmental remediation and compliance will not have a material adverse effect on the Company’s results of operations, liquidity or financial condition. The Company will continue its efforts to mitigate past and future costs through pursuit of claims for recoveries from insurance coverage and other PRPs and continued investigation of new and more cost effective remediation alternatives and associated technologies.

     For additional discussion of environmental and related legal matters, see Note 8(b) in Notes to Unaudited Condensed Consolidated Financial Statements.

New Accounting Pronouncements

     The Company adopted the provisions of SFAS 141, “Business Combinations,” as of July 1, 2001. The Company adopted the provisions of SFAS 142, “Goodwill and Other Intangible Assets” and SFAS 144, “Accounting for the Impairment or Disposal of Long-Lived Asset Retirement Obligations” as of December 1, 2001. The adoption of SFAS 141, 142 and 144 did not have a material effect on the Company’s results of operations, liquidity or financial condition. See Note 13 in Notes to Unaudited Condensed Consolidated Financial Statements for additional information related to the Company’s adoption of these accounting standards.

Liquidity and Capital Resources

     The Company broadly defines liquidity as its ability to generate sufficient operating cash flows to meet its obligations and commitments. Liquidity also includes the Company’s ability to obtain appropriate debt and/or equity financing and to convert into cash those assets that are no longer required to meet its strategic and financial objectives. Accordingly, liquidity cannot be considered separately from capital resources consisting of current or potentially available funds for use in meeting capital expenditure and debt service requirements and long-range business objectives.

     Net cash used in operating activities

     As of August 31, 2002, the Company’s cash and cash equivalents totaled $37 million and the ratio of current assets to current liabilities, or current ratio, was 0.99. As of November 30, 2001, the Company’s cash and cash equivalents were $44 million and the current ratio was 0.90.

     Net cash used in operating activities for the first nine months of fiscal 2002 was $40 million compared with $44 million in the first nine months of fiscal year 2001. Net cash used in operating activities for the first nine months of fiscal 2002 was negatively affected by working capital requirements, including needs for Aerojet’s Atlas V Solid Rocket Motor contract. Net cash used in operating activities for the first nine months of fiscal 2001 reflects payment of certain current

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liabilities that were assumed as part of the Draftex acquisition, cash impact of restructuring activities, increased environmental expenditures and decreased financial performance of the GDX and Fine Chemicals segment. The Draftex acquisition resulted in the Company purchasing primarily long-term assets and assuming short-term obligations.

     Net cash used in investing activities

     Net cash used in investing activities for the first nine months of fiscal 2002 was $35 million versus $203 million for the comparable period in fiscal 2001. Capital expenditures totaled $31 million for the first nine months of fiscal 2002 and $29 million for the first nine months of fiscal 2001. The Company’s capital expenditures directly support the Company’s contract and customer requirements and are primarily made for asset replacement and capacity expansion, cost reduction initiatives and safety and productivity improvements. Capital expenditures in the first nine months of fiscal 2001 include amounts related to Aerojet’s EIS business, which was sold in October 2001. Investing activities for the first nine months of fiscal 2002 included a net cash outflow of approximately $8 million related to the Company’s reacquisition of the minority ownership interest in AFC (see discussion above). Investing activities in the first nine months of fiscal 2001 includes $179 million related to the purchase of the Draftex business, a transaction that is discussed above and in Note 3 in Notes to Unaudited Condensed Consolidated Financial Statements.

     Net cash provided by financing activities

     Net cash provided by financing activities for the first nine months of fiscal 2002 was $66 million compared with $266 million for the first nine months of fiscal 2001. Cash flow related to financing activities in both periods relate primarily to activity involving the Company’s Credit Facility and the Convertible Subordinated Notes.

     Credit Facility

     On December 28, 2000, the Company entered into a five-year, senior credit facility (Credit Facility) which provides for a revolving credit facility and a Term Loan A. As of August 31, 2002, the available borrowing limit under the revolving credit facility was $137 million (excluding outstanding letters of credit of $22 million), of which the Company had drawn-down $60 million. The average interest rate on the outstanding balance of the revolving credit facility was 4.6 percent as of August 31, 2002. As of August 31, 2002 the outstanding Term Loan A balance was $76 million and the interest rate was 4.4 percent. As of August 31, 2002, pursuant to Amendment No. 2, the scheduled repayments remaining on Term Loan A are ten equal quarterly principal payments of $5 million through December 2004, and four equal quarterly payments of $7 million through December 2005. The quarterly principal repayment dates for Term Loan A are March 28, June 28, September 28, and December 28 along with associated interest payments.

     On February 28, 2002, the Company amended the Credit Facility to provide an additional $25 million term loan (Term Loan C). The $25 million was repaid on April 5, 2002. The Company does not have the ability to re-borrow these funds

     Subsequent to the end of the third quarter, on October 2, 2002, the Company amended and restated its Credit Facility. The restatement provides for a new Term Loan B in the amount of $115 million. Proceeds of the Term Loan B were used to finance the acquisition discussed in Note 14 Subsequent Events, and repay revolving loans outstanding under the Credit Facility. Repayments of Term Loan B consist of 13 quarterly payments of $287,500 through December 2005, four quarterly payments of $8 million through December 2006 and a balloon payment of $79 million due in

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March 2007. The maturity of Term Loan B may be extended to June 2009 upon repayment of the Convertible Subordinated Notes discussed below.

     Convertible Subordinated Notes

     On April 5 and April 17, 2002, GenCorp sold $150 million aggregate principal amount of its 5.75 percent Convertible Subordinated Notes (Notes) due 2007 in a private placement pursuant to Rule 144A under the Securities Act of 1933. The Notes are initially convertible into 54.29 shares of the Company’s Common Stock per $1,000 principal amount of Notes at any time on or after 90 days following the date on which the notes were originally issued. Interest accrues on the Notes at a rate of 5.75 percent per annum payable October 15 and April 15. The Notes are redeemable at the option of the holder upon a change of control and at the option of the Company if the closing price of the Company’s Common Stock exceeds 125 percent of the conversion price then in effect for at least 20 trading days within a period of 30 consecutive trading days ending on the trading day before the day of the mailing of the optional redemption notice. The Notes are general unsecured obligations of the Company and rank junior in right of payment to all of the Company’s other existing and future senior indebtedness, including all of its obligations under its Credit Facility.

     Issuance of the Notes generated net proceeds of approximately $144 million. The Company used approximately $25 million of the net proceeds to repay in full Term Loan C and approximately $119 million to repay outstanding debt under the revolving credit facility. Amounts repaid against the outstanding debt under the revolving credit facility may be reborrowed at any time or from time to time and may be used for any purpose, subject to the limits contained in the Credit Facility.

     Outlook

     The Company currently believes that its existing cash and cash equivalents, forecasted operating cash flows for the next twelve months, issuance of the convertible subordinated notes and borrowings available under the Credit Facility will provide sufficient funds to meet its operating plan for the next twelve months. This operating plan for this period provides for full operations of the Company’s three business segments and capital expenditures, interest and principal payments on the Company’s debt and anticipated dividend payments.

     Major factors that could adversely impact the Company’s forecasted operating cash and its financial condition are described in “Forward-Looking Statements” above.

Item 3. Quantitative and Qualitative Disclosures About Market Risk

     There have been no material changes to the Company’s disclosures related to certain market risks as reported under Part II, Item 7A, “Quantitative and Qualitative Disclosures About Market Risk,” in the Annual Report of GenCorp to the U.S. Securities and Exchange Commission on Form 10-K for the year ended November 30, 2001.

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Item 4. Controls and Procedures

(a)

Evaluation of disclosure controls and procedures. The Company’s principal executive officer and its principal financial officer, based on their evaluation of the Company’s disclosure controls and procedures (as defined in Exchange Act Rules 13a –14 (c) as of a date within 90 days prior to the filing of this Quarterly Report on Form 10Q, have concluded that the Company’s disclosure controls and procedures are adequate and effective for the purposes set forth in the definition in Exchange Act rules.

(b)

Changes in internal controls. There were no significant changes in the Company’s internal controls or in other factors that could significantly affect the Company’s internal controls subsequent to the date of their evaluation.

PART II – OTHER INFORMATION

Item 1. Legal Proceedings

     Except as disclosed in Note 8(a) and Note 8(b), there have been no significant developments in the pending legal proceedings as previously reported in the Annual Report of GenCorp Inc. to the SEC on Form 10-K for the year ended November 30, 2001.

Item 5. Other Information

     In September 2001, GenCorp sold its electronic and information systems business to Northrop Grumman. The purchase price was subject to adjustment. On April 24, 2002, GenCorp entered into an agreement with Northrop Grumman Systems Corporation under which GenCorp agreed to pay Northrop Grumman an approximate additional $6 million as an adjustment to the purchase price. GenCorp made the first payment on September 15, 2002 and will make the second scheduled payment on December 15, 2002.

Item 6. Exhibits and Reports on Form 8-K

A) Exhibits

No.	Description
10.1	Form of Employee Restricted Stock Agreement between the Company and certain Officers providing for vesting based on attainment of a specified stock price within a specified time period.
10.2	Asset Purchase Agreement By and Between General Dynamics OTS (Aerospace), Inc. and Aerojet-General Corporation dated August 26, 2002.

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10.3 Agreement to Amend and Restate dated as of October 2, 2002, among GenCorp, Inc., The Bank of Nova Scotia as Documentation Agent, ABN AMRO Bank, N.V., as Syndication Agent, and Deutsche Bank Trust Company Americas (f/k/a Bankers Trust Company), as Administrative Agent together with Annex I which is the Amended and Restated Credit Agreement among GenCorp Inc., as the Borrower, Deutsche Bank Trust Company Americas, as Administrative Agent, ABM AMRO Bank, N.V., as Syndication Agent, Deutsche Bank Securities Inc. and ABM AMRO Incorporated, as Joint Lead Arrangers, The Bank of Nova Scotia, as Documentation Agent and various lending institutions dated as of December 28, 2002 and amended and restated as of October 2, 2002.

B) Reports on Form 8-K

     On October 3, 2002, the Company filed a Form 8-K incorporating its press release dated September 30, 2002, which stated that Kari Van Gundy joined the Company as Vice President, Treasurer on October 1, 2002.

     Also in the October 3, 2002 Form 8-K, the Company incorporated its press release dated October 2, 2002, in which the Company announced that its subsidiary, Aerojet-General Corporation, has completed the acquisition of the assets of General Dynamics’ Ordnance and Tactical Systems Space Propulsion and Fire Suppression business.

     Also in the October 3, 2002 Form 8-K, the Company incorporated its press release dated October 2, 2002, in which the Company announced reported earnings per share of $0.19 for the third quarter compared to $0.07 for the comparable 2001 quarter, as operating profit margins increased.

     On September 10, 2002, the Company filed a Form 8-K incorporating its press release dated September 9, 2002, which stated that former Colorado Supreme Court Justice Gregory Kellam Scott has joined GenCorp as Senior Vice President, Law; General Counsel and Secretary, replacing William Phillips who will be retiring in accordance with plans he announced in November 2001.

     On August 27, 2002, the Company filed a Form 8-K incorporating its press release dated August 26, 2002, in which GenCorp announced that its subsidiary, Aerojet-General Corporation, signed an agreement to acquire the assets of General Dynamics’ Ordnance and Tactical Systems Space Propulsion and Fire Suppression business. The cost of the acquisition, approximately $90 million in cash, will be financed using debt and is expected to be slightly accretive to GenCorp’s 2003 earnings. The acquired business’ net sales for 2002 are expected to be approximately $60 million. The transaction is projected to close in the fourth quarter of this year, subject to receipt of standard regulatory approvals.

     On August 2, 2002, the Company filed a Form 8-K incorporating its press release dated July 31, 2002, which GenCorp stated that Douglas Jeffries has assumed the position of Vice President, Controller for the Company.

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Signatures

     Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

	GenCorp Inc.
Date October 15, 2002	By: /s/ Yasmin R. Seyal Yasmin R. Seyal Chief Financial Officer (Principal Financial and Accounting Officer)
Date October 15, 2002	By: /s/ Gregory K. Scott Gregory K. Scott Senior Vice President, Law; General Counsel and Secretary (Duly Authorized Officer)

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CERTIFICATIONS

I, Terry L. Hall, certify that:

1.	I have reviewed this quarterly report on Form 10-Q of GenCorp Inc.;
2.	Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report;
3.	Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report;
4.	The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and have:

a) designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared;

b) evaluated the effectiveness of the registrant’s disclosure controls and procedures as of a date within 90 days prior to the filing date of this quarterly report (the “Evaluation Date”); and

c) resented in this quarterly report our conclusions about the efectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date;

5. The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions):

a) all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant’s ability to record, process, summarize and report financial data and have identified for the registrant’s auditors any material weaknesses in internal controls; and

b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal controls; and

6. The registrant’s other certifying officers and I have indicated in this quarterly report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses.

Date: October 15, 2002

/s/ Terry L. Hall
Terry L. Hall
President and Chief Executive Officer

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CERTIFICATIONS

I, Yasmin R. Seyal, certify that:

1.	I have reviewed this quarterly report on Form 10-Q of GenCorp Inc.;
2.	Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report;
3.	Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report;
4.	The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and have:

a) designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared;
b) evaluated the effectiveness of the registrant’s disclosure controls and procedures as of a date within 90 days prior to the filing date of this quarterly report (the “Evaluation Date”); and
c) presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date;

5. The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions):

a) all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant’s ability to record, process, summarize and report financial data and have identified for the registrant’s auditors any material weaknesses in internal controls; and

b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal controls; and

6. The registrant’s other certifying officers and I have indicated in this quarterly report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses.

Date: October 15, 2002

/s/ Yasmin R. Seyal
Yasmin R. Seyal
Senior Vice President and
Chief Financial Officer

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CERTIFICATIONS
Pursuant to 18 United States Code § 1350

The undersigned hereby certifies that to his knowledge the quarterly report of GenCorp Inc. (the “Company”) filed with the Securities and Exchange Commission on the date hereof fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that the information contained in such report fairly presents, in all material respects, the financial condition and results of operations of the Company.

/s/ Terry L. Hall
Name: Terry L. Hall
Title: President and Chief Executive Officer
Date: October 15, 2002

The undersigned hereby certifies that to her knowledge the quarterly report of GenCorp Inc. (the “Company”) filed with the Securities and Exchange Commission on the date hereof fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that the information contained in such report fairly presents, in all material respects, the financial condition and results of operations of the Company.

/s/ Yasmin R. Seyal
Name: Yasmin R. Seyal
Title: Senior Vice President and
Chief Financial Officer
Date: October 15, 2002

-43- EX-10.1 3 l96596aexv10w1.txt RESTRICTED STOCK AGREEMENT Exhibit 10.1 GENCORP INC. 1999 EQUITY AND PERFORMANCE INCENTIVE PLAN RESTRICTED STOCK AGREEMENT WHEREAS, ________________________ (the "Grantee") is an employee of GenCorp Inc. (the "Company") or a Subsidiary; and WHEREAS, the execution of a restricted stock agreement in the form hereof (the "Agreement") has been authorized by a resolution of the Organization and Compensation Committee (the "Committee") of the Board of Directors (the "Board") of the Company duly adopted on _________________________; NOW, THEREFORE, pursuant to the Company's 1999 Equity and Performance Incentive Plan (the "Plan"), the Company grants, as of ___________________________ (the "Date of Grant"), to the Grantee ____________________ (_______) shares of the Company's common stock, par value $0.10 per share (the "Stock"), subject to the terms and conditions of the Plan and the following terms, conditions, limitations and restrictions: 1. ISSUANCE OF STOCK. The Stock covered by this Agreement shall be fully paid and nonassessable and shall be represented by certificates registered in the name of the Grantee and bearing a legend referring to the restrictions hereinafter set forth. 2. RESTRICTIONS ON TRANSFER OF STOCK. The Stock subject to this Agreement may not be transferred, sold, pledged, exchanged, assigned or otherwise encumbered or disposed of by the Grantee, except to the Company, until it has become vested in accordance with Section 3 of this Agreement; provided, however, that the Grantee's interest in the Stock covered by this Agreement may be transferred at any time by will or the laws of descent and distribution. Any purported transfer, encumbrance or other disposition of the Stock covered by this Agreement that is in violation of this Section will be null and void, and the other party to any such purported transaction will not obtain any rights to or interest in the Stock covered by this Agreement. When and as permitted by the Plan, the Company may waive the restrictions set forth in this Section with respect to all or any portion of the Stock covered by this Agreement. 3. VESTING OF STOCK. (a) Provided that the Grantee remains in the continuous employ of the Company or a Subsidiary, the Stock covered by this Agreement will become nonforfeitable immediately upon achievement of the Target Price, as follows: Percent Nonforfeitable ---------------------- Achievement of the Target Price 100% no later than ___________________ (three years from date of grant) Achievement of the Target Price 50% after _______________ (three years from date of grant) and no later than ______________________ (four years from date of grant) The Target Price will be achieved if, and only if, the Market Value (as defined in the Plan) for shares of the Stock is $19.00 or higher for ten (10) consecutive days on which the New York Stock Exchange is open for trading. (b) For the purposes of this Agreement, the continuous employment of the Grantee with the Company or a Subsidiary shall not be deemed to have been interrupted, and the Grantee will not be deemed to have ceased to be an employee of the Company or a Subsidiary, by reason of (A) the transfer of his employment among the Company and its Subsidiaries or (B) an approved leave of absence. (c) Notwithstanding the provisions of Subsection (a) of this Section, in the event of the death, disability or retirement of the Grantee: (i) any of the Stock covered by this Agreement that has become nonforfeitable prior to the death, disability or retirement of the Grantee shall remain nonforfeitable; and, (ii) the Committee will consider whether, in its sole discretion, to accelerate pursuant to Section 17(e) of the Plan the vesting of any or all of the Stock subject to this Agreement which remains subject to forfeiture. For purposes of this Agreement, "Retirement" of the Grantee shall mean normal or early retirement under the defined benefit retirement plan of the Company applicable to the Grantee (as determined by the Committee). (d) Notwithstanding the provisions of Subsection (a) of this Section, all of the Stock covered by this Agreement will become immediately nonforfeitable upon the occurrence of a change in control of the Company that shall occur while the Grantee is an employee of the Company or a Subsidiary. For the purposes of this Agreement, the term "change in control" will have the meaning given such term under the Plan as in effect on the Date of Grant. 4. FORFEITURE OF STOCK. Unless the Committee determines to provide otherwise, any of the Stock covered by this Agreement that has not become vested in accordance with Section 3 of this Agreement will be forfeited as follows: (i) Fifty percent (50%) of the shares of Stock covered by this Agreement will be forfeited if the Target Price is not achieved before ______________ (three years, plus one day, after date of grant); and (ii) The remaining fifty percent (50%) of the shares of Stock covered by the Agreement will be forfeited if the Target Price is not achieved before ___________________________________ (four years, plus one day, after date of grant). In the event of a forfeiture, the certificates representing all of the Stock covered by this Agreement that has not become vested in accordance with Section 3 of this Agreement shall be cancelled. 5. DIVIDEND, VOTING AND OTHER RIGHTS. The Grantee will have all of the rights of a shareholder with respect to the Stock covered by this Agreement, including the right to vote the Stock and receive any dividends that may be paid thereon. Any additional Stock that the Grantee may become entitled to receive pursuant to a share dividend or a merger or reorganization in which the Company is the surviving Company or any other change in the capital structure of the Company will be subject to the same restrictions as the Stock covered by this Agreement. 6. RETENTION OF SHARE CERTIFICATES BY COMPANY. The certificates representing the Stock covered by this Agreement will be held in custody by the Company, together with stock powers endorsed in blank by the Grantee with respect thereto, until those shares have become vested in accordance with Section 3 of this Agreement. 7. COMPLIANCE WITH LAW. The Company will make reasonable efforts to comply with all applicable federal and state securities laws; provided, however, notwithstanding any other provision of this Agreement, the Company will not be obligated to issue any restricted or unrestricted Stock pursuant to this Agreement if the issuance thereof would result in a violation of any such law. 8. ADJUSTMENTS. The Committee will make any adjustments in the number or kind of shares of stock or other securities covered by this Agreement that the Committee may determine to be equitably required to prevent any dilution or enlargement of the Grantee's rights under this Agreement that would result from any (a) stock dividend, stock split, combination of shares, recapitalization or other change in the capital structure of the Company, (b) merger, consolidation, spin-off, spin-out, split-off, split-up, reorganization, partial or complete liquidation or other distribution of assets, issuance of rights or warrants to purchase securities or (c) other corporate transaction or event having an effect similar to any of the foregoing. 9. WITHHOLDING. To the extent that the Company is required to withhold federal, state, local or foreign taxes in connection with any issuance of restricted or unrestricted Stock or other securities pursuant to this Agreement, and the amounts available to the Company for such withholding are insufficient, it will be a condition to the receipt of such Stock that the Grantee make arrangements satisfactory to the Company for payment of the balance of such taxes required to be withheld. If necessary, the Committee may require relinquishment of a portion of such Stock to cover the payment of taxes. 10. EMPLOYMENT RIGHTS. The Plan and this Agreement will not confer upon the Grantee any right with respect to the continuance of employment or other service with the Company or any Subsidiary and will not interfere in any way with any right that the Company or any Subsidiary would otherwise have to terminate any employment or other service of the Grantee at any time. 11. RELATION TO OTHER BENEFITS. Any economic or other benefit to the Grantee under this Agreement will not be taken into account in determining any benefits to which the Grantee may be entitled under any profit-sharing, retirement or other benefit or compensation plan maintained by the Company or a Subsidiary and shall not affect the amount of any life insurance coverage available to any beneficiary under any life insurance plan covering employees of the Company or a Subsidiary. 12. AGREEMENT SUBJECT TO THE PLAN. The Stock granted under this Agreement and all of the terms and conditions hereof are subject to all of the terms and conditions of the Plan. In the event of any inconsistency between this Agreement and the Plan, the terms of the Plan will govern. 13. AMENDMENTS. Any amendment to the Plan will be deemed to be an amendment to this Agreement to the extent that the amendment is applicable hereto; provided, however, that no amendment will adversely affect the rights of the Grantee under this Agreement without the Grantee's consent. 14. SEVERABILITY. In the event that one or more of the provisions of this Agreement is invalidated for any reason by a court of competent jurisdiction, any provision so invalidated shall be deemed to be separable from the other provisions hereof, and the remaining provisions hereof will continue to be valid and fully enforceable. 15. GOVERNING LAW. This Agreement will be construed and governed in accordance with the laws of the State of Ohio. 16. CERTAIN DEFINED TERMS. In addition to the terms defined elsewhere herein, when used in the Agreement, terms with initial capital letters have the meaning given such term under the Plan, as in effect from time to time. This Agreement is executed as of the _____ day of ________________. GENCORP INC. By: ------------------------------------- Name Title The undersigned Grantee hereby acknowledges receipt of an executed original of this Restricted Stock Agreement and accepts the right to receive the Stock subject to the terms and conditions of the Plan and the terms and conditions herein above set forth. -------------------------------------- IRREVOCABLE STOCK POWER FOR CERTIFICATE NO. _______________ FOR VALUE RECEIVED, _______________________________________________ does hereby sell, assign and transfer to____________________________________________________ ________________________________________________________________________________ (Social Security or Taxpayer Identifying No.) _________ shares of the common stock of GenCorp Inc. issued on _______________,_____, pursuant to that certain Restricted Stock Agreement executed by and between GenCorp Inc. and ______________________________________ effective as of ________________, such shares to be represented by a certificate, the number of which shall be entered in the indicated space in the caption immediately upon issuance of said certificate. The undersigned does hereby irrevocably constitute and appoint _________________ _________________________________ attorney to transfer the said stock on the books of said company with full power of substitution in the premises. Dated ____________________________, _______ ________________________________ EX-10.2 4 l96596aexv10w2.txt ASSET PURCHASE AGREEMENT Exhibit 10.2 EXECUTION VERSION ASSET PURCHASE AGREEMENT DATED AS OF AUGUST 26, 2002 BY AND BETWEEN GENERAL DYNAMICS OTS (AEROSPACE), INC. AND AEROJET-GENERAL CORPORATION Washington DC 10853 TABLE OF CONTENTS

ARTICLE/SECTION PAGE - --------------- ---- ARTICLE I - DEFINITIONS............................................................. 1 1.1 Definitions.......................................................... 1 ARTICLE II - PURCHASE AND SALE OF ASSETS AND ASSUMPTION OF LIABILITIES.............. 6 2.1 Purchase and Sale of Purchased Assets................................ 6 2.2 Excluded Assets...................................................... 8 2.3 Assumption of Liabilities............................................ 8 2.4 Excluded Liabilities................................................. 9 ARTICLE III - PURCHASE PRICE........................................................ 9 3.1 Initial Purchase Price............................................... 9 3.2 Post-Closing Adjustment of Initial Purchase Price.................... 9 3.3 Allocation of Purchase Price......................................... 11 ARTICLE IV - THE CLOSING............................................................ 11 4.1 Closing.............................................................. 11 4.2 Closing Date......................................................... 12 4.3 Deliveries at the Closing............................................ 12 ARTICLE V - REPRESENTATIONS AND WARRANTIES OF SELLER................................ 12 5.1 Organization......................................................... 12 5.2 Authorization of Transaction......................................... 12 5.3 Noncontravention; Consents........................................... 13 5.4 Financial Statements................................................. 13 5.5 Absence of Certain Changes or Events Subsequent to Balance Sheet..... 14 5.6 Tax Matters.......................................................... 14 5.7 Contracts............................................................ 14 5.8 Government Contracts................................................. 15 5.9 Real Property........................................................ 16 5.10 Title and Sufficiency of Assets...................................... 17 5.11 Intellectual Property................................................ 17 5.12 Litigation........................................................... 19 5.13 Employees and Employee Benefits...................................... 19 5.14 Environmental Matters................................................ 20 5.15 Legal Compliance..................................................... 21 5.16 Permits.............................................................. 21 5.17 Insurance............................................................ 21 5.18 Brokers' Fees........................................................ 21 5.19 Customers and Suppliers.............................................. 21 5.20 Limitation on Warranties............................................. 22 ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF PURCHASER............................ 22 6.1 Organization of the Purchaser........................................ 22 6.2 Authorization of Transaction......................................... 22 6.3 Noncontravention; Consents........................................... 22 6.4 Litigation........................................................... 23 6.5 Availability of Funds................................................ 23

i 6.6 Brokers' Fees........................................................ 23 ARTICLE VII - COVENANTS OF THE PARTIES.............................................. 23 7.1 General.............................................................. 23 7.2 Notices and Consents................................................. 23 7.3 Carry on in Regular Course........................................... 24 7.4 No General Increases................................................. 24 7.5 Contracts and Commitments............................................ 25 7.6 Sale of Capital Assets............................................... 25 7.7 No Default........................................................... 25 7.8 Full Access.......................................................... 25 7.9 Notice of Developments............................................... 25 7.10 Survey................................................................ 26 7.11 Estoppel Certificates................................................. 26 7.12 General............................................................... 26 7.13 Post-Closing Consents; Nonassignable Contracts........................ 26 7.14 Novation of Government Contracts...................................... 26 7.15 Litigation Support.................................................... 27 7.16 Agreements Regarding Tax Matters...................................... 27 7.17 Records and Documents................................................. 28 7.18 Use of Excluded Trademarks............................................ 28 7.19 Non-Competition....................................................... 28 7.20 Non-Solicitation of Employees......................................... 29 ARTICLE VIII - EMPLOYEE MATTERS..................................................... 30 8.1 Employment........................................................... 30 8.2 Employee Benefit Matters............................................. 30 8.3 Allocation of Pension Plan Responsibilities.......................... 32 ARTICLE IX - CLOSING CONDITIONS..................................................... 32 9.1 Conditions to Obligation of the Purchaser............................ 32 9.2 Conditions to Obligation of the Seller............................... 33 ARTICLE X - INDEMNIFICATION......................................................... 34 10.1 Survival.............................................................. 34 10.2 Indemnification Provisions for Benefit of the Purchaser............... 34 10.3 Indemnification Provisions for Benefit of the Seller.................. 35 10.4 Limitation on Indemnification Obligation.............................. 35 10.5 Environmental Indemnification......................................... 35 10.6 Matters Involving Third Parties....................................... 36 10.7 Determination of Loss................................................. 36 10.8 Exclusive Remedy...................................................... 36 10.9 Treatment of Indemnity Payments....................................... 37 ARTICLE XI - TERMINATION............................................................ 37 11.1 Termination of Agreement.............................................. 37 11.2 Effect of Termination................................................. 37 ARTICLE XII - MISCELLANEOUS......................................................... 37 12.1 Press Releases and Announcements...................................... 37 12.2 Expenses; Transfer Taxes.............................................. 37 ii 12.3 Bulk Sales or Transfer Laws........................................... 38 12.4 Remedies.............................................................. 38 12.5 Consent to Amendments................................................. 38 12.6 Successors and Assigns................................................ 38 12.7 Severability.......................................................... 38 12.8 Counterparts.......................................................... 38 12.9 Descriptive Headings.................................................. 38 12.10 Notices............................................................... 38 12.11 No Third-Party Beneficiaries.......................................... 39 12.12 Force Majeure......................................................... 39 12.13 Confidentiality....................................................... 40 12.14 Entire Agreement...................................................... 40 12.15 Construction.......................................................... 40 12.16 Incorporation of Exhibits and Schedules............................... 40 12.17 Governing Law......................................................... 40 EXHIBITS: Exhibit A Bill of Sale Exhibit B Assignment and Assumption Agreement Exhibit C Deed Exhibit D Building Lease Exhibit E Assignment of Patents Exhibit F General Dynamics Guaranty Exhibit G GenCorp Guaranty Exhibit H Knowledge Group Exhibit I Transition Services Agreement SCHEDULES: Schedule 2.1(c) Contracts Schedule 2.1(d) Machinery and Equipment Schedule 2.2(g) Excluded Assets Schedule 2.4(e) Excluded Liabilities Schedule 3.2 Certain Current Liabilities Schedule 5.3 Noncontravention; Consents Schedule 5.4 Financial Statements Schedule 5.5 Events Subsequent to Balance Sheet Schedule 5.8 Government Contracts Schedule 5.9(a) Owned Real Property Schedule 5.9(b) Leased Real Property Schedule 5.10 Title and Related Matters Schedule 5.11 Intellectual Property Schedule 5.12 Litigation Schedule 5.13 Employees and Employee Benefits Schedule 5.14 Environmental Matters Schedule 5.15 Legal Compliance Schedule 5.16 Permits Schedule 5.17 Insurance Schedule 5.19 Customers and Suppliers Schedule 8.1(b) Employees on Long-Term Disability Schedule 8.2(d) Employment Agreements iii Schedule 8.2(e) Eligible Former Employees Schedule 9.1(h) Required Consents iv ASSET PURCHASE AGREEMENT ASSET PURCHASE AGREEMENT dated as of August 26, 2002 by and among GENERAL DYNAMICS OTS (AEROSPACE), INC., a Washington corporation (the "Seller"), and AEROJET-GENERAL CORPORATION, an Ohio corporation (the "Purchaser"). WHEREAS, the Seller's space systems business located in Redmond, Washington, is engaged directly in the (a) design, manufacture, sale, distribution and service of (i) thrusters, electronic systems and fuel systems for propulsion of spacecraft, launch vehicles for spacecraft, and anti-missile mid-flight diversion; and (ii) tow reels for aircraft and turbo products used to generate power on aircraft; and (b) manufacture and assembly of equipment used for extinguishing and/or suppression of fires (collectively, the "Business"); and WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser desires to purchase from the Seller substantially all of the assets and assume certain liabilities of the Business. NOW, THEREFORE, in consideration of the mutual agreements contained herein and for other good and valuable consideration, the value, receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITIONS 1.1 Definitions. For purposes of this Agreement, the following terms have the meanings set forth below: "Affiliate" has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act of 1934, as amended. "Agreement" means this Asset Purchase Agreement, as the same may be amended from time to time in accordance with the terms hereof. "Allocation Statement" has the meaning set forth in Section 3.3(a). "Ancillary Agreements" means, collectively, the Bill of Sale, the Assignment and Assumption Agreement, the Assignment of Patents, the Building Lease and the Transition Services Agreement. "Antitrust Laws" has the meaning set forth in Section 5.3(b). "Arbiter" has the meaning set forth in Section 3.2(b). "Assumed Liabilities" has the meaning set forth in Section 2.3 "Assignment and Assumption Agreement" has the meaning set forth in Section 4.3. "Auditor's Report" has the meaning set forth in Section 3.2(b). "Balance Sheet" has the meaning set forth in Section 5.4(a). "Basket Amount" has the meaning set forth in Section 10.4(a). "Bill of Sale" has the meaning set forth in Section 4.3. "Buildings" means the buildings and improvements located on the Owned Real Property and commonly known as Buildings 51, 52, 53, 54 and 65, together with approximately eighteen (18) acres of land used in connection with the Seller's operations in such buildings. "Building Lease" means the lease agreement between the Purchaser and the Seller in the form of Exhibit D attached hereto pursuant to which the Seller will occupy the Buildings after the Closing for the period set forth therein. "Business" has the meaning set forth in the Recitals to this Agreement. "Business Activities" has the meaning set forth in Section 7.19(a). "Business Employees" has the meaning set forth in Section 5.13(a). "Ceiling Amount" has the meaning set forth in Section 10.4(a). "Closing" has the meaning set forth in Section 4.1. "Closing Date" has the meaning set forth in Section 4.2. "Closing Date Balance Sheet" has the meaning set forth in Section 3.2(a). "Closing Date Working Capital" has the meaning set forth in Section 3.2(a). "Code" means the Internal Revenue Code of 1986, as amended. "Confidentiality Agreement" means the confidentiality agreement dated October 16, 2001 between General Dynamics Corporation and GenCorp Inc. "Contracts" has the meaning set forth in Section 2.1(c). "Deed" has the meaning set forth in Section 4.3. "Disclosure Schedules" means, collectively, the various Schedules referred to in this Agreement. "Employee Benefit Plan" means an Employee Pension Benefit Plan or an Employee Welfare Benefit Plan, where no distinction is required by the context in which the term is used. "Employee Pension Benefit Plan" has the meaning set forth in Section 3(2) of ERISA. "Employee Welfare Benefit Plan" has the meaning set forth in Section 3(1) of ERISA. 2 "Environmental Law" means any Law with respect to any Hazardous Materials, drinking water, groundwater, wetlands, landfills, open dumps, storage tanks, underground storage tanks, solid waste, waste water, storm water run-off, waste emissions or wells. Without limiting the generality of the foregoing, the term will encompass each of the following statutes and the regulations promulgated thereunder (a) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), (b) the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), (c) the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), (d) the Toxic Substances Control Act (15 U.S.C. Section 2061 et seq.), (e) the Clean Water Act (33 U.S.C. Section 7401 et seq.), (f) the Clean Air Act (42 U.S.C. Section 7401 et seq.), (g) the Safe Drinking Water Act; (42 U.S.C. Section 201 and Section 300f et seq.), (h) the National Environmental Policy Act of 1969 (42 U.S.C. Section 4321) and (i) Title III of the Superfund Amendment and Reauthorization Act (42 U.S.C. Section 11001 et seq.). "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "Excluded Assets" has the meaning set forth in Section 2.2. "Excluded Liabilities" has the meaning set forth in Section 2.4. "Excluded Trademarks" has the meaning set forth in Section 7.18. "Financial Statements" has the meaning set forth in Section 5.4(a). "Force Majeure Event" has the meaning set forth in Section 12.12. "GAAP" means generally accepted accounting principles in the United States. "Government Contract" means any prime contract (including letter contract) or subcontract relating primarily to the Business between the Seller and the U.S. Government, or the Seller and a prime contractor to the U.S. Government as the case may be. "Governmental Entity" means any government or any agency, bureau, board, commission, court, department, official, political subdivision, tribunal or other instrumentality of any government, whether federal, state or local, domestic or foreign. "GenCorp Guaranty" has the meaning set forth in Section 4.3. "General Dynamics Guaranty" has the meaning set forth in Section 4.3. "Hart-Scott-Rodino Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. "Hazardous Materials" means each and every element, compound, chemical mixture, contaminant, pollutant, material, waste or other substance which is defined, determined or identified as hazardous or toxic under any Environmental Law or the Release of which is prohibited under any Environmental Law. Without limiting the generality of the foregoing, the term will include (a) "hazardous substances" as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (b) "hazardous waste" as defined in the Resource Conservation and Recovery Act of 1976, (c) "hazardous materials" as defined in the 3 Hazardous Materials Transportation Act and (d) "chemical substance or mixture" as defined in the Toxic Substances Control Act. "Income Tax" means any federal, state or local tax based upon, measured by or calculated with respect to net income, profits, receipts or gains. "Indemnified Party" has the meaning set forth in Section 10.6. "Indemnifying Party" has the meaning set forth in Section 10.6. "Initial Purchase Price" has the meaning set forth in Section 3.1. "Intellectual Property" has the meaning set forth in Section 2.1(e). "IRS" means the Internal Revenue Service of the Department of the Treasury. "Knowledge" with respect to the Seller means the actual knowledge of only those officers and employees of the Seller listed on the schedule attached hereto as Exhibit G. "Law" means any constitutional provision, statute, law, rule, regulation, permit, decree, injunction, judgment, order, ruling, determination, finding or writ of any Governmental Entity. "Leased Real Property" has the meaning set forth in Section 2.1(j). "Lien" means any mortgage, lien, pledge, security interest, charge, claim or other encumbrance other than the Permitted Encumbrances. "Losses" has the meaning set forth in Section 10.2(a). "Machinery and Equipment" has the meaning set forth in Section 2.1(d). "Management Security Plan" means the retirement security plan provided by the Seller to certain Business Employees and all insurance contracts related thereto. "Material Adverse Effect" means any change or effect that is materially adverse to the business, operations or condition (financial or otherwise) of the Business or the Purchased Assets, taken as a whole. "Multiemployer Plan" has the meaning set forth in Section 3(37) of ERISA. "Novation Agreement" has the meaning set forth in Section 7.14. "Owned Real Property" has the meaning set forth in Section 2.1(i). "PBGC" means the Pension Benefit Guaranty Corporation. "Permit" means any license, permit, franchise, certificate of authority or order, or any waiver of the foregoing, issued by any Governmental Entity. 4 "Permitted Encumbrances" means any (a) mechanics', materialmens' and similar liens with respect to amounts not yet due and payable, (b) liens for Taxes not yet due and payable or the validity of which is being contested in good faith by appropriate proceedings, (c) liens securing rental payments under capital lease arrangements, (d) the encumbrances and title exceptions referenced in Section 5.9(a)(i) and (e) such other encumbrances (including without limitation covenants, conditions, restrictions, rights of way and encroachments) or imperfections in or failure of title which would not, individually or in the aggregate, reasonably be expected to materially impair the continued use and operation of the Purchased Assets as currently conducted or reasonably be expected to result in a material reduction in the value of the Purchased Assets as a whole. "Person" means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a Governmental Entity. "Prohibited Transaction" has the meaning set forth in Section 406 of ERISA and Section 4975 of the Code. "Purchase Price" has the meaning set forth in Section 3.2(d). "Purchased Assets" has the meaning set forth in Section 2.1. "Purchaser" has the meaning set forth in the Preamble to this Agreement. "Purchaser Employee Benefit Plan" means an Employee Benefit Plan provided by the Purchaser to its employees. "Purchaser Material Adverse Effect" has the meaning set forth in Section 6.1. "Purchaser's Accounting Firm" means Ernst & Young LLC. "Release" means any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, storing, escaping, leaching, dumping, discarding, burying, abandoning or disposing into the environment in violation of any Environmental Law. "Reportable Event" has the meaning set forth in Section 4043 of ERISA. "Schedule" means, unless the context otherwise requires, the referenced Schedule included in the Disclosure Schedules. "Seller" has the meaning set forth in the Preamble to this Agreement. "Seller Employee Benefit Plan" means an Employee Benefit Plan provided by the Seller to the Business Employees. "Seller's Accounting Firm" means KPMG LLP. "Statement of Closing Date Working Capital" has the meaning set forth in Section 3.2(a). 5 "Tax" means any federal, state, local or foreign net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, real or personal property, windfall profits, customs, duties or other tax, fee, assessment (general or special) or charge, including any interest, penalty or addition thereto. "Tax Return" means any return, declaration, report, form, claim for refund or information return or statement required to be supplied to any Government Entity with respect to Taxes, including any schedule or attachment thereto. "Title Company" means Fidelity National Title Insurance Company. "Title Policy" means, with respect to the Owned Real Property, an owner's policy of title insurance (ALTA Form B-1992) insuring, in an amount reasonably determined by the Purchaser, that fee simple title will, at the Closing, be vested in the Purchaser (or its designee), free and clear of all Liens and exceptions to title other than (i) matters set forth in Part II of Schedule B to the policy, (ii) Permitted Encumbrances and (iii) the Title Company's so-called "standard exceptions," together with such endorsements as may be reasonably required by the Purchaser and available from the Title Company; provided, however, that all endorsements other than the so-called extended coverage endorsements will be at the Purchaser's sole cost and expense. "Transfer Taxes" has the meaning set forth in Section 12.2. "Transition Services Agreement" means the transition services agreement between the Purchaser and the Seller in the form of Exhibit I attached hereto. "U.S. Government" means the federal government of the United States of America and any agencies, instrumentalities and departments thereof. ARTICLE II PURCHASE AND SALE OF ASSETS AND ASSUMPTION OF LIABILITIES 2.1 Purchase and Sale of Purchased Assets. On the terms and subject to the conditions set forth in this Agreement, at the Closing the Purchaser will purchase and acquire from the Seller, and the Seller will sell, transfer, assign, convey and deliver to the Purchaser, all of its right, title and interest in and to all of the assets used primarily in the operation of the Business, other than the Excluded Assets, wherever located and whether or not reflected on the Balance Sheet (collectively, the "Purchased Assets"), including the following assets: (a) all accounts and notes receivable and other claims for money due to the Seller, arising from the rendering of services or the sale of goods or materials by the Business, as the same exist on the Closing Date; (b) all raw materials, work in process, supplies, spare parts and finished goods inventories owned by the Seller and used primarily in the operation of the Business, as the same exist on the Closing Date; (c) all contracts, agreements, commitments (including pending bids and proposals) and instruments to which the Seller is a party used in the operation of the Business, as of the Closing Date, including those listed on Schedule 2.1(c) of the Disclosure Schedules, all unfilled 6 orders outstanding as of the Closing Date for the purchase of raw materials, goods or services by the Seller in connection with the Business, and all unfilled orders outstanding as of the Closing Date for the sale of goods or services provided by the Business (collectively, the "Contracts"); (d) all machinery, equipment, tools, dies, test equipment, furniture, fixtures, vehicles and other personal property owned by the Seller and used or held for use primarily in the operation of the Business as of the Closing Date, including the items listed on Schedule 2.1(d) of the Disclosure Schedules, and, to the extent of the Seller's interest therein, all machinery and equipment used or held for use primarily in the operation of the Business, which is (i) owned and/or furnished by the U.S. Government or (ii) subject to the terms of an equipment lease (collectively, the "Machinery and Equipment"); (e) all patents, patent applications, licenses, trademarks, trade names (except for the right to use the name "General Dynamics"), domain names, computer software, data, copyrights, documentation, trade secrets, confidential business information (including formulas, compositions, inventions and manufacturing and production processes and techniques, drawings, designs, technical data, customer and supplier data, pricing and cost information), all results and other information related to any research and development project, in each of the foregoing cases owned by the Seller primarily in connection with the Business, and all other intellectual property rights (in whatever form or medium), to the extent of the Seller's interest therein, used primarily in the operation of the Business as of the Closing Date (collectively, the "Intellectual Property"); (f) to the extent legally transferable, all Permits held by the Seller and used primarily in the operation of the Business as of the Closing Date; (g) all of the Seller's claims, deposits, prepayments, prepaid assets, refunds (excluding Tax refunds with respect to periods prior to the Closing Date), causes of action, rights of recovery, rights of set off and rights of recoupment of the Seller as of the Closing Date, in each case to the extent they relate primarily to the Business, including all rights of the Seller under any property, casualty, workers' compensation or other insurance policy or related insurance services contract and warranties and guaranties received from vendors, suppliers or manufacturers, to the extent such rights relate to any Assumed Liability or any of the Purchased Assets; (h) all books, records, ledgers, files, documents, correspondence, lists, plats, specifications, surveys, invoices, customer and supplier lists, drawings, creative materials, advertising and promotional materials, studies, reports and other materials (in whatever form or medium) owned by the Seller as of the Closing Date, in each case to the extent that they relate primarily to the Business or the Business Employees; provided, however, that the Seller will be entitled to retain copies of any materials it deems reasonably necessary for its tax, accounting, human resources, legal or other business purposes; (i) all real property owned by the Seller used in the operation of the Business as of the Closing Date, together with all buildings, structures, improvements, fixtures and fittings located on or attached to such real property, and all rights, privileges, easements and other appurtenances belonging thereto, in each case as described on Schedule 5.9(a) of the Disclosure Schedules (the "Owned Real Property"); (j) all leasehold interests of the Seller in the leases and occupancy agreements, in each case as described on Schedule 5.9(b) of the Disclosure Schedules (the "Leased Real Property"); and 7 (k) except for cash and cash equivalents, all other assets not specifically set forth herein but reflected on the Balance Sheet, except any sales, transfers, retirements or dispositions of such assets made between the date of the Balance Sheet and the Closing Date in accordance with the terms of this Agreement. 2.2 Excluded Assets. Notwithstanding the provisions of Section 2.1, the Purchased Assets will not include the following assets, properties or rights (collectively, the "Excluded Assets"): (a) all cash and cash equivalents (including any marketable securities or certificates of deposit) of the Seller through 11:59 p.m., Pacific time, on the Closing Date; (b) any rights of the Seller with respect to any Tax refund or credit relating to periods ending prior to the Closing Date; (c) any property, casualty, workers' compensation or other insurance policy or related insurance services contract relating to the Seller, and any rights of the Seller or any of its Affiliates under any such insurance policy or contract, other than rights under such policies or contracts with respect to any Assumed Liability or any of the Purchased Assets; (d) any rights of the Seller in the Management Security Plan; (e) any rights of the Seller under this Agreement, any Ancillary Agreement or under any other agreement between the Seller and the Purchaser; (f) except as set forth in Section 7.18, any rights to use or exploit the name or mark "General Dynamics" or "General Dynamics Ordnance and Tactical Systems" or any derivative names or marks; and (g) all assets listed on Schedule 2.2(g) of the Disclosure Schedules. 2.3 Assumption of Liabilities. On the terms and subject to conditions set forth in this Agreement, at the Closing the Purchaser will assume and become responsible for all of the liabilities and obligations, direct or indirect, known or unknown, relating to or arising out of the Purchased Assets, or the operation of the Business or as otherwise specified below, other than the Excluded Liabilities (collectively, the "Assumed Liabilities"): (a) except as specifically excluded in Section 2.4, all liabilities and obligations of the Seller related to the Business as of the Closing Date including, but not limited to, all liabilities and obligations reflected on the Balance Sheet, except for any such liabilities or obligations that have been paid or discharged since the date of the Balance Sheet; (b) all liabilities and obligations of the Seller arising with respect to the performance of the Contracts, excluding any liability or obligation resulting from any criminal activity, civil fraud or intentional wrongdoing by the Seller prior to the Closing Date; (c) all warranty and product liabilities relating to products manufactured, sold, serviced or repaired on or prior to the Closing Date in connection with the Business; 8 (d) all liabilities and obligations of the Seller relating to employment, compensation and employee benefits for the Business Employees, including benefits related to former employees of the Business, all to the extent the Purchaser has agreed to assume them pursuant to Article VIII; (e) all environmental liabilities relating to the ownership or operation of the Business or the Purchased Assets, arising out of any event, transaction, condition, practice, Release or occurrence, including any liabilities resulting from violations of Environmental Laws in connection with the generation, storage, presence, use, handling, treatment, transportation, disposal or Release of any Hazardous Materials prior to, on or after the Closing Date; and (f) all liabilities and obligations arising after the Closing Date in connection with the operation of the Business. 2.4 Excluded Liabilities. The Purchaser will not assume or become responsible for, and will not be deemed to have assumed or to have become responsible for the following liabilities and obligations (collectively the "Excluded Liabilities"): (a) any liability or obligation relating to or arising out of any Excluded Asset; (b) any liability or obligation of the Seller in respect of indebtedness for borrowed money; (c) any liability or obligation of the Seller under the Management Security Plan; (d) any liability or obligation (whether assessed or unassessed) of the Seller with respect to any Taxes arising in connection with the Business or the Purchased Assets (subject to Section 12.2), including any Taxes arising by reason of the transactions contemplated by this Agreement or any of the Ancillary Agreements, as of or for any taxable period or portion thereof on or prior to the Closing Date; or (e) any liability or obligation for aircraft products (including, without limitation, turbo products and fire and explosion suppression products) liability occurring on or prior to the Closing Date; or (f) any liability or obligation set forth on Schedule 2.4(f). ARTICLE III PURCHASE PRICE 3.1 Initial Purchase Price. On the terms and subject to the conditions set forth in this Agreement, at the Closing, the Purchaser will deliver to the Seller Ninety Million Dollars $90,000,000 (the "Initial Purchase Price") by bank wire transfer of immediately available funds to an account designated in writing by the Seller. The Initial Purchase Price will be subject to adjustment as provided in Section 3.2. 3.2 Post-Closing Adjustment of Initial Purchase Price. (a) Within 90 days after the Closing Date, the Seller will deliver to the Purchaser (i) a balance sheet of the Business as of the Closing Date (the "Closing Date Balance Sheet") 9 prepared in accordance with GAAP, using the same accounting methods, policies, practices and procedures and applied on a basis consistent with that employed by the Seller in the preparation of the Financial Statements, (ii) a schedule of working capital of the Business as of the Closing Date (the "Statement of Closing Date Working Capital") setting forth the working capital of the Business as of the Closing Date (the "Closing Date Working Capital"), calculated by subtracting (x) total current liabilities minus the amount calculated pursuant to Schedule 3.2 from the sum of (y) accounts receivable, contracts in progress and inventories, and (iii) a certificate signed by Seller's Accounting Firm (the "Auditor's Report") together with the Closing Date Balance Sheet and the Statement of Closing Date Working Capital to which such Auditor's Report relates. The Auditor's Report will report, without qualification or other limitation arising out of the scope of the audit, that the Closing Date Balance Sheet presents fairly the financial position of the Business as of the Closing Date in conformity with GAAP, except the Closing Date Balance Sheet will not give effect to any purchase accounting adjustments arising from the transactions contemplated by this Agreement. (b) Within 30 days after the receipt of the Closing Date Balance Sheet, the Statement of Closing Date Working Capital and the Auditor's Report, the Purchaser will deliver written notice to the Seller of any objections thereto, and will attempt in good faith to reach an agreement with the Seller as to any matters in dispute. If the Purchaser and the Seller, notwithstanding such good faith effort, fail to resolve all matters in dispute within 30 days after the Purchaser advises the Seller of its objections, then any remaining disputed matters will be finally and conclusively determined by an independent auditing firm of recognized national standing (the "Arbiter") selected by the Purchaser and the Seller. Promptly, but not later than 30 days after its acceptance of its appointment, the Arbiter will determine (based solely on presentations by the Seller and the Purchaser and not by independent review) only those matters in dispute and will render a written report as to the disputed matters and the resulting calculation of the Closing Date Working Capital, which report will be conclusive and binding upon the parties. The fees and expenses of the Arbiter will be shared equally by the Purchaser and the Seller. (c) For purposes of complying with the terms set forth herein, each party will cooperate with and make available to the other party and its auditors and representatives all information, records and data, and will permit access to its facilities and personnel, as may be reasonably required in connection with the preparation and analysis of the Closing Date Balance Sheet, the Statement of Closing Date Working Capital and all related information and the resolution of any disputes thereunder. Without limiting the generality of the foregoing, the Seller will cause Seller's Accounting Firm to make available at its office to the Purchaser and the Purchaser's Accounting Firm within 10 business days after delivery of the Auditor's Report pursuant to Section 3.2(a) the workpapers therefor. (d) In the event that the Closing Date Working Capital, as finally determined pursuant to this Section 3.2, is (i) less than $11,700,000, then the Seller will pay to the Purchaser the amount of such difference or (ii) greater than $16,700,000, then the Purchaser will pay to the Seller the amount of such difference. Any payment pursuant to this Section 3.2(d) will be made in cash plus interest thereon (calculated based on the actual number of days elapsed in a year consisting of 365 days) from the Closing Date to the date of such payment at the per annum rate equal to the rate announced by Citibank, N.A. in the City of New York as its prime rate as in effect on the Closing Date. Any payment pursuant to this Section 3.2(d) will be made within five business days following the final determination of the Closing Date Working Capital in accordance with this Section 3.2 by bank wire transfer of immediately available funds to an 10 account designated in writing by the Seller or the Purchaser, as the case may be. The payment pursuant to this Section 3.2 (other than the portion thereof that is attributable to the payment of interest pursuant to this Section 3.2(d)) will be treated by the parties as an adjustment to the Initial Purchase Price and the Initial Purchase Price as so adjusted will be referred to in this Agreement as the "Purchase Price." 3.3 Allocation of Purchase Price. (a) Within 120 days after the Closing Date, the Seller will deliver to the Purchaser a preliminary allocation among the Purchased Assets of the Purchase Price and among such other consideration paid to the Seller pursuant to this Agreement; and as soon as practicable following the Closing, the Seller will deliver to the Purchaser a statement (the "Allocation Statement") setting forth its calculation of the amount of the total consideration allocable to the Purchased Assets sold at the Closing. (b) The Allocation Statement will be prepared in accordance with Section 1060 of the Code and the rules and regulations promulgated thereunder. (c) The Purchaser will review the Allocation Statement and, to the extent the Purchaser disagrees in good faith with the content of the Allocation Statement, the Purchaser will inform the Seller of such disagreement within 30 days after receipt of the Allocation Statement. The Seller and the Purchaser will attempt to resolve any such disagreement. If the Seller and the Purchaser are unable to reach a good faith agreement on the content of the Allocation Statement within 180 days of the Closing Date, the Seller and the Purchaser will each use their respective allocation statements. (d) If the Purchaser and the Seller agree on the Allocation Statement, the Purchaser and the Seller will report the allocation of the total consideration among the Purchased Assets in a manner consistent with the Allocation Statement and will act in accordance with the Allocation Statement in the preparation and timely filing of all Income Tax returns (including filing Form 8594 with their respective federal income tax returns for the taxable year that includes the Closing and any other forms or statements required by the Code, Treasury regulations, the Internal Revenue Service or any applicable state or local taxing authority). Each of the Purchaser and the Seller agrees to promptly provide the other party with any additional information and reasonable assistance required to complete Form 8594 or compute Taxes arising in connection with (or otherwise affected by) the transactions contemplated hereunder. (e) The Purchaser and the Seller will promptly inform one another of any challenge by any taxing authority to any allocation made pursuant to this Section 3.3 and agree to consult with and keep one another informed with respect to the status of, and any discussion, proposal or submission with respect to, such challenge. ARTICLE IV THE CLOSING 4.1 Closing. Upon the terms and subject to the satisfaction of the conditions contained in Article IX, the consummation of the transactions contemplated by this Agreement (the "Closing") will take place at the offices of Jenner & Block, LLC, 601 Thirteenth Street, NW, Suite 1200 South, Washington, DC 20036, at 10:00 a.m., Pacific time, and will be effective at 11:59 p.m., Pacific time, on or before the fifth business day after the satisfaction or waiver of all 11 of the closing conditions set forth in Article IX, or at such other place or on such other date as the Seller and the Purchaser may agree. 4.2 Closing Date. The date on which the Closing actually takes place is referred to in this Agreement as the "Closing Date." 4.3 Deliveries at the Closing. At the Closing: (a) the Seller will deliver to the Purchaser the various certificates, instruments and documents referred to in Section 9.1; (b) the Purchaser will deliver to the Seller the various certificates, instruments and documents referred to in Section 9.2; (c) the Seller will execute, acknowledge (if appropriate) and deliver to the Purchaser (i) a bill of sale substantially in the form attached hereto as Exhibit A (the "Bill of Sale"), (ii) a counterpart of the assignment and assumption agreement substantially in the form attached hereto as Exhibit B (the "Assignment and Assumption Agreement"), (iii) a bargain and sale deed conveying fee simple title to the Owned Real Property to the Purchaser subject to all Permitted Encumbrances, substantially in the form attached hereto as Exhibit C (the "Deed"), (iv) a counterpart of the Building Lease substantially in the form attached hereto as Exhibit D, (v) an assignment of patents substantially in the form attached hereto as Exhibit E (the "Assignment of Patents"), (vi) a guaranty executed by General Dynamics Corporation, substantially in the form attached hereto as Exhibit F (the "General Dynamics Guaranty"), (vii) a counterpart of the Transition Services Agreement substantially in the form attached hereto as Exhibit I, (viii) any affidavits required under Section 1445 of the Code and such other instruments of sale, transfer, conveyance, and assignment as the Purchaser and its counsel may reasonably request; (d) the Purchaser will execute, acknowledge (if appropriate) and deliver to the Seller (i) a counterpart of the Bill of Sale, (ii) a counterpart of the Assignment and Assumption Agreement, (iii) a counterpart of the Building Lease, (iv) a guaranty by GenCorp Inc. substantially in the form attached hereto as Exhibit G (the "GenCorp Guaranty") (v) a counterpart of the Transition Services Agreement and such other instruments of assumption as the Seller and its counsel may reasonably request (including any relevant exemption certificates establishing any exemptions from any Tax claimed by the Purchaser); and (e) the Purchaser will deliver to the Seller the Initial Purchase Price as specified in Section 3.1. ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLER The Seller represents and warrants to the Purchaser that the statements contained in this Article V are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Article V). 5.1 Organization. The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Washington. The Seller is duly qualified or licensed to do business as a foreign corporation and is in good standing in each jurisdiction in which the ownership or lease of the Purchased Assets or the operation of the Business requires such qualification or license, except where the failure to so qualify or be so licensed would not create a Material Adverse Effect. The Seller has all requisite power and authority to carry on the Business as currently conducted and to own and use the Purchased Assets as and where currently owned, operated and leased. 5.2 Authorization of Transaction. The Seller has all necessary corporate power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which it 12 is a party and to perform its obligations hereunder and thereunder. This Agreement constitutes, and each of the Ancillary Agreements when executed and delivered by the Seller will constitute, the valid and legally binding obligation of the Seller, enforceable in accordance with its terms and conditions. 5.3 Noncontravention; Consents. (a) Except as set forth on Schedule 5.3 of the Disclosure Schedules, neither the execution and delivery of this Agreement or any of the Ancillary Agreements by the Seller, nor the consummation by the Seller of the transactions contemplated hereby or thereby, will: (i) violate any Law to which the Seller is subject, except for violations which would not, individually or in the aggregate, create a Material Adverse Effect; (ii) conflict with or result in a breach of any provision of the charter or bylaws of the Seller; (iii) constitute a violation of, be in conflict with, constitute or create a breach, default, termination, cancellation or acceleration of any obligation under any contract, agreement or commitment to which the Seller is a party or by which any of the Purchased Assets or the Business is bound or subject, except for such violations that would not, individually or in the aggregate, create a Material Adverse Effect; (iv) result in the creation or imposition of any Lien (other than a Permitted Encumbrance) upon the Purchased Assets; or (v) constitute an event that, after notice or lapse of time or both, would result in such a violation, conflict, breach, default, termination, cancellation or acceleration of any obligation or imposition of a Lien, (other than a Permitted Exception) except for any of the foregoing that would not, individually or in the aggregate, create a Material Adverse Effect. (b) Except as set forth on Schedule 5.3 of the Disclosure Schedules and except for (i) the filings by the Purchaser and the Seller required under the Hart-Scott-Rodino Act and any other applicable competition, merger control, antitrust or similar Laws of any other applicable jurisdiction (collectively, the "Antitrust Laws") and the expiration or early termination of all waiting periods under the Hart-Scott-Rodino Act (or approvals under Antitrust Laws), and (ii) the novation of Government Contracts as contemplated by Section 7.14, no notices, licenses, Permits, consents, approvals, authorizations, qualifications and orders of Governmental Entities or third parties are required for the consummation by the Seller of the transactions contemplated hereby or by the Ancillary Agreements, other than such licenses, Permits, consents, approvals, authorizations, qualifications and orders which, if not obtained or made, would not, individually or in the aggregate, create a Material Adverse Effect or have a material adverse effect upon the Seller's ability to consummate the transactions contemplated by, and discharge its obligations under, this Agreement and the Ancillary Agreements. 5.4 Financial Statements. (a) Set forth as Schedule 5.4(a) of the Disclosure Schedules are correct and complete copies of the unaudited balance sheet of the Business as of May 26, 2002 (the "Balance Sheet") and the related statement of income for the period then ended (collectively, the "Financial Statements"). The Financial Statements were prepared in accordance with GAAP, consistently applied, and present fairly the financial position and the results of operations of the Business as of the date and for the period indicated therein, and are consistent with the books and records of the Seller (which books and records are correct and complete). The Financial Statements have not been prepared, reviewed or audited by an outside accounting firm. (b) Except as included on the Balance Sheet, the Seller does not have, with respect to the Business, any debts, liabilities, or obligations of any nature, whether absolute, accrued, 13 contingent or otherwise, which would be Assumed Liabilities, other than: (i) liabilities incurred in the ordinary and usual course of business since the date of the Balance Sheet or (ii) liabilities not required by GAAP to be included on a balance sheet or disclosed in any notes thereto. (c) Substantially all the inventories of the Seller reflected on the Balance Sheet are of a quality and quantity saleable or usable in the ordinary course of business consistent with past practices, except to the extent reserves therefor have been included in the Balance Sheet. (d) All accounts receivable of the Business reflected on the Balance Sheet have arisen from bona fide transactions in the ordinary course of business consistent with past practices and represent actual, bona fide obligations of the Seller arising from arm's length sales in the ordinary course of business consistent with past practices, except to the extent reserves therefor have been included on the Balance Sheet, and, to the Seller's Knowledge, represent the legal, valid and binding obligations of the obligors thereon. Except to the extent reserved against the accounts receivable, none of the accounts receivable reflected on the Balance Sheet are subject to any asserted or, to the Seller's Knowledge, threatened, defenses, set-offs or counterclaims. 5.5 Absence of Certain Changes or Events Subsequent to Balance Sheet. Since the date of the Balance Sheet and except as set forth on Schedule 5.5 of the Disclosure Schedules, (a) there has not been any change in the assets, liabilities, financial position, operations or results of operations of the Business, other than any such changes in the ordinary course of business or that would not, individually or in the aggregate, create a Material Adverse Effect and (b) the Seller has conducted the operations of the Business in the ordinary course of business, consistent with past practices, except for matters that would not, individually or in the aggregate, create a Material Adverse Effect. 5.6 Tax Matters. (a) There are no liens for Taxes (other than for current Taxes not yet due and payable) upon the Purchased Assets. (b) The transactions contemplated by this Agreement are not subject to tax withholding pursuant to the provisions of Section 3406 or Subchapter A of Chapter 3 of the Code or any other provision of applicable Law. (c) The Seller is not a Person other than a United States Person within the meaning of the Code. 5.7 Contracts. (a) Except for the Contracts listed on Schedule 2.1(c) of the Disclosure Schedules, the Seller, in connection with the Business, is not a party to or otherwise bound by any (i) contract, agreement or commitment that involves commitments of more than $250,000 in any 12-month period; (ii) contract, agreement or commitment with an agent, dealer, distributor or sales representative; (iii) commitment to make a capital expenditure or to purchase a capital asset or a proposal to do so, in excess of $100,000 in any single instance, not contemplated by the capital expenditure budget of the Seller for the Business; (iv) material contract with any Affiliate of the Seller; (v) agreement including a non-compete provision or similar covenant restricting the Business from competing with another Person; or (vi) contract, agreement or commitment that is 14 otherwise material to the condition (financial or otherwise) of the Business or the Purchased Assets; (vii) contract, agreement or commitment with any Business Employee that is not terminable at will by the Seller without cost and any agreement, contract or commitment that will result in the payment by, or the creation of any commitment or obligation (absolute or contingent) to pay on behalf of the Purchaser or the Seller any severance, termination, "golden parachute," or other similar payments to any Business Employee following termination of employment or otherwise as a result of the consummation of the transactions contemplated by this Agreement; or (viii) contract or agreement for the storage, transportation, treatment or disposal of any hazardous material under CERCLA, or contract for the storage, transportation, treatment or disposal of any waste or by-product. (b) Except as prohibited by law, by the terms of such Contract or under any confidentiality agreement, the Seller has delivered or made available to the Purchaser copies of each written agreement listed on Schedule 2.1(c) of the Disclosure Schedules, as amended to date. Each Contract is a valid, binding and enforceable obligation of the Seller, and, to the Knowledge of the Seller, the other party or parties thereto (subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors' rights and remedies generally and subject as to enforceability to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing) and, to the Knowledge of the Seller, is in full force and effect. (c) Except as set forth on Schedule 5.7 of the Disclosure Schedules (i) neither the Seller nor, to the Seller's Knowledge, any other party thereto is in breach of or default under any term of any Contract or has repudiated any term of any Contract, except for such breaches, defaults or repudiation which would not, individually or in the aggregate, create a Material Adverse Effect or (ii) the Seller has not received from any Person written notice of the termination or cancellation of, or the intention to terminate or cancel, any Contract. 5.8 Government Contracts. (a) Except as set forth on Schedule 5.8 of the Disclosure Schedules, and in addition to the representations and warranties made by the Seller in Section 5.7, with respect to each Government Contract of the Business: (i) the Seller has complied with all terms and conditions of such Government Contract (including Laws or agreements pertaining thereto), except where such failures to be in compliance would not, individually or in the aggregate, create a Material Adverse Effect; (ii) neither the U.S. Government nor any prime contractor, subcontractor or other Person has notified the Seller, either in writing or, to the Seller's Knowledge, orally that the Seller has breached or violated any Law, certification, representation, clause, provision or requirement pertaining to such Government Contract; (iii) no termination for convenience, termination for default, cure notice or show cause notice is currently in effect pertaining to such Government Contract; (iv) no outstanding unresolved material cost of the Seller has been disallowed; and 15 (v) to the Knowledge of the Seller, neither the Seller nor any of its directors, officers or employees is under civil, administrative or criminal investigation or indictment or has information with respect to any alleged fraudulent or criminal activity involving a Government Contract or a bid for a Government Contract. (b) Except as set forth on Schedule 5.8 of the Disclosure Schedules, with respect to the Business there are (i) no outstanding claims against the Seller, either by any Governmental Entity or by any prime contractor, subcontractor, vendor or other Person, arising under or relating to any Government Contract and (ii) no disputes between the Seller and the U.S. Government under the Contract Disputes Act or any other federal statute or between the Seller and any prime contractor, subcontractor or vendor arising under or relating to any Government Contract. (c) Since January 1, 2002, the Seller, acting through the Business, has not been debarred or suspended from participation in the award of contracts with the U.S. Government or any other Governmental Entity (excluding for this purpose ineligibility to bid on certain contracts due to generally applicable bidding requirements). 5.9 Real Property. (a) Schedule 5.9(a) of the Disclosure Schedules lists and describes in reasonable detail the Owned Real Property. Except as set forth on Schedule 5.9(a) of the Disclosure Schedules, with respect to the Owned Real Property: (i) the Seller has, and the Seller will have as of the Closing Date, fee simple title to such parcel, free and clear of any Lien, easement, covenant, the rights of any third parties or other restriction, except for Permitted Encumbrances; (ii) the Seller has not received any notice that any portion of the Owned Real Property is subject to any pending condemnation proceeding and, to the Seller's Knowledge, there are no threatened condemnation proceedings, lawsuits or administrative actions relating to any parcel of Owned Real Property; (iii) the Seller has not received written notice that either the improvements on the Owned Real Property or the business conducted thereon is in violation of any use or occupancy restriction, limitation, condition or covenant of record or any zoning or building law, code or ordinance; (iv) no third party has any option or right of first refusal to acquire the Owned Real Property; (v) there are no Persons (other than the Seller) in possession of the Owned Real Property; (vi) the Owned Real Property is assessed as separate and distinct tax parcels; (vii) the Seller has not received any written notice from any insurance carrier regarding defects or inadequacies in the Owned Real Property which, if not corrected, would result in the termination of the Seller's insurance coverage or a material increase in the cost thereof. 16 (b) Schedule 5.9(b) of the Disclosure Schedules lists and describes in reasonable detail all real property leased or subleased to the Seller in connection with the Business (the "Leased Real Property"). For all Leased Real Property, the Seller has delivered to the Purchaser copies of the leases and subleases listed in Schedule 5.9(b) of the Disclosure Schedules, each as amended to date. Except as set forth on Schedule 5.9(b) of the Disclosure Schedules, with respect to the Leased Real Property: (i) each lease agreement is in full force and effect, is assignable (upon receipt of necessary landlord consents) and, to the Seller's Knowledge, the Seller has performed all material obligations required to be performed thereunder; (ii) neither the Seller nor, to the Seller's Knowledge, any other party to any Lease Agreement is in breach or default under any such lease agreement; (iii) to the Seller's Knowledge, there exists no condition or event that, after notice or lapse of time or both, would constitute a breach or default of any lease agreement; (iv) the Seller has not received any written notice that any portion of the Leased Real Property is subject to any pending condemnation proceeding; and (v) there are no material agreements or options, written or oral, giving to any Person (other than the Seller) the right, and the Seller has not granted to any Person any material right, to purchase, use, possess or occupy the Leased Real Property. 5.10 Title and Sufficiency of Assets. (a) Except as set forth on Schedule 5.10 of the Disclosure Schedules, the Seller has good title, free and clear of all Liens (other than Permitted Encumbrances) or has the right to possess and use and on the Closing Date will have and convey to the Purchaser to the extent of its interests therein, all of the material tangible assets regularly used in the conduct of the Business or otherwise necessary to operate the Business in the manner presently operated by the Seller. 5.11 Intellectual Property. (a) The Seller owns or has the right to use pursuant to license, sublicense, agreement or permission all intellectual property rights necessary for the operation of the Business as presently conducted. Except as set forth on Schedule 5.11, the Business has not, to the Seller's Knowledge, interfered with, infringed upon or otherwise misappropriated any intellectual property rights of third parties, and the Seller has not received any written charge, complaint, claim, demand or notice alleging any such misappropriation (including any such claim that the Seller must license or refrain from using any intellectual property rights of any third party). To the Seller's Knowledge, no third party is currently interfering with, infringing upon, misappropriating or otherwise coming into conflict with any Intellectual Property rights of the Seller in connection with the Business. (b) Schedule 5.11(b) of the Disclosure Schedules identifies each patent, copyright registration, trademark registration, domain name, pending patent application and application for registration with respect to any material Intellectual Property and each material license, sublicense, agreement or other permission which the Seller in connection with the Business has 17 granted to any third party with respect to any Intellectual Property. The Seller has delivered or made available to the Purchaser copies of all such patents, registrations, applications, licenses, sublicenses, agreements and permissions, each as amended to date. With respect to each such item of Intellectual Property required to be identified in Schedule 5.11(b) of the Disclosure Schedules and except as set forth on Schedule 5.11(b): (i) subject to the consent requirements set forth on Schedule 5.3, the Seller possesses, and at Closing will transfer to the Purchaser, all right, title and interest in and to the item, free and clear of any Lien, license or other restriction, and subject to rights conveyed to direct and indirect customers of the Business (including the U.S. Government) and no contract, agreement or commitment exists that would prevent the Seller from transferring to the Purchaser all of its right, title and interest in and to such item; (ii) the item is not subject to any outstanding injunction, judgment, order, decree, ruling or charge; (iii) no action, suit, proceeding, hearing, investigation, charge, complaint, claim or demand is pending or, to the Seller's Knowledge, threatened which challenges the legality, validity, enforceability, use or ownership of the item; and (iv) subject to the consent requirements set forth on Schedule 5.3, to the Knowledge of the Seller, the license, sublicense, agreement or permission covering the item is valid, binding, enforceable and in full force and effect, and no contract, agreement or understanding exists that would prevent the Seller from transferring to the Purchaser all of Seller's right, title and interest in and to such item. (c) Schedule 5.11(c) of the Disclosure Schedules identifies each material license, sublicense, agreement or permission pursuant to which the Business uses any material item of Intellectual Property owned by a third party. Except as prohibited by law, by the terms therein or under any confidentiality agreement, the Seller has delivered or made available to the Purchaser copies of all such licenses, sublicenses, agreements and permissions, each as amended to date. With respect to each such item of Intellectual Property required to be identified in Schedule 5.11(c) of the Disclosure Schedules and except as set forth on Schedule 5.11(c): (i) to the Knowledge of the Seller, the license, sublicense, agreement or permission covering the item is valid, binding, enforceable and in full force and effect and no contract, agreement or commitment exists that would prevent the Seller from transferring to the Purchaser all of its right, title and interest in such item; (ii) the license, sublicense, agreement or permission is not subject to any outstanding injunction, judgment, order, decree, ruling or charge; (iii) no action, suit, proceeding, hearing, investigation, charge, complaint, claim or demand is pending or, to the Seller's Knowledge, threatened which challenges the legality, validity or enforceability of the license, sublicense, agreement or permission; and (iv) the Seller has not granted any sublicense or similar right with respect to the license, sublicense, agreement or permission. 18 5.12 Litigation. Except as set forth in Schedule 5.12 of the Disclosure Schedules, there are no claims, actions, proceedings or investigations pending or to the Seller's Knowledge, threatened against the Seller relating to the Business, the Purchased Assets or the Assumed Liabilities which would, individually or in the aggregate, be reasonably expected to create a Material Adverse Effect. As of the date of this Agreement, there are no judicial or administrative actions, proceedings or investigations pending or, to the Seller's Knowledge, threatened that question the validity of this Agreement or any of the Ancillary Agreements or any action taken or to be taken by the Seller in connection with this Agreement or any of the Ancillary Agreements that, if adversely determined, would create a Material Adverse Effect. 5.13 Employees and Employee Benefits. (a) Schedule 5.13(a) of the Disclosure Schedules lists all employees employed by the Seller in connection with the Business (the "Business Employees"). (b) Except as set forth on Schedule 5.13(b), with respect to the Business: (i) there are no strikes, work stoppages or material disputes pending or to the Seller's Knowledge, threatened, that involve any Business Employees; (ii) the Business Employees are not currently represented by any labor union; (iii) to the Seller's Knowledge, no union organization campaign is in progress with respect to the Business Employees, and no question concerning representation exists respecting such Business Employees; (iv) there is no unfair labor practice charge or complaint relating to the Business against the Seller or its Affiliates pending or, to the Seller's Knowledge, threatened, before the National Labor Relations Board or similar governmental agency outside of the United States; (v) there is no pending, or, to the Seller's Knowledge, threatened grievance, arbitration, demand letter or claim involving a Business Employee claiming damages in excess of $50,000; and (vi) there is no discrimination charge by any Business Employee with respect to or relating to the Business pending before the Equal Employment Opportunity Commission or any other similar Governmental Entity responsible for the prevention of unlawful employment practices. (c) Schedule 5.13(c) of the Disclosure Schedules lists each Employee Benefit Plan that the Seller or any of its Affiliates maintains with respect to the current or former employees of the Business or to which the Seller or any of its Affiliates contributes with respect to the current or former employees of the Business. With respect to each such Employee Benefit Plan, to the Seller's Knowledge: (i) such Employee Benefit Plan (and each related trust, insurance contract or fund) complies in form and in operation with the applicable requirements of ERISA, the Code and other applicable Laws, except for such failures to comply with such requirements which would not, individually or in the aggregate, create a Material Adverse Effect; (ii) except as disclosed on Schedule 5.13(c), each such Employee Benefit Plan which is intended to meet the qualification requirements of Section 401(a) of the Code has received a favorable determination letter from the IRS and would, subject to adoption (within any applicable required time period) of amendments required by the IRS in the ordinary course pursuant to an application for a determination letter, receive an updated favorable determination letter from the IRS, and no amendment has been made nor has any event occurred with respect to any such Employee Benefit Plan which would reasonably be expected to cause the loss or denial of such qualification under Code Section 401(a); and 19 (iii) the Seller has delivered or made available to the Purchaser copies of the plan documents and summary plan descriptions, the most recent determination letter received from the IRS, the most recent Form 5500 Annual Report, and all related trust agreements, insurance contracts and other funding agreements which implement such Employee Benefit Plans. (d) With respect to each Seller Employee Benefit Plan, to the Seller's Knowledge: (i) none of the Seller or its Affiliates has incurred any material liability to the PBGC (other than PBGC premium payments) or otherwise under Title IV of ERISA (including any material withdrawal liability) or under the Code with respect to any such Employee Benefit Plan which is an Employee Pension Benefit Plan; and (ii) there have been no non-exempt Prohibited Transactions with respect to such Employee Benefit Plan, no fiduciary has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of such Employee Benefit Plan, and no action, suit, proceeding, hearing or investigation with respect to the administration or the investment of the assets of such Employee Benefit Plan (other than routine claims for benefits) is pending or, to the Seller's Knowledge, threatened, which would, individually or in the aggregate, create a Material Adverse Effect. (e) Except as set forth on Schedule 5.13(e) of the Disclosure Schedules, the Seller does not maintain or contribute nor, to the Seller's Knowledge has it ever maintained or contributed or been required to contribute, to any Employee Welfare Benefit Plan providing medical, health, life insurance or other welfare benefits for current or future retired or terminated employees of the Business, their spouses or their dependents (other than in accordance with Section 4980B of the Code). (f) None of the Seller Employee Benefit Plans are Multiemployer Plans. (g) The Seller has made full and timely payment of all amounts due, owing and required to be contributed with respect to the Business Employees under the terms of each Seller Employee Benefit Plan, or required to be paid as expenses with respect to the Business Employees under such Seller Employee Benefit Plans through the Closing Date. 5.14 Environmental Matters. Except as set forth on Schedule 5.14 of the Disclosure Schedules, to the Seller's Knowledge, (a) the Seller is in compliance with all Environmental Laws in connection with the ownership and operation of the Owned Real Property, the Leased Real Property and the Business, except for such failures to be in compliance with such Environmental Laws, which would not, individually or in the aggregate, create a Material Adverse Effect, (b) no written notices of any violation or alleged violation under any Environmental Law relating to the operations at the Owned Real Property, the Leased Real Property or with respect to the Business have been received by the Seller or any Affiliate, except for such matters as would not, individually or in the aggregate, create a Material Adverse Effect, (c) with respect to the Business, the Seller has all applicable environmental permits for the operations at the Owned Real Property and the Leased Real Property and (d) there are no Liens (other than Permitted Encumbrances) on the Owned Real Property, the Leased Real Property or the Purchased Assets 20 based upon any Environmental Law or for costs incurred in response to a Release of Hazardous Materials. (b) To the Seller's Knowledge, except as set forth on Schedule 5.14 of the Disclosure Schedules, and except as could not reasonably be expected to result in a Material Adverse Effect: (i) there have been no Releases of Hazardous Materials on or from the Owned Real Property or Leased Real Property, except as in compliance with applicable Environmental Laws; (ii) Hazardous Materials have not at any time been generated, treated, recycled, disposed or stored on or off the Owned Real Property or Leased Real Property, except in substantial compliance with applicable Environmental Laws; and (iii) there are no underground storage tanks, asbestos-containing materials, lead-based paint or polychlorinated biphenyls located on the Owned Real Property or Leased Real Property, except as in compliance with applicable Environmental Laws. 5.15 Legal Compliance. Except as set forth in Schedule 5.15 of the Disclosure Schedules, the Seller in connection with the Business and the Purchased Assets has complied with all applicable Laws, and no action, suit, proceeding, hearing, investigation, charge, complaint, claim, demand or notice has been filed or commenced or, to the Seller's Knowledge, threatened against the Seller alleging any failure to so comply, except for such failures to be in compliance with such laws, which would not, individually or in the aggregate, create a Material Adverse Effect. 5.16 Permits. The Seller to its Knowledge has obtained or applied for, and is in compliance with, all material Permits that are required by any Governmental Entity to permit it to conduct the Business as presently conducted and to operate the Purchased Assets as they are presently operated, except for such failures to hold or comply with such Permits which would not, individually or in the aggregate, create a Material Adverse Effect. Each such material Permit is listed on Schedule 5.16 of the Disclosure Schedules. No suspension, cancellation, termination or material violation of any of such Permits is pending or, to the Seller's Knowledge, threatened. 5.17 Insurance. Schedule 5.17 of the Disclosure Schedules contains a correct and complete list of all policies of insurance owned by the Seller or its Affiliates (other than those relating to employee benefits) under which the Seller, in respect of the Business or any of the Purchased Assets is insured. All such policies are in full force and effect. 5.18 Brokers' Fees. The Seller has no liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement for which the Purchaser or any of its Affiliates could become liable or obligated. 5.19 Customers and Suppliers. Schedule 5.19 of the Disclosure Schedules sets forth a complete and accurate list of the names and addresses of the Business' (a) ten largest customers for the most recent fiscal year, showing the approximate total sales in dollars by the Business to each such customer during such fiscal year and (b) the ten largest suppliers for the most recent fiscal year showing the approximate total purchases in dollars by the Business from each such supplier during such fiscal year. As of the date hereof, the Seller has not received any written, or 21 to the Seller's Knowledge, oral notice from any customer or supplier named on Schedule 5.19 of any intention to terminate or materially reduce purchases from or supplies to the Business. 5.20 LIMITATION ON WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE V, THE SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT OF ANY OF THE PURCHASED ASSETS OR THE BUSINESS, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY DISCLAIMED. THE PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT TO THE EXTENT SPECIFICALLY SET FORTH IN THIS ARTICLE V, THE PURCHASER IS PURCHASING THE PURCHASED ASSETS ON AN "AS-IS, WHERE-IS" BASIS. ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER The Purchaser represents and warrants to the Seller that the statements contained in this Article VI are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Article VI). 6.1 Organization of the Purchaser. The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Ohio. The Purchaser is duly qualified or licensed to do business as a foreign corporation and is in good standing in each jurisdiction where such qualification or license is required, except where the failure to so qualify or be so licensed would not be expected to result in a material adverse effect on the Purchaser's ability to consummate the transactions contemplated by, and discharge its obligations under, this Agreement and the Ancillary Agreements ("Purchaser Material Adverse Effect"). The Purchaser has all requisite power and authority to own and use its properties and to carry on its business as currently conducted. 6.2 Authorization of Transaction. The Purchaser has all necessary corporate power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which it is a party and to perform its obligations hereunder and thereunder. This Agreement constitutes, and each of the Ancillary Agreements when executed and delivered by the Purchaser will constitute, the valid and legally binding obligation of the Purchaser, enforceable in accordance with its terms and conditions. 6.3 Noncontravention; Consents. (a) Neither the execution and delivery of this Agreement or any of the Ancillary Agreements by the Purchaser, nor the consummation by the Purchaser of the transactions contemplated hereby or thereby, will: (i) violate any Law to which the Purchaser is subject; (ii) conflict with or result in a breach of any provision of the charter or bylaws of the Purchaser; (iii) constitute a violation of, be in conflict with, constitute or create a breach, default, termination, cancellation or acceleration of any obligation under any contract, agreement or commitment to which the Purchaser or any of its Affiliates is a party or by which the Purchaser, any of its Affiliates, or any of their respective assets or properties are bound or subject, except in the case of clauses (i) and (iii) for such violations, conflicts and defaults that would not, individually or in the aggregate, create a Purchaser Material Adverse Effect. 22 (b) Except for (i) the filings by the Purchaser and the Seller required under the Hart-Scott-Rodino Act and Antitrust Laws and the expiration or early termination of all waiting periods under the Hart-Scott-Rodino Act (or approvals under Antitrust Laws), and (ii) the novation of Government Contracts as contemplated by Section 7.14, no notices, licenses, Permits, consents, approvals, authorizations, qualifications and orders of Governmental Entities or third parties are required for the consummation by the Purchaser of the transactions contemplated hereby or by the Ancillary Agreements, other than such licenses, Permits, consents, approvals, authorizations, qualifications and orders which, if not obtained or made, would not, individually or in the aggregate, create a Purchaser Material Adverse Effect. 6.4 Litigation. There are no judicial or administrative actions, proceedings or investigations pending or, to the Purchaser's knowledge, threatened that question the validity of this Agreement or any of the Ancillary Agreements or any action taken or to be taken by the Purchaser in connection with this Agreement or any of the Ancillary Agreements that, if adversely determined, would create a Purchaser Material Adverse Effect. 6.5 Availability of Funds. The Purchaser has sufficient funds available to it or has received binding written commitments (copies of which have heretofore been delivered to the Seller) from one or more nationally recognized financial institutions to provide sufficient funds on the Closing Date to pay the Purchase Price. 6.6 Brokers' Fees. The Purchaser has no liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement for which the Seller or any of its Affiliates could become liable or obligated. ARTICLE VII COVENANTS OF THE PARTIES Pre-Closing Covenants. With respect to the covenants set forth in Sections 7.1 through 7.11 of this Article VII, which relate to the period between the date of this Agreement and the Closing Date, the Seller and the Purchaser agree as follows: 7.1 General. Each of the parties will use its reasonable best efforts to take all action and to do, as soon as possible, all things necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement (including satisfying the closing conditions set forth in Article IX). Neither of the parties will, without prior written consent of the other party, take or fail to take, or permit their respective Affiliates to take or fail to take, any action, which would reasonably be expected to prevent or materially impede, interfere with or delay the consummation, as soon as possible, of the transactions contemplated by this Agreement or the Ancillary Agreements. Without limiting the generality of the foregoing, each of the parties will use its reasonable best efforts to negotiate in good faith as soon as reasonably practicable after the date of this Agreement, and enter into any other agreement reasonably necessary to consummate the sale of the Purchased Assets pursuant to this Agreement as soon as possible. 7.2 Notices and Consents. Subject to the provisions relating to the novation of Government Contracts and Government Subcontracts, as set forth in Section 7.13, prior to the Closing Date, the Seller will give all notices and will use reasonable efforts to obtain all material consents, approvals or authorizations of any Governmental Entities, except for novations of any Government Contracts or Government Subcontracts, or third parties that are required in connection with the transactions contemplated by this Agreement. Within ten business days 23 following the execution and delivery of this Agreement, each of the Seller and the Purchaser will file all notifications and related material with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the Hart-Scott-Rodino Act, will use its best efforts to obtain early termination of the applicable waiting period and will take further actions and make all further filings pursuant thereto or under any Antitrust Laws that may be necessary, proper or advisable in every applicable jurisdiction where such notification or approval is required; provided, however, that nothing contained herein will require the Purchaser or the Seller to take any such action if the taking of such action would create a Purchaser Material Adverse Effect or a Material Adverse Effect, as the case may be. In connection with the foregoing, each party will (i) promptly notify the other party of any written communication to that party or its Affiliates from any Governmental Entity and, subject to applicable Law, provide the other party with a copy of any written communication to any of the foregoing and (ii) not participate in any substantive meeting or discussion with any Governmental Entity in respect of any filings, investigation or inquiry concerning the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, give the other party the opportunity to attend and participate thereat, with respect to this Agreement or the Ancillary Agreements and the transactions contemplated hereby or thereby. 7.3 Carry on in Regular Course. (a) Except with the written consent of the Purchaser (which consent will not be unreasonably withheld or delayed), the Seller will: (i) maintain and operate the Purchased Assets in good operating condition and repair; (ii) operate the Business in the usual and ordinary course, substantially in the same manner as heretofore conducted; and (iii) use its commercially reasonable efforts to preserve and maintain the goodwill associated with the Business and the ordinary and customary relationships of the Business with the customers, suppliers, distributors, licensors and others with whom it has a business relationship. (b) Without limiting the generality of the foregoing, except with the written consent of the Purchaser (which consent will not be unreasonably withheld or delayed), the Seller will not: (i) make any change in the key management structure of the Business, including the hiring of additional officers or the termination of existing officers, except in the ordinary course of business consistent with past practice; (ii) adopt, enter into or amend any Employee Benefit Plan (including any collective bargaining or employment agreement), or any trust or fund for the benefit or welfare of any Business Employee, except in the ordinary course of business consistent with past practice; (iii) make any capital expenditure, capital commitment, additions to property, plant or equipment, in excess of $100,000 in any single instance, except in accordance with the capital expenditures budget of the Seller for the Business; or (iv) enter into any agreement, or otherwise become obligated, to take any action prohibited under this Section 7.3. 7.4 No General Increases. Except with the written consent of the Purchaser (which consent will not be unreasonably withheld or delayed), the Seller in connection with the Business 24 Employees will not (a) grant any general or uniform increase in the rates of pay of any employees, nor grant any general or uniform increase in the benefits under any bonus or pension plan or other contract or commitment or (b) increase the compensation payable or to become payable to any Business Employee or agent, increase any bonus, insurance, pension or other benefit plan, payment or arrangement made to, for or with any Business Employee or agent, except in the case of either clause 7.4(a) or (b), in the ordinary course of business consistent with past practice or to the extent required under the terms of any consulting agreement, employment agreement or Seller Employee Benefit Plan in effect on the date of this Agreement, or (c) grant any severance, continuation or termination pay. 7.5 Contracts and Commitments. Except with the written consent of the Purchaser (which consent will not be unreasonably withheld or delayed), the Seller in connection with the Business will not enter into any contract, agreement, commitment or engage in any transaction, including any contract, agreement, commitment or engagement with any Affiliate of the Seller, or effect any change to any program, not in the usual and ordinary course of business and consistent with the past operation of the Business. 7.6 Sale of Capital Assets. Other than pursuant to this Agreement, except with the written consent of the Purchaser (which consent will not be unreasonably withheld or delayed), the Seller will not sell, assign, transfer, otherwise dispose of or encumber, except for the Permitted Encumbrances, any of the Purchased Assets or any interest therein, other than assets that become obsolete or assets used, consumed or replaced in the ordinary course of business consistent with past practice. 7.7 No Default. Except with the written consent of the Purchaser (which consent will not be unreasonably withheld or delayed), the Seller in connection with the Business will not commit or omit to take any act which will cause a termination of or material breach or default under any material contract, commitment or obligation to which the Seller is a party or by which its assets are bound, including the Contracts. 7.8 Full Access. Subject to the Confidentiality Agreement, the Seller will permit representatives of the Purchaser to have access during normal business hours and under reasonable circumstances to all personnel, premises, properties, assets, books, records, contracts and documents of the Business. The Seller will furnish the Purchaser with all financial and other information in its possession relating to the Business and the Purchased Assets as the Purchaser may from time to time reasonably request. Notwithstanding anything in this Section 7.8 to the contrary, (a) the Seller will not be required to provide such information or access to any employee records other than records of Business Employees, (b) the Purchaser will not have the right to perform or conduct any environmental sampling or testing at, in, on, around or underneath the Purchased Assets and (c) the Seller will not be required to provide such access or information with respect to any Excluded Asset or Excluded Liability. 7.9 Notice of Developments. The Seller will give prompt written notice to the Purchaser of any material development affecting the Business. Each party will give prompt written notice to the other of any material development affecting the ability of the parties to consummate the transactions contemplated by this Agreement or any of the Ancillary Agreements. No such written notice of a material development will be deemed to have amended the Disclosure Schedules, to have qualified the representations and warranties contained herein or to have cured any misrepresentation or breach of warranty that otherwise might have existed hereunder by reason of such material development. 25 7.10 Survey. At the Purchaser's option and upon request, the Seller will, and will cause the Business to, use commercially reasonable efforts to assist the Purchaser in obtaining, at the Purchaser's expense, prior to the Closing a survey of the Owned Real Property. 7.11 Estoppel Certificates. The Seller will make commercially reasonably efforts to obtain estoppel certificates from the landlords with respect to the Leased Real Property. Post-Closing Covenants. With respect to the covenants set forth in Sections 7.12 through 7.19 of this Article VII, the Purchaser and the Seller agree as follows: 7.12 General. In case at any time after the Closing Date any further action is reasonably necessary to carry out the purposes of this Agreement, each of the parties will take such further action (including the execution and delivery of such further instruments and documents) as the other party reasonably may request, at the sole cost and expense of the requesting party (unless otherwise specified herein or unless the requesting party is entitled to indemnification therefor under Article X). 7.13 Post-Closing Consents; Nonassignable Contracts. (a) The Seller and the Purchaser each will use its reasonable commercial efforts after the Closing Date to obtain all consents, approvals or authorizations of any Governmental Entities or third parties that are not obtained prior to the Closing Date and that are required in connection with the transactions contemplated by this Agreement; provided that neither the Seller nor the Purchaser will be required to make any expenditures or incur any liability to obtain any third party consent required in connection with the consummation of the transactions contemplated by this Agreement. (b) To the extent that any Contract is not capable of being transferred by the Seller to the Purchaser pursuant to this Agreement without the consent of a third party (including a Governmental Entity) and such consent is not obtained prior to Closing, or if such transfer or attempted transfer would constitute a breach or a violation of the Contract or any Law, nothing in this Agreement will constitute a transfer or an attempted transfer thereof. (c) In the event that any required consent is not obtained on or prior to the Closing Date, the Seller will use reasonable commercial efforts to (i) provide to the Purchaser the benefits of the applicable Contract (and the Seller and the Purchaser will share equally any expenses related thereto), (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to the Purchaser and (iii) enforce at the request and expense of the Purchaser and for the account of the Purchaser, any rights of the Seller arising from any such Contract (including the right to elect to terminate such Contract in accordance with the terms thereof upon the request of the Purchaser). (d) To the extent that the Purchaser is provided the benefits of any Contract referred to in Section 7.13(c), the Purchaser will perform the obligations arising under such Contract for the benefit of the Seller and the other party or parties thereto, except for any obligation under such Contract that constitutes an Excluded Liability. 7.14 Novation of Government Contracts. Following the Closing, the Seller will, in accordance with, and to the extent required by, the Federal Acquisition Regulation Part 42, Subpart 42.12, submit in writing to each responsible contracting officer a request of the U.S. 26 Government or Governmental Entity as the case may be, to (a) recognize the Purchaser as the successor in interest to all of the Government Contracts and (b) enter into a novation agreement (the "Novation Agreement") substantially in the form contemplated by such regulations. The Seller will use reasonable commercial efforts to obtain all consents, approvals and waivers required for the purpose of processing, entering into and completing the Novation Agreements with regard to the Government Contracts, including responding to any reasonable request for information by the U.S. Government with regard to such Novation Agreements. The Purchaser will use reasonable commercial efforts to provide all information and take all other actions reasonably necessary to execute and consummate such Novation Agreements, including responding promptly to any request for information by the U.S. Government with regard to such Novation Agreements. 7.15 Litigation Support. In the event and for so long as any party is actively contesting or defending against any third-party charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand in connection with (a) any transaction contemplated under this Agreement or (b) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act or transaction on or prior to the Closing Date involving the Business, the other party will cooperate with the contesting or defending party and its counsel in the contest or defense, make available its personnel and provide such testimony and access to its books and records as may be necessary in connection with the contest or defense, at the sole cost and expense of the contesting or defending party (unless the contesting or defending party is entitled to indemnification therefor under Article X). 7.16 Agreements Regarding Tax Matters. (a) The Seller and the Purchaser will provide each other with such assistance and information relating to the Business and the Purchased Assets as may reasonably be requested in connection with the preparation of any Tax Return, audit or other examination by any taxing authority or judicial or administrative proceeding relating to liability for Taxes, and will each retain and provide to the other party all records and other information which may be relevant to any such Tax Return, audit or examination, proceeding or determination. Without limiting the generality of the foregoing, each of the Purchaser and the Seller will retain, until the expiration of the applicable statute of limitation (including any extensions thereof) copies of all Tax Returns, supporting work schedules and other records relating to the Business and the Purchased Assets for tax periods or portions thereof ending prior to or on the Closing Date. (b) The Seller and the Purchaser agree that the transactions contemplated by this Agreement constitute a sale of a trade or business within the meaning of Section 41(f)(3) of the Code and the regulations thereunder. The Seller agrees to provide the Purchaser upon request with the information necessary to permit the Purchaser to apply the provisions of Section 41(f)(3) of the Code. (c) If, prior to the Closing, the Seller has paid any Tax relating to any Purchased Asset for any taxable period that includes (but does not end on) the Closing Date, Purchaser will reimburse the Seller for such payment on a pro rata basis determined by the number of days in such taxable period beginning on and after the Closing Date divided by the total number of days in such taxable period. If, after the Closing, the Purchaser pays any Tax relating to any Purchased Asset for any taxable period that includes (but does not end on) the Closing Date, the Seller will reimburse the Purchaser for such payment on a pro rata basis determined by the number of days in such taxable period prior to (but not including) the Closing Date divided by 27 the total number of days in such taxable period. The Seller will exercise exclusive control over the handling, disposition and settlement of any governmental inquiry, examination, or proceeding that could result in a determination with respect to Taxes due or payable by the Purchaser for which the Seller may be liable or against which the Seller may be required to indemnify the Purchaser. The Purchaser will notify the Seller in writing promptly upon learning of any such inquiry, examination or proceeding. The Purchaser will cooperate with the Seller, as the Seller may reasonably request, in any such inquiry, examination or proceeding. The Purchaser will not extend the statute of limitations for any Tax for which the Seller may be required to indemnify the Purchaser without the Seller's permission. (d) If the Purchaser receives a refund with respect to Taxes arising in a period prior to the Closing Date, the Purchaser will pay, within 30 days following the receipt of such Tax refund, the amount of such Tax refund to the Seller. (e) The Purchaser and the Seller will not agree to settle any Tax liability or compromise any claim with respect to Taxes which settlement or compromise may affect the liability for Taxes hereunder (or right to tax benefit) of the other party, without such other party's consent, which consent will not be unreasonably withheld or delayed. 7.17 Records and Documents. Following the Closing Date, the Seller will grant to the Purchaser and its representatives, at the Purchaser's reasonable request, reasonable access to and the right to make copies at the Purchaser's sole expense of those records and documents in the Seller's possession related to the Business or the Purchased Assets as may be reasonably necessary for the Purchaser's operation of the Business after the Closing and which do not constitute Purchased Assets. Following the Closing Date, the Purchaser will grant to the Seller and its representatives, at the Seller's reasonable request, reasonable access to and the right to make copies at the Seller's sole expense of those records and documents covering any period prior to the Closing related to the Business or the Purchased Assets as may be reasonably necessary for third-party litigation, preparation of financial statements, tax returns and audits or other valid business purposes. If the Purchaser elects to dispose of any of such records within six (6) years after the Closing Date, the Purchaser will first give the Seller 60 days' written notice, during which period the Seller will have the right to take such records without payment of consideration. 7.18 Use of Excluded Trademarks. Except as otherwise expressly provided in this Section 7.18, no interest in or right to use the names and marks constituting Excluded Assets (the "Excluded Trademarks") is being conveyed pursuant to this Agreement. As promptly as practicable following the Closing, but in no event later than 90 days after the Closing Date, the Purchaser will remove or cover all Excluded Trademarks that appear on any Purchased Asset, including without limitation, signs, promotional or advertising literature, labels, stationery, office forms and packaging materials. Neither the Purchaser nor its Affiliates will in any way use any Excluded Trademark, or use any trademark, tradename, service mark, brand name, tradedress or logo that is likely to cause confusion with any of the Excluded Trademarks or be associated with the Seller or its Affiliates on or as of the Closing Date after the Closing Date, except pursuant to this Section 7.18. 7.19 Non-Competition. (a) Seller agrees that, for a period commencing on the Closing Date and terminating two years after the Closing Date, it will not directly, or indirectly through any of its Affiliates, 28 engage in the business of designing, manufacturing, selling or distributing products designed, manufactured, sold or distributed by the Business as of the date of this Agreement, anywhere in the world. The foregoing activities are referred to in this Agreement collectively as "Business Activities." (b) Notwithstanding the above, the provisions of Section 7.19(a) will not prohibit any of the Seller's Affiliates from engaging in any business currently conducted by such Affiliate and any natural extensions thereof. (c) Notwithstanding the provisions of Section 7.19(a), the acquisition (by asset purchase, stock purchase, merger, consolidation or otherwise) by the Seller or any of its Affiliates of the stock, business or assets of any Person that at the time of such acquisition is engaged in Business Activities, and the continuation of such Business Activities following such acquisition, will not be in breach of the terms of this Section 7.19 if: (i) the portion of the revenues of such Person and its subsidiaries on a consolidated basis for the fiscal year ending prior to the date of such acquisition that is attributable to Business Activities by such Person and its subsidiaries account for less than 20% of the revenues of such Person and its subsidiaries on a consolidated basis for such fiscal year; or (ii) in the event the foregoing condition is not satisfied, the Seller offers, or cause its Affiliates to offer the portion of such business or assets that represents Business Activities to the Purchaser and negotiates in good faith with the Purchaser as to the terms and conditions of the Purchaser's purchase of such business and assets. (d) Nothing in this Section 7.19 will restrict or prevent the Seller or any of its Affiliates from maintaining and/or undertaking passive investments in Persons primarily engaged in the Business Activities so long as the aggregate interest represented by such investments does not exceed (i) five percent (5%) of any class of the outstanding debt or equity securities of any such Person, in the case of a Person whose shares are listed on a national securities exchange or the NASDAQ National Market System or equivalent foreign exchange or quotation system or (ii) five percent (5%) of any class of the outstanding equity or debt securities in the case of any other Person. (e) If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 7.19 is invalid or unenforceable, the parties agree that the court making the determination of invalidity or unenforceability will have the power to reduce the scope, duration or area of the term or provision, to delete specific words or phrases or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision and this Agreement will be enforceable as so modified. 7.20 Non-Solicitation of Employees. For a period commencing on the Closing Date and terminating two years after the Closing Date, (a) except for Business Employees, the Purchaser will not, and will cause its Affiliates not to, solicit any employee of the Seller for employment by the Purchaser or any of its Affiliates without the prior written consent of the Seller, and (b) the Seller will not, and will cause its Affiliates not to, solicit any employee of the Business for employment by the Seller or any of its Affiliates, without the prior written consent of the Purchaser. For the avoidance of doubt, an employee will be deemed not to have been solicited for employment if (i) such employee or its agent has initiated any communication or contact for the purpose of discussing any potential employment of such employee or (ii) such employee responds to a general public advertisement or other general solicitation of employment. Nothing 29 herein will prohibit either of the parties or any of their respective Affiliates from employing or offering to employ any employee if such employee was not solicited for employment. ARTICLE VIII EMPLOYEE MATTERS 8.1 Employment. (a) The Purchaser will offer to each of the Business Employees employed with the Seller on the Closing Date employment in the same or comparable position as provided by the Seller as of the Closing Date. From the Closing Date through November 30, 2003, such Business Employees will receive the same or comparable compensation, salary or wage rate, plus the same or comparable bonus opportunities while they remain employees of the Purchaser. Except as otherwise specifically provided herein, the Purchaser will assume and thereafter pay, perform and discharge any and all employment, compensation and Seller Employee Benefit Plan liabilities, whether arising prior to, on or after the Closing Date, with respect to the Business Employees as of the Closing Date. Notwithstanding the foregoing, the preceding sentence will not apply to any benefits arising prior to the Closing Date that are fully insured. (b) Notwithstanding language to the contrary contained herein, the term "Business Employee" will not include any employee of the Business absent from work due to long-term disability as of the Closing Date and listed separately on Schedule 8.1; provided that, in the event any such individual presents himself or herself for active employment to the Purchaser during the one-year period following the Closing Date, he or she will be treated as a Business Employee under this Agreement as of his or her date of presentation. (c) Notwithstanding language to the contrary contained herein, this Agreement will not constitute a contract of employment and will not give any Business Employee a right to be retained in the employ of either the Seller or the Purchaser or any of their Affiliates. 8.2 Employee Benefit Matters. (a) As of the Closing Date, Business Employees will cease participation in the Seller Employee Benefit Plans and fringe benefit programs. Effective as of the Closing Date and continuing for a period ending no earlier than November 30, 2003, the Purchaser will provide to the Business Employees through Purchaser Employee Benefit Plans and fringe benefit programs (including, as applicable, sick pay, vacation pay and tuition reimbursement programs), employee benefits which are, in the aggregate, substantially comparable to the employee benefits provided to the Business Employees under Seller Employee Benefit Plans and fringe benefit programs as of the Closing Date. (b) In addition to the foregoing: (i) coverage under such Purchaser Employee Benefit Plans will be sufficient to eliminate any liability of the Seller to the Business Employees for any benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA); and (ii) the Purchaser will assume all accrued vacation liabilities for personal time off and other vacation and sick leave of the Business Employees as of the Closing Date, provided such liabilities are adequately reflected on the Closing Date Balance Sheet. (c) Effective as of the Closing Date and continuing for a period ending no earlier than November 30, 2003, the Purchaser will provide each Business Employee with severance 30 benefits under a Purchaser plan that are substantially comparable to the severance benefits provided to each such Business Employee as of the Closing Date. (d) The Purchaser will assume the Seller's obligations with respect to all of the agreements with Business Employees listed in Schedule 8.2(d). (e) The Purchaser will assume and become solely responsible for all obligations and liabilities of the Seller under all Employee Welfare Benefit Plans providing for post-retirement medical and life insurance benefits with respect to all Business Employees and former employees of the Business and their eligible dependents and will be responsible for all liabilities with respect to such benefits whether accrued before, on or after the Closing Date. Schedule 8.2(e) of the Disclosure Schedules sets forth a list of former employees eligible for such benefits. As of the Closing Date and continuing for a period ending no earlier than November 30, 2003, the Purchaser will continue such post-retirement and life insurance benefits at the benefit levels in effect on the Closing Date. As part of the indemnification to the Seller provided under Section 10.3, the Purchaser will indemnify the Seller for any Losses the Seller may suffer resulting from, arising out of, relating to or caused by any change, modification or termination of such post-retirement benefits following the Closing Date. (f) Solely for purposes of eligibility and vesting under the Employee Benefit Plans of the Purchaser providing benefits to any employee or former employee of the Business after the Closing Date, the Purchaser will cause each employee or former employee of the Business to be credited with his or her years of service with the Seller (and any predecessor entities thereof) before the Closing Date, to the same extent as such employee or former employee was entitled, as of the Closing Date, to credit for such service under any similar Seller Employee Benefit Plan. (g) Following the Closing Date, the Purchaser will (i) waive any pre-existing condition limitation under any Employee Welfare Benefit Plan maintained by the Purchaser in which employees or former employees of the Business and their eligible dependents participate (except to the extent that such pre-existing condition limitation would have been applicable immediately prior to the Closing Date under the comparable Employee Welfare Benefit Plans of the Seller) and (ii) provide each employee or former employee of the Business with credit for any co-payments and deductibles incurred by any of them prior to the Closing Date in order to satisfy any applicable deductible or out-of-pocket requirements under any Welfare Benefit Plans in which any of the employees or former employees of the Business participate after the Closing Date. (h) The Seller will retain responsibility for its liabilities and obligations under the Management Security Plan. (i) The Purchaser will assume the Seller's obligations to pay the Business Employees their bonus banks under the Management Incentive/Bonus Plan in accordance with its terms as of the Closing Date, provided such liabilities are adequately reflected on the Closing Date Balance Sheet. (j) As of the Closing Date, the Seller will cause the portion of its flexible reimbursement plan applicable to Business Employees to be segregated into a separate component and all account balances of such employees in the flexible reimbursement plan will be transferred to a flexible reimbursement plan that the Purchaser will cause to be maintained for the duration of the calendar year in which the Closing Date occurs. 31 8.3 Allocation of Pension Plan Responsibilities. With respect to any Employee Pension Benefit Plan intended to be qualified under Section 401(a) of the Code, maintained by or for the benefit of any of the Business Employees, the Seller and the Purchaser agree as follows: (a) the Seller will retain all liabilities attributable to accrued benefits under the Seller's qualified Employee Pension Benefit Plan(s). The Purchaser will have no liability of any kind with respect to benefits accrued under any of such plans; (b) as of the Closing Date, the Seller will cause all such qualified Employee Pension Benefit Plans maintained by the Seller to cease any and all accruals thereunder with respect to the Business Employees; (c) the Seller will cause all Business Employees to be fully vested in their account balances in the Seller's defined contribution plan; and (d) following the Closing Date, the Business Employees will be permitted to roll over their account balances in the Seller's defined contribution plan (or any portion thereof) to the Purchaser's defined contribution plan, including the ability to rollover any existing loans under such Seller plan for 90 days after the Closing Date. ARTICLE IX CLOSING CONDITIONS 9.1 Conditions to Obligation of the Purchaser. The obligation of the Purchaser to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction on or prior to the Closing Date of the following conditions: (a) the representations and warranties of the Seller set forth in Article V will be true and correct in all material respects on the date hereof and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date); (b) the Seller will have performed or complied with in all material respects its covenants, agreements and conditions hereunder which are required to be performed or complied with on or prior to the Closing Date; (c) the Seller will have delivered to the Purchaser a certificate executed as of the Closing Date by an officer of the Seller to the effect that each of the conditions specified above are satisfied; (d) there will not be any judgment, order, decree, stipulation, injunction or charge in effect preventing consummation of the transactions contemplated by this Agreement; (e) during the period from the date hereof through the Closing Date, there will not have been any change or effect that is materially adverse to the business, operations or condition (financial or otherwise) of the Business or the Purchased Assets, taken as a whole, but not taking into account any change or effect that is generally applicable to the United States economy or securities markets as a whole or to industries in which the Business operates generally, or any change or effect caused predominantly by the Purchaser's involvement in the transactions contemplated by this Agreement; 32 (f) the Seller will have delivered to the Purchaser the Bill of Sale, the Deed, an executed counterpart of the Assignment and Assumption Agreement, an executed counterpart of the Building Lease, the Transition Services Agreement, the General Dynamics Guaranty, the Assignment of Patents and such other instruments of transfer and assignment reasonably requested by counsel to the Purchaser as will be effective to vest in the Purchaser all of the Seller's right, title and interest in and to the Purchased Assets; (g) the Title Company will have delivered to the Purchaser the Title Policy (or a binding undertaking from the Title Company such as a marked and down-dated commitment or a signed and down-dated pro-forma policy); (h) the Seller will have delivered to the Purchaser in writing all third-party consents listed on Schedule 9.1(h); (i) all actions to be taken by the Seller in connection with the consummation of the transactions contemplated hereby and all certificates, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Purchaser; and (j) all applicable waiting periods (and any extensions thereof) under the Hart-Scott-Rodino Act or any Antitrust Laws will have expired or otherwise been terminated and all other approvals, if required, will have been obtained without the objection of any of the relevant Governmental Entities. The Purchaser may waive any condition specified in this Section 9.1, except for Section 9.1(j), if it executes a writing so stating at or prior to the Closing. 9.2 Conditions to Obligation of the Seller. The obligation of the Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: (a) the representations and warranties of the Seller set forth in Article VI will be true and correct in all material respects on the date hereof and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date); (b) the Purchaser will have performed or complied with in all material respects all of its covenants, agreements and conditions hereunder which are required to be performed or complied with on or prior to the Closing Date; (c) the Purchaser will have delivered to the Seller a certificate executed as of the Closing date by an officer of the Purchaser to the effect that each of the conditions specified above is satisfied; (d) there will not be any judgment, order, decree, stipulation, injunction or charge in effect preventing consummation of the transactions contemplated by this Agreement; (e) the Purchaser will have delivered to the Seller executed counterparts of the Assignment and Assumption Agreement, the Building Lease, the GenCorp Guaranty and the Transition Services Agreement and such other instruments of assumption as the Seller or its counsel may reasonably request in order to consummate the transactions contemplated herein; 33 (f) all actions to be taken by the Purchaser in connection with consummation of the transactions contemplated hereby and all certificates, instruments and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Seller; and (g) all applicable waiting periods (and any extensions thereof) under the Hart-Scott-Rodino Act or any Antitrust Laws will have expired or otherwise been terminated and all other approvals, if required, will have been obtained without the objection of any of the relevant federal authorities. The Seller may waive any condition specified in this Section 9.2, except for Section 9.2(g), if it executes in writing so stating at or prior to the Closing. ARTICLE X INDEMNIFICATION 10.1 Survival. All of the representations and warranties contained in this Agreement or in any certificate delivered pursuant to this Agreement will survive the Closing and continue in full force and effect (a) in the case of the representations and warranties contained in Sections 5.1, 5.2, 5.3, 5.10 and 5.18 and Sections 6.1, 6.2, 6.3 and 6.6, or contained in any certificate relating thereto, forever thereafter, (b) in the case of the representations and warranties contained in Section 5.13 and 5.14, or contained in any certificate relating thereto, until the date that is the third anniversary of the Closing Date and (c) in the case of all other representations and warranties contained in this Agreement, or contained in any certificate relating thereto, until the eighteen-month anniversary of the Closing Date. 10.2 Indemnification Provisions for Benefit of the Purchaser. (a) Provided that the Purchaser makes a written claim for indemnification against the Seller prior to the expiration of any applicable survival period, then the Seller will indemnify the Purchaser from and against the entirety of any losses, costs, expenses (including reasonable attorney's, accountant's and expert's fees and expenses), damages and other liabilities reduced by any income tax benefits (collectively, "Losses") suffered or incurred by the Purchaser or any of its Affiliates, or any of their respective stockholders, directors, officers, employees and agents (collectively, the "Purchaser Indemnified Parties"), resulting from, arising out of, relating to or caused by: (i) any breach or non-performance by the Seller of any covenant or agreement of the Seller contained in this Agreement or, prior to their expiration in accordance with Section 10.1, the inaccuracy of any representation or the breach of any warranty of the Seller contained in this Agreement, or contained in any certificate delivered by the Seller relating thereto; (ii) the Excluded Liabilities; (iii) any non-compliance by the Seller with bulk sales or transfer laws as provided in Section 12.3; or (iv) any breach or non-performance by the Seller of any Ancillary Agreement. (b) Notwithstanding the provisions of Section 10.2, the Seller will have no obligation to indemnify the Purchaser pursuant to this Agreement or otherwise: (i) with respect to incidental, special, punitive or consequential damages, including consequential damages consisting of business interruption or lost profits; 34 (ii) with respect to any claim by or liability to any Business Employee arising as the result of the termination of such employee's employment with the Purchaser or any other action by the Purchaser subsequent to the Closing Date; or (iii) any Losses to the extent such Losses are covered by the Title Policy. 10.3 Indemnification Provisions for Benefit of the Seller. (a) Provided that the Seller makes a written claim for indemnification against the Purchaser, then the Purchaser agrees to indemnify the Seller from and against the entirety of any Losses the Seller may suffer resulting from, arising out of, relating to or caused by: (i) any breach or non-performance by the Purchaser of any covenant or agreement of the Purchaser contained in this Agreement or, prior to their expiration in accordance with Section 10.1, the inaccuracy of any representation or the breach of any warranty of the Purchaser contained in this Agreement, or contained in any certificate delivered by the Purchaser relating thereto; (ii) the Assumed Liabilities (subject to Section 10.5 below); or (iii) any breach or non-performance by the Purchaser of any Ancillary Agreement. (b) Notwithstanding the provisions of Section 10.3, the Purchaser will have no obligation to indemnify the Seller with respect to incidental, special, punitive or consequential damages, including consequential damages consisting of business interruption or lost profits. 10.4 Limitation on Indemnification Obligation. (a) Notwithstanding the foregoing, the Seller will not be required to indemnify and hold harmless the Purchaser for Losses arising under Section 10.2(a)(i) or Section 10.2(a)(iv) until, and then only to the extent that, the aggregate amount of such Losses exceeds $2,000,000 (the "Basket Amount"), after which point the Seller will be obligated to indemnify and hold harmless the Purchaser for all such Losses until the aggregate amount of such Losses equals $9,000,000 (the "Ceiling Amount"), at which point the Seller will have no further obligation to indemnify or hold harmless the Purchaser. (b) Notwithstanding the foregoing, the Purchaser will not be required to indemnify and hold harmless the Seller for Losses arising under Section 10.3(a)(i) or Section 10.3(a)(iii) until, and then only to the extent that, the aggregate amount of such Losses exceeds the Basket Amount, after which point the Purchaser will be obligated to indemnify and hold harmless the Seller for all such Losses until the aggregate amount of such Losses equals the Ceiling Amount, at which point the Purchaser will have no further obligation to indemnify or hold harmless the Seller. 10.5 Environmental Indemnification. (a) The Seller will indemnify and hold harmless the Purchaser from and against 50% of all Losses suffered or incurred by the Purchaser Indemnified Parties, which (i) result from or arise out of any environmental liabilities relating to the ownership or operation of the Business or the Purchased Assets and (ii) arise out of any event, transaction, condition, practice, Release or occurrence prior to the Closing Date, including any such liabilities resulting from violations of Environmental Laws in connection with the generation, storage, presence, use, handling, treatment, transportation, disposal or Release of any Hazardous Materials prior to the Closing Date. Any amounts payable by the Seller hereunder will be paid to the Purchaser only upon the 35 Seller's receipt of written documentation from the Purchaser evidencing each expenditure and identifying each Person to whom any payment was made. (b) Notwithstanding the foregoing, the Seller will not be required to indemnify and hold harmless the Purchaser for any Losses arising under Section 10.5(a) until, and then only to the extent that, the aggregate amount of such Losses exceeds $1,000,000. The Seller's indemnification obligation under this Section 10.5 is not subject to any cap or limitation as to the total amount payable to the Purchaser. 10.6 Matters Involving Third Parties. If any third party notifies any party hereto (the "Indemnified Party") with respect to any matter which may give rise to a claim for indemnification against the other party hereto (the "Indemnifying Party") under this Section 10.6, then the Indemnified Party will notify the Indemnifying Party thereof promptly and in any event within 15 days after receiving any written notice from a third party; provided that no delay on the part of the Indemnified Party in notifying the Indemnifying Party will relieve the Indemnifying Party from any obligation hereunder unless, and then solely to the extent that, the Indemnifying Party is prejudiced thereby. Once the Indemnified Party has given notice of the matter to the Indemnifying Party, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof; provided, however, (a) the Indemnifying Party will defend the Indemnified Party against the matter with counsel of its choice reasonably satisfactory to the Indemnified Party, (b) the Indemnified Party may participate in (but not control) such defense with separate counsel at its sole cost and expense, (c) the Indemnified Party will not consent to the entry of a judgment or enter into any settlement with respect to the matter without the written consent of the Indemnifying Party (not to be withheld or delayed unreasonably) and (d) the Indemnifying Party will not consent to the entry of a judgment with respect to the matter or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto, without the written consent of the Indemnified Party (not to be withheld or delayed unreasonably). If the Indemnifying Party does not assume the defense of such claim, the Indemnified Party will have the right to undertake the defense, opposition, compromise or settlement of such claim, by counsel or other representatives of its own choosing, on behalf of and for the account and risk of the Indemnifying Party (subject to the right of the Indemnifying Party to assume the defense of or opposition to such claim at any time prior to settlement, compromise or final determination thereof). 10.7 Determination of Loss. The amount of any Loss will be reduced to the extent that the Indemnified Party receives any insurance proceeds with respect to a Loss. If, at any time subsequent to the making of an indemnity payment, the amount of such indemnity payment is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by or against other Person, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith, will promptly be repaid by the Indemnified Party to the Indemnifying Party with respect to such Loss. 10.8 Exclusive Remedy. In the absence of intentional misrepresentation, omission or breach of this Agreement, the indemnification provisions set forth in this Article X will constitute the sole and exclusive recourse and remedy for monetary damages available to the parties hereto with respect to the breach of any representation, warranty or covenant contained in this Agreement or the Ancillary Agreements or in any certificate delivered pursuant hereto or thereto. 36 10.9 Treatment of Indemnity Payments. All indemnification payments made pursuant to this Agreement will be treated by the parties as adjustments to the Purchase Price. ARTICLE XI TERMINATION 11.1 Termination of Agreement. The parties may terminate this Agreement as provided below: (a) the Purchaser and the Seller may terminate this Agreement by mutual written consent at any time prior to the Closing; (b) the Purchaser may terminate this Agreement by giving written notice to the Seller at any time prior to the Closing if the Closing has not occurred on or before November 30, 2002, by reason of the failure of any closing condition under Section 9.1 (unless the failure results primarily from the Purchaser itself breaching any representation, warranty or covenant contained in this Agreement); or (c) the Seller may terminate this Agreement by giving written notice to the Purchaser at any time prior to the Closing if the Closing has not occurred on or before November 30, 2002, by reason of the failure of any closing condition under Section 9.2 (unless the failure results primarily from the Seller itself breaching any representation, warranty or covenant contained in this Agreement). 11.2 Effect of Termination. If any party terminates this Agreement pursuant to Section 11.1, all obligations of the parties hereunder will terminate without liability of any party to the other party (except for any liability of any party then in breach), except as may have occurred prior to such termination and except as specifically set forth in this Agreement. ARTICLE XII MISCELLANEOUS 12.1 Press Releases and Announcements. No party will issue any press release or announcement relating to the subject matter of this Agreement prior to the Closing Date without the prior approval of the other party, which approval will not be unreasonably withheld or delayed; provided that any party may make any public disclosure it believes in good faith is required by Law (in which case the disclosing party will advise the other party prior to making such disclosure). 12.2 Expenses; Transfer Taxes. Each of the parties hereto will bear all legal, accounting, investment banking and other expenses incurred by it or on its behalf in connection with the transactions contemplated by this Agreement, whether or not such transactions are consummated. The Purchaser and the Seller will each pay 50% of all excise, sales, use, transfer, value added, registration, stamp, recording, documentary, conveyancing, franchise, property, gains and similar Taxes, levies, charges and recording, filing and other fees (collectively, "Transfer Taxes") arising by reason of the transactions contemplated by this Agreement. The Seller will file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes and, if required by applicable law, the Purchaser will join in the execution of any Tax Returns and other documentation at the Seller's request. The Purchaser and the Seller will each pay 50% of the 37 premium for the Title Policy, except that the Purchaser will pay the entire cost of any endorsements to the Title Policy, other than extended coverage endorsement. 12.3 Bulk Sales or Transfer Laws. The Purchaser acknowledges that the Seller may not comply with the provisions of any bulk sales or transfer laws of any jurisdiction in connection with the transactions contemplated by this Agreement. Without prejudice to its rights under Article X of this Agreement, the Purchaser hereby waives compliance by the Seller with the provisions of the bulk sales or transfer laws of all applicable jurisdictions. 12.4 Remedies. Any party having any rights under any provision of this Agreement will have all rights and remedies set forth in this Agreement and all rights and remedies which such party may have been granted at any time under any other agreement or contract and all of the rights which such party may have under any Law. Any such party will be entitled to enforce such rights specifically, without posting a bond or other security, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by Law. 12.5 Consent to Amendments. The provisions of this Agreement may be amended or waived only by a written agreement executed and delivered by the Seller and the Purchaser. No other course of dealing between the parties to this Agreement or any delay in exercising any rights hereunder will operate as a waiver of any rights of such parties. 12.6 Successors and Assigns. No party hereto may assign or delegate any of such party's rights or obligations under or in connection with this Agreement without the prior written consent of the other party hereto, except in the case of the Purchaser, to its lenders and their respective successors and assigns. Except as otherwise expressly provided herein, all covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto will be binding upon and enforceable against the respective successors and assigns of such party and will be enforceable by and will inure to the benefit of the respective successors and permitted assigns of such party. 12.7 Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable Law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. 12.8 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together will constitute one and the same Agreement. 12.9 Descriptive Headings. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. 12.10 Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given when delivered personally to the recipient or when sent to the recipient by telecopy (receipt confirmed), one business day after the date when sent to the recipient by reputable express courier service (charges prepaid) or two business days after the date when mailed to the recipient by certified or registered mail, return receipt requested and postage 38 prepaid. Such notices, demands and other communications will be sent to the Seller and the Purchaser at the addresses indicated below: If to the Seller: General Dynamics Corporation Corporate Headquarters 3190 Fairview Park Drive Falls Church, VA 22042-4523 Attention: David A. Savner, Esq. Telecopy No.: (703) 876-3554 With a copy (which will not constitute notice) to: Jenner & Block, LLC One IBM Plaza Chicago, IL 60611 Attention: Thaddeus J. Malik, Esq. Telecopy No. (312) 840-7313 If to the Purchaser: Aerojet-General Corporation PO Box 13222, Dept. 0106 Sacramento, CA 95813-6000 If by courier: Highway 50 and Aerojet Road Rancho Cordova, CA 95670 Attention: Brian E. Sweeney, Esq. Telecopy No. (916) 351-8610 With a copy (which will not constitute notice) to: Jones, Day, Reavis & Pogue North Point 901 Lakeside Avenue Cleveland, OH 44114 Attention: Christopher M. Kelly, Esq. Telecopy No. 216-579-0212 or to such other address or to the attention of such other party as the recipient party has specified by prior written notice to the sending party. 12.11 No Third-Party Beneficiaries. This Agreement will not confer any rights or remedies upon any Person other than the Seller and the Purchaser and their respective successors and permitted assigns. Nothing in this Agreement will be construed as giving to any Business Employee or other person any legal or equitable right against the Seller, the Purchaser or any of their respective Affiliates or Employee Benefit Plans or programs. 12.12 Force Majeure. No party hereto will be liable to the other party for any failure or delay in the performance of its obligations under this Agreement to the extent such failure or delay is caused by a fire, flood, earthquake, riot, civil disorder, terrorism, war, labor disputes or any other cause beyond the reasonable control of the party whose performance is delayed or otherwise affected by such event (each such event, a "Force Majeure Event"). The party whose performance is affected by a Force Majeure Event will use reasonable efforts to (a) avoid, remove or minimize the impact of such event on the performance of its obligations at the required level at the earliest possible date. If any party is, or anticipates it is likely to be, delayed 39 or prevented from performing its obligations in connection with a Force Majeure Event, such party will promptly notify the other party by telephone with confirmation in writing within two business days after the inception of such delay. 12.13 Confidentiality. The Seller agrees that, for a period commencing on the Closing Date and terminating three years after the Closing Date, it will keep confidential and will use its best efforts to cause its Affiliates and representatives to keep confidential (except as may be disclosed to the Seller's attorneys, accountants, financial advisors or other representatives) all confidential information relating directly to the Business or the Purchased Assets that remains in the possession of the Seller or its Affiliates after the Closing. Notwithstanding the foregoing, the term "confidential information" will not be deemed to include any information which (a) is or becomes generally known by the public (other than as a result of a breach of this Agreement) or is a recognized standard industry practice, (c) was or becomes available to the Seller on a non-confidential basis from a Person who is not known to the Seller to be legally prohibited from transmitting the information to the Seller or (d) the Seller can demonstrate, by competent written proof, was independently developed by the Seller. 12.14 Entire Agreement. This Agreement (including the documents referred to herein) constitutes the entire agreement among the parties and supersedes any prior understandings, agreements or representations by or among the parties, written or oral, that may have related in any way to the subject matter hereof. 12.15 Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rule of strict construction will be applied against any party. The use of the word "including" in this Agreement means "including without limitation" and is intended by the parties to be by way of example rather than limitation. 12.16 Incorporation of Exhibits and Schedules. The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof. 12.17 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY LAW OR RULE THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK TO BE APPLIED. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 40 IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement on the date first written above. GENERAL DYNAMICS OTS (AEROSPACE), INC. By:____________________________________ David A. Savner Vice President AEROJET-GENERAL CORPORATION By:____________________________________ Michael F. Martin President EX-10.3 5 l96596aexv10w3.txt AGREEMENT TO AMEND AND RESTATE Exhibit 10.3 Execution Copy AGREEMENT TO AMEND AND RESTATE ------------------------------ This AGREEMENT TO AMEND AND RESTATE (this "AGREEMENT"), dated as of October 2, 2002, among GENCORP INC., an Ohio corporation, the Lenders to be party to the Credit Agreement referred to below on and after the Amendment/Restatement Effective Date referred to below, THE BANK OF NOVA SCOTIA, as Documentation Agent, ABN AMRO BANK, N.V., as Syndication Agent, and DEUTSCHE BANK TRUST COMPANY AMERICAS (f/k/a Bankers Trust Company), as Administrative Agent. Unless otherwise defined herein, all capitalized terms used herein shall have the respective meanings provided such terms in the Original Credit Agreement referred to below. W I T N E S S E T H: - - - - - - - - - - WHEREAS, the Borrower, certain lenders (the "EXISTING LENDERS"), the Documentation Agent, the Syndication Agent and the Administrative Agent are parties to a Credit Agreement, dated as of December 28, 2000 (as same was previously amended prior to the date hereof and as in effect on the date immediately prior to the Amendment/Restatement Effective Date, the "ORIGINAL CREDIT AGREEMENT"); WHEREAS, the Borrower wishes to incur New Term B Loans to, among other purposes, provide the necessary financing to enable the Borrower to acquire certain of the assets of the space systems business of General Dynamics OTS (Aerospace), Inc. ("OTS"), including the payment of related fees and expenses; WHEREAS, the Borrower and the Lenders desire to amend and restate the Original Credit Agreement as herein provided; NOW THEREFORE, subject to the terms and conditions of this Agreement, the parties hereto agree as follows: 1. The parties hereto hereby agree that on the Amendment/Restatement Effective Date (defined in SECTION 10 herein) the Original Credit Agreement shall be amended and restated in the form attached hereto as ANNEX I (as so amended and restated, the "AMENDED AND RESTATED CREDIT AGREEMENT"). 2. The Lenders hereby consent to the consummation of the OTS Business Acquisition (as defined in the Amended and Restated Credit Agreement) at a purchase price not to exceed approximately $90 million. 3. Each lending institution set forth on SCHEDULE I hereto (each a "TERM B LENDER") agrees to make a term loan or loans (the "NEW TERM B LOANS") on the Amendment/ Restatement Effective Date in the aggregate amounts set forth opposite its name on SCHEDULE I under the heading "New Term B Loans", with the proceeds of the New Term B Loans to be disbursed on the Amendment/Restatement Effective Date in the manner provided for Loans under SECTION 2.7 of the Amended and Restated Credit Agreement. 4. The effectiveness of the Amended and Restated Credit Agreement and the obligation of the New Term B Lenders to make New Term B Loans on the Amendment/Restatement Effective Date is subject to the satisfaction of each of the following conditions at such time: (a) AGREEMENT AND NOTES. The Borrower shall have duly executed and delivered to the Administrative Agent, with a signed counterpart for each Lender, this Agreement (including all schedules and exhibits), and the Borrower shall have duly executed and delivered to the Administrative Agent the New Term B Notes payable to the order of each applicable New Term B Lender which has requested a New Term B Note in the amount of its Commitment and all other Loan Documents shall have been duly executed and delivered by the appropriate Credit Party to the Administrative Agent, all of which shall be in full force and effect; (b) SECURITY AGREEMENTS. The Borrower shall have duly authorized, executed and delivered an amended and restated Borrower Security Agreement, in form and substance satisfactory to the Administrative Agent, and (ii) each Subsidiary Guarantor shall have duly authorized, executed and delivered an amended and restated Subsidiary Security Agreement, in form and substance satisfactory to the Administrative Agent, in each case together with: (i) proper financing statements (or such other financial statements or similar notices as shall be required by local law) and financing statement amendments fully executed for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect or continue the perfection of the security interests purported to be created by such Security Agreements; (ii) certified copies of Requests for Information or Copies, or equivalent reports, listing all effective financing statements or similar notices that name Borrower or its Subsidiaries (by its actual name or any trade name, fictitious name or similar name), or any division or other operating unit thereof, as debtor and that are filed in any relevant jurisdiction, together with copies of such other financing statements (none of which shall cover the Collateral except to the extent evidencing Permitted Liens or for which the Administrative Agent shall have received termination statements (or such other termination statements as shall be required by local law) fully executed for filing); (iii) evidence of the completion of all other recordings and filings of, or with respect to, such Security Agreement and all other actions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect or continue the perfection of the security interests intended to be created by such Security Agreement; (iv) an executed Landlord Consent from each lessor of any leased facility of the Borrower or any Subsidiary at which any Collateral may be located as the Administrative Agent may request (provided that to the extent any such Landlord Consent has not been delivered on the Amendment/Restatement Effective Date, the Borrower shall use its reasonable best efforts to cause such Landlord Consents to be executed and delivered within sixty (60) days following the Amendment/Restatement Effective Date); 2 (v) a duly authorized, executed and delivered updated Perfection Certificate properly completed by each Credit Party, in form and substance satisfactory to the Administrative Agent; and (vi) evidence that all other actions necessary, or in the reasonable opinion of the Administrative Agent, desirable to perfect or continue the perfection of the security interests purported to be taken by the Security Agreements have been taken; (c) PLEDGE AGREEMENTS. (i) The Borrower shall have duly authorized, executed and delivered an amended and restated Borrower Pledge Agreement, in form and substance satisfactory to the Administrative Agent and (ii) each Material Subsidiary, each Subsidiary which directly or indirectly holds the stock of a Material Subsidiary and each Foreign Subsidiary so requested to do so by the Administrative Agent shall have authorized, executed and delivered an amended and restated Subsidiary Pledge Agreement, in form and substance satisfactory to the Administrative Agent, and in each case, shall have delivered to the Administrative Agent, as Pledgee, all the Pledged Securities referred to therein then owned, if any, by such Pledgor, (x) endorsed in blank in the case of promissory notes constituting Pledged Securities and (y) together with executed and undated stock powers, in the case of capital stock constituting Pledged Securities, or other transfer assignment instruments in form and substance satisfactory to the Administrative Agent, in the case of membership interests constituting Pledged Securities and (z) such Pledge Agreement and such other documents shall be in full force and effect, and such Subsidiary which is a limited liability company shall have certificated all existing membership interests and delivered to the Administrative Agent, as Pledgee, such pledged certificates as Pledged Securities; (d) GUARANTY. Each Subsidiary Guarantor shall have duly authorized, executed and delivered the amended and restated Subsidiary Guaranty, in form and substance satisfactory to the Administrative Agent; (e) ACQUISITION DOCUMENTS. Each of the OTS Acquisition Documents (as defined in the Amended and Restated Credit Agreement) shall have been executed by each party thereto, and each such agreement or letter shall be in full force and effect; (f) DOCUMENTS. Each of the following shall have been executed by each Person party thereto, and each such document shall be in full force and effect: (i) Intercompany Notes executed by each Subsidiary receiving an Intercompany Loan on the Amendment/Restatement Effective Date; (ii) the documents listed in Article IX of the OTS Acquisition Agreement (as defined in the Amended and Restated Credit Agreement) scheduled to be executed and delivered on the Amendment/Restatement Effective Date, each in form and substance reasonably acceptable to the Administrative Agent as provided in SECTION 7.16 of the Amended and Restated Credit Agreement; and (iii) an Assignment of Representations, Warranties, Covenants and Indemnities, substantially in the form of EXHIBIT 4(f)(iii) attached hereto, executed by Aerojet; 3 (g) CORPORATE PROCEEDINGS. (i) The Administrative Agent shall have received from each Credit Party a certificate, dated the Amendment/Restatement Effective Date, signed by a Responsible Officer of such Person, and attested to by the secretary or any assistant secretary, or equivalent officer, or any manager (in the case of a limited liability company) of such Person with appropriate insertions, together with copies of such Person's Organizational Documents and the consents of the members of such Person referred to in such certificate and all of the foregoing (including each such Organizational Document and consent) shall be satisfactory to the Administrative Agent; (ii) all corporate and/or limited liability company and legal proceedings and all instruments and agreements to be executed by each Credit Party in connection with the transactions contemplated by this Agreement and the Loan Documents shall be reasonably satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received all information and copies of all certificates, documents and papers, including good standing certificates, bring-down certificates and any other records of corporate and/or limited liability company proceedings and governmental approvals, if any, which the Administrative Agent reasonably may have requested in connection therewith, such documents and papers, where appropriate, to be certified by proper corporate or governmental authorities; and (iii) the ownership and capital structure (including without limitation, the terms of any capital stock, options, warrants or other securities issued by the Borrower or any of its Subsidiaries) of the Borrower and its Subsidiaries shall be in form and substance reasonably satisfactory to the Administrative Agent and the Lenders; (h) INCUMBENCY. The Administrative Agent shall have received a certificate of the secretary or assistant secretary, or equivalent officer, or any manager (in the case of a limited liability company) of each Credit Party, dated the Amendment/Restatement Effective Date, as to the incumbency and signature of the officers of each such Person executing any document (in form and substance satisfactory to the Administrative Agent) and any certificate or other document or instrument to be delivered pursuant hereto or thereto by or on behalf of such Person, together with evidence of the incumbency of such secretary, assistant secretary, or equivalent officer or any manager (in the case of a limited liability company); (i) HISTORICAL AND PRO FORMA FINANCIAL STATEMENTS. The Borrower shall have delivered to the Administrative Agent and each Lender the financial statements as provided in SECTION 6.5(A)(I) and (II) of the Amended and Restated Credit Agreement in form and substance satisfactory to the Administrative Agent and the Required Lenders; (j) APPROVALS. All necessary governmental (domestic and foreign) and third party approvals in connection with the Transaction (as defined in the Amended and Restated Credit Agreement) and otherwise referred to herein shall have been obtained and remain in effect, and all applicable waiting periods shall have expired without any action being taken by any competent authority which restrains, prevents or imposes materially adverse conditions upon the consummation of all or any part of the Transaction (as defined in the Amended and Restated Credit Agreement) and otherwise referred to herein except for those approvals of non-Governmental Authorities under contracts which are not material and which are not required to 4 be delivered at the closing thereof. Additionally, there shall not exist any judgment, order, injunction or other restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing material adverse conditions upon all or any part of the Transaction (as defined in the Amended and Restated Credit Agreement), or the making of the Loans or the issuance of Letters of Credit; (k) LITIGATION. Except as otherwise set forth on SCHEDULE 6.6 to the Amended and Restated Credit Agreement, no litigation by any entity (private or governmental) shall be pending or, to the knowledge of the Borrower, threatened with respect to this Agreement, any other Loan Document or any documentation executed in connection herewith, or with respect to any of the Indebtedness to Remain Outstanding, or any other pending or threatened litigation which the Administrative Agent or the Required Lenders shall determine could reasonably be expected to have a Material Adverse Effect; (l) PRO FORMA BALANCE SHEET. The Administrative Agent shall have received the Pro Forma Balance Sheet in form and substance satisfactory to the Administrative Agent and the Required Lenders; (m) OPINIONS OF COUNSEL. The Administrative Agent shall have received from (i) Vedder Price Kaufman & Kammholz, special counsel to the Borrower, an opinion addressed to the Administrative Agent and each of the Lenders and dated the Amendment/Restatement Effective Date, in form and substance satisfactory to the Administrative Agent, (ii) Gregory Kellam Scott, counsel to the Borrower, an opinion addressed to the Administrative Agent and each of the Lenders and dated the Amendment/Restatement Effective Date, in form and substance satisfactory to the Administrative Agent, (iii) Heller Ehrman White & McAuliffe LLP, local counsel to the Borrower, an opinion addressed to the Administrative Agent and each of the Lenders and dated the Amendment/Restatement Effective Date, related to the Redmond, Washington real property, in form and substance satisfactory to the Administrative Agent, and (iv) confirmation from each counsel delivering a legal opinion in connection with any portion of the Transaction (as defined in the Amended and Restated Credit Agreement) that the Administrative Agent and Lenders are entitled to rely upon their respective opinions delivered pursuant to the Transaction (as defined in the Amended and Restated Credit Agreement); (n) FEES. The Borrower shall have paid to the Agents and the Lenders all costs, fees and expenses (including, without limitation, legal fees and expenses) payable to the Agents and the Lenders to the extent then due; (o) SOLVENCY. The Administrative Agent shall have received a solvency certificate from each of the Credit Parties, addressed to the Administrative Agent and each of the Lenders and dated the Amendment/Restatement Effective Date and supporting the conclusions, that, after giving effect to the Transaction (as defined in the Amended and Restated Credit Agreement) and the incurrence of all financing contemplated herein, the Borrower and each such Credit Party is not insolvent and will not be rendered insolvent by the indebtedness incurred in connection herewith, will not be left with unreasonably small capital with which to engage in its respective businesses and will not have incurred debts beyond its ability to pay such debts in the ordinary course as they mature and become due; 5 (p) OFFICER'S CERTIFICATE. The Administrative Agent shall have received, with a signed counterpart for each Lender, a certificate executed by a Responsible Officer on behalf of the Borrower, dated the Amendment/Restatement Effective Date and in the form of EXHIBIT 4(p) hereto, stating that the representations and warranties set forth in ARTICLE VI of the Amended and Restated Credit Agreement are true and correct as of the date of the certificate, that no Event of Default or Unmatured Event of Default has occurred and is continuing, that the conditions of SECTION 4 hereof have been fully satisfied (except that no opinion need be expressed as to the Administrative Agent's or Required Lenders' satisfaction with any document, instrument or other matter) and that to the best of Borrower's knowledge, no Liens (except for Permitted Liens) have been placed against the Collateral since the respective dates of the searches of financing statements filed under the UCC and delivered pursuant to this SECTION 4; (q) ENVIRONMENTAL REPORTS. The Administrative Agent shall have received all documents, including such environmental site assessment reports (to the extent they exist) with respect to the real property of the Borrower and their Subsidiaries as shall be requested by the Administrative Agent; (r) EXISTING INDEBTEDNESS. (i) After giving effect to the Transaction (as defined in the Amended and Restated Credit Agreement) and the other transactions contemplated hereby, the Subsidiaries shall not have any Indebtedness outstanding except for the Loans and the Indebtedness to Remain Outstanding, and the Indebtedness to Remain Outstanding shall not be incurred in connection with, or in contemplation of, the Transaction (as defined in the Amended and Restated Credit Agreement) and the terms and conditions of the Indebtedness to Remain Outstanding shall be satisfactory to the Administrative Agent; and (ii) the Administrative Agent shall be satisfied that the creditors under any financing arrangement to be repaid in connection with the Transaction (as defined in the Amended and Restated Credit Agreement) have terminated and released all security interests and Liens on the assets owned by the Borrower and its Subsidiaries, and shall have received such releases of security interest in and Liens on the assets owned by the Borrower and its Subsidiaries or agreements to release the foregoing and/or proper termination statements (Form UCC-3 or the appropriate equivalent) as may have been requested by the Administrative Agent, which releases shall be in form and substance satisfactory to the Administrative Agent; (s) CONSUMMATION OF OTS ACQUISITION AGREEMENT, ETC. The transactions contemplated by the OTS Acquisition Agreement (as defined in the Amended and Restated Credit Agreement) shall have been consummated without the waiver of any conditions precedent thereto required to be performed on or prior to the consummation of the transactions contemplated thereby which are for the benefit of the Borrower and the waiver of which, in the reasonable judgment of the Administrative Agent, could reasonably be expected to have a Material Adverse Effect, and the Administrative Agent shall have received such evidence of the consummation of such transactions as it may request; all representations and warranties of the Borrower and the other parties thereto contained in the Transaction Documents shall be true and correct in all material respects; and all notifications, consents and approvals required pursuant to the Transaction Documents shall have been given or obtained, as the case may be; 6 (t) APPOINTMENT OF AGENT. The Administrative Agent shall have received a letter from CT Corporation System, presently located at 111 Eighth Avenue, New York, New York 10011, in form and substance satisfactory to the Administrative Agent, indicating its consent to its appointment by the Credit Parties as their agent to receive service of process as specified in SECTION 12.9 of the Amended and Restated Credit Agreement; (u) EMPLOYEE BENEFIT PLANS; SHAREHOLDERS' AGREEMENTS; COLLECTIVE BARGAINING AGREEMENTS; TAX SHARING AGREEMENTS; DEBT AGREEMENTS. On or prior to the Amendment/Restatement Effective Date, there shall have been delivered to the Administrative Agent true and correct copies, certified as true and complete by an appropriate officer of the Borrower, of: (i) all material employee benefit plans (other than multiemployer plans as defined in Section 4001(a)(3) of ERISA), or any other similar plans or arrangements for the benefit of employees of the Borrower or any of its Material Subsidiaries and any profit sharing plans and deferred compensation plans of the Borrower or any of its Material Subsidiaries (collectively, the "EMPLOYEE BENEFIT Plans"); (ii) all agreements entered into by the Borrower or any of its Material Subsidiaries governing the terms and relative rights of its capital stock and any agreements entered into by shareholders relating to the Borrower or any of its Material Subsidiaries with respect to their capital stock (collectively, the "SHAREHOLDER AGREEMENTS"); (iii) all agreements with members of, or with respect to the, management of the Borrower or any of its Material Subsidiaries other than Employment Agreements (collectively, the "MANAGEMENT AGREEMENTS"); (iv) any material employment agreements entered into by the Borrower or any of its Material Subsidiaries (collectively, the "EMPLOYMENT AGREEMENTS"); (v) all collective bargaining agreements applying or relating to any employee of the Borrower or any of its Material Subsidiaries (collectively, the "COLLECTIVE BARGAINING AGREEMENTS"); (vi) all agreements evidencing or relating to Indebtedness to Remain Outstanding of the Borrower or any of its Material Subsidiaries and all agreements evidencing or relating to any Indebtedness of the Borrower or any of its Material Subsidiaries which is to remain outstanding after giving effect to the incurrence of Loans on the Amendment/Restatement Effective Date (collectively, the "DEBT AGREEMENTS"); and (vii) all tax sharing, disaffiliation tax allocation and other similar agreements entered into by the Borrower or any of its Material Subsidiaries (collectively, the "TAX SHARING AGREEMENTS"); all of which Employee Benefit Plans, Shareholders' Agreements, Management Agreements, Employment Agreements, Collective Bargaining Agreements, Debt Agreements and Tax Sharing Agreements shall be in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders; and shall be in full force and effect on the 7 Amendment/Restatement Effective Date, except such agreements previously identified to the Administrative Agent and the Required Lenders which will be terminated in connection with the consummation of the transaction. (v) ADVERSE CHANGE. On or prior to the Amendment/Restatement Effective Date, nothing shall have occurred (and neither the Administrative Agent nor the Lenders shall have become aware of any facts or conditions not previously known) (i) which the Administrative Agent or the Required Lenders shall determine has or reasonably could be expected to have, or could have, a Material Adverse Effect or (ii) which materially disrupts or materially adversely changes financial, banking or capital market conditions generally; and (w) OTHER MATTERS. All corporate and other proceedings taken in connection with the Transaction (as defined in the Amended and Restated Credit Agreement) at or prior to the Amendment/Restatement Effective Date, and all documents incident thereto will be reasonably satisfactory in form and substance to the Administrative Agent; and the Administrative Agent shall have received such other instruments and documents as the Administrative Agent shall reasonably request in connection with the execution of this Agreement, and all such instruments and documents shall be reasonably satisfactory in form and substance to the Administrative Agent. Each Lender hereby agrees that by its execution and delivery of its signature page hereto and by the funding of its New Term B Loan (if applicable) to be made on the Amendment/Restatement Effective Date, such Lender approves of and consents to each of the matters set forth in this SECTION 4 which must be approved by, or which must be satisfactory to, the Agents or the Required Lenders or Lenders, as the case may be. 5. In order to induce the undersigned Lenders to enter into this Agreement, the Borrower hereby represents and warrants that (x) no Default or Event of Default exists at the Amendment/Restatement Effective Date after giving effect to this Agreement and (y) all of the representations and warranties contained in the Amended and Restated Credit Agreement shall be true and correct in all material respects as of the Amendment/Restatement Effective Date after giving effect to this Agreement and the amendment and restatement of the Original Credit Agreement contemplated hereby, with the same effect as though such representations and warranties had been made on and as of the Amendment/Restatement Effective Date (it being understood that any representation or warranty made as of a specified date shall be required to be true and correct in all material respects only as of such specific date). 6. Each of the undersigned Lenders acknowledges and agrees to the following: (a) the release from mortgage by the Administrative Agent of approximately 80 acres of real property of the Borrower located in Sacramento, California, with a fair market value (as represented by the Borrower) of approximately $1,600,000 for the purposes of constructing a Country Day school, (b) the execution by the Administrative Agent and the Borrower of Amendment No. 3 to Post Closing Agreement in order to extend the date to June 30, 2003 (previously, December 28, 2002) by which certain environmental permits and filings must be in place with respect to the Borrower's Corvol l'Orgueilleux, France facility and (c) the waiver and ratification of the Borrower's transfer and sale of certain real property of the Borrower located in 8 Marion, Indiana to the City of Marion, Indiana, which real property remains subject to a mortgage in favor of the Administrative Agent on behalf of the Secured Creditors. 7. This Agreement is limited as specified and shall not constitute a modification, acceptance or waiver of any other provision of the Original Credit Agreement or any other Loan Document. 8. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which counterparts when executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A complete set of counterparts shall be lodged with the Borrower and the Administrative Agent. 9. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. 10. This Agreement shall become effective on the first Business Day upon which each of the following conditions have been satisfied (the "AMENDMENT/RESTATEMENT EFFECTIVE DATE"): (i) the Borrower, the percentage of Lenders required by the Original Credit Agreement and each of the New Term B Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile transmission) the same to the Administrative Agent at Winston & Strawn, 35 West Wacker Drive, Chicago, Illinois 60601, Attention: S. Kay McNab (facsimile number 312-558-5700); (ii) the conditions specified in SECTION 4 hereof shall be satisfied; and (iii) the Borrower shall have paid each Lender which executed and delivered a counterpart to this Agreement a non-refundable cash fee (the "AMENDMENT FEE") in an amount equal to .125% of the sum of the outstanding principal amount of Term A Loans and the Revolving Commitment of such Lender as of the first Business Day immediately prior to the Amendment/Restatement Effective Date. Notwithstanding the foregoing, the amendments to the Original Credit Agreement that would be affected hereby and the obligations of the New Term B Lenders to make New Term B Loans shall not become effective unless each of the foregoing conditions is satisfied or waived at or prior to 5:00 p.m., New York City time, on October 2, 2002. In the event such conditions are not so satisfied or waived, the Original Credit Agreement shall remain in effect without giving effect to any amendments thereto contemplated hereby. 11. (a) On and after the date hereof each reference in the Amended and Restated Credit Agreement to "this Agreement," "hereunder," "hereof," "herein," or words of like import, and each reference to the "Credit Agreement", as the case may be, in the Loan Documents and all other documents (the "ANCILLARY DOCUMENTS") delivered in connection with 9 the Original Credit Agreement as amended and restated by the Amended and Restated Credit Agreement shall mean and be a reference to the Original Credit Agreement as amended and restated by the Amended and Restated Credit Agreement. (b) The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders or Agent under the Original Credit Agreement as amended and restated by the Amended and Restated Credit Agreement or the Loan Documents. (c) The Amended and Restated Credit Agreement amends and restates the Original Credit Agreement and is not in satisfaction of payment of any Obligations thereunder and does not constitute a novation, payment and reborrowing, or termination of the Obligations under the Original Credit Agreement, but rather shall relate back to the execution date of the Original Credit Agreement for all purposes, including filing and perfection of all security interests for the benefit of the Secured Creditors. [signature page follows] 10 IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Agreement to Amend and Restate as of the date first above written. GENCORP INC. By: /s/ Yasmin R. Seyal ----------------------------------- Name: Yasmin R. Seyal Title: Senior Vice President and Chief Financial Officer Signature Page to Agreement to Amend and Restate DEUTSCHE BANK TRUST COMPANY AMERICAS (formerly known as Bankers Trust Company), as Administrative Agent and Lender By: /s/ Marguerite Sutton ----------------------------------- Name: Marguerite Sutton Title: Vice President Signature Page to Agreement to Amend and Restate ABN AMRO BANK N.V., as Lender By: /s/ Terrence J. Ward ----------------------------------- Name: Terrence J. Ward Title: Senior Vice President By: /s/ Peter J. Hallan ----------------------------------- Name: Peter J. Hallan Title: Vice President Signature Page to Agreement to Amend and Restate THE BANK OF NEW YORK, as Lender By: /s/ Elizabeth T. Ying ----------------------------------- Name: Elizabeth T. Ying Title: Vice President Signature Page to Agreement to Amend and Restate THE BANK OF NOVA SCOTIA, as Lender By: /s/ M. Sparrow ----------------------------------- Name: M. Sparrow Title: Director Signature Page to Agreement to Amend and Restate ING CAPITAL LLC, as Lender By: /s/ Ludwig Hoogstoel ----------------------------------- Name: Ludwig Hoogstoel Title: Managing Director Signature Page to Agreement to Amend and Restate NATIONAL CITY BANK, as Lender By: /s/ Tom Gurbach ----------------------------------- Name: Tom Gurbach Title: Vice President Signature Page to Agreement to Amend and Restate THE NORTHERN TRUST COMPANY, as Lender By: /s/ Melissa W. Whitson ----------------------------------- Name: Melissa W. Whitson Title: Vice President Signature Page to Agreement to Amend and Restate WELLS FARGO BANK, N.A., as Lender By: /s/ Rick A. Souza ----------------------------------- Name: Rick A. Souza Title: Vice President Signature Page to Agreement to Amend and Restate WACHOVIA BANK, N.A., as Lender By: /s/ Katherine A. Harkness ----------------------------------- Name: Katherine A. Harkness Title: Director Signature Page to Agreement to Amend and Restate SCHEDULE I NEW TERM B LENDERS NEW TERM B LOANS - ------------------ ---------------- Deutsche Bank Trust Company Americas $ 40,000,000.00 ABN AMRO Bank, N.V. $ 40,000,000.00 The Bank of Nova Scotia $ 20,000,000.00 ING Capital LLC $ 15,000,000.00 TOTAL $115,000,000.00 Execution Copy ANNEX I - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF DECEMBER 28, 2000 AND AMENDED AND RESTATED AS OF OCTOBER 2, 2002 AMONG GENCORP INC., AS THE BORROWER DEUTSCHE BANK TRUST COMPANY AMERICAS, AS ADMINISTRATIVE AGENT, ABN AMRO BANK, N.V., AS SYNDICATION AGENT, DEUTSCHE BANK SECURITIES INC. AND ABN AMRO INCORPORATED, AS JOINT LEAD ARRANGERS, THE BANK OF NOVA SCOTIA, AS DOCUMENTATION AGENT AND VARIOUS LENDING INSTITUTIONS - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- TABLE OF CONTENTS

Page ARTICLE I - DEFINITIONS AND ACCOUNTING TERMS...............................................................1 Section 1.1. Definitions......................................................................1 Section 1.2. Accounting Terms; Financial Statements..........................................44 ARTICLE II - AMOUNT AND TERMS OF CREDIT...................................................................44 Section 2.1. The Commitments.................................................................44 Section 2.2. Notes...........................................................................48 Section 2.3. Minimum Amount of Each Borrowing; Maximum Number of Borrowings...................................................................48 Section 2.4. Borrowing Options...............................................................49 Section 2.5. Notice of Borrowing.............................................................49 Section 2.6. Conversion or Continuation......................................................50 Section 2.7. Disbursement of Funds...........................................................51 Section 2.8. Additional Loan Commitments.....................................................52 Section 2.9. Pro Rata Borrowings.............................................................55 Section 2.10. Amount and Terms of Letters of Credit...........................................55 ARTICLE III - INTEREST AND FEES...........................................................................64 Section 3.1. Interest........................................................................64 Section 3.2. Fees............................................................................65 Section 3.3. Computation of Interest and Fees................................................66 Section 3.4. Interest Periods................................................................66 Section 3.5. Compensation for Funding Losses.................................................67 Section 3.6. Increased Costs, Illegality, Etc................................................68 Section 3.7. Replacement of Affected Lenders.................................................71 Section 3.8. Borrower Controls on Non-Dollar Loans; Prepayments..............................72 ARTICLE IV - REDUCTION OF COMMITMENTS; PAYMENTS AND PREPAYMENTS..................................................................73 Section 4.1. Voluntary Reduction of Commitments..............................................73 Section 4.2. Mandatory Reductions of Commitments.............................................74 Section 4.3. Voluntary Prepayments...........................................................74 Section 4.4. Mandatory Prepayments...........................................................75 Section 4.5. Application of Prepayments; Waiver of Certain Prepayments.......................80 Section 4.6. Method and Place of Payment.....................................................82 Section 4.7. Net Payments....................................................................82

i ARTICLE V - CONDITIONS OF CREDIT..........................................................................85 Section 5.1. Conditions Precedent to All Credit Events......................................85 ARTICLE VI - REPRESENTATIONS AND WARRANTIES...............................................................87 Section 6.1. Corporate Status................................................................87 Section 6.2. Corporate Power and Authority...................................................87 Section 6.3. No Violation....................................................................87 Section 6.4. Governmental and Other Approvals................................................88 Section 6.5. Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; Etc...................................................88 Section 6.6. Litigation......................................................................90 Section 6.7. Disclosure......................................................................90 Section 6.8. Use of Proceeds; Margin Regulations.............................................91 Section 6.9. Tax Returns and Payments........................................................92 Section 6.10. Compliance With ERISA...........................................................92 Section 6.11. Ownership of Property...........................................................93 Section 6.12. Capitalization of the Borrower..................................................94 Section 6.13. Subsidiaries....................................................................94 Section 6.14. Compliance With Law, Etc........................................................95 Section 6.15. Investment Company Act..........................................................95 Section 6.16. Public Utility Holding Company Act..............................................95 Section 6.17. Environmental Matters...........................................................95 Section 6.18. Labor Relations.................................................................96 Section 6.19. Intellectual Property, Licenses, Franchises and Formulas........................97 Section 6.20. Certain Fees....................................................................97 Section 6.21. Security Documents..............................................................97 Section 6.22. Documents.......................................................................99 Section 6.23. Intercompany Notes..............................................................99 Section 6.24. Aerojet Settlement Agreement....................................................99 ARTICLE VII - AFFIRMATIVE COVENANTS......................................................................100 Section 7.1. Financial Statements...........................................................100 Section 7.2. Certificates; Other Information................................................101 Section 7.3. Notices........................................................................103 Section 7.4. Conduct of Business and Maintenance of Existence...............................104 Section 7.5. Payment of Obligations.........................................................105 Section 7.6. Inspection of Property, Books and Records......................................105 Section 7.7. ERISA..........................................................................105 Section 7.8. Maintenance of Property; Insurance.............................................107 Section 7.9. Environmental Laws.............................................................108 ii Section 7.10. Use of Proceeds................................................................109 Section 7.11. Interest Rate Protection.......................................................109 Section 7.12. Additional Security; Further Assurances........................................109 Section 7.13. End of Fiscal Years; Fiscal Quarters...........................................111 Section 7.14. Foreign Subsidiaries Security..................................................111 Section 7.15. Certain Fees Indemnity.........................................................112 Section 7.16. OTS Acquisition Documents......................................................112 Section 7.17. Addition of Collateral.........................................................112 ARTICLE VIII - NEGATIVE COVENANTS........................................................................113 Section 8.1. Liens..........................................................................113 Section 8.2. Indebtedness...................................................................115 Section 8.3. Consolidation, Merger, Purchase or Sale of Assets, Etc.........................118 Section 8.4. Dividends or Other Distributions...............................................120 Section 8.5. Limitation on Certain Restrictions on Subsidiaries.............................121 Section 8.6. Issuance of Stock..............................................................121 Section 8.7. Loans and Investments..........................................................122 Section 8.8. Transactions with Affiliates...................................................124 Section 8.9. Lines of Business..............................................................125 Section 8.10. Fiscal Year....................................................................125 Section 8.11. Limitation on Voluntary Payments and Modifications of Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements; Etc......................................125 Section 8.12. Accounting Changes.............................................................126 Section 8.13. Aerojet Government Contracting Authority.......................................126 Section 8.14. Sale of Mortgaged Property or Mortgaged California Real Estate....................................................................126 ARTICLE IX - FINANCIAL COVENANTS.........................................................................127 Section 9.1. Capital Expenditures...........................................................127 Section 9.2. Maintenance of Consolidated Net Worth..........................................128 Section 9.3. Interest Coverage Ratio........................................................128 Section 9.4. Leverage Ratio.................................................................129 Section 9.5. Fixed Charge Coverage Ratio....................................................129 ARTICLE X - EVENTS OF DEFAULT............................................................................130 Section 10.1. Events of Default..............................................................130 Section 10.2. Rights Not Exclusive...........................................................134 iii ARTICLE XI - THE ADMINISTRATIVE AGENT....................................................................134 Section 11.1. Appointment....................................................................134 Section 11.2. Nature of Duties...............................................................134 Section 11.3. Exculpation, Rights Etc........................................................135 Section 11.4. Reliance.......................................................................136 Section 11.5. Indemnification................................................................136 Section 11.6. The Administrative Agent In Its Individual Capacity............................136 Section 11.7. Notice of Default..............................................................137 Section 11.8. Holders of Obligations.........................................................137 Section 11.9. Resignation by the Administrative Agent........................................137 ARTICLE XII - MISCELLANEOUS..............................................................................138 Section 12.1. No Waiver; Modifications in Writing............................................138 Section 12.2. Further Assurances.............................................................140 Section 12.3. Notices, Etc...................................................................140 Section 12.4. Costs, Expenses and Taxes; Indemnification.....................................141 Section 12.5. Confirmations..................................................................143 Section 12.6. Adjustment; Setoff.............................................................143 Section 12.7. Execution in Counterparts......................................................144 Section 12.8. Binding Effect; Assignment; Addition and Substitution of Lenders........................................................145 Section 12.9. CONSENT TO JURISDICTION; MUTUAL WAIVER OF JURY TRIAL....................................................148 Section 12.10. GOVERNING LAW..................................................................149 Section 12.11. Severability of Provisions.....................................................149 Section 12.12. Headings.......................................................................149 Section 12.13. Termination of Agreement.......................................................149 Section 12.14. Confidentiality................................................................150 Section 12.15. Concerning the Collateral and the Loan Documents...............................150 Section 12.16. Effectiveness..................................................................152 Section 12.17. Registry.......................................................................153 Section 12.18. Matters Relating to this Agreement.............................................154 iv INDEX OF EXHIBITS AND SCHEDULES EXHIBITS - -------- Exhibit 1.1(a) Form of Intercompany Subordinated Demand Promissory Note Exhibit 2.1(d) Form of Swing Line Loan Participation Certificate Exhibit 2.2(a) Form of New Term B Note Exhibit 2.5-1 Form of Notice of Borrowing Exhibit 2.5-2 Form of Appointment (or Revocation) of Responsible Officer Exhibit 2.6 Form of Notice of Conversion or Continuation Exhibit 2.10(b) Form of Letter of Credit Request Exhibit 4.7(d) Form of Section 4.7(d)(ii) Certificate Exhibit 7.2(b) Form of Officer's Certificate Pursuant to Section 7.2(b) Exhibit 12.8(c) Form of Assignment and Assumption Agreement v SCHEDULES - --------- Schedule 1.1(a) Loan/Commitments Schedule 2.10(a) Letters of Credit Outstanding as of the Amendment/Restatement Effective Date Schedule 6.3 Approvals and Consents Schedule 6.4 Governmental Approvals Schedule 6.5(a) Pro Forma Balance Sheet Schedule 6.5(c) Existing Liabilities Schedule 6.5(e) Projections Schedule 6.6 Litigation Schedule 6.10 ERISA Plans Schedule 6.12 Capitalization of the Borrower Schedule 6.13 List of Subsidiaries Schedule 6.17 Existing Environmental Matters Schedule 6.21(c) Owned and Leased Properties Schedule 7.8 Insurance Levels Schedule 8.1(f) Existing Liens Schedule 8.2(b) Existing Indebtedness to Remain Outstanding Schedule 8.5(a) Existing Restrictions on Subsidiaries Schedule 8.7(b) Existing Investments Schedule 12.3 Notice Information vi AMENDED AND RESTATED CREDIT AGREEMENT THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "AGREEMENT"), dated as of December 28, 2000 and amended and restated as of October 2, 2002, and is made by and among GenCorp Inc., an Ohio corporation having its principal place of business in Rancho Cordova, California ("GENCORP" or the "BORROWER"), the undersigned financial institutions, including Deutsche Bank Trust Company Americas (formerly Bankers Trust Company), in their capacities as lenders hereunder (collectively, the "LENDERS," and each individually, a "LENDER"), Deutsche Bank Trust Company Americas (formerly Bankers Trust Company), as Administrative Agent (the "ADMINISTRATIVE AGENT") for the Lenders, ABN AMRO Bank, N.V., as Syndication Agent (the "SYNDICATION AGENT") (collectively, the "AGENTS" and each individually, an "AGENT"), and The Bank of Nova Scotia, as Documentation Agent. W I T N E S S E T H: WHEREAS, subject to and upon the terms and conditions herein set forth, the Lenders are willing to make available to the Borrower the credit facilities provided for herein; NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, and for other valuable consideration the receipt and sufficiency of which are hereby acknowledged the parties hereto agree as follows: ARTICLE I DEFINITIONS AND ACCOUNTING TERMS Section 1.1. DEFINITIONS. As used herein, and unless the context requires a different meaning, the following terms have the meanings indicated: "ADDITIONAL COLLATERAL" is defined in SECTION 7.12(a). "ADDITIONAL SECURITY DOCUMENTS" means all mortgages, pledge agreements, security agreements and other security documents entered into pursuant to SECTION 7.12 with respect to Additional Collateral. "ADJUSTED TOTAL REVOLVING LOAN COMMITMENT" shall mean at any time the Total Revolving Commitment less the aggregate Commitments of all Defaulting Lenders. "ADJUSTED WORKING CAPITAL" means the difference between (i) Consolidated Current Assets excluding from Consolidated Current Assets all Cash and Cash Equivalents, and (ii) Consolidated Current Liabilities excluding from Consolidated Current Liabilities all short-term borrowings, the current portion of long-term Indebtedness and the current portion of Capitalized Lease Obligations. "ADMINISTRATIVE AGENT" has the meaning assigned to that term in the introduction to this Agreement and any successor Administrative Agent in such capacity. "AEROJET" means Aerojet - General Corporation, an Ohio corporation. "AEROJET SETTLEMENT AGREEMENT" means that certain settlement agreement by and between Aerojet and the federal government of the United States, titled Modification No. 1 to the 29 November 1992 Settlement Agreement Between the United States and Aerojet-General Corporation and effective as of November 30, 1998, pursuant to which the federal government of the United States has agreed to recognize, as allowable government contract costs, up to 88% of the environmental site restoration costs (as defined therein) incurred by Aerojet. "AFC" means Aerojet Fine Chemicals LLC, a Delaware limited liability company. "AFFILIATE" means, with respect to any Person, any Person or group acting in concert in respect of the Person in question that, directly or indirectly, controls (including but not limited to all directors and officers of such Person) or is controlled by or is under common control with such Person provided that no Agent nor any Affiliate of an Agent shall be deemed to be an Affiliate of the Borrower. For the purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any Person or group of Persons, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. For purposes of this definition, a Person (and any director and officer thereof) shall be deemed to control an entity if such Person possesses, directly or indirectly, the power to vote 10% or more of the securities or other equity interests having ordinary voting power for the election of directors (if a corporation) or to select the managing member, trustee or equivalent controlling interest. "AGENTS" is defined in the introduction to this Agreement and any successor Agent in such respective capacity. "AGREEMENT" means this Amended and Restated Credit Agreement, as the same may at any time be amended, supplemented or otherwise modified in accordance with the terms hereof and in effect. "AGREEMENT TO AMEND" means the Agreement to Amend and Restate dated as of October 2, 2002 among the Borrower, the Agents and the Persons that are Lenders after giving effect to the effectiveness thereof. "AMENDMENT/RESTATEMENT EFFECTIVE DATE" shall have the meaning set forth in the Agreement to Amend. 2 "APPLICABLE BASE RATE MARGIN" means at any date, (i) with respect to Revolving Loans and Term A Loans, the applicable percentage set forth in the following table under the column Applicable Base Rate Margin for Revolving Loans and Term A Loans opposite the Most Recent Leverage Ratio as of such date, and (ii) with respect to New Term B Loans, 2.75%:

- ----------------------------------------------------------- ------------------------- APPLICABLE BASE RATE MOST RECENT MARGIN FOR REVOLVING LEVERAGE RATIO LOANS AND TERM A LOANS -------------- ---------------------- - ----------------------------------------------------------- ------------------------- Less than 1.75 to 1.00 0.75% - ----------------------------------------------------------- ------------------------- Equal to or greater than 1.75 to 1.00 but less than 2.00 1.00% to 1.00 - ----------------------------------------------------------- ------------------------- Equal to or greater than 2.00 to 1.00 but less than 2.25 1.25% to 1.00 - ----------------------------------------------------------- ------------------------- Equal to or greater than 2.25 to 1.00 but less than 2.50 1.50% to 1.00 - ----------------------------------------------------------- ------------------------- Equal to or greater than 2.50 to 1.00 but less than 3.00 1.75% to 1.00 - ----------------------------------------------------------- ------------------------- Equal to or greater than 3.00 to 1.00 2.00% - ----------------------------------------------------------- -------------------------

"APPLICABLE COMMITMENT FEE PERCENTAGE" means at any date, the applicable percentage set forth in the following table under the column Applicable Commitment Fee Percentage opposite the Most Recent Leverage Ratio as of such date:

----------------------------------------------------- ------------------------------------------------------- MOST RECENT APPLICABLE COMMITMENT LEVERAGE RATIO FEE PERCENTAGE -------------- -------------- ----------------------------------------------------- ------------------------------------------------------- Less than 2.25 to 1.00 0.375% ----------------------------------------------------- ------------------------------------------------------- Equal to or greater than 2.25 to 1.00 0.50% ----------------------------------------------------- -------------------------------------------------------

"APPLICABLE EUROCURRENCY MARGIN" means at any date, (i) with respect to Revolving Loans and Term A Loans, the applicable percentage set forth in the following table under the column Applicable Eurocurrency Margin for Revolving Loans and Term A Loans opposite the Most Recent Leverage Ratio on such date, (ii) with respect to New Term B Loans, 3.75%: 3 - ------------------------------------- ---------------------------------- APPLICABLE EUROCURRENCY MARGIN MOST RECENT FOR REVOLVING LOANS AND LEVERAGE RATIO TERM A LOANS -------------- ------------ - ------------------------------------- ---------------------------------- Less than 1.75 to 1.00 1.75% - ------------------------------------- ---------------------------------- Equal to or greater than 1.75 to 2.00% 1.00 but less than 2.00 to 1.00 - ------------------------------------- ---------------------------------- Equal to or greater than 2.00 to 2.25% 1.00 but less than 2.25 to 1.00 - ------------------------------------- ---------------------------------- Equal to or greater than 2.25 to 2.50% 1.00 but less than 2.50 to 1.00 - ------------------------------------- ---------------------------------- Equal to or greater than 2.50 to 2.75% 1.00 but less than 3.00 to 1.00 - ------------------------------------- ---------------------------------- Equal to or greater than 3.00 to 3.00% 1.00 - ------------------------------------- ---------------------------------- "ASSET DISPOSITION" means any sale, lease, transfer or other disposition (or series of related sales, leases, transfers or dispositions) of all or any part of an interest in shares of Capital Stock of a Subsidiary of the Borrower (other than directors' qualifying shares and similar arrangements required by Requirements of Law), Investments, property or other assets (each referred to for the purposes of this definition as a "disposition") by the Borrower or any of its Subsidiaries; PROVIDED THAT (i) a disposition permitted by SECTION 8.3(a) through 8.3(j) (other than a Sale and Leaseback Transaction) shall not constitute an "Asset Disposition" for purposes of this Agreement and (ii) a sale, transfer or other disposition of real property by the Borrower or any of its Subsidiaries as part of its trade or business shall not constitute an "Asset Disposition" for purposes of this Agreement PROVIDED that such real estate sales, transfers or other dispositions subject to this clause (ii), individually or in the aggregate, shall not exceed $25,000,000 in any Fiscal Year. "ASSIGNED DOLLAR VALUE" shall mean (i) in respect of any Borrowing denominated in Dollars, the amount thereof, (ii) in respect of a Borrowing denominated in Euro, the Dollar Equivalent thereof based upon the applicable Spot Rate as of the last Computation Date. The Assigned Dollar Value of a Loan included in any Borrowing shall equal the pro rata portion of the Assigned Dollar Value of such Borrowing represented by such Loan. 4 "ASSIGNEE" has the meaning assigned to that term in SECTION 12.8(c). "ASSIGNMENT AND ASSUMPTION AGREEMENT" means an Assignment and Assumption Agreement substantially in the form of EXHIBIT 12.8(C) annexed hereto and made a part hereof by any applicable Lender, as assignor, and such Lender's assignee in accordance with SECTION 12.8. "ATTORNEY COSTS" means all reasonable fees and disbursements of any law firm or other external counsel and the reasonable allocated cost of internal legal services, including all reasonable disbursements of internal counsel. "ATTRIBUTABLE DEBT" means as of the date of determination thereof with respect to an Operating Financing Lease, the net present value (discounted according to GAAP at the cost of debt implied in the lease) of the obligations of the lessee for rental payments during the then remaining term of such Operating Financing Lease. "AVAILABLE REVOLVING COMMITMENT" means, as to any Revolving Lender at any time an amount equal to the excess, if any, of (i) such Lender's Revolving Commitment over (ii) the sum of (x) the aggregate principal amount then outstanding of the Assigned Dollar Value of Revolving Loans made by such Lender, and (y) such Lender's Revolver Pro Rata Share of the Assigned Dollar Value of LC Obligations and the Assigned Dollar Value of Swing Line Loans then outstanding. "BANKRUPTCY CODE" means Title 11 of the United States Code entitled "Bankruptcy" as from time to time amended, including the rules and regulations promulgated thereunder, or any successor statute and the rules and regulations promulgated thereunder. "BASE RATE" means the greater of (i) the rate most recently announced by DBTCA at its principal office as its "prime rate", which is not necessarily the lowest rate made available by DBTCA or (ii) the Federal Funds Rate plus 1/2 of 1% per annum. The "prime rate" announced by DBTCA is evidenced by the recording thereof after its announcement in such internal publication or publications as DBTCA may designate. Any change in the interest rate resulting from a change in such "prime rate" announced by DBTCA shall become effective without prior notice to the Borrower as of 12:01 a.m. (New York City time) on the Business Day on which each change in such "prime rate" is announced by DBTCA. DBTCA may make commercial or other loans to others at rates of interest at, above or below its "prime rate". "BASE RATE LOAN" means any Loan which bears interest at a rate determined with reference to the Base Rate. "BENEFITED LENDER" has the meaning assigned to that term in SECTION 12.6(a). 5 "BOARD" means the Board of Governors of the Federal Reserve System. "BORROWER" has the meaning assigned to that term in the introduction to this Agreement. "BORROWER PLEDGE AGREEMENT" shall mean a Borrower Pledge Agreement substantially in the form attached to the Original Credit Agreement, as amended, amended and restated and modified, and as the same may be amended, amended and restated, modified or supplemented from time to time. "BORROWER SECURITY AGREEMENT" shall mean a Borrower Security Agreement substantially in the form attached to the Original Credit Agreement, as amended, amended and restated and modified, and as the same may be amended, amended and restated, modified or supplemented from time to time. "BORROWING" means a group of Loans of a single Type made by the Lenders or the Swing Line Lender, as appropriate, on a single date and in the case of Eurocurrency Loans, as to which a single Interest Period is in effect and made in a single currency, PROVIDED that Base Rate Loans or Eurocurrency Loans incurred pursuant to SECTION 3.6 shall be considered part of any related Borrowing of Eurocurrency Loans. "BUSINESS DAY" (i) as it relates to any payment, determination, funding or notice to be made or given in connection with any Dollar-denominated Loan, or otherwise to be made or given to or from the Administrative Agent, a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close; PROVIDED, HOWEVER, that when used in connection with a Eurocurrency 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; and (ii) as it relates to any payment, determination, funding or notice to be made or given in connection with the Multicurrency Revolving Loans, any day (x) on which dealings in deposits in the Euro are carried out in the London interbank market, (y) on which commercial banks and foreign exchange markets are open for business in London and New York City and (z) the TARGET payment system is open for the settlement of payment in Euro. "CAPITALIZED LEASE" means, at the time any determination thereof is to be made, any lease of property, real or personal, in respect of which the present value of the minimum rental commitment is capitalized on the balance sheet of the lessee in accordance with GAAP. "CAPITALIZED LEASE OBLIGATION" means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease which would at such time be required to be capitalized on the balance sheet of the lessee in accordance with GAAP. 6 "CAPITAL STOCK" means, with respect to any Person, any and all shares, interests, participations, rights in or other equivalents (however designated) of such Person's capital stock (including each class of common and preferred stock), partnership interests, membership interests or other equivalent interests and any rights (other than debt securities convertible into or exchangeable for capital stock), warrants or options exchangeable for or convertible into such capital stock or other interests. "CASH" means money, currency or the available credit balance in a Deposit Account. "CASH EQUIVALENTS" means (i) any evidence of indebtedness, maturing not more than one year after the date of issue, issued by the United States of America or any instrumentality or agency thereof, the principal, interest and premium, if any, of which is guaranteed fully by, or backed by the full faith and credit of, the United States of America, (ii) time deposits, certificates of deposit and bankers acceptances maturing not more than one year after the date of purchase, issued by (x) any Lender or (y) a commercial banking institution having, or which is the principal banking subsidiary of a bank holding company having, combined capital and surplus and undivided profits of not less than $200,000,000 and a commercial paper rating of "P-1" (or higher) according to Moody's, "A-1" (or higher) according to S&P or the equivalent rating by any other nationally recognized rating agency (any such bank, an "APPROVED BANK"), or (z) a non-United States commercial banking institution which is either currently ranked among the 100 largest banks in the world (by assets, according to the AMERICAN BANKER), has combined capital and surplus and undivided profits of not less than $500,000,000 or whose commercial paper (or the commercial paper of such bank's holding company) has a rating of "P-1" (or higher) according to Moody's, "A-1" (or higher) according to S&P or the equivalent rating by any other nationally recognized rating agency, (iii) commercial paper, maturing not more than 270 days after the date of purchase, issued or guaranteed by a corporation (other than Borrower or any Subsidiary of Borrower or any of their respective Affiliates) organized and existing under the laws of any state within the United States of America with a rating, at the time as of which any determination thereof is to be made, of "P-1" (or higher) according to Moody's, or "A-1" (or higher) according to S&P, (iv) demand deposits with any bank or trust company maintained in the ordinary course of business, (v) repurchase or reverse repurchase agreements covering obligations of the type specified in clause (i) with any Approved Bank and (vi) shares of any money market mutual fund rated at least AAA or the equivalent thereof by S&P or at least AAA or the equivalent thereof by Moody's, including, without limitation, any such mutual fund managed or advised by any Lender or the Administrative Agent, or any other mutual fund holding assets consisting of the type specified in clauses (i) through (v) above. "CHANGE OF CONTROL" means at any time the occurrence of one or more of the following events: (i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), is or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed to have "beneficial ownership" of all securities that such Person has the right to acquire, whether such right is exercisable 7 immediately or only after the passage of time), directly or indirectly, of 30% or more of the then outstanding Voting Securities of the Borrower; or (ii) the replacement of a majority of the Board of Directors of the Borrower over a two-year period from the directors who constituted the Board of Directors at the beginning of such period, and such replacement shall not have been approved by a vote of at least a majority of the Board of Directors of the Borrower then still in office who either were members of such Board of Directors at the beginning of such period or whose election as a member of such Board of Directors was previously so approved. "CODE" means the Internal Revenue Code of 1986, as from time to time amended, including the regulations proposed or promulgated thereunder, or any successor statute and the regulations proposed or promulgated thereunder. "COLLATERAL" means all "Collateral" as defined in each of the Security Documents. "COLLATERAL ACCOUNT" has the meaning assigned to that term in SECTION 4.4(a). "COLLATERAL AGENT" means the Administrative Agent in its capacity as collateral agent for the Secured Creditors. "COMMERCIAL LETTER OF CREDIT" means any letter of credit or similar instrument payable on a sight basis issued pursuant to this Agreement for the purpose of supporting trade obligations of the Borrower or any of its Subsidiaries in the ordinary course of business. "COMMITMENT" means, with respect to each Lender, the aggregate of the Revolving Commitment and the New Term B Commitment of such Lender and "Commitments" means such commitments of all of the Lenders collectively. "COMMITMENT FEE" has the meaning assigned to that term in SECTION 3.2(a). "COMMITMENT INCREASE AMOUNT" has the meaning assigned to that term in SECTION 2.8(a). "COMMITMENT PERIOD" means, the period from and including the date hereof to but not including the Revolver Termination Date or, in the case of the Swing Line Commitment, five (5) Business Days prior to the Revolver Termination Date. "COMPUTATION DATE" has the meaning assigned to that term in SECTION 3.8(b). "CONSENT PROCEDURE" means the following procedure for obtaining consent from the Required Lenders in connection with the sale of AFC: (1) the Borrower shall deliver to the Administrative Agent the following: (A) a letter from a Responsible Officer to the Administrative Agent requesting that the Required Lenders consent to the proposed transaction, including a detailed description of the proposed transaction, (B) copies of all documentation relating to the 8 proposed transaction, (C) a certificate of a Responsible Financial Officer of the Borrower certifying that as of the date of such certificate and immediately after giving effect to the proposed transaction no Event of Default or Unmatured Event of Default shall occur, exist or be continuing and that all the representations and warranties set forth in ARTICLE VI and the other Loan Documents are true and correct in all material respects as of the date of the certificate and will be true and correct in all material respects immediately after giving effect to the proposed transaction and (D) to the extent the calculation of any financial covenants in ARTICLE IX hereof would be affected, a compliance certificate with respect to such covenant as of the date of the most recent certificate delivered pursuant to SECTION 7.2 giving pro forma effect to such proposed transaction; and (2) the Administrative Agent shall forward the request to the Lenders, using best efforts to forward the documents within three (3) days of receipt, with the request that each Lender notify the Administrative Agent within 15 days of such Lender's receipt of the Borrower's request whether such Lender approves the proposed transaction and each Lender will use best efforts to respond to the Administrative Agent within such 15-day time period; and (3) the Administrative Agent shall promptly notify the Borrower whether Required Lenders' Consent has been received, and any failure of a Lender affirmatively to approve such request, or of the Administrative Agent so to notify the Borrower, shall not constitute or be deemed to constitute approval of such request. "CONSOLIDATED ADJUSTED EBITDA" means, for any applicable period, the Consolidated Net Income or Consolidated Net Loss of the Borrower and its Subsidiaries (or of any business or Person to be acquired in any Permitted Acquisition for purposes of determining Consolidated Adjusted EBITDA on a pro forma basis pursuant to SECTION 8.7(k)) for such period, PLUS, to the extent deducted in determining the foregoing, (i) Consolidated Interest Expense for such period, (ii) the provision for taxes based on income and foreign withholding taxes for such period, (iii) depreciation expense for such period, (iv) amortization expense for such period, (v) any non-cash non-operating loss or expense associated with any unfunded post-retirement health or insurance benefit plans of the Borrower, but only to the extent Section 420 of the Internal Revenue Code (or its successor provision) was utilized by the Borrower in the preceding Fiscal Year, MINUS, to the extent included in Consolidated Net Income or Consolidated Net Loss for such period, any non-cash non-operating income or gains related to defined pension plans of the Borrower and, MINUS (or PLUS), any other non-cash non-operating income (or loss) for such period to the extent included in Consolidated Net Income or Consolidated Net Loss. For purposes of computing Consolidated Net Income or Consolidated Net Loss in determining Consolidated Adjusted EBITDA of the Borrower and its Subsidiaries, there shall be excluded from the computation thereof, without duplication and to the extent not otherwise excluded from the computation thereof, (i) non-recurring fees and expenses incurred in connection with the consummation of the Transaction, and (ii) non-recurring fees and expenses incurred in connection with the consummation of any Permitted Acquisition in an aggregate amount not to exceed five percent (5.0%) of the total consideration for such Permitted Acquisition. In addition, for any four-quarter period ending on or prior to the date that is the one-year anniversary date of the Amendment/Restatement Effective Date but after August 31, 2002, Consolidated Adjusted 9 EBITDA shall be calculated on a pro forma basis assuming the consummation of the OTS Business Acquisition as of the first day of such four-quarter period. Solely for purposes of computing the Leverage Ratio and the Most Recent Leverage Ratio for any applicable period, Consolidated Adjusted EBITDA shall be calculated on a pro forma basis with respect to (A) any Permitted Acquisition effected during such period assuming the consummation of such Permitted Acquisition as of the first day of such period, and taking into account the same pro forma adjustments used for determining Consolidated Adjusted EBITDA on a pro forma basis pursuant to SECTION 8.7(k) with respect to such Permitted Acquisition and (B) any Asset Disposition permitted by the terms of this Agreement effected during such period assuming the consummation of such permitted Asset Disposition as of the first day of such period. "CONSOLIDATED CAPITAL EXPENDITURES" means, without duplication, with respect to the Borrower and its Subsidiaries, any amounts expended, incurred or obligated to be expended during or in respect of a period for any purchase or other acquisition for value of any asset that should be classified on a consolidated balance sheet of such Person prepared in accordance with GAAP as a fixed or capital asset (including capitalized costs in respect of Intellectual Property) including, without limitation, the direct or indirect acquisition of such assets or improvements by way of increased product or service charges, offset items or otherwise, and shall include Capitalized Lease Obligations. "CONSOLIDATED CASH INTEREST EXPENSE" means, for any period, (i) Consolidated Interest Expense, but excluding, however, interest expense not payable in cash, amortization of discount and deferred financing costs, plus or minus, as the case may be (ii) net amounts paid or received under Interest Rate Agreements (with cap payments amortized over the life of the cap) and MINUS interest income received in Cash or Cash Equivalents in respect of Investments permitted hereunder; PROVIDED that (a) for the Test Period ending on November 30, 2002, Consolidated Cash Interest Expense shall be the actual Consolidated Cash Interest Expense for the Fiscal Quarter ending on November 30, 2002 (taken as one accounting period), multiplied by 4, (b) for the Test Period ending on February 28, 2003, Consolidated Cash Interest Expense shall be the actual Consolidated Cash Interest Expense for the two Fiscal Quarter periods ending on February 28, 2003 (taken as one accounting period), multiplied by 2, and (c) for the Test Period ending on May 31, 2003, Consolidated Cash Interest Expense shall be the actual Consolidated Cash Interest Expense for the three Fiscal Quarter periods ending on May 31, 2003, multiplied by a fraction, the numerator of which is 4 and the denominator of which is 3. "CONSOLIDATED CURRENT ASSETS" means, at any time, the consolidated current assets (excluding any current deferred tax assets) of the Borrower and its Subsidiaries at such time. "CONSOLIDATED CURRENT LIABILITIES" means, at any time, the consolidated current liabilities of the Borrower and its Subsidiaries at such time. "CONSOLIDATED DEBT" means, at any time, all Indebtedness for borrowed money of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP 10 and other Indebtedness under Operating Financing Leases, less Cash, Cash Equivalents and Foreign Cash Equivalents freely available and not subject to any Lien (other than a Lien in favor of the Administrative Agent and/or the Collateral Agent) or transfer restriction. "CONSOLIDATED FIXED CHARGES" means, for any applicable period, the sum of, without duplication, (i) Consolidated Cash Interest Expense, (ii) the aggregate amount of Scheduled Repayments (after giving effect to any mandatory repayments under SECTION 4.4(b)-(j)), (iii) Consolidated Capital Expenditures during such period (other than (x) Consolidated Capital Expenditures constituting Capitalized Lease Obligations and (y) Consolidated Capital Expenditures made pursuant to SECTION 9.1(b)(i) through (iv)), (iv) all dividends and other distributions (other than distributions in the form of Capital Stock of the Borrower) paid during such period (regardless of when declared) on any shares of Capital Stock of the Borrower then outstanding, and (v) income or other taxes currently payable for taxable income related to such period (but excluding the effect on such taxes payable as a result of any gain or loss otherwise excluded from Consolidated Adjusted EBITDA), all as determined on a consolidated basis for the Borrower and its Subsidiaries in accordance with GAAP. "CONSOLIDATED INTEREST EXPENSE" means, for any period, the sum of total interest expense (including that attributable to Capitalized Leases in accordance with GAAP) of the Borrower and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries, including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers' acceptance financing, all as determined on a consolidated basis for the Borrower and its Subsidiaries in accordance with GAAP. "CONSOLIDATED NET INCOME" and "CONSOLIDATED NET LOSS" mean, respectively, with respect to any period, the aggregate of the net income (loss) of the Person in question for such period, determined in accordance with GAAP on a consolidated basis, provided that (i) the net income (loss) of any Person which is not a consolidated Subsidiary shall be included only to the extent of the amount of cash dividends or distributions paid to the Person in question or to a consolidated Subsidiary of such Person and (ii) except for determinations of net income (loss) to be made on a pro forma basis in connection with a Permitted Acquisition pursuant to SECTION 8.7(k), the net income (loss) of any Person accrued prior to the date it becomes a Subsidiary of any Borrower or is merged into or consolidated with any Borrower or any of its Subsidiaries or that Person's assets are acquired by any Borrower or any of its Subsidiaries shall be excluded. There shall be excluded in computing Consolidated Net Income the excess (but not the deficit), if any, of (i) any gain which must be treated as an extraordinary item under GAAP or any gain realized upon the sale or other disposition of any real property or equipment that is not sold in the ordinary course of business or of any Capital Stock of the Person or a Subsidiary of the Person over (ii) any loss which must be treated as an extraordinary item under GAAP or any loss realized upon the sale or other disposition of any real property or equipment that is not sold in the ordinary course of business or of any Capital Stock of the Person or a Subsidiary of the Person. 11 "CONSOLIDATED NET WORTH" of a Person means total equityholders' equity (including, without limitation, preferred stock and other preferred equity interests) of such Person and its Subsidiaries minus (without duplication of deductions in respect of items already deducted in arriving at surplus and retained earnings) all reserves (other than contingency reserves not allocated to any particular purpose), including without limitation reserves for depreciation, depletion, amortization, obsolescence, environmental liabilities, deferred income taxes, insurance and inventory valuation all as determined on a consolidated basis in accordance with GAAP. "CONSOLIDATED TOTAL ASSETS" means, with respect to any Person, the book value, determined on a consolidated basis in accordance with GAAP, of all assets of such Persons and its Subsidiaries. "CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any Securities issued by such Person or of any indenture or credit agreement or any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound or to which such property may be subject. "CREDIT EVENT" means the making of any Loan or the issuance of any Letter of Credit. "CREDIT EXPOSURE" has the meaning assigned to that term in SECTION 12.8(b). "CREDIT PARTY" means each of (i) the Borrower, (ii) each Subsidiary Guarantor and any guarantor which may hereafter enter into a guarantee agreement with respect to the Obligations and (iii) each Subsidiary which is a party to a Subsidiary Pledge Agreement and any pledgor which may hereafter enter into a pledge agreement with respect to the Obligations. "CUSTOMARY PERMITTED LIENS" means: (i) Liens for taxes not yet due and payable or which are being contested in good faith by appropriate proceedings diligently pursued, PROVIDED that (x) any proceedings commenced for the enforcement of such Liens shall have been stayed or suspended within 30 days of the commencement thereof and (y) provision for the payment of all such taxes known to such Person has been made on the books of such Person to the extent required by GAAP; (ii) mechanic's, processor's, materialman's, carrier's, warehousemen's, landlord's and similar Liens (including statutory and common law landlord's liens under leases to which any Credit Party or any Subsidiary is a party) arising by operation of law and arising in the ordinary course of business and securing obligations of such Person that are not overdue for a period of more than 90 days or are being contested in good faith by appropriate proceedings diligently pursued, PROVIDED that (x) any proceedings commenced for the enforcement of such 12 Liens shall have been stayed or suspended within 30 days of the commencement thereof and (y) provision for the payment of such Liens has been made on the books of such Person to the extent required by GAAP; (iii) Liens arising in connection with worker's compensation, unemployment insurance, old age pensions and social security benefits which are not overdue or are being contested in good faith by appropriate proceedings diligently pursued, PROVIDED that (x) any proceedings commenced for the enforcement of such Liens shall have been stayed or suspended within 30 days of the commencement thereof and (y) provision for the payment of such Liens has been made on the books of such Person to the extent required by GAAP; (iv) Liens (x) incurred or deposits made in the ordinary course of business to secure the performance of bids, tenders, statutory obligations, fee and expense arrangements with trustees and fiscal agents (exclusive of obligations incurred in connection with the borrowing of money or the payment of the deferred purchase price of property) and customary deposits granted in the ordinary course of business under Operating Leases and (y) securing surety, indemnity, performance, appeal and release bonds, PROVIDED that (x) full provision for the payment of all such obligations has been made on the books of such Person to the extent required by GAAP and (y) the aggregate amount of all such obligations does not exceed $1,000,000 at any time outstanding; (v) Permitted Real Property Encumbrances; (vi) attachment, judgment or other similar Liens arising in connection with court or arbitration proceedings involving individually and in the aggregate liability of $1,000,000 or less at any one time, provided the same are discharged, or that execution or enforcement thereof is stayed pending appeal, within 30 days or, in the case of any stay of execution or enforcement pending appeal, within such lesser time during which such appeal may be taken; (vii) leases or subleases granted to others not interfering in any material respect with the business of the Borrower or any of its Subsidiaries and any interest or title of a lessor under any lease permitted by this Agreement or the Security Documents; (viii) customary rights of set off, revocation, refund or chargeback under deposit agreements or under the UCC of banks or other financial institutions where the Borrower or any of its Subsidiaries maintains deposits in the ordinary course of business permitted by this Agreement; and (ix) Environmental Liens, to the extent that (x) any proceedings commenced for the enforcement of such Liens shall have been suspended or are being contested in good faith, (y) provision for all liability and damages that are the subject of said 13 Environmental Liens has been made on the books of such Person to the extent required by GAAP and (z) such Liens do not relate to obligations exceeding $5,000,000 in the aggregate at any one time. "DBTCA" means Deutsche Bank Trust Company Americas (formerly Bankers Trust Company), a New York banking corporation, and its successors. "DEFAULT RATE" means a variable rate per annum which shall be two percent (2%) per annum PLUS either (i) the then applicable interest rate hereunder in respect of the amount on which the Default Rate is being assessed or (ii) if there is no such applicable interest rate, the Base Rate plus the Applicable Base Rate Margin, but in no event in excess of that permitted by applicable law. "DEFAULTING LENDER" means any Lender with respect to which a Lender Default is in effect. "DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit. "DOCUMENTS" means the Loan Documents and the Transaction Documents. "DOLLAR" and "$" means the lawful currency of the United States of America. "DOLLAR EQUIVALENT" means, at any time, (i) as to any amount denominated in Dollars, the amount thereof at such time, and (ii) as to any amount denominated in Euro, the equivalent amount in Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate. "DOMESTIC LC OBLIGATIONS" means, at any time, an amount equal to the sum of (i) the sum of the aggregate Stated Amount of the then outstanding Letters of Credit denominated in Dollars, and (ii) the sum of the aggregate amount of drawings under Domestic Letters of Credit which have not then been reimbursed pursuant to SECTION 2.10(c). The Domestic LC Obligations of any Revolving Lender at any time shall mean its Revolver Pro Rata Share of the Domestic LC Obligations outstanding at such time. "DOMESTIC LETTER OF CREDIT" means any Letter of Credit the Stated Amount of which is denominated in Dollars. "DOMESTIC SUBSIDIARY" means any Subsidiary of the Borrower that is incorporated under the laws of any State of the U.S., the District of Columbia or any territory or possession of the U.S. 14 "ELIGIBLE ASSIGNEE" means (i) a commercial bank, investment company, financial institution, financial company, fund (whether a corporation, partnership, trust or other entity), insurance company or other "accredited investor" (as defined in Regulation D of the Securities Act), (ii) any Lender party to this Agreement, and (iii) any other Person approved by the Administrative Agent and, in the absence of an Unmatured Event of Default or Event of Default, the Borrower, such approval of the Borrower not to be unreasonably withheld. "EMPLOYEE BENEFIT PLAN" means an "employee benefit plan" as defined in Section 3(3) of ERISA, which is or has been established or maintained, or to which contributions are or have been made, by the Borrower or any of its ERISA Affiliates, any Subsidiary of the Borrower or ERISA Affiliates of such Subsidiary. "ENVIRONMENTAL CLAIM" means any written notice of violation, allegation, action, proceeding, claim, suit, demand, consent decree, injunction, lien, legally binding order, penalty or fine by any Governmental Authority or any Person for any damage, personal injury (including sickness, disease or death), tangible or intangible property damage, contribution, cost recovery, or any other common law claims, indemnity, indirect or consequential damages, damage to the environment, nuisance, pollution, contamination or other adverse effects on the environment, human health or safety, or natural resources, resulting from or based upon (i) the Release or threatened Release of, or exposure to, any Hazardous Materials in, into or onto the environment at, in, by, from or related to any real estate owned, leased or operated at any time by the Borrower or any of its Subsidiaries (the "PREMISES"), or to any real property to which Hazardous Materials related to the Premises come to be located, (ii) the use, handling, generation, transportation, storage, production, recycling treatment or disposal of Hazardous Materials in connection with the operation of any Premises, or (iii) the violation, or alleged violation, of any Environmental Laws. "ENVIRONMENTAL LAWS" means any and all applicable foreign, federal, state or local laws, statutes, ordinances, codes, rules, regulations, orders, decrees, judgments, directives, or Environmental Permits, and cleanup or action standards, levels or objectives imposing liability or standards of conduct for or relating to the protection of health, safety or the environment, including, but not limited to, the following statutes as now written and hereafter amended: the Water Pollution Control Act, as codified in 33 U.S.C. Sec. 1251 ET SEQ., the Clean Air Act, as codified in 42 U.S.C. Sec. 7401 ET SEQ., the Toxic Substances Control Act, as codified in 15 U.S.C. Sec. 2601 ET SEQ., the Solid Waste Disposal Act, as codified in 42 U.S.C. Sec. 6901 ET SEQ., the Comprehensive Environmental Response, Compensation and Liability Act, as codified in 42 U.S.C. Sec. 9601 ET SEQ., the Emergency Planning and Community Right-to-Know Act of 1986, as codified in 42 U.S.C. Sec. 11001 ET SEQ., and the Safe Drinking Water Act, as codified in 42 U.S.C. Sec. 300f ET SEQ., and any related regulations, as well as all state and local equivalents. "ENVIRONMENTAL LIEN" means a Lien in favor of any Governmental Authority for (i) any liability under Environmental Laws, or any limitations or restrictions placed upon any real 15 property owned, leased or operated by the Borrower or any of its Subsidiaries by any Government Authority or court, or (ii) damages relating to, or costs incurred by such Governmental Authority in response to, a Release or threatened Release of Hazardous Materials into the environment. "ENVIRONMENTAL PERMITS" means any and all permits, licenses, certificates, authorizations or approvals of any Governmental Authority required by Environmental Laws or necessary or reasonably required for the business of the Borrower or any Subsidiary of the Borrower. "ERISA" means the Employee Retirement Income Security Act of 1974, as from time to time amended. "ERISA AFFILIATE" means, with respect to any Person, any trade or business (whether or not incorporated) which, together with such Person, is under common control as described in Section 414(c) of the Code, is a member of a "controlled group", as defined in Section 414(b) of the Code, or is a member of an "affiliated service group", as defined in Section 414(m) of the Code which includes such Person. Unless otherwise qualified, all references to an "ERISA Affiliate" in this Agreement shall refer to an ERISA Affiliate of the Borrower or any Subsidiary. "EURO" means the single currency of participating member states of the European Monetary Union. "EUROCURRENCY LOAN" means any Loan bearing interest at a rate determined by reference to the Eurocurrency Rate. "EUROCURRENCY RATE" means (i) in the case of Dollar-denominated Loans, the arithmetic average (rounded upwards, if necessary, to the nearest 1/16 of 1%) of the offered quotation, if any, to first class banks in the New York interbank market by the Administrative Agent for non-U.S. deposits in Dollars of amounts in immediately available funds comparable to the principal amount of the applicable Eurocurrency Loan of the Administrative Agent for which the Eurocurrency Rate is being determined with maturities comparable to the Interest Period for which such Eurocurrency Rate will apply as of approximately 10:00 a.m. (New York City time) on the applicable Interest Rate Determination Date and (ii) in the case of Euro denominated Loans, the arithmetic average (rounded upwards, if necessary, to the nearest 1/16 of 1%) of the offered quotation, if any, to first class banks in the London interbank market by the Administrative Agent for non-U.S. deposits in Euro of amounts in immediately available funds comparable to the principal amount of the applicable Eurocurrency Loan of the Administrative Agent for which the Eurocurrency Rate is being determined with maturities comparable to the 16 Interest Period for which such Eurocurrency Rate will apply as of approximately 11:00 a.m. London time) on the applicable Interest Rate Determination Date. "EUROCURRENCY RESERVE RATE" means, with respect to each day during each Interest Period pertaining to a Eurocurrency Loan, a rate per annum determined for such day in accordance with the following formula (rounded upwards, if necessary, to the nearest 1/100th of 1%): EUROCURRENCY RATE ------------------------------------------------------- 1.00 - Eurocurrency Reserve Requirements "EUROCURRENCY RESERVE REQUIREMENTS" means, for any day as applied to a Eurocurrency Loan, the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve requirements in effect on such day (including, without limitation, basic, supplemental, marginal and emergency reserves under any regulations of the Board or other Governmental Authority having jurisdiction with respect thereto) dealing with reserve requirements prescribed for Eurocurrency funding (currently referred to as "Eurocurrency liabilities" in Regulation D of the Board). "EVENT OF DEFAULT" has the meaning assigned to that term in SECTION 10.1. "EXCESS CASH FLOW" means for any period, the sum of (i) the sum (without duplication) of (A) Consolidated Net Income for such period, PLUS (B) the amount of all non-cash charges (including, without limitation or duplication, depreciation, amortization and non-cash (including without limitation any original issue discount or pay-in-kind interest expense) interest expense) included in determining Consolidated Net Income for such period, PLUS (C) the decrease, if any, in Adjusted Working Capital from the first day to the last day of such period, PLUS (D) provisions for taxes appearing on an income statement of the Borrower and its Subsidiaries for such period, PLUS (E) losses from sales of assets, MINUS (ii) the sum (without duplication) of (A) any non-cash credits (including from sales of assets) included in determining Consolidated Net Income for such period, PLUS (B) gains from sales of assets included in determining Consolidated Net Income for such period, PLUS (C) the aggregate amount of Capital Expenditures (excluding Capital Expenditures made pursuant to SECTION 9.1(b)(iii)) made by the Borrower and its Subsidiaries during such period to the extent not financed by any Indebtedness (other than the Revolving Loans) specified in clause (i), (iii) or (vi) of the definition of "INDEBTEDNESS", PLUS (D) the aggregate principal amount of permanent principal payments of Indebtedness for borrowed money of the Borrower and its Subsidiaries (other than (1) repayment of Indebtedness with proceeds of issuance of other Indebtedness or equity or equity contributions or with Net Sale Proceeds or proceeds of Recovery Events and (2) repayment of Loans, PROVIDED that repayments of Loans shall be deducted in determining Excess Cash Flow if such repayments were (x) required as a result of a Scheduled Repayments under SECTION 4.4(b) OR (C) or (y) made as a voluntary prepayment with internally generated funds (but in the case of a voluntary prepayment of Revolving Loans or Swing Line Loans, only to the extent accompanied by a 17 voluntary permanent reduction to the Total Revolving Commitment)) during such period, PLUS (E) non-cash charges added back in a previous period pursuant to clause (i)(B) above to the extent any such charge has become a cash item in the current period, PLUS (F) the increase, if any, in Adjusted Working Capital from the first day to the last day of such period, PLUS (G) taxes paid by the Borrower and its Subsidiaries during such period, PLUS (H) the principal portion of Capitalized Lease Obligations paid by the Borrower and its Subsidiaries during such period. "EXCESS CASH FLOW PERIOD" means, with respect to the repayment required on each Excess Cash Payment Date, the immediately proceeding Fiscal Year of the Borrower. "EXCESS CASH PAYMENT DATE" means the date occurring 95 days after the last day of a Fiscal Year of the Borrower (beginning with its Fiscal Year ending on November 30, 2001). "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended and as codified in 15 U.S.C.ss.78a ET SEQ. and as hereafter amended. "EXCHANGE RATE DETERMINATION DATE" means (i) for purposes of the determination of the Spot Rate of any stated amount on any Business Day in relation to any Borrowing of Revolving Loans in Euro, the date which is three (3) Business Days prior to such Borrowing, (ii) for purposes of the determination of the Spot Rate of any Stated Amount in relation to any issuance of any Letter of Credit, on the date of such issuance and (iii) for the purpose of determining the Spot Rate to make determinations pursuant to SECTION 4.4(a), the first Business Day of each calendar month. "FACILITY" means any of the credit facilities established under this Agreement, I.E., the Term A Facility, the New Term B Facility or the Revolving Facility. "FACING AGENT" means each of DBTCA and its affiliates (including but not limited to Deutsche Bank AG) and any other Lender agreed to by such Lender, the Borrower and the Administrative Agent. Notwithstanding the aforementioned, DBTCA and its affiliates will not issue Commercial Letters of Credit until further notice by DBTCA. "FEDERAL FUNDS RATE" means on any one day, the rate per annum equal to the weighted average (rounded upwards, if necessary, to the nearest 1/100th of 1%) of the rate on overnight federal funds transactions with members of the Federal Reserve System only arranged by federal funds brokers, as published as of such day by the Federal Reserve Bank of New York, or, if such rate is not so published, the average of the quotations for such day on such transactions received by DBTCA from three federal funds brokers of recognized standing selected by DBTCA. 18 "FISCAL QUARTER" has the meaning assigned to that term in SECTION 7.13. "FISCAL YEAR" has the meaning assigned to that term in SECTION 7.13. "FIXED CHARGE COVERAGE RATIO" means, for any period, the ratio of (i) Consolidated Adjusted EBITDA for such period to (ii) Consolidated Fixed Charges, in each case made by the Borrower and its Subsidiaries during such period. "FOREIGN CASH EQUIVALENTS" means (i) debt securities with a maturity of 365 days or less issued by any member nation of the European Union, Switzerland or any other country whose debt securities are rated by S&P and Moody's A-1 or P-1, or the equivalent thereof (if a short-term debt rating is provided by either) or at least AA or Aa2, or the equivalent thereof (if a long-term unsecured debt rating is provided by either) (each such jurisdiction, an "APPROVED JURISDICTION"), or any agency or instrumentality of an Approved Jurisdiction, provided that the full faith and credit of the Approved Jurisdiction is pledged in support of such debt securities or such debt securities constitute a general obligation of the Approved Jurisdiction and (ii) debt securities in an aggregate principal amount not to exceed the Dollar Equivalent of $20,000,000 with a maturity of 365 days or less issued by any nation in which the Borrower or its Subsidiaries has cash which is the subject of restrictions on export or any agency or instrumentality of such nation, provided that the full faith and credit of such nation is pledged in support of such debt securities or such debt securities constitute a general obligation of such nation. "FOREIGN PENSION PLAN" means any plan, fund (including, without limitation, any super-annuation fund) or other similar program established or maintained outside of the United States of America by the Borrower or one or more of its Subsidiaries or its Affiliates primarily for the benefit of employees of the Borrower or such Subsidiaries or its Affiliates residing outside the United States of America, which plan, fund, or similar program provides or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which is not subject to ERISA or the Code. "FOREIGN SUBSIDIARY" means any Subsidiary of the Borrower that is not a Domestic Subsidiary. "GAAP" means generally accepted accounting principles in the U.S. as in effect from time to time. "GOVERNMENTAL AUTHORITY" means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of government. "GUARANTEE OBLIGATIONS" means, as to any Person, without duplication, any direct or indirect obligation of such Person guaranteeing or intended to guarantee any Indebtedness, 19 Capitalized Lease or Operating Financing Lease, dividend or other obligation ("primary obligations") of any other Person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent: (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor; (ii) to advance or supply funds (x) for the purchase or payment of any such primary obligation, or (y) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; or (iv) otherwise to assure or hold harmless the owner of such primary obligation against loss in respect thereof; PROVIDED, HOWEVER, that the term Guarantee Obligations shall not include any endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation at any time shall be deemed to be an amount equal to the lesser at such time of (x) the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made or (y) the maximum amount for which such Person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation; or, if not stated or determinable, the maximum reasonably anticipated liability (assuming full performance) in respect thereof. "GUARANTEED CREDITORS" means and includes (i) the Administrative Agent and the Lenders and (ii) each Person (other than any Credit Party) which is a party to an Interest Rate Agreement or Other Hedging Agreement, in each case to the extent such Person constitutes a Secured Creditor under the Security Documents. "GUARANTEED OBLIGATIONS" means (i) the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of the principal and interest (whether such interest is allowed as a claim in a bankruptcy proceeding with respect to the Borrower or otherwise) on each Note issued by the Borrower to each Lender, and Loans made under this Agreement and all reimbursement obligations and Unpaid Drawings with respect to Letters of Credit, together with all other obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities (including, without limitation, indemnities, fees and interest thereon) of the Borrower to such Lender now existing or hereafter incurred under, arising out of or in connection with this Agreement or any other Loan Documents and the due performance and compliance with all terms, conditions and agreements contained in the Loan Documents by the Borrower and (ii) the full and prompt payment when due (whether by acceleration or otherwise) of all obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) of the Borrower owing under any Interest Rate Agreement or Other Hedging Agreement entered into by the Borrower with any Lender or any Affiliate thereof (even if such Lender subsequently ceases to be a Lender under this Agreement for any reason) so long as such Lender or Affiliate participates in such Interest Rate Agreement or Other Hedging Agreement, as the case may be, and their subsequent assigns, if any, whether or not in existence 20 or hereafter arising, and the due performance and compliance with all terms, conditions and agreements contained therein. "HAZARDOUS MATERIALS" means (i) any petrochemical or petroleum products, radioactive materials, asbestos in any form that is friable, urea formaldehyde foam insulation, polychlorinated biphenyls and radon gas; (ii) any chemicals, materials or substances defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," "restricted hazardous materials," "extremely hazardous wastes," "restrictive hazardous wastes," "toxic substances," "toxic pollutants," "contaminants" or "pollutants," or words of similar meaning and regulatory effect pursuant to any Environmental Law; or (iii) any other chemical, material or substance, exposure to which is prohibited, limited or regulated pursuant to any Environmental Law. "INCREMENTAL TERM C FACILITY" has the meaning assigned to that term in SECTION 2.8. "INDEBTEDNESS" means, as applied to any Person (without duplication): (i) all obligations (including principal, interest, fees and charges) of such Person for borrowed money; (ii) the deferred and unpaid balance of the purchase price of assets or services (other than trade payables and other accrued liabilities incurred in the ordinary course of business that are not overdue by more than 90 days unless being contested in good faith); (iii) all Capitalized Lease Obligations; (iv) all indebtedness secured by any Lien (other than Customary Permitted Liens) on any property owned by such Person, whether or not such indebtedness has been assumed by such Person or is nonrecourse to such Person; (v) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (vi) indebtedness or obligations of such Person, in each case, evidenced by bonds, notes or similar written instruments; (vii) the face amount of all letters of credit and bankers' acceptances issued for the account of such Person, and without duplication, all unpaid drawings in respect thereof and drafts drawn thereunder; 21 (viii) all obligations of such Person under Interest Rate Agreements or Other Hedging Agreements; (ix) Guarantee Obligations of such Person; and (x) the Attributable Debt of any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product to which such Person is a party, where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an operating lease in accordance with GAAP. "INDEBTEDNESS TO REMAIN OUTSTANDING" shall have the meaning assigned to that term in SECTION 6.5(d). "INDEMNIFIED PARTY" has the meaning assigned to that term in SECTION 12.4(a). "INITIAL BORROWING DATE" means December 28, 2000. "INTELLECTUAL PROPERTY" has the meaning assigned to that term in SECTION 6.19. "INTERCOMPANY LOANS" has the meaning assigned to that term in SECTION 8.7(g). "INTERCOMPANY NOTE" means a demand promissory note (or a promissory note payable on a date reasonably satisfactory to the Administrative Agent) issued by a Subsidiary directly to the Borrower substantially in the form of EXHIBIT 1.1(A) or such other form or payee that is satisfactory to the Administrative Agent. "INTEREST COVERAGE RATIO" means, for any period, the ratio of Consolidated Adjusted EBITDA to Consolidated Cash Interest Expense for such period. "INTEREST PAYMENT DATE" means (i) as to any Base Rate Loan, each Quarterly Payment Date to occur while such Loan is outstanding, (ii) as to any Eurocurrency Loan, the last day of the Interest Period applicable thereto and (iii) as to any Eurocurrency Loan having an Interest Period longer than three months, each three (3) month anniversary of the first day of the Interest Period applicable thereto and the last day of the Interest Period applicable thereto; PROVIDED, HOWEVER, that, in addition to the foregoing, each of (A) the date upon which both the Revolving Commitments have been terminated and the Revolving Loans have been paid in full and (B) the Term A Loan Maturity Date and the New Term B Loan Maturity Date shall be deemed to be an "Interest Payment Date" with respect to any interest which is then accrued hereunder for such Loan. 22 "INTEREST PERIOD" has the meaning assigned to that term in SECTION 3.4. "INTEREST RATE AGREEMENT" means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate futures contract, interest rate option contract or other similar agreement or arrangement to which the Borrower is a party. "INTEREST RATE DETERMINATION DATE" means the date for calculating the Eurocurrency Rate for an Interest Period, which date shall be (i) in the case of any Eurocurrency Loan in Dollars, the second Business Day prior to the first day of the related Interest Period for such Loan or (ii) in the case of any Eurocurrency Loan in Euro, the date on which quotations would ordinarily be given by prime banks in the London interbank market for deposits in Euro for value on the first day of the related Interest Period for such Eurocurrency Loan. "INTERIM MATURITY DATE" means the last day of any Interest Period. "INVENTORY" means, inclusively, all inventory as defined in the Uniform Commercial Code in effect in the State of New York from time to time and all goods, merchandise and other personal property wherever located, now owned or hereafter acquired by the Borrower or any of its Subsidiaries of every kind or description which are held for sale or lease or are furnished or to be furnished under a contract of service or are raw materials, work-in-process or materials used or consumed or to be used or consumed in the Borrower's or any of its Subsidiaries' business. "INVESTMENT" means, as applied to any Person, (i) any direct or indirect purchase or other acquisition by that Person of, or a beneficial interest in, Securities of any other Person, or a capital contribution by that Person to any other Person, (ii) any direct or indirect loan or advance to any other Person (other than (x) prepaid expenses or accounts receivable created or acquired in the ordinary course of business or (y) any transaction evidenced by an Intercompany Note), including all Indebtedness to such Person arising from a sale of property by such person other than in the ordinary course of its business or (iii) any purchase by that Person of all or a significant part of the assets of a business conducted by another Person. The amount of any Investment by any Person on any date of determination shall be the sum of the acquisition price of the gross assets acquired by such Person (including the amount of any liability assumed in connection with the acquisition by such Person to the extent such liability would be reflected on a balance sheet prepared in accordance with GAAP) PLUS all additional capital contributions or purchase price paid in respect thereof, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment MINUS the amount of all cash returns of principal or capital thereon, cash dividends thereon and other cash returns on investment thereon or liabilities expressly assumed by another Person (other than the Borrower or another Subsidiary of the Borrower) in connection with the sale of such Investment. 23 Whenever the term "outstanding" is used in this Agreement with reference to an Investment, it shall take into account the matters referred to in the preceding sentence. "IRS" means the United States Internal Revenue Service, or any successor or analogous organization. "JOINT VENTURE" means any corporation, partnership, limited liability company, joint venture or other similar legal arrangement (whether created by contract or conducted through a separate legal entity) now or hereafter formed by the Borrower or any of its Subsidiaries with another Person in order to conduct a common venture or enterprise with such Person. "LC COMMISSION" has the meaning assigned to that term in SECTION 2.10(e)(ii). "LC OBLIGATIONS" means, collectively, the Domestic LC Obligations and the Multicurrency LC Obligations. The LC Obligation of any Lender at any time shall mean its Revolver Pro Rata Share of the Dollar Equivalent of the aggregate LC Obligations outstanding at such time. "LENDER" and "LENDERS" have the respective meanings assigned to those terms in the introduction to this Agreement and shall include any Person that becomes a "Lender" as contemplated by SECTION 12.8. "LENDER DEFAULT" means (i) the refusal (which has not been retracted) of a Lender to make available its portion of any Borrowing when the conditions precedent thereto, in the determination of the Administrative Agent, have been met or to fund its portion of any unreimbursed payment under SECTION 2.10(d) or (ii) a Lender having notified in writing the Borrower and/or the Administrative Agent that it does not intend to comply with its obligations under SECTION 2.1 or SECTION 2.10(d). "LETTER OF CREDIT PAYMENT" means, as applicable (i) all payments made by a Facing Agent pursuant to either a draft or demand for payment under a Letter of Credit or (ii) all payments by Revolving Lenders to a Facing Agent in respect thereof (whether or not in accordance with their Revolver Pro Rata Share). "LETTER OF CREDIT REQUEST" has the meaning assigned to that term in SECTION 2.10(b). "LETTERS OF CREDIT" means, collectively, all Commercial Letters of Credit or Standby Letters of Credit issued pursuant to this Agreement, and "LETTER OF CREDIT" means any one of such Letters of Credit. 24 "LEVERAGE RATIO" means, for any Test Period, the ratio of Consolidated Debt as of the last day of such Test Period to Consolidated Adjusted EBITDA for such Test Period. "LIEN" means (i) any judgment lien or execution, attachment, levy, distraint or similar legal process and (ii) any mortgages, pledge, hypothecation, collateral assignment, security interest, encumbrance, lien, charge or deposit arrangement (other than a deposit to a Deposit Account in the ordinary course of business and not intended as security) of any kind (including, without limitation, any conditional sale or other title retention agreement or lease in the nature thereof, any agreement to give any of the foregoing, any filing or agreement to file a financing statement as debtor under the UCC or any similar statute other than to reflect ownership by a third party of property leased or consigned to the Borrower or any of its Subsidiaries under a lease or consignment agreement which is not in the nature of a conditional sale or title retention agreement, any subordination arrangement in favor of another Person or any sale of receivables with recourse against the seller or any Affiliate of the seller). "LOAN" means any Term A Loan, New Term B Loan, Revolving Loan or Swing Line Loan and "LOANS" means all such Loans collectively. "LOAN DOCUMENTS" means, collectively, this Agreement, the Agreement to Amend, the Notes, each Letter of Credit, each Security Document, each Interest Rate Agreement to which any Lender or any Affiliate of a Lender is a party, and all other agreements, instruments and documents executed in connection therewith, in each case as the same may at any time be amended, supplemented, restated or otherwise modified and in effect. "MAJORITY LENDERS" of any Facility means those Non-Defaulting Lenders which would constitute the Required Lenders under, and as defined in, this Agreement if all outstanding Obligations of other Facilities under this Agreement were repaid in full and all Commitments with respect thereto were terminated. "MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the business, condition (financial or otherwise), assets, liabilities, property or operations of the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Borrower or any Material Subsidiary of the Borrower to perform its respective obligations under any Loan Document to which it is a party, or (iii) the validity or enforceability of this Agreement or any of the Security Documents or the rights or remedies of the Administrative Agent and the Lenders hereunder or thereunder. "MATERIAL SUBSIDIARY" means any Subsidiary of the Borrower, the Consolidated Total Assets of which were more than 7.5% of the Borrower's Consolidated Total Assets as of the end of the most recently completed Fiscal Year of the Borrower for which audited financial statements are available; PROVIDED that, in the event the aggregate of the Consolidated Total Assets of all Subsidiaries that do not constitute Material Subsidiaries exceeds 7.5% of the Borrower's Consolidated Total Assets as of such date, the Borrower (or the Administrative Agent, 25 in the event the Borrower has failed to do so within 10 days of request therefor by the Administrative Agent) shall, to the extent necessary, designate sufficient Subsidiaries to be deemed to be "Material Subsidiaries" to eliminate such excess, and such designated Subsidiaries shall thereafter constitute Material Subsidiaries. Assets of Foreign Subsidiaries shall be converted into Dollars at the rates used for purposes of preparing the consolidated balance sheet of the Borrower included in such audited financial statements. "MAXIMUM COMMITMENT" means, when used with reference to any Lender, the aggregate of such Lender's New Term B Commitment and its Revolving Commitment in the amounts not to exceed those set forth opposite the name of such Lender on SCHEDULE 1.1(a) hereto, subject to reduction from time to time in accordance with the terms of this Agreement. "MINIMUM BORROWING AMOUNT" means, with respect to (i) Base Rate Loans, $3,000,000, (ii) with respect to Eurocurrency Loans, $5,000,000, in the case of a Borrowing in Dollars, and 3,000,000 Euro, in the case of a Borrowing in Euro and (iii) with respect to Swing Line Loans, $500,000 (or such other amount as the Swing Line Lender may agree.) "MOODY'S" means Moody's Investors Service, Inc. or any successor to the rating agency business thereof. "MORTGAGE" has the meaning assigned to that term in the Original Credit Agreement and shall also include any mortgage or similar documents executed pursuant to SECTION 7.12. "MORTGAGED CALIFORNIA REAL ESTATE" has the meaning assigned to that term in SECTION 7.17. "MORTGAGED PROPERTY" means each owned or leased real property subject to a Mortgage pursuant to the Original Credit Agreement, as indicated on SCHEDULE 6.21(c), and shall also include any owned or leased real property subject to a Mortgage pursuant to SECTION 7.12. "MORTGAGE POLICIES" has the meaning assigned to that term in the Original Credit Agreement. "MOST RECENT LEVERAGE RATIO" means, at any date, the Leverage Ratio for the Test Period ending as of the most recently ended Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to SECTION 7.1; PROVIDED, HOWEVEr, that if the Borrower fails to deliver such financial statements as required by SECTION 7.1 and further fails to remedy such default within five days of notice thereof from the Administrative Agent, then, without prejudice to any other rights of any Lender hereunder, the Most Recent Leverage Ratio shall be deemed to be 3.00 to 1.00 as of the date such financial statements were required to be delivered under SECTION 7.1. Notwithstanding the foregoing or the provisions of the last sentence of 26 SECTION 3.3, from the Amendment/Restatement Effective Date to and including the date upon which the financial statements with respect to the Fiscal Year of the Borrower ended November 30, 2002 are (or should have been) delivered under SECTION 7.1, the Most Recent Leverage Ratio shall be deemed to be 2.75 to 1.00. "MULTICURRENCY COMMITMENT" means, with respect to each Revolving Lender, the commitment of such Revolving Lender to make Revolving Loans denominated in Euro and to acquire participations in Multicurrency Letters of Credit, as such commitment may be adjusted from time to time pursuant to this Agreement. The initial amount of each Revolving Lender's Multicurrency Commitment is set forth on SCHEDULE 1.1(a) hereto, or in the Assignment and Acceptance pursuant to which such Revolving Lender shall have assumed its Multicurrency Commitment, as applicable. The initial aggregate amount of the Revolving Lenders' Multicurrency Commitments is the Dollar Equivalent of $68,333,333.33 and is part of, and not in addition to, the aggregate Revolving Commitments. "MULTICURRENCY LC OBLIGATIONS" means, at any time, an amount equal to the sum of (i) the Dollar Equivalent of the aggregate Stated Amount of the then outstanding Multicurrency Letters of Credit and (ii) the Dollar Equivalent of the aggregate amount of drawings under Multicurrency Letters of Credit which have not then been reimbursed pursuant to SECTION 2.10(c). The Multicurrency LC Obligation of any Revolving Lender at any time shall mean its Revolver Pro Rata Share of the Dollar Equivalent of the Multicurrency LC Obligations outstanding at such time. "MULTICURRENCY LETTER OF CREDIT" means any Letter of Credit denominated in Euro. "MULTICURRENCY REVOLVING LOANS" means, at any time, all Revolving Loans then denominated in Euro. "MULTICURRENCY OUTSTANDINGS" means, at any time, the sum, without duplication, of the Assigned Dollar Value of (a) the aggregate then outstanding principal amount of Multicurrency Revolving Loans and (b) the aggregate then outstanding amount of Multicurrency LC Obligations. "MULTIEMPLOYER PLAN" means any plan described in Section 4001(a)(3) of ERISA to which contributions are or have, within the preceding six years, been made, or are or were, within the preceding six years, required to be made, by the Borrower or any of its ERISA Affiliates or any Subsidiary of the Borrower or ERISA Affiliates of such Subsidiary. "NET OFFERING PROCEEDS" means the cash proceeds received by the Borrower or any of its Subsidiaries (including cash received by way of referred payment pursuant to a note receivable, conversion of non-cash consideration or otherwise, but only as and when such cash is received) from (i) the issuance of any Capital Stock or (ii) the incurrence of any Indebtedness, in 27 each case net of the actual liabilities for reasonably anticipated cash taxes in connection with such issuance or incurrence, if any, any underwriting, brokerage and other customary selling commissions incurred in connection with such issuance or incurrence, and reasonable legal, advisory and other out-of-pocket fees and expenses, including title and recording tax expenses, if any, incurred in connection with such issuance or incurrence. "NET SALE PROCEEDS" means, with respect to any Asset Disposition, the sum of the aggregate cash payments received by the Borrower or any Subsidiary of the Borrower from such Asset Disposition (including, without limitation, cash received by way of deferred payment pursuant to a note receivable, conversion of non-cash consideration, cash payments in respect of purchase price adjustments or otherwise, but only as and when such cash is received) MINUS the direct costs and expenses incurred in connection therewith (including in the case of any Asset Disposition, the payment of the outstanding principal amount of, premium, if any, and interest on any Indebtedness (other than hereunder) required to be repaid as a result of such Asset Disposition) and MINUS any provision for taxes in respect thereof made in accordance with GAAP. Any proceeds received in a currency other than Dollars shall, for purposes of the calculation of the amount of Net Sale Proceeds, be in an amount equal to the Dollar Equivalent thereof as of the date of receipt thereof by the Borrower or any Subsidiary of the Borrower. "NEW TERM B COMMITMENT" means, with respect to any Lender, the principal amount set forth opposite such Lender's name on SCHEDULE 1.1(a) hereto or in any Assignment and Assumption Agreement under the caption "Amount of New Term B Commitment", as such commitment may be adjusted from time to time pursuant to this Agreement, and "NEW TERM B COMMITMENTS" means such commitments collectively, which commitments equal $115,000,000 in the aggregate as of the Amendment/Restatement Effective Date. "NEW TERM B FACILITY" means the credit facility under this Agreement evidenced by the New Term B Commitments and the New Term B Loans. "NEW TERM B LENDER" means any Lender which has a New Term B Commitment or is owed a New Term B Loan (or a portion thereof). "NEW TERM B LENDERS" means, collectively, all of the New Term B Lenders. "NEW TERM B LOAN" and "NEW TERM B LOANS" have the meanings assigned to those terms in SECTION 2.1(b). "NEW TERM B LOAN MATURITY DATE" means March 28, 2007, PROVIDED that in the event that the New Term B Loan Maturity Date is extended by the Borrower in accordance with SECTION 2.1(b)(ii), the New Term B Loan Maturity Date shall be June 28, 2009. 28 "NEW TERM B NOTE" and "NEW TERM B NOTES" have the meanings assigned to those terms in SECTION 2.2(a). "NEW TERM B PERCENTAGE" means, at any time, a fraction (expressed as a percentage) the numerator of which is equal to the aggregate principal amount of all New Term B Loans outstanding at such time and the denominator of which is equal to the aggregate principal amount of all Term Loans outstanding at such time. "NEW TERM B PRO RATA SHARE" means, when used with reference to any New Term B Lender and any described aggregate or total amount, an amount equal to the result obtained by multiplying such described aggregate or total amount by a fraction the numerator of which shall be such New Term B Lender's then outstanding New Term B Loan and the denominator of which shall be all then outstanding New Term B Loans. "NON-DEFAULTING LENDER" means each Lender which is not a Defaulting Lender. "NOTE" means any of the Revolving Notes, the Swing Line Note or the Term Notes and "NOTES" means all of such Notes collectively. "NOTICE OF BORROWING" has the meaning assigned to that term in SECTION 2.5. "NOTICE OF CONVERSION OR CONTINUATION" has the meaning assigned to that term in SECTION 2.6. "NOTICE OFFICE" means the office of the Administrative Agent located at 31 West 52nd Street, New York, New York 10019, Attention: Deal Administrator, or such other office as the Administrative Agent may designate to the Borrower and the Lenders from time to time. "OBLIGATIONS" means all liabilities and obligations of the Borrower and its Subsidiaries now or hereafter arising under this Agreement and all of the other Loan Documents, whether for principal, interest, fees, expenses, indemnities or otherwise, and whether primary, secondary, direct, indirect, contingent, fixed or otherwise (including obligations of performance). "OPERATING FINANCING LEASE" means a lease of the type described in clause (x) of the definition of "INDEBTEDNESS". "OPERATING LEASE" of any Person, means any lease (including, without limitation, leases which may be terminated by the lessee at any time) of any property (whether real, personal or mixed) by such Person, as lessee, which is not a Capitalized Lease. "ORGANIZATIONAL DOCUMENTS" means, with respect to any Person, such Person's memorandum, articles or certificate of incorporation, bylaws, partnership agreement, limited liability company agreement, joint venture agreement or other similar governing documents and 29 any document setting forth the designation, amount and/or relative rights, limitations and preferences of any class or series of such Person's Capital Stock. "ORIGINAL CREDIT AGREEMENT" means the Credit Agreement, dated as of December 28, 2000, among, inter alia, the Borrower, various lending institutions, ABN AMRO Bank N.V., as Documentation Agent, Bank One, NA, as Syndication Agent and DBTCA, as Administrative Agent, as the same has been amended, modified and/or supplemented on or prior to the Amendment/Restatement Effective Date. "OTHER HEDGING AGREEMENT" means any foreign exchange contract, currency swap agreement, futures contract, commodity agreements, option contract, synthetic cap or other similar agreement other than an Interest Rate Agreement to which the Borrower or any Subsidiary is a party. "OTS BUSINESS ACQUISITION" means the purchase by the Borrower from the OTS Seller of substantially all of the OTS Seller's space systems business relating directly to (i) the design, manufacture, sale, distribution and service of (a) thrusters, electronic systems and fuel systems for propulsion of spacecraft, launch vehicles for spacecraft, and anti-missile mid-flight diversion and (b) tow reels for aircraft and turbo products used to generate power on aircraft; and (ii) the manufacture and assembly of equipment used for extinguishing and/or suppression of fires, pursuant to the OTS Business Acquisition Agreement. "OTS ACQUISITION AGREEMENT" means the Asset Purchase Agreement, dated as of August 26, 2002 among the OTS Seller and the Borrower, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof and thereof. "OTS ACQUISITION DOCUMENTS" means the OTS Acquisition Agreement, the Ancillary Documents (as defined in the OTS Acquisition Agreement), the Disclosure Schedules (as defined in the OTS Acquisition Agreement) and any material agreement, document, instrument and certificate executed and/or delivered on or after the Amendment/Restatement Effective Date pursuant to the terms thereof. "OTS SELLER" means General Dynamics OTS (Aerospace), Inc. "PARTICIPANTS" has the meaning assigned to that term in SECTION 12.8(b). "PAYMENT OFFICE" means (i) with respect to the Administrative Agent or Swing Line Lender, for payments with respect to Dollar-denominated Loans, 31 West 52nd Street, New York, New York, 10019, or such other address as the Administrative Agent or Swing Line Lender, as the case may be, may from time to time specify in accordance with SECTION 12.3 or (ii) with respect to the Administrative Agent or Swing Line Lender, for payments in Euro, such account at 30 such bank or office in London (or such other location) as the Administrative Agent or Swing Line Lender, as the case may be, shall designate by notice to the Person required to make the relevant payment. "PBGC" means the Pension Benefit Guaranty Corporation created by Section 4002(a) of ERISA. "PERFECTION CERTIFICATE" shall mean a Perfection Certificate substantially in the form attached to the Original Credit Agreement, as amended and modified, and as the same may be amended, modified or supplemented from time to time. "PERMITTED ACQUISITION" has the meaning assigned to that term in SECTION 8.7(k). "PERMITTED LIENS" has the meaning assigned to that term in SECTION 8.1. "PERMITTED REAL PROPERTY ENCUMBRANCES" means (i) those liens, encumbrances and other matters affecting title to any Mortgaged Property listed in the applicable title policy in respect thereof (or any update thereto) and found, on the date of delivery of such title policy to the Administrative Agent in accordance with the terms hereof, reasonably acceptable by the Administrative Agent, (ii) as to any particular real property at any time, such easements, encroachments, covenants, restrictions, rights of way, minor defects, irregularities or encumbrances on title which do not, in the reasonable opinion of the Administrative Agent, materially impair such real property for the purpose for which it is held by the mortgagor or owner, as the case may be, thereof, or the Lien held by the Administrative Agent, (iii) municipal and zoning laws, regulations, codes and ordinances, which are not violated in any material respect by the existing improvements and the present use made by the mortgagor or owner, as the case may be, of such real property, (iv) general real estate taxes and assessments not yet delinquent, and (v) such other items to which the Administrative Agent may consent. "PERMITTED TECHNOLOGY LICENSES" has the meaning assigned to that term in SECTION 8.3(g). "PERSON" means an individual or a corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint venture, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind. "PLAN" means any plan described in Section 4021(a) of ERISA and not excluded pursuant to Section 4021(b) thereof, which is or has, within the preceding six years, been established or maintained, or to which contributions are or have, within the preceding six years, been made, by the Borrower or any of its ERISA Affiliates or any Subsidiary of the Borrower or any ERISA Affiliates of such Subsidiary, but not including any Multiemployer Plan. 31 "PLAN ADMINISTRATOR" has the meaning assigned to the term "administrator" in Section 3(16)(A) of ERISA. "PLAN SPONSOR" has the meaning assigned to the term "plan sponsor" in Section 3(16)(B) of ERISA. "PLEDGE AGREEMENTS" means, collectively, the Borrower Pledge Agreement and the Subsidiary Pledge Agreement. "PLEDGED SECURITIES" means, collectively, the "Securities" as defined in the Pledge Agreements or any other pledged securities under any Security Document. "PREMISES" has the meaning assigned to such term in clause (i) of the definition "ENVIRONMENTAL CLAIM". "PRO FORMA BALANCE SHEET" has the meaning assigned to that term in SECTION 6.5(a)(ii). "PROJECTIONS" has the meaning assigned to that term in SECTION 6.5(e). "PRO RATA SHARE" means, when used with reference to any Lender and any described aggregate or total amount, an amount equal to the result obtained by multiplying such described aggregate or total amount by a fraction the numerator of which shall be such Lender's maximum Commitment and the denominator of which shall be the Total Commitment or, if no Commitments are then outstanding, such Lender's aggregate outstanding principal amount of Loans to the total outstanding principal balance of all Loans hereunder. "QUARTERLY PAYMENT DATE" means each March 28, June 28, September 28 and December 28 of each year. "REAL PROPERTY" means all of the right, title and interest of any Person in and to land, improvements and fixtures, including any such interest as lessee or licensee in, to and under leases or licenses. "RECOVERY EVENT" means the receipt by the Borrower or any of its Subsidiaries of any insurance or condemnation proceeds payable (i) by reason of any theft, physical destruction or damage or any other similar event with respect to any properties or assets of the Borrower or any of its Subsidiaries, (ii) by reason of any condemnation, taking, seizing or similar event with respect to any properties or assets of the Borrower or any of its Subsidiaries and (iii) under any policy of insurance required to be maintained under SECTION 7.8. 32 "REFUNDED SWING LINE LOANS" has the meaning assigned to that term in SECTION 2.1(d)(ii). "REGISTER" has the meaning assigned to that term in SECTION 12.17. "REGULATION D" means Regulation D of the Board as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements. "RELATED FUND" means, with respect to any investment fund or trust that invests in commercial loans, any other investment fund or trust that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor. "RELEASE" means any spilling, leaking, pumping, pouring, emitting, emptying, dumping, injection, deposit, disposal, discharge, dispersal, escape, leaching or migration (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any Hazardous Materials) into the indoor or outdoor environment or into or out of any Premises, or at any other location, including any location to which the Borrower or any Subsidiary has transported or disposed or arranged for the transportation or disposal of any Hazardous Materials, including the movement of Hazardous Materials through or in the air, soil, surface water, groundwater or property of the Borrower or its Subsidiaries or at any other location. "REMEDIAL ACTION" means any action required to (i) study, investigate, sample, monitor, clean up, remove, treat or in any other way address Hazardous Materials in the indoor or outdoor environment; or (ii) prevent, minimize or otherwise address the Release or threat of a Release of Hazardous Materials. "REPLACED LENDER" has the meaning assigned to that term in SECTION 3.7. "REPLACEMENT LENDER" has the meaning assigned to that term in SECTION 3.7. "REPORTABLE EVENT" means a "reportable event" described in Section 4043(c) of ERISA or in the regulations thereunder with respect to a Plan other than a reportable event for which the 30 day notice requirement to the PBGC has been waived, any event requiring disclosure under Section 4063(a) or 4062(e) of ERISA, receipt of a notice of withdrawal liability with respect to a Multiemployer Plan pursuant to Section 4202 of ERISA or receipt of a notice of reorganization or insolvency with respect to a Multiemployer Plan pursuant to Section 4242 or 4245 of ERISA. "REQUIRED LENDERS" means Non-Defaulting Lenders the sum of whose outstanding Term Loans and Revolving Commitments (or, after the Total Revolving Commitment has been 33 terminated, outstanding Revolving Loans and Revolver Pro Rata Share of the Assigned Dollar Value of outstanding Swing Line Loans and the Assigned Dollar Value of LC Obligations) constitute greater than 50% of the sum of (i) the total outstanding amount of Term Loans of Non-Defaulting Lenders, and (ii) the Total Revolving Commitment less the aggregate Revolving Commitments of Defaulting Lenders (or, after the Total Revolving Commitment has been terminated, the total outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate Revolver Pro Rata Share of all Non-Defaulting Lenders of the total Assigned Dollar Value of outstanding Swing Line Loans and the Assigned Dollar Value of LC Obligations at such time); PROVIDED, HOWEVER, that for so long as DBTCA and/or Bank One, NA hold more than 40% of the aggregate sum of the Total Revolving Commitment and the outstanding Term Loans, the percentage of Lenders required to constitute Required Lenders shall be 66?% and not 50% as provided above. "REQUIRED LENDERS' CONSENT" means the receipt by the Administrative Agent, following completion of the Consent Procedure for any proposed transaction, of the written consent to the proposed transaction from the Required Lenders or, to the extent otherwise required by SECTION 12.1 of this Agreement, from all Lenders, in each case including and subject to any qualification or conditions that may be included in or referred to by the approving Lenders. "REQUIREMENT OF LAW" means, as to any Person, any law (including common law), treaty, rule or regulation or judgment, decree, determination or award of an arbitrator or a court or other Governmental Authority, including without limitation, any Environmental Law, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. "RESPONSIBLE FINANCIAL OFFICER" means, as to any Person, the chief financial officer, principal accounting officer, a financial vice president, controller, treasury manager, manager (in the case of a limited liability company) having responsibility for financial matters, treasurer or assistant treasurer of such Person. "RESPONSIBLE OFFICER" means (i) as to the Borrower, any of the officers of the Borrower identified on the Notice of Appointment (or Revocation) of Responsible Officers, substantially in the form of EXHIBIT 2.5-2, delivered to the Administrative Agent and as amended, modified and supplemented thereafter and (ii) as to any other Person, any of the chairman or the vice chairman of the board of directors, the president, any executive vice president, the vice president-controller, any vice president, manager (in the case of a limited liability company) or any Responsible Financial Officer of such Person. 34 "RESTRICTED PAYMENTS" has the meaning assigned to that term in SECTION 8.4. "RETURNS" has the meaning assigned to that term in SECTION 6.9. "REVOLVER PRO RATA SHARE" means, (i) when used with reference to any Revolving Lender and any described aggregate or total amount, an amount equal to the result obtained by multiplying such described aggregate or total amount by a fraction the numerator of which shall be such Lender's Revolving Commitment and the denominator of which shall be the Total Revolving Commitment or (ii) if the Revolver Termination Date has occurred, the Assigned Dollar Value of such Revolving Lender's then outstanding Revolving Loans and its pro rata share of the Assigned Dollar Value of outstanding Swing Line Loans and the Assigned Dollar Value of LC Obligations to the aggregate Assigned Dollar Value of outstanding Revolving Loans, Assigned Dollar Value of outstanding Swing Line Loans and Assigned Dollar Value of LC Obligations. "REVOLVER TERMINATION DATE" means December 28, 2005 or such earlier date as the Revolving Commitments shall have been terminated or otherwise reduced to $0 pursuant to this Agreement. "REVOLVING COMMITMENT" means, with respect to any Revolving Lender, the obligation of such Revolving Lender to make Revolving Loans and to participate in Letters of Credit and Swing Line Loans, as such commitment may be adjusted from time to time pursuant to this Agreement, which commitment as of the Amendment/Restatement Effective Date is the amount set forth opposite such lender's name on SCHEDULE 1.1(a) hereto under the caption "Amount of Revolving Commitment" as the same may be adjusted from time to time pursuant to the terms hereof and "REVOLVING COMMITMENTS" means such commitments collectively, which commitments equal $136,666,666.66 in the aggregate as of the Amendment/Restatement Effective Date. The Revolving Commitment of each Revolving Lender includes as a subfacility thereunder such Lender's Multicurrency Commitment. "REVOLVING FACILITY" means the credit facility under this Agreement evidenced by the Revolving Commitments and the Revolving Loans. "REVOLVING LENDER" means any Lender which has a Revolving Commitment or is owed a Revolving Loan (or a portion thereof). "REVOLVING LOAN" and "REVOLVING LOANS" have the meanings given in SECTION 2.1(c). "REVOLVING NOTE" shall have the meaning assigned to that term in the Original Credit Agreement. 35 "ROLLOVER AMOUNT" has the meaning assigned to that term in SECTION 9.1(b). "SALE AND LEASEBACK TRANSACTION" means any arrangement, directly or indirectly, whereby a seller or transferor shall sell or otherwise transfer any real or personal property and then or thereafter lease, or repurchase under an extended purchase contract, conditional sales or other title retention agreement, the same or similar property. "S&P" means Standard & Poor's Ratings Service, a division of The McGraw-Hill Companies, Inc., or any successor to the rating agency business thereof. "SCHEDULED REPAYMENTS" means a Scheduled Term A Repayment or a Scheduled New Term B Repayment. "SCHEDULED NEW TERM B REPAYMENTS" means, with respect to the principal payments on the New Term B Loans for each date set forth below, the Dollar amount set forth opposite thereto, as reduced from time to time pursuant to SECTIONS 4.3 AND 4.4: ----------------------------------------- --------------------- NEW TERM B LOAN SCHEDULED REPAYMENT REPAYMENT DATE AMOUNT -------------- ------ ----------------------------------------- --------------------- December 28, 2002 $287,500.00 ----------------------------------------- --------------------- March 28, 2003 $287,500.00 ----------------------------------------- --------------------- June 28, 2003 $287,500.00 ----------------------------------------- --------------------- September 28, 2003 $287,500.00 ----------------------------------------- --------------------- December 28, 2003 $287,500.00 ----------------------------------------- --------------------- March 28, 2004 $287,500.00 ----------------------------------------- --------------------- June 28, 2004 $287,500.00 ----------------------------------------- --------------------- September 28, 2004 $287,500.00 ----------------------------------------- --------------------- December 28, 2004 $287,500.00 ----------------------------------------- --------------------- March 28, 2005 $287,500.00 ----------------------------------------- --------------------- June 28, 2005 $287,500.00 ----------------------------------------- --------------------- September 28, 2005 $287,500.00 ----------------------------------------- --------------------- December 28, 2005 $287,500.00 ----------------------------------------- --------------------- March 28, 2006 $7,947,321.43 ----------------------------------------- --------------------- June 28, 2006 $7,947,321.43 ----------------------------------------- --------------------- September 28, 2006 $7,947,321.43 ----------------------------------------- --------------------- December 28, 2006 $7,947,321.43 ----------------------------------------- --------------------- March 28, 2007 $79,473,214.28 ----------------------------------------- --------------------- Notwithstanding the foregoing, in the event that the New Term B Loan Maturity Date is extended to June 28, 2009 by the Borrower in accordance with SECTION 2.1(b)(ii), the 36 Scheduled New Term B Repayments schedule set forth above shall automatically be amended to (i) delete the dollar value of $79,473,214.28 set forth next to March 28, 2007 and to substitute $7,947,321.43 therefore and (ii) add the following dates and repayment amounts immediately following March 28, 2007: -------------------------------------- ------------------- NEW TERM B LOAN SCHEDULED REPAYMENT REPAYMENT DATE AMOUNT -------------- ------ -------------------------------------- ------------------- June 28, 2007 $7,947,321.43 -------------------------------------- ------------------- September 28, 2007 $7,947,321.43 -------------------------------------- ------------------- December 28, 2007 $7,947,321.43 -------------------------------------- ------------------- March 28, 2007 $7,947,321.43 -------------------------------------- ------------------- June 28, 2007 $7,947,321.43 -------------------------------------- ------------------- September 28, 2007 $7,947,321.43 -------------------------------------- ------------------- December 28, 2007 $7,947,321.43 -------------------------------------- ------------------- March 28, 2008 $7,947,321.43 -------------------------------------- ------------------- June 28, 2009 $7,947,321.41 -------------------------------------- ------------------- "SCHEDULED TERM A REPAYMENTS" means, with respect to the principal payments on the Term A Loans for each date set forth below, the Dollar amount set forth opposite thereto, as reduced from time to time pursuant to SECTIONS 4.3 AND 4.4: ---------------------------------------- ------------------ TERM A LOAN SCHEDULED REPAYMENT REPAYMENT DATE AMOUNT -------------- ------ ---------------------------------------- ------------------ December 28, 2002 $4,747,807.02 ---------------------------------------- ------------------ March 28, 2003 $4,747,807.02 ---------------------------------------- ------------------ June 28, 2003 $4,747,807.02 ---------------------------------------- ------------------ September 28, 2003 $4,747,807.02 ---------------------------------------- ------------------ December 28, 2003 $4,747,807.02 ---------------------------------------- ------------------ March 28, 2004 $4,747,807.02 ---------------------------------------- ------------------ June 28, 2004 $4,747,807.02 ---------------------------------------- ------------------ September 28, 2004 $4,747,807.02 ---------------------------------------- ------------------ December 28, 2004 $4,747,807.02 ---------------------------------------- ------------------ March 28, 2005 $7,121,710.52 ---------------------------------------- ------------------ June 28, 2005 $7,121,710.52 ---------------------------------------- ------------------ September 28, 2005 $7,121,710.52 ---------------------------------------- ------------------ December 28, 2005 $7,121,710.49 ---------------------------------------- ------------------ "SEC" means the Securities and Exchange Commission or any successor thereto. 37 "SECURED CREDITORS" has the meaning provided in the respective Security Documents to the extent defined therein and shall include any Person who is granted a security interest pursuant to any Loan Document. "SECURITIES" means any stock, shares, voting trust certificates, bonds, debentures, options, warrants, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as "securities" or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing. "SECURITIES ACT" means the Securities Act of 1933, as amended. "SECURITY AGREEMENTS" means, collectively, the Borrower Security Agreement and the Subsidiary Security Agreement. "SECURITY DOCUMENTS" means, collectively the Security Agreements, the Subsidiary Guaranty, the Pledge Agreements, the Mortgages, the Perfection Certificates, and all other agreements, assignments, security agreements, pledge agreements, instruments and documents executed in connection therewith and herewith, including, without limitation, all Additional Security Documents, in each case as the same may at any time be amended, supplemented, restated or otherwise modified and in effect. For purposes of this Agreement, "Security Documents" shall also include all guaranties, security agreements, mortgagees, pledge agreements, collateral assignments, subordination agreements and other collateral documents in the nature of any thereof entered into by any Credit Party or any Subsidiary of any Credit Party after the date of this Agreement in favor of the Administrative Agent or Collateral Agent for the benefit of the Lenders in satisfaction of the requirements of this Agreement. "SOLVENT" means, when used with respect to (i) any Person (other than subject to clause (ii)), that (x) the fair saleable value of its assets is in excess of the total amount of its liabilities (including for purposes of this definition all liabilities, whether or not reflected on a balance sheet prepared in accordance with GAAP, and whether direct or indirect, fixed or contingent, disputed or undisputed), (y) it is able to pay its debts or obligations in the ordinary course as they mature and (z) it has capital sufficient to carry on its business and all business in which it is about to engage and (ii) for any Person other than a Domestic Subsidiary, such Person has the ability to pay its debts as and when they fall due and could not be deemed to be insolvent for the purposes of the law of such Person's jurisdiction of formation. For purposes of SECTION 6.5(b), "debt" means any liability on a claim, and "claim" means (A) any right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured (including all obligations, if any, under any Plan or the equivalent for unfunded past service liability, and any other unfunded medical and death benefits) or (B) any right to an equitable 38 remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. "SPECIFIED CURRENCY" means the currency in which a sum is denominated in accordance with the applicable provisions of this Agreement. "SPOT RATE" means, for any currency at any date, the rate quoted by DBTCA as the spot rate for the purchase by DBTCA of such currency with another currency through its foreign exchange trading office or such other rate which the Administrative Agent may select based on reasonable commercial practices; PROVIDED that if at the time of any such determination, no such Spot Rate can reasonably be quoted, the Administrative Agent may use any reasonable method as it deems appropriate to determine such rate and such determination shall be conclusive absent manifest error. The Administrative Agent shall provide the Borrower with the then current Spot Rate from time to time upon the Borrower's request therefor. "STANDBY LETTERS OF CREDIT" means any of the irrevocable standby letters of credit issued for the account of the Borrower or any of its Subsidiaries pursuant to this Agreement, in form acceptable to the Facing Bank, together with any increases or decreases in the Stated Amount thereof and any renewals, amendments and/or extensions thereof. "STATED AMOUNT" or "STATED AMOUNTS" means, (i) with respect to any Letter of Credit issued in Dollars, the stated or face amount of such Letter of Credit to the extent available at the time for drawing (subject to presentment of all requisite documents), and (ii) with respect to any Letter of Credit issued in Euro, the Assigned Dollar Value of the stated or face amount of such Letter of Credit to the extent available at the time for drawing (subject to presentment of all requisite documents), in either case, as the same may be increased or decreased from time to time in accordance with the terms of such Letter of Credit. For purposes of calculating the Stated Amount of any Letter of Credit at any time: (A) any increase in the Stated Amount of any Letter of Credit by reason of any amendment to any Letter of Credit shall be deemed effective under this Agreement as of the date Facing Agent actually issues an amendment purporting to increase the Stated Amount of such Letter of Credit, whether or not Facing Agent receives the consent of the Letter of Credit beneficiary or beneficiaries to the amendment, except that if the Borrower has required that the increase in Stated Amount be given effect as of an earlier date and Facing Agent issues an amendment to that effect, then such increase in Stated Amount shall be deemed effective under this Agreement as of such earlier date requested by the Borrower; and 39 (B) any reduction in the Stated Amount of any Letter of Credit by reason of any amendment to any Letter of Credit shall be deemed effective under this Agreement as of the later of (x) the date Facing Agent actually issues an amendment purporting to reduce the Stated Amount of such Letter of Credit, whether or not the amendment provides that the reduction be given effect as of an earlier date, or (y) the date Facing Agent receives the written consent (including by authenticated telex, cable, SWIFT messages or facsimile transmission (with, in the case of a facsimile transmission, a follow-up original hard copy)) of the Letter of Credit beneficiary or beneficiaries to such reduction, whether written consent must be dated on or after the date of the amendment issued by Facing Agent purporting to effect such reduction. "SUBORDINATED NOTES" means, collectively, those certain unsecured convertible subordinated notes due 2007 issued by the Borrower and in a maximum principal amount which shall not exceed $150,000,000 at any one time outstanding, as the same may be amended, restated, supplemented or otherwise modified from time to time as permitted hereunder. "SUBSIDIARY" means, with respect to any Person (the "PARENT") at any date, any corporation, limited liability company, partnership, association or other 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 corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership 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, by the parent or one or more Subsidiaries of the parent or by the parent and one or more Subsidiaries of the parent. "SUBSIDIARY GUARANTOR" means each Material Domestic Subsidiary of the Borrower, any Domestic Subsidiary of the Borrower that is a party to the Subsidiary Guaranty and any Subsidiary of the Borrower that becomes a party to the Subsidiary Guaranty or delivers a guaranty pursuant to SECTION 7.12 or 7.14. "SUBSIDIARY GUARANTY" shall mean a Subsidiary Guaranty substantially in the form attached to the Original Credit Agreement, as amended, restated, and modified, and as the same may be amended, restated, modified or supplemented from time to time. "SUBSIDIARY PLEDGE AGREEMENT" shall mean a Subsidiary Pledge Agreement substantially in the form attached to the Original Credit Agreement, as amended, restated and modified, and as the same may be amended, restated, modified or supplemented from time to time. "SUBSIDIARY SECURITY AGREEMENT" shall mean a Subsidiary Security Agreement substantially in the form attached to the Original Credit Agreement, as amended, restated and 40 modified, and as the same may be amended, restated, modified or supplemented from time to time. "SWING LINE COMMITMENT" means, with respect to the Swing Line Lender at any date, the obligation of the Swing Line Lender to make Swing Line Loans pursuant to SECTION 2.1(d) in the amount referred to therein. "SWING LINE LENDER" means DBTCA in such capacity. "SWING LINE LOAN PARTICIPATION CERTIFICATE" means a certificate, substantially in the form of EXHIBIT 2.1(d). "SWING LINE LOANS" has the meaning assigned to that term in SECTION 2.1(d). "SWING LINE NOTE" has the meaning assigned to that term in the Original Credit Agreement. "SYNDICATED DATE" means the earlier of (i) the 90th day following the Amendment/Restatement Effective Date and (ii) the date upon which the Agents determine (and notify the Borrower) that the primary syndication (and the resultant addition of Persons as Lenders pursuant to SECTION 12.8) of the New Term B Facility has been completed. "TAXES" has the meaning assigned to that term in SECTION 4.7(a). "TERM A FACILITY" means the credit facility under this Agreement evidenced by the Term A Loans. "TERM A LENDER" means any Lender which is owed a Term A Loan (or a portion thereof). "TERM A LENDERS" means, collectively, all of the Term A Lenders. "TERM A LOAN" and "TERM A LOANS" have the meanings assigned to those terms in SECTION 2.1(a). "TERM A LOAN MATURITY DATE" means December 28, 2005. "TERM A NOTE" and "TERM A NOTES" have the meanings assigned to those terms in the Original Credit Agreement. 41 "TERM A PERCENTAGE" means, at any time, a fraction (expressed as a percentage) the numerator of which is equal to the aggregate principal amount of all Term A Loans outstanding at such time and the denominator of which is equal to the aggregate principal amount of all Term Loans outstanding at such time. "TERM A PRO RATA SHARE" means, when used with reference to any Term A Lender and any described aggregate or total amount, an amount equal to the result obtained by multiplying such described aggregate or total amount by a fraction the numerator of which shall be such Term A Lender's then outstanding Term A Loan and the denominator of which shall be all then outstanding Term A Loans. "TERM LOANS" means the Term A Loans and the New Term B Loans collectively. "TERM NOTES" means the Term A Notes and the New Term B Notes. "TEST PERIOD" means, at any time the four consecutive Fiscal Quarters of the Borrower then last ended, in each case taken as one accounting period. "TOTAL AVAILABLE REVOLVING COMMITMENT" means, at the time of any determination thereof is made, the sum of the respective Available Revolving Commitments of the Lenders at such time. "TOTAL COMMITMENT" means, at the time any determination thereof is made, the sum of the New Term B Commitments and the Revolving Commitments at such time. "TOTAL CONSOLIDATED INDEBTEDNESS" means the total of all Indebtedness of the Borrower and its Subsidiaries. "TOTAL REVOLVING COMMITMENT" means, at any time, the sum of the Revolving Commitments of each of the Lenders at such time. "TRANSACTION" means and includes (i) each of the Credit Events occurring on the Amendment/Restatement Effective Date, (ii) the consummation of the OTS Business Acquisition, (iii) such other transactions as are contemplated by and in accordance with the Transaction Documents and (iv) the payment of fees and expenses in connection with the foregoing. "TRANSACTION DOCUMENTS" means, collectively, the Loan Documents, the OTS Acquisition Documents and any other agreement, document, instrument and certificate executed and/or delivered pursuant to the terms of, or in connection with, any of the foregoing. "TRANSFEREE" has the meaning assigned to that term in SECTION 12.8(d). 42 "TYPE" means any type of Loan, namely, a Base Rate Loan or a Eurocurrency Loan. "UCC" means the Uniform Commercial Code as in effect from time to time in the relevant jurisdiction. "UNMATURED EVENT OF DEFAULT" means an event, act or occurrence which with the giving of notice or the lapse of time (or both) would become an Event of Default. "UNPAID DRAWING" means the aggregate amount of drawings under all Letters of Credit which have not been reimbursed pursuant to SECTION 2.10(c). "VOTING SECURITIES" means any class of Capital Stock of a Person pursuant to which the holders thereof have, at the time of determination, the general voting power under ordinary circumstances to vote for the election of directors, managers, trustees or general partners of such Person (irrespective of whether or not at the time any other class or classes will have or might have voting power by reason of the happening of any contingency). "WAIVABLE PREPAYMENT" has the meaning assigned to that term in SECTION 4.5(c). "WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any Indebtedness at any date, the number of years obtained by dividing (i) the then outstanding principal amount of such Indebtedness into (ii) the total of the product obtained by multiplying (x) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof by (y) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment. "WHOLLY-OWNED SUBSIDIARY" means, with respect to any Person, any Subsidiary of such Person, all of the outstanding shares of capital stock of which (other than qualifying shares required to be owned by directors, or similar de minimis issuances of capital stock to comply with Requirements of Law) are at the time owned directly or indirectly by such Person and/or one or more Wholly-Owned Subsidiaries of such Person. "WRITTEN" OR "IN WRITING" means any form of written communication or a communication by means of telecopier device or authenticated telex, telegraph or cable. The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms. The words "herein," "hereof" and words of similar import as used in this Agreement shall refer to this Agreement as a whole and not to any particular provision in this Agreement. References to "Articles", "Sections", "paragraphs", "Exhibits" and "Schedules" in this Agreement shall refer to Articles, Sections, paragraphs, Exhibits and Schedules of this Agreement unless otherwise expressly provided; references to Persons include 43 their respective permitted successors and assigns or, in the case of governmental Persons, Persons succeeding to the relevant functions of such persons; and all references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations. Section 1.2. ACCOUNTING TERMS; FINANCIAL STATEMENTS. All accounting terms used herein but not expressly defined in this Agreement shall have respective meanings given to them in accordance with GAAP in effect on the date hereof in the United States of America. Except as otherwise expressly provided herein (including without limitation, any modification to the terms hereof pursuant to SECTION 8.12), all computations and determinations for purposes of determining compliance with the financial requirements of this Agreement shall be made in accordance with GAAP in effect in the United States of America on the date hereof and on a basis consistent with the presentation of the financial statements and projections delivered pursuant to, or otherwise referred to in, SECTIONS 6.5(a) and 6.5(e). Notwithstanding the foregoing sentence, the financial statements required to be delivered pursuant to SECTION 7.1 shall be prepared in accordance with GAAP in the United States of America as in effect on the respective dates of their preparation. Unless otherwise provided for herein (including, without limitation, the definition of Wholly-Owned Subsidiary), wherever any computation is to be made with respect to any Person and its Subsidiaries, such computation shall be made so as to exclude all items of income, assets and liabilities attributable to any Person which is not a Subsidiary of such Person. ARTICLE II AMOUNT AND TERMS OF CREDIT Section 2.1. THE COMMITMENTS. (a) TERM A LOANS. Loans designated on the Initial Borrowing Date "Term A Loans" were made by each Lender with a Term A Commitment under and as defined in the Original Credit Agreement in the amount of such Term A Commitment with the principal amount of each such Term A Loan outstanding hereunder as a Term A Loan on the Amendment/Restatement Effective Date (as set forth on SCHEDULE 1.1(a) hereto) to continue to remain outstanding hereunder as Term A Loans (collectively, the "TERM A LOANS"). No amount of a Term A Loan which is repaid or prepaid by the Borrower may be reborrowed hereunder. (b) NEW TERM B LOANS. (i) On the Amendment/Restatement Effective Date, each New Term B Lender, severally and for itself alone, hereby agrees, on the terms and subject to the conditions hereinafter set forth and in reliance upon the representations and warranties set forth herein and in the other Loan Documents, to make a loan (each such loan, a "NEW TERM B LOAN" and collectively, the "NEW TERM B LOANS") to the Borrower on the 44 Amendment/Restatement Effective Date in an aggregate principal amount equal to the New Term B Commitment of such New Term B Lender. The New Term B Loans (1) shall be incurred by the Borrower pursuant to a single drawing, which shall be on the Amendment/Restatement Effective Date, (2) shall be denominated in Dollars, (3) shall be made as Base Rate Loans and, except as hereinafter provided, may, at the option of the Borrower, be maintained as and/or converted into Base Rate Loans or Eurocurrency Loans, PROVIDED, that all New Term B Loans made by the New Term B Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of New Term B Loans of the same Type and (4) shall not exceed for any Lender at the time of incurrence thereof on the Amendment/Restatement Effective Date the New Term B Commitment, if any, of such Lender at such time. Each New Term B Lender's New Term B Commitment shall expire immediately and without further action on the Amendment/Restatement Effective Date if the New Term B Loans are not made on the Amendment/Restatement Effective Date. No amount of a New Term B Loan which is repaid or prepaid by the Borrower may be reborrowed hereunder. (ii) With respect to the New Term B Facility, the New Term B Lenders hereby agree and acknowledge that the New Term B Loan Maturity Date may be extended to June 28, 2009, at the option of the Borrower, upon the conversion, repayment or other disposition in full, all on terms and conditions satisfactory to the Administrative Agent and the Majority Lenders of the New Term B Facility, of the Subordinated Notes. The Borrower shall provide not less than 30 days' prior written notice to the Administrative Agent and the New Term B Lenders of such extension and shall provide such documentation to the Administrative Agent and the New Term B Lenders as such parties may request regarding the conversion, repayment or other disposition in full of the Subordinated Notes. Any extension notice, is subject to the conditions precedent that: (i) the representations and warranties of the Borrower contained in ARTICLE VI shall be true and correct, and such extension shall be deemed to constitute a representation and warranty that on such date such representations and warranties were true and correct; and (ii) no Event of Default or Unmatured Event of Default has occurred and is then continuing. Upon the satisfaction of all conditions described in this SECTION 2.1(b)(ii) (which satisfaction shall be evidenced in writing to the Borrower by the Administrative Agent and the Majority Lenders of the New Term B Facility), the New Term B Loan Maturity Date shall be extended as described herein without any further action of the New Term B Lenders and the Administrative Agent. The Borrower shall deliver or cause to be delivered any documentation, including amended New Term B Notes, as may reasonably be requested by a New Term B Lender in connection with such extension. In the event that the conditions described herein are not satisfied by the Borrower prior to March 28, 2007, the New Term B Loan Maturity Date shall not be extended and the New Term B Loans (to the extent not previously paid) shall be due and payable on the then New Term B Loan Maturity Date (which for the avoidance of doubt is acknowledged to be March 28, 2007). (c) REVOLVING LOANS. Each Revolving Lender, severally and for itself alone, hereby agrees, on the terms and subject to the conditions hereinafter set forth and in reliance upon the representations and warranties set forth herein and in the other Loan Documents, to 45 make loans to the Borrower denominated in Dollars and in Euro (subject to the limitations set forth in this Agreement), on a revolving basis from time to time during the Commitment Period, so long as after giving effect thereto (and the use of the proceeds thereof) (A) the Assigned Dollar Value of such Revolving Lender's Outstanding Revolving Loans would not exceed its Revolver Pro Rata Share of the Total Available Revolving Commitment or (B) the Assigned Dollar Value of its Revolver Pro Rata Share of the Multicurrency Outstandings would not exceed its Multicurrency Commitment (each such loan by any Lender, including each such loan that is outstanding on the Amendment/Restatement Effective Date which shall continue to remain outstanding hereunder as a Revolving Loan subject to the same Interest Period as was applicable to it immediately prior to the Amendment/Restatement Effective Date, a "REVOLVING LOAN" and collectively, the "REVOLVING LOANS"). All Revolving Loans comprising the same Borrowing hereunder shall be made by the Revolving Lenders simultaneously and in proportion to their respective Revolving Commitments. Prior to the Revolver Termination Date, Revolving Loans may be repaid and reborrowed by the Borrower in accordance with the provisions hereof and, except as otherwise specifically provided in SECTION 3.6, all Revolving Loans comprising the same Borrowing shall at all times be of the same Type. (d) SWING LINE LOANS. (i) SWING LINE COMMITMENT. Subject to the terms and conditions hereof, the Swing Line Lender in its individual capacity agrees to make swing line loans in Dollars ("SWING LINE LOANS") to the Borrower on any Business Day from time to time during the Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $15,000,000; PROVIDED, HOWEVER, that in no event may the amount of any Borrowing of Swing Line Loans (A) exceed the Total Available Revolving Commitment immediately prior to such Borrowing (after giving effect to the use of proceeds thereof) or (B) cause the Assigned Dollar Value of the Outstanding Revolving Loans of any Lender, when added to such Lender's Revolver Pro Rata Share of then outstanding Swing Line Loans and Revolver Pro Rata Share of the aggregate Assigned Dollar Value of the LC Obligations (exclusive of Unpaid Drawings relating to LC Obligations which are repaid with the proceeds of, and simultaneously with the incurrence of, Revolving Loans or Swing Line Loans) to exceed such Lender's Revolving Commitment. Amounts borrowed by the Borrower under this SECTION 2.1(d)(i) may be repaid and, to but excluding the fifth (5) Business Day prior to the Revolver Termination Date, reborrowed. Swing Line Loans shall be maintained as Base Rate Loans and, notwithstanding SECTION 2.6, shall not be entitled to be converted into any other Type of Loan. Any Swing Line Loans that are outstanding on the Amendment/Restatement Effective Date shall continue to remain outstanding hereunder and are deemed to be "Swing Line Loans." (ii) REFUNDING OF SWING LINE LOANS. The Swing Line Lender, at any time in its sole and absolute discretion, may on behalf of the Borrower (which hereby irrevocably directs the Swing Line Lender to so act on its behalf) notify each Revolving Lender (including the Swing Line Lender) to make a Revolving Loan in an amount equal to such Lender's Revolver 46 Pro Rata Share of the principal amount of the Swing Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such notice is given, PROVIDED, HOWEVER, that such notice shall be deemed to have automatically been given upon the occurrence of an Event of Default under SECTIONS 10.1(e) or 10.1(f) or upon the occurrence of a Change of Control. Unless any of the events described in SECTIONS 10.1(e) or 10.1(f) shall have occurred (in which event the procedures of SECTION 2.1(d)(iii) shall apply) and regardless of whether the conditions precedent set forth in this Agreement to the making of a Revolving Loan are then satisfied, each Lender shall make the proceeds of its Revolving Loan available to the Swing Line Lender at the Payment Office prior to 11:00 a.m., New York City time, in funds immediately available on the Business Day next succeeding the date such notice is given. The proceeds of such Revolving Loans shall be immediately applied to repay the Refunded Swing Line Loans. (iii) PARTICIPATION IN SWING LINE LOANS. If, prior to refunding a Swing Line Loan with a Revolving Loan pursuant to SECTION 2.1(d)(ii), one of the events described in SECTIONS 10.1(e) or 10.1(f) shall have occurred, or if for any other reason a Revolving Loan cannot be made pursuant to SECTION 2.1(d)(ii), then, subject to the provisions of SECTION 2.1(d)(iv) below, each Lender will, on the date such Revolving Loan was to have been made, purchase (without recourse or warranty) from the Swing Line Lender an undivided participation interest in the Swing Line Loan in an amount equal to its Revolver Pro Rata Share of such Swing Line Loan. Upon request, each Lender will immediately transfer to the Swing Line Lender, in immediately available funds, the amount of its participation and upon receipt thereof the Swing Line Lender will deliver to such Lender a Swing Line Loan Participation Certificate, substantially in the form of EXHIBIT 2.1(D) hereto, dated the date of receipt of such funds and in such amount. (iv) LENDERS' OBLIGATIONS UNCONDITIONAL. Each Lender's obligation to make Revolving Loans in accordance with SECTION 2.1(d)(ii) and to purchase participating interests in accordance with SECTION 2.1(d)(iii) above shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (A) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of any Event of Default or Unmatured Event of Default; (C) any adverse change in the condition (financial or otherwise) of the Borrower or any other Person; (D) any breach of this Agreement by the Borrower or any other Person; (E) any inability of the Borrower to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such participating interest is to be purchased or (F) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If any Lender does not make available to the Swing Line Lender the amount required pursuant to SECTION 2.1(d)(ii) or (iii) above, as the case may be, the Swing Line Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date of non-payment until such amount is paid in full at the Federal Funds Rate for the first two (2) Business Days and at the Base Rate thereafter. Notwithstanding the foregoing provisions of this SECTION 47 2.1(d)(iv), no Lender shall be required to make a Revolving Loan to the Borrower for the purpose of refunding a Swing Line Loan pursuant to SECTION 2.1(d)(ii) above or to purchase a participating interest in a Swing Line Loan pursuant to SECTION 2.1(d)(iii) if an Event of Default or Unmatured Event of Default has occurred and is continuing and, prior to the making by the Swing Line Lender of such Swing Line Loan, the Swing Line Lender has received written notice from such Lender specifying that such Event of Default or Unmatured Event of Default has occurred and is continuing, describing the nature thereof and stating that, as a result thereof, such Lender shall cease to make such Refunded Swing Line Loans and purchase such participating interests, as the case may be; PROVIDED, HOWEVER, that the obligation of such Lender to make such Refunded Swing Line Loans and to purchase such participating interests shall be reinstated upon the earlier to occur of (y) the date upon which such Lender notifies the Swing Line Lender that its prior notice has been withdrawn and (z) the date upon which the Event of Default or Unmatured Event of Default specified in such notice no longer is continuing. Section 2.2. NOTES. (a) EVIDENCE OF INDEBTEDNESS. On the Initial Borrowing Date, the Borrower issued (i) to each Lender that made a Term A Loan on such date a Term A Note, (ii) to each Lender with a Revolving Commitment on such date a Revolving Note, and (iii) to the Swingline Lender a Swingline Note. The Borrower has from time to time thereafter, in connection with assignments made pursuant to SECTION 12.8(c) hereof, issued new Notes as required by such Section to the respective assignees. As of the Amendment/Restatement Effective Date, the Borrower's obligation to pay the principal of and interest on the Term Loans made to it by each New Term B Lender shall, if requested by a Lender, be evidenced by a promissory note (each, a "NEW TERM B NOTE" and, collectively, the "NEW TERM B NOTES") duly executed and delivered by the Borrower substantially in the form of EXHIBIT 2.2(A) hereto, with blanks appropriately completed in conformity herewith. (b) NOTATION OF PAYMENTS. Each Lender will note on its internal records the amount of each Loan made by it, and each payment in respect thereof and will, prior to any transfer of any of its Notes, endorse on the reverse side thereof the outstanding principal amount (and, with respect to Revolving Notes, the applicable currency) of Loans evidenced thereby. Failure to make any such notation, or any error in any such notation, shall not affect the Borrower's or any guarantor's obligations hereunder or under the other applicable Loan Documents in respect of such Loans. Section 2.3. MINIMUM AMOUNT OF EACH BORROWING; MAXIMUM NUMBER OF BORROWINGS. The aggregate principal amount of each Borrowing (other than with respect to Swing Line Loans) by the Borrower hereunder shall be not less than the Minimum Borrowing Amount and, if greater, shall be in integral multiples of (i) in the case of a Borrowing in Dollars, $1,000,000, or (ii) in the case of a Borrowing in Euro, 1,000,000 Euro, above such minimum (or, if less, the then 48 Total Available Revolving Commitment). The aggregate principal amount of each Swing Line Borrowing shall be not less than the Minimum Borrowing Amount and, if greater, shall be in integral multiples of $100,000. More than one Borrowing may be incurred on any date; PROVIDED that at no time shall there be outstanding more than eight Borrowings of Eurocurrency Loans for any Facility. Section 2.4. BORROWING OPTIONS. The Term Loans and the Revolving Loans shall, at the option of the Borrower except as otherwise provided in this Agreement, be (i) Base Rate Loans, (ii) Eurocurrency Loans, or (iii) part Base Rate Loans and part Eurocurrency Loans; PROVIDED, that Multicurrency Loans may only be made as Eurocurrency Loans. As to any Eurocurrency Loan, any Lender may, if it so elects, fulfill its commitment by causing a foreign branch or affiliate to make or continue such Loan, provided that in such event that Lender's Loan shall, for the purposes of this Agreement, be considered to have been made by that Lender and the obligation of the Borrower to repay that Lender's Loan shall nevertheless be to that Lender and shall be deemed held by that Lender, for the account of such branch or affiliate. Section 2.5. NOTICE OF BORROWING. Whenever the Borrower desires to make a Borrowing of any Loan hereunder, it shall give the Administrative Agent at its office located at 31 West 52nd Street, New York, New York 10019 (or such other address as the Administrative Agent may hereafter designate in writing to the parties hereto) (the "NOTICE ADDRESS") at least one Business Day's prior written notice (or telephonic notice promptly confirmed in writing), given not later than 1:00 p.m. (New York City time) of each Base Rate Loan, and at least three (3) Business Days' prior written notice (or telephonic notice promptly confirmed in writing), given not later than 1:00 p.m. (New York City time), of each Dollar denominated Eurocurrency Loan to be made hereunder and at least four (4) Business Days prior written notice (or telephone notice promptly confirmed in writing) given not later than 1:00 p.m. (New York time), of each Loan denominated in Euro; PROVIDED, HOWEVER, that a Notice of Borrowing with respect to Borrowings to be made on the Amendment/Restatement Effective Date may, at the discretion of the Administrative Agent, be delivered later than the time specified above. Whenever the Borrower desires that Swing Line Lender make a Swing Line Loan under SECTION 2.1(d), it shall deliver to Swing Line Lender prior to 1:00 p.m. (New York City time) on the date of Borrowing written notice (or telephonic notice promptly confirmed in writing). Each such notice (each a "NOTICE OF BORROWING"), which shall be in the form of EXHIBIT 2.5-1 hereto, shall be irrevocable, shall be deemed a representation by the Borrower that all conditions precedent to such Borrowing have been satisfied and shall specify (i) the aggregate principal amount of the Loans to be made pursuant to such Borrowing, (ii) the date of Borrowing (which shall be a Business Day), (iii) whether the Loans being made pursuant to such Borrowing are to be Base Rate Loans or Eurocurrency Loans and, with respect to Eurocurrency Loans, (x) the Interest Period to be applicable thereto and (y) the currency in 49 which such Loan is to be made. The Administrative Agent shall as promptly as practicable give each Lender written or telephonic notice (promptly confirmed in writing) of each proposed Borrowing, of such Lender's Revolver Pro Rata Share thereof and of the other matters covered by the Notice of Borrowing. Without in any way limiting the Borrower's obligation to confirm in writing any telephonic notice, the Administrative Agent or the Swing Line Lender (in the case of Swing Line Loans) or the respective Facing Agent (in the case of Letters of Credit) may act without liability upon the basis of telephonic notice believed by the Administrative Agent in good faith to be from a Responsible Officer of the Borrower prior to receipt of written confirmation as evidenced in the Notice of Appointment (or Revocation) of Responsible Officer, which shall be in the form of EXHIBIT 2.5-2 hereto. The Administrative Agent's records shall, absent manifest error, be final, conclusive and binding on the Borrower with respect to evidence of the terms of such telephonic Notice of Borrowing. Section 2.6. CONVERSION OR CONTINUATION. With respect to Dollar denominated Loans, the Borrower may elect (i) on any Business Day at any time after the seventh Business Day following the Amendment/Restatement Effective Date to convert Base Rate Loans or any portion thereof to Eurocurrency Loans and (ii) at the end of any Interest Period with respect thereto, to convert Eurocurrency Loans or any portion thereof into Base Rate Loans or to continue such Eurocurrency Loans or any portion thereof for an additional Interest Period; PROVIDED, HOWEVER, that the aggregate principal amount of the Eurocurrency Loans for each Interest Period therefor must be in an aggregate principal amount equal to the Minimum Borrowing Amount for Eurocurrency Loans or an integral multiple of (i) in the case of a Borrowing in Dollars, $1,000,000, or (ii) in the case of a Borrowing in Euro, 1,000,000 Euro, in each case in excess thereof. With respect to Euro denominated Loans, the Borrower may elect to continue such Eurocurrency Loans or any portion thereof for an additional Interest Period. Each conversion or continuation of Term A Loans shall be allocated among the Term A Loans of the Term A Lenders in accordance with their respective Term A Pro Rata Shares. Each conversion or continuation of New Term B Loans shall be allocated among the New Term B Loans of the New Term B Lenders in accordance with their respective New Term B Pro Rata Shares. Each conversion or continuation of Revolving Loans shall be allocated among the Revolving Loans of the Lenders in accordance with their respective Revolver Pro Rata Shares. Each such election shall be in substantially the form of EXHIBIT 2.6 hereto (a "NOTICE OF CONVERSION OR CONTINUATION") and shall be made by giving the Administrative Agent at least three (3) Business Days' (or one Business Day in the case of a conversion into Base Rate Loans or four (4) Business Days' in the case of continuation of a Multicurrency Revolving Loan) prior written notice thereof to the Notice Address given not later than 1:00 p.m. (New York City time) specifying (i) the amount and type of conversion or continuation, (ii) in the case of a conversion to or a continuation of Eurocurrency Loans, the Interest Period therefor, and (iii) in the case of a conversion, the date of conversion (which date shall be a Business Day and, if a conversion from Eurocurrency Loans, shall also be the last day of the Interest Period therefor). Notwithstanding the foregoing, no conversion in whole or in part of Base Rate Loans to Eurocurrency Loans, and 50 no continuation in whole or in part of Dollar denominated Eurocurrency Loans upon the expiration of any Interest Period therefor, shall be permitted at any time at which an Unmatured Event of Default or an Event of Default shall have occurred and be continuing. The Borrower shall not be entitled to specify an Interest Period in excess of 30 days for any Multicurrency Revolving Loan if an Unmatured Event of Default or an Event of Default has occurred and is continuing. If, within the time period required under the terms of this SECTION 2.6, the Administrative Agent does not receive a Notice of Conversion or Continuation from the Borrower containing a permitted election to continue any Eurocurrency Loans for an additional Interest Period or to convert any such Loans, then, upon the expiration of the Interest Period therefor, such Loans will be automatically converted to Base Rate Loans or, in the case of Multicurrency Revolving Loans, Eurocurrency Loans with an Interest Period of one month. Each Notice of Conversion or Continuation shall be irrevocable. Section 2.7. DISBURSEMENT OF FUNDS. No later than 1:00 p.m. (local time at the place of funding) on the date specified in each Notice of Borrowing, each Lender will make available its New Term B Pro Rata Share of New Term B Loans and Revolver Pro Rata Share of Revolving Loans, as the case may be, of the Borrowing requested to be made on such date in Dollars or Euro, as the case may be, and in immediately available funds, at the Payment Office (for the account of such non-U.S. office of the Administrative Agent as the Administrative Agent may direct in the case of Eurocurrency Loans) and the Administrative Agent will make available to the Borrower at its Payment Office the aggregate of the amounts so made available by the Lenders not later than 2:00 p.m. (local time in the place of payment). Unless the Administrative Agent shall have been notified by any Lender at least one Business Day prior to the date of Borrowing that such Lender does not intend to make available to the Administrative Agent such Lender's portion of the Borrowing to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender on the date of Borrowing, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent shall promptly notify the Borrower and, if so notified, the Borrower shall immediately pay such corresponding amount to the Administrative Agent. The Administrative Agent shall also be entitled to recover from the Borrower interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower to the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to the rate for Base Rate Loans or Eurocurrency Loans, as the case may be, applicable during the period in question, PROVIDED, however, that any interest paid to the Administrative Agent in respect of such corresponding amount shall be credited against interest payable by the Borrower to such Lender under 51 SECTION 3.1 in respect of such corresponding amount. Any amount due hereunder to the Administrative Agent from any Lender which is not paid when due shall bear interest payable by such Lender, from the date due until the date paid, at the Federal Funds Rate for amounts in Dollars (and at the Administrative Agent's cost of funds for amounts in Euro) for the first three days after the date such amount is due and thereafter at the Federal Funds Rate (or such cost of funds rate) plus 1%, together with the Administrative Agent's standard interbank processing fee. Further, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its Loans, amounts due with respect to its Letters of Credit (or its participations therein) and any other amounts due to it hereunder first to the Administrative Agent to fund any outstanding Loans made available on behalf of such Lender by the Administrative Agent pursuant to this SECTION 2.7 until such Loans have been funded (as a result of such assignment or otherwise) and then to fund Loans of all Lenders other than such Lender until each Lender has outstanding Loans equal to its New Term B Pro Rata Share of all New Term B Loans and its Revolver Pro Rata Share of all Revolving Loans (as a result of such assignment or otherwise). Such Lender shall not have recourse against the Borrower with respect to any amounts paid to the Administrative Agent or any Lender with respect to the preceding sentence; PROVIDED, that such Lender shall have full recourse against the Borrower to the extent of the amount of such loans it has so been deemed to have made. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights which the Borrower may have against the Lender as a result of any default by such Lender hereunder. Section 2.8. ADDITIONAL LOAN COMMITMENTS. (a) So long as no Event of Default or Unmatured Event of Default has occurred and is continuing, the Borrower may, upon 30 days' prior written notice to the Administrative Agent, request on one or more occasions that (i) the Revolving Commitment, the commitment available for Term A Loans or both be increased (PROVIDED such increase shall be in a minimum aggregate amount for all Lenders (including Eligible Assignees who will become Lenders) of at least $5,000,000), or (ii) that the Lenders participate in a new credit facility hereunder (the " TERM C FACILITY"); PROVIDED that no Lender shall be under any obligation to increase such Commitment or participate in such Incremental Term C Facility. The aggregate amount of (y) any increase in the Revolving Commitment, the commitment available for Term A Loans or both (the "COMMITMENT INCREASE AMOUNT"), and (z) the amount of the Incremental Term C Facility, shall not exceed $100,000,000. Such notice shall (A) specify the requested Commitment Increase Amount or the requested amount of the Incremental Term C Facility, as the case may be; (B) specify the applicable Facility or Facilities to which such Commitment Increase Amount is to apply, and if more than one Facility, the Commitment Increase Amount in respect of each such Facility; (C) specify the effective date of such Commitment increase or Incremental Term C Facility, which date shall not be less than 60 nor more than 90 days following the date of such written notice; and (D) include financial projections satisfactory to the Administrative Agent (a copy of which shall be provided to the Lenders) which evidence that, after giving effect to the Commitment Increase Amount or the Incremental Term C 52 Facility, as the case may be, including, without limitation, the amortization terms thereof, on a pro forma basis through the Term A Loan Maturity Date, the Borrower shall be in compliance with the covenants set forth in ARTICLE IX of this Agreement. The terms and conditions of the Incremental Term C Facility shall be as follows: (1) the amount of the Incremental Term C Facility shall be the amount in respect of which the Lenders and any other financial institutions which becomes a Incremental Term C Lender pursuant to SECTION 2.8(d) have agreed to participate in accordance with this SECTION 2.8(a); (2) the Borrower shall use the proceeds of any loans under the Incremental Term C Facility solely for the purpose or purposes agreed to by the Lenders who agree to participate in the Incremental Term C Facility and the other financial institutions which become Incremental Term C Lenders pursuant to SECTION 2.8(d); (3) the Incremental Term C Facility shall be made in Dollars, shall not revolve and any amount repaid or prepaid under the Incremental Term C Facility cannot be reborrowed and shall reduce the Incremental Term C Commitment by the amount repaid or prepaid, as the case may be; (4) the Loans outstanding under the Incremental Term C Facility shall have a weighted average life to maturity not less than the weighted average life to maturity of the Term A Facility and shall mature no earlier than the Term A Loan Maturity Date in respect of the Term A Facility; and (5) such other terms and conditions agreed to by the Borrower and the Lenders who have agreed to participate in accordance with this SECTION 2.8 and the other financial institutions who have become Lenders pursuant to SECTION 2.8(d), which terms and conditions (other than provisions relating to interest and fees) shall not, taken as a whole, in any event, be more onerous or more extensive than the terms and conditions set out in this Agreement. Upon receipt of such request the Administrative Agent shall, as soon as reasonably practicable, notify the applicable Lenders of such request. (b) Each applicable Lender shall advise the Administrative Agent in writing as to whether it consents to such requested increase or participation, as the case may be, within 30 days of receipt by the Administrative Agent from the Borrower of the notice requesting such increase or participation, as the case may be. If any Lender does not provide such notice within such time, such Lender shall be deemed to have refused the applicable request. Not more than two (2) Business Days following (i) the last day for receipt by the Administrative Agent of such notices or (ii) if all such relevant Lenders shall have provided such notice, the day on which the last of such notices shall have been received by the Administrative Agent, the Administrative Agent shall advise the Borrower and each such Lender, with respect to each such Lender, whether such Lender has consented to the requested Commitment Increase Amount or request to participate in the Incremental Term C Facility, as the case may be, or has refused, or is deemed to have refused, such requested Commitment Increase Amount or request to participate in the Incremental Term C Facility, as the case may be, and of the aggregate amount by which those Lenders consenting to such Commitment Increase Amount have agreed to increase their respective Commitments or participate in the Incremental Term C Facility. (c) Subject to SECTION 2.8(e), in the event that the Borrower has requested an increase of the Revolving Commitment or commitment available for Term A Loans pursuant to 53 SECTION 2.8(a) and (i) such Commitment Increase Amount has been agreed to by all of the then existing Lenders, then the applicable Commitment in respect of each such Lender shall be increased by an amount equal to the amount consented to by such consenting Lender; or (ii) such increase has been consented to by some, but not all, of the applicable Lenders, then (y) with respect to the consenting Lenders, the relevant Commitment of each such Lender shall be increased by an amount equal to the amount consented to by such consenting Lender; and (z) with respect to the non-consenting Lenders, the relevant Commitment shall not be increased. (d) If consenting Lenders have not offered to advance all of the Commitment Increase Amount or to participate in the Incremental Term C Facility, as the case may be, then the Borrower (in coordination with the Administrative Agent) may arrange for one or more other financial institutions which qualify as Eligible Assignees hereunder and which are consented to by the Administrative Agent and, with respect to an increase in the Revolving Commitment, the Facing Agent (it being understood and agreed that such consent shall not be unreasonably withheld or delayed) to offer to advance the balance of such Commitment Increase Amount or the balance of the requested amount of the Incremental Term C Facility, as the case may be (subject to the Lenders and such other financial institution or institutions, as the case may be, executing and delivering any documentation required by the Administrative Agent to evidence the agreement of such other financial institution or institutions to advance all or a part of the balance of such Commitment Increase Amount or the balance of the requested amount of the Incremental Term C Facility, as the case may be); PROVIDED, that any additional Commitment provided by any such Eligible Assignee which is not already a Lender shall be in a minimum amount (for such Eligible Assignee) of at least $2,500,000. In the case of a Commitment Increase Amount, the Borrower shall, in coordination with the Administrative Agent, (x) repay all outstanding Revolving Loans of the Revolving Lenders in each case so that the Revolving Lenders participate in each Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this SECTION 2.8) and with the Borrower being obligated to pay the respective Revolving Lenders the costs of the type referred to in SECTION 3.5 in connection with any such repayment and/or Borrowing and (y) on such date with respect to an increase in the Revolving Commitment, all outstanding Letters of Credit and LC Obligations, shall be automatically adjusted to the participations by the Lenders in such Letters of Credit and LC Obligations to reflect the new Revolving Percentages of the Revolving Lenders. (e) Any increase in the Revolving Commitment or the commitment available for Term A Loans hereunder, or the participation of any Lender in the Incremental Term C Facility, is subject to the conditions precedent that the Borrower, the Lenders and such other financial institution or institutions shall have executed and delivered any documentation reasonably required by the Administrative Agent to evidence such increase of the Revolving Facility or the commitment available for Term A Loans hereunder or to establish the Incremental Term C Facility and that: (i) the representations and warranties of the Borrower contained in ARTICLE VI shall be true and correct, and such increase or participation, as the case may be, shall 54 be deemed to constitute a representation and warranty that on such date such representations and warranties were true and correct; and (ii) no Event of Default or Unmatured Event of Default has occurred and is then continuing. On the date that any of the events described in this SECTION 2.8 become effective, SCHEDULE 1.1(a) shall be deemed modified to reflect the revised Revolving Commitment or revised commitment available for Term A Loans or the additional Incremental Term C Facility, as the case may be. Section 2.9. PRO RATA BORROWINGS. All Borrowings of New Term B Loans and Revolving Loans under this Agreement shall be loaned by the Lenders pro rata on the basis of their New Term B Commitments and Revolving Commitments, as the case may be. No Lender shall be responsible for any default by any other Lender in its obligation to make Loans hereunder and each Lender shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to fulfill its Commitments hereunder. Section 2.10. AMOUNT AND TERMS OF LETTERS OF CREDIT. (a) LETTERS OF CREDIT; TERMS OF LETTERS OF CREDIT. (i) Each Letter of Credit issued pursuant to SECTION 2.10(a) of the Original Credit Agreement and outstanding on the Amendment/Restatement Effective Date, as listed on SCHEDULE 2.10(a) hereto, shall continue to remain outstanding as a Letter of Credit hereunder on and after such Amendment/Restatement Effective Date on the same terms as applicable to it immediately prior to such Amendment/Restatement Effective Date. Subject to and upon the terms and conditions herein set forth, at any time and from time to time on or after the Amendment/Restatement Effective Date and to but not including a date which is thirty (30) days prior to the Revolver Termination Date, each Facing Agent agrees, severally not jointly, to issue each in its own name, but for the ratable account of all Revolving Lenders (including the applicable Facing Agent), one or more Letters of Credit, each having a Stated Amount denominated in Dollars or Euro, for the account of the Borrower or any of its Subsidiaries; PROVIDED, HOWEVER, that a Facing Agent shall not issue or extend the expiration of any Letter of Credit if, immediately after giving effect to such issuance or extension, (A) the aggregate LC Obligations at such time would exceed the Dollar Equivalent of Sixty Million Dollars ($60,000,000), or (B) the sum of the Assigned Dollar Value of Revolving Loans, the Assigned Dollar Value of Swing Line Loans and the Assigned Dollar Value of LC Obligations would exceed the Total Revolving Commitment or (C) the Multicurrency Outstandings would exceed the Multicurrency Commitment. Each Revolving Lender, severally, but not jointly, agrees to participate in each such Letter of Credit issued by the applicable Facing Agent in an amount equal to its Revolver Pro Rata Share, and to make available to the applicable Facing Agent such Lender's Revolver Pro Rata Share of any payment made to the beneficiary of such Letter of Credit to the extent not reimbursed by the Borrower; PROVIDED, HOWEVER, that no Revolving 55 Lender shall be required to participate in any Letter of Credit to the extent that such participation therein would exceed such Revolving Lender's Available Revolving Commitment then in effect. No Revolving Lender's obligation to participate in any Letter of Credit or to make available to the applicable Facing Agent such Revolving Lender's Revolver Pro Rata Share of any Letter of Credit Payment made by the applicable Facing Agent shall be affected by any other Revolving Lender's failure to participate in the same or any other Revolving Letter of Credit or by any other Lender's failure to make available to the applicable Facing Agent such other Revolving Lender's Revolver Pro Rata Share of any Letter of Credit Payment. Notwithstanding the foregoing, in the event a Lender Default exists, the Facing Agent shall not be required to issue any Letter of Credit unless the Facing Agent has entered into arrangements satisfactory to it and the Borrower to eliminate such Facing Agent's risk with respect to the participation in Letters of Credit of the Defaulting Lender or Lenders, including by cash collateralizing such Defaulting Lender's Revolver Pro Rata Share of the LC Obligations. (ii) Each Letter of Credit issued or to be issued hereunder shall be issued on a sight basis, and shall have an expiration date of one (1) year or less from the issuance date thereof; PROVIDED, HOWEVER, that each Standby Letter of Credit may provide by its terms that it will be automatically extended for additional successive periods of up to one (1) year as to each successive period unless the applicable Facing Agent shall have given notice to the applicable beneficiary (with a copy to the Borrower) of the election by the applicable Facing Agent (such election to be in the sole and absolute discretion of the applicable Facing Agent) not to extend such Letter of Credit, such notice to be given prior to the then current expiration date of such Letter of Credit; PROVIDED, FURTHER, that no Standby Letter of Credit or extension thereof shall be stated to expire later than the day five (5) Business Days prior to the Revolver Termination Date and no Commercial Letter of Credit or extension thereof shall be stated to expire later than the day thirty (30) days prior to the Revolver Termination Date. (b) PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. Whenever the Borrower desires the issuance of a Letter of Credit hereunder, it shall give the Administrative Agent and the applicable Facing Agent at least four (4) Business Days' prior written notice (or such shorter period as may be agreed to by the Borrower, the Administrative Agent and the applicable Facing Agent) specifying the day of issuance thereof (which day shall be a Business Day), such notice to be given prior to 1:00 p.m. (New York City time) on the date specified for the giving of such notice. Each such notice (each, a "LETTER OF CREDIT REQUEST") shall be in the form of EXHIBIT 2.10(B) hereto and shall specify (A) the proposed issuance date and expiration date, (B) the name(s) of each obligor with respect to such Letter of Credit, (C) the Borrower or any of its Subsidiaries as the account party, (D) the name and address of the beneficiary, (E) the Stated Amount of such proposed Letter of Credit, (F) the currency in which such proposed Letter of Credit is to be issued and (G) such other information as Facing Agent may reasonably request. In addition, each Letter of Credit Request shall contain a description of the terms and conditions to be included in such proposed Letter of Credit (all of which terms and conditions shall be acceptable in form to the applicable Facing Agent). Promptly after the issuance, amendment, 56 extension or modification of a Standby Letter of Credit, the Facing Agent shall notify the Borrower and the Administrative Agent, in writing of such activity and such notice shall be accompanied by a copy of such issuance, amendment, extension or modification. Upon receipt of such notice, the Administrative Agent shall notify the Revolving Lenders of such issuance, amendment, extension or modification and, if any Revolving Lender so requests, the Administrative Agent shall provide such Revolving Lender with copies of such issuance, amendment, modification or extension. With regard to Commercial Letters of Credit, the Facing Agent shall, on the first Business Day of each week, provide the Administrative Agent, by facsimile, with a report of the daily aggregate outstandings for the previous week. Unless otherwise specified, all Letters of Credit will be governed by the "Uniform Customs and Practice for Documentary Credits" as in effect on the date of issuance of such Letter of Credit. On the Business Day specified by the Borrower and upon confirmation from the Administrative Agent that the applicable conditions set forth in ARTICLE V have been fulfilled or waived, the applicable Facing Agent will issue the requested Letter of Credit to the applicable beneficiary. (c) DRAWS UPON LETTERS OF CREDIT; REIMBURSEMENT OBLIGATION. In the event of any drawing under any Letter of Credit by the beneficiary thereof, the applicable Facing Agent shall give telephonic notice to the Borrower and the Administrative Agent (x) confirming such drawing and (y) of the date on or before which such Facing Agent intends to honor such drawing, and the Borrower shall reimburse the applicable Facing Agent on the day on which such drawing is honored in an amount in same day funds equal to the amount of such drawing; PROVIDED, HOWEVER, that, anything contained in this Agreement to the contrary notwithstanding, (i) unless the Borrower shall have notified the Administrative Agent and the applicable Facing Agent prior to 10:00 a.m. (New York City time) on the Business Day the applicable Facing Agent intends to honor such drawing that the Borrower intends to reimburse the applicable Facing Agent for the amount of such drawing with funds other than the proceeds of Revolving Loans, the Borrower shall be deemed to have timely given a Notice of Borrowing to the Administrative Agent requesting each Revolving Lender to make (A) as to Domestic Letters of Credit, Revolving Loans which are Base Rate Loans, and (B) as to Multicurrency Letters of Credit, Revolving Loans which are Eurocurrency Loans denominated in Euro with an Interest Period of 30 days, on the date on which such drawing is honored in an amount equal to the Dollar Equivalent of the amount of such drawing and the Administrative Agent shall, if such Notice of Borrowing is deemed given, promptly notify the Lenders thereof and (ii) unless any of the events described in SECTION 10.1(e) or 10.1(f) shall have occurred or in the event that such unreimbursed drawing is in an amount that is less than the Minimum Borrowing Amount for a Revolving Loan (in which events the procedures of SECTION 2.10(d) shall apply), each such Lender shall, on the date such drawing is honored, make (A) as to Domestic Letters of Credit, Revolving Loans which are Base Rate Loans, and (B) as to Multicurrency Letters of Credit, Revolving Loans which are Eurocurrency Loans denominated in Euro with an Interest Period of 30 days, in each case, in the amount of its Revolver Pro Rata Share of the Dollar Equivalent of such drawing, the proceeds of which shall be applied directly by the Administrative Agent to reimburse the applicable Facing Agent for the amount of such drawing; and PROVIDED, FURTHER, that, if for any reason, proceeds of 57 Revolving Loans are not received by the applicable Facing Agent on such date in an amount equal to the amount of the Dollar Equivalent of such drawing, the Borrower shall reimburse the applicable Facing Agent, on the Business Day immediately following the date such drawing is honored, in an amount in same day funds equal to the excess of the amount of the Dollar Equivalent of such drawing over the Dollar Equivalent of the amount of such Revolving Loans, if any, which are so received, plus accrued interest on such amount at the rate set forth in SECTION 3.1(a). (d) LENDERS' PARTICIPATION IN LETTERS OF CREDIT. In the event that the Borrower shall fail to reimburse the applicable Facing Agent as provided in SECTION 2.10(c) in an amount equal to the amount of any drawing honored by the applicable Facing Agent under a Letter of Credit issued by it in accordance with the terms hereof, the applicable Facing Agent shall promptly notify the Administrative Agent and the Administrative Agent shall promptly notify each Revolving Lender of the unreimbursed amount of such drawing and of such Lender's respective participation therein. Each such Revolving Lender shall purchase (x) a participation interest in such Domestic LC Obligation and shall make available to the applicable Facing Agent in Dollars, an amount equal to its Revolver Pro Rata Share of such drawing in same day funds, at the office of the applicable Facing Agent specified in such notice, and (y) a participation interest in such Multicurrency LC Obligation and shall make available to the applicable Facing Agent, in Euro, an amount equal to its Revolver Pro Rata Share of such drawing in same day funds, at the office of the applicable Facing Agent specified in such notice, in each case not later than 1:00 p.m. (New York City time) on the Business Day after the date such Lender is notified by the Administrative Agent. In the event that any such Lender fails to make available to the applicable Facing Agent the amount of such Lender's participation in such Letter of Credit as provided in this SECTION 2.10(d), the applicable Facing Agent shall be entitled to recover such amount on demand from such Lender together with interest (x) at the Federal Funds Rate for two (2) Business Days and thereafter at the Base Rate for such payment obligations denominated in Dollars and (y) at the rate customary in Euro for settlement of similar interbank obligations, as quoted by the Facing Agent for two (2) Business Days and thereafter at the rate per annum applicable to Eurocurrency Loans having an Interest Period of seven days for such payment obligations denominated in Euro. Nothing in this SECTION 2.10(d) shall be deemed to prejudice the right of any Lender to recover from the applicable Facing Agent any amounts made available by such Lender to the applicable Facing Agent pursuant to this SECTION 2.10(d) in the event that it is determined by a court of competent jurisdiction that the payment with respect to a Letter of Credit by the applicable Facing Agent in respect of which payment was made by such Lender constituted gross negligence or willful misconduct on the part of the applicable Facing Agent. The applicable Facing Agent shall distribute to each other Lender which has paid all amounts payable by it under this SECTION 2.10(d) with respect to any Letter of Credit issued by the applicable Facing Agent such other Revolving Lender's Revolver Pro Rata Share of all payments received by the applicable Facing Agent from the Borrower in reimbursement of drawings honored by the applicable Facing Agent under such Letter of Credit when such payments are received. Each Lender's obligation to make Revolving Loans pursuant to SECTION 2.10(c) or to 58 purchase participations pursuant to this SECTION 2.10(d) as a result of a drawing under a Letter of Credit shall be absolute and unconditional and without recourse to the applicable Facing Agent and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Facing Agent, the Borrower or any other Person for any reason whatsoever; (ii) the occurrence or continuance of an Event of Default or a Material Adverse Effect; or (iii) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. (e) FEES FOR LETTERS OF CREDIT. (i) FACING AGENT FEES. The Borrower agrees to pay the following amount to the applicable Facing Agent with respect to the Letters of Credit issued by it for the account of the Borrower: (A) with respect to drawings made under any Letter of Credit, interest, payable on demand, on the amount paid by Facing Agent in respect of each such drawing from the date a drawing is honored up to (but not including) the date such amount is reimbursed by the Borrower (including any such reimbursement out of the proceeds of Revolving Loans or pursuant to SECTION 2.10(c)) at a rate which is at all times equal to 2% per annum in excess of the Base Rate; (B) with respect to the issuance or amendment of each Letter of Credit and each payment made thereunder, documentary and processing charges in accordance with the applicable Facing Agent's standard schedule for such charges in effect at the time of such issuance, amendment, transfer or payment, as the case may be; and (C) a facing fee payable to the applicable Facing Agent for the applicable Letters of Credit equal to 0.25% per annum of outstanding LC Obligations payable with respect to the maximum Stated Amount under such outstanding Letters of Credit payable in arrears on each Quarterly Payment Date, on the Revolver Termination Date and thereafter, on demand together with customary issuance and payment charges payable pursuant to clause (B) above; PROVIDED, HOWEVER, if that calculation of the facing fee in the manner set forth above would result in a facing fee of less than $500 per year per Letter of Credit, the Borrower shall be obligated to pay such additional amount to such Facing Agent so as to provide for a minimum facing fee of $500 per year per Letter of Credit. The facing fee shall be computed from the first day of issuance of each Letter of Credit and on the basis of the actual number of days elapsed over a year of 360 days. (ii) PARTICIPATING LENDER FEES. The Borrower agrees to pay to the Administrative Agent for distribution to each participating Revolving Lender in respect of all Letters of Credit outstanding such Revolving Lender's Revolver Pro Rata Share of a commission equal to the then Applicable Eurocurrency Margin for Revolving Loans per annum with respect 59 to the maximum Stated Amount under such outstanding Letters of Credit (the "LC COMMISSION"), payable in arrears on each Quarterly Payment Date, on the Revolver Termination Date and thereafter, on demand. The LC Commission shall be computed from the first day of issuance of each Letter of Credit and on the basis of the actual number of days elapsed over a year of 360 days. Promptly upon receipt by a Facing Agent or the Administrative Agent of any amount described in clause (i)(A) or (ii) of this SECTION 2.10(e), the applicable Facing Agent or the Administrative Agent shall distribute to each Revolving Lender its Revolver Pro Rata Share of such amount as long as, in the case of amounts described in clause (i)(A), such Lender has reimbursed the applicable Facing Agent in accordance with SECTION 2.10(c) or (d). Amounts payable under clause (i)(B) and (C) of this SECTION 2.10(e) shall be paid directly to the applicable Facing Agent. Amounts payable under clause (i) or (ii) of this SECTION 2.10(e) shall be paid in Dollars in the Dollar Equivalent of the amount of such fee calculated in the currency in which such Letter of Credit is denominated. (f) LC OBLIGATIONS UNCONDITIONAL. The obligation of the Borrower to reimburse a Facing Agent (or any Lender that has purchased a participation from or made a Loan to enable the Borrower to reimburse the applicable Facing Agent) for drawings made under any Letter of Credit issued by it and the obligations of each Lender under SECTION 2.10(d) with respect thereto shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including, without limitation, any of the following circumstances: (i) any lack of validity or enforceability of such Letter of Credit; (ii) the existence of any claim, setoff, defense or other right which the Borrower or any of its Affiliates may have at any time against a beneficiary or any transferee of such Letter of Credit (or any persons or entities for which any such beneficiary or transferee may be acting), the applicable Facing Agent, any Lender or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between the Borrower or one of its Subsidiaries and the beneficiary of such Letter of Credit); (iii) any draft, demand, certificate or any other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by the applicable Facing Agent under such Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit; 60 (v) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing; or (vi) the fact that an Event of Default or an Unmatured Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, neither the Borrower nor the Lenders (other than the applicable Facing Agent in its capacity as such) shall be liable for any obligation resulting from the gross negligence or willful misconduct of the applicable Facing Agent, as determined by a court of competent jurisdiction, with respect to any Letter of Credit. (g) INDEMNIFICATION. In addition to amounts payable as elsewhere provided in this Agreement, the Borrower hereby agrees to protect, indemnify, pay and save the applicable Facing Agent and the Lenders harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including Attorney Costs) (other than for Taxes, which shall be covered by SECTION 4.7) which the applicable Facing Agent and the Lenders may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of the Letters of Credit, other than as a result of the gross negligence or willful misconduct of the applicable Facing Agent, as determined by a court of competent jurisdiction, or (ii) the failure of the applicable Facing Agent to honor a drawing under any Letter of Credit as a result of any act or omissions, whether rightful or wrongful, of any present or future de jure or de facto Governmental Authority (all such acts or omissions herein called "GOVERNMENT ACTS") other than arising out of the gross negligence or willful misconduct, as determined by a court of competent jurisdiction, of the applicable Facing Agent. As between the Borrower on the one hand, and the applicable Facing Agent and the Lenders, on the other hand, the Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit issued by the applicable Facing Agent by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, neither the applicable Facing Agent nor any of the Lenders shall be responsible: (i) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of or any drawing under such Letters of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, or otherwise, whether or not they be in cipher; (v) for errors in interpretation of technical terms; (vi) for any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) for the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; and (viii) for any consequences arising from 61 causes beyond the control of the applicable Facing Agent, including, without limitation, any Government Acts. None of the above shall effect, impair, or prevent the vesting of any of the applicable Facing Agent's or any Lender's rights or powers hereunder. In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by the applicable Facing Agent under or in connection with the Letters of Credit issued by it or the related certificates, if taken or omitted in good faith, shall not put the applicable Facing Agent under any resulting liability to the Borrower. Notwithstanding anything to the contrary contained in this Agreement, the Borrower shall have no obligation to indemnify or hold harmless the applicable Facing Agent in respect of any claims, demands, liabilities, damages, losses, costs, charges or expenses (including Attorney Costs) incurred by the applicable Facing Agent to the extent arising out of the gross negligence or willful misconduct of the applicable Facing Agent, as determined by a court of competent jurisdiction. The right of indemnification in the first paragraph of this SECTION 2.10(g) shall not prejudice any rights that the Borrower may otherwise have against the applicable Facing Agent with respect to a Letter of Credit issued hereunder. (h) STATED AMOUNT. The Stated Amount of each Letter of Credit shall not be less than the Dollar Equivalent of One Hundred Thousand Dollars ($100,000) or such lesser amount as the applicable Facing Agent has agreed to. (i) INCREASED COSTS. If at any time after Initial Borrowing Date, any Facing Agent or any Lender determines that the introduction of or any change in any applicable law, rule, regulation, order, guideline or request or in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by the applicable Facing Agent or such Lender with any request or directive by any such authority (whether or not having the force of law), shall either (i) impose, modify or make applicable any reserve, deposit, capital adequacy or similar requirement against letters of credit issued by the applicable Facing Agent or participated in by any Lender, or (ii) impose on the applicable Facing Agent or any Lender any other conditions relating, directly or indirectly, to the provisions of this Agreement relating to Letters of Credit or any Letter of Credit; and the result of any of the foregoing is to increase the cost to the applicable Facing Agent or any Lender of issuing, maintaining or participating in any Letter of Credit, or reduce the amount of any sum received or receivable by the applicable Facing Agent or any Lender hereunder or reduce the rate of return on its capital with respect to Letters of Credit, then, upon demand to the Borrower by the applicable Facing Agent or any Lender (a copy of which demand shall be sent by the applicable Facing Agent or such Lender to the Administrative Agent), the Borrower shall pay to the applicable Facing Agent or such Lender, as the case may be, such additional amount or amounts as will compensate the applicable Facing Agent or such Lender for such increased cost or reduction in the amount receivable or reduction on the rate of return on its capital. In determining such additional amounts pursuant to the preceding sentence, the applicable Facing Agent or such Lender will act reasonably and in good faith and will, to the extent the increased 62 costs or reductions in amounts receivable or reductions in rates of return relate to Facing Agent's or such Lender's letters of credit in general and are not specifically attributable to the Letters of Credit hereunder, use averaging and attribution methods which are reasonable and which cover all letters of credit similar to the Letters of Credit issued by or participated in by the applicable Facing Agent or such Lender whether or not the documentation for such other Letters of Credit permit the applicable Facing Agent or such Lender to receive amounts of the type described in this SECTION 2.10(i). The applicable Facing Agent or any Lender, upon determining that any additional amounts will be payable pursuant to this SECTION 2.10(i), will give prompt written notice thereof to the Borrower, which notice shall include a certificate submitted to the Borrower by the applicable Facing Agent or such Lender (a copy of which certificate shall be sent by the applicable Facing Agent or such Lender to the Administrative Agent), setting forth in reasonable detail the basis for the calculation of such additional amount or amounts necessary to compensate the applicable Facing Agent or such Lender, although failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this SECTION 2.10(i); PROVIDED, HOWEVER, if the applicable Facing Agent or such Lender, as applicable, has intentionally withheld or delayed such notice, the applicable Facing Agent or such Lender, as the case may be, shall not be entitled to receive additional amounts pursuant to this SECTION 2.10(i) for periods occurring prior to the 180th day before the giving of such notice. The certificate required to be delivered pursuant to this SECTION 2.10(i) shall, absent manifest error, be final, conclusive and binding on the Borrower. (j) CASH COLLATERALIZATION OF LETTERS OF CREDIT. To the extent that (i) the expiration date of any Letter of Credit extends beyond the Revolver Termination Date and (ii) the Borrower, two Business Days prior to the Revolver Termination Date, has notified in writing the Facing Agent which issued such Letter of Credit that the Borrower desires to keep such Letter of Credit outstanding after the Revolver Termination Date, then, the Borrower shall, by no later than the Revolver Termination Date, deposit in an account with the applicable Facing Agent as cash collateral an amount equal to 110% of the LC Obligations of each such Letter of Credit to remain outstanding in Dollars and in cash, as of the Revolver Termination Date, plus any accrued and unpaid interest thereon. Each such deposit pursuant to this SECTION 2.10(j) shall be held by the applicable Facing Agent as collateral for the payment and performance of the obligations of the Borrower, with respect to such Letter of Credit. The applicable Facing 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 made at the option and discretion of the applicable Facing Agent and at the Borrower's 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 applicable Facing Agent to reimburse itself for drawings on such Letter of Credit for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Obligations related thereto. At such time as a Letter of Credit shall expire by its terms or otherwise be cancelled and returned to the applicable Facing Agent by the beneficiary thereof, the Facing Agent shall, to the extent amounts 63 held in the cash collateral account relating to such Letter of Credit have not been applied against the Obligations of the Borrower as provided herein, promptly return to the Borrower any amounts remaining in such account. Notwithstanding the foregoing, each Facing Agent, the Administrative Agent, the Borrower and the Lenders hereby agree and acknowledge that at such time as the Revolver Termination Date shall have occurred and a Facing Agent has received cash collateral pursuant to this SECTION 2.10(j), no Revolving Lender shall be required to participate in any Letter of Credit or drawing thereunder or to provide Revolving Loans to reimburse the applicable Facing Agent for the amount of any drawing made under any Letter of Credit outstanding after the Revolver Termination Date. ARTICLE III INTEREST AND FEES Section 3.1. INTEREST. (a) BASE RATE LOANS. The Borrower agrees to pay interest in respect of the unpaid principal amount of each Base Rate Loan at a rate per annum equal to the Base Rate PLUS the Applicable Base Rate Margin from the date the proceeds thereof are made available to the Borrower (or, if such Base Rate Loan was converted from a Eurocurrency Loan, the date of such conversion) until the earlier of (i) the maturity (whether by acceleration or otherwise) of such Base Rate Loan or (ii) the conversion of such Base Rate Loan to a Eurocurrency Loan pursuant to SECTION 2.6. (b) EUROCURRENCY LOANS. The Borrower agrees to pay interest in respect of the unpaid principal amount of each Eurocurrency Loan from the date the proceeds thereof are made available to the Borrower (or, if such Eurocurrency Loan was converted from a Base Rate Loan, the date of such conversion) until the earlier of (i) the maturity (whether by acceleration or otherwise) of such Eurocurrency Loan or (ii) the conversion of such Eurocurrency Loan to a Base Rate Loan pursuant to SECTION 2.6, at a rate per annum equal to the relevant Eurocurrency Rate PLUS the Applicable Eurocurrency Margin. (c) PAYMENT OF INTEREST. Interest on each Loan shall be payable in arrears on each Interest Payment Date; PROVIDED, HOWEVER, that interest accruing pursuant to SECTION 3.1(e) and as otherwise set forth in the second to last sentence of this SECTION 3.1(c) shall be payable from time to time on demand. Interest shall also be payable on all then outstanding Revolving Loans on the Revolver Termination Date and on all Loans and Revolving Loans on the date of repayment (including prepayment) thereof (except that voluntary prepayments of Swing Line Loans and Revolving Loans that are Base Rate Loans made pursuant to SECTION 4.3 on any day other than a Quarterly Payment Date or the Revolver Termination Date need not be made with accrued interest from the most recent Quarterly Payment Date, PROVIDED such accrued interest is paid on the next Quarterly Payment Date) and on the date of maturity (by acceleration or 64 otherwise) of such Loans. During the existence of any Event of Default, interest on any Loan shall be payable on demand. Interest to be paid with respect to Loans denominated in (x) Dollars shall be paid in Dollars and (y) in Euro shall be in Euro. (d) NOTIFICATION OF RATE. The Administrative Agent, upon determining the interest rate for any Borrowing of Eurocurrency Loans for any Interest Period, shall promptly notify the Borrower (by no later than one Business Day following the date of such determination) and the Lenders thereof. Such determination shall, absent manifest error and subject to SECTION 3.6, be final, conclusive and binding upon all parties hereto. (e) DEFAULT INTEREST. Notwithstanding the rates of interest specified herein, effective on the date of the occurrence of any Event of Default and for so long thereafter as any such Event of Default shall be continuing, and effective immediately upon any failure to pay any Obligations or any other amounts due under any of the Loan Documents when due, whether by acceleration or otherwise, the principal balance of each Loan then outstanding and, to the extent permitted by applicable law, any interest payment on each Loan not paid when due or other amounts then due and payable shall bear interest payable on demand, after as well as before judgment, at a rate per annum equal to the Default Rate. (f) MAXIMUM INTEREST. If any interest payment or other charge or fee payable hereunder exceeds the maximum amount then permitted by applicable law, the Borrower shall be obligated to pay the maximum amount then permitted by applicable law and the Borrower shall continue to pay the maximum amount from time to time permitted by applicable law until all such interest payments and other charges and fees otherwise due hereunder (in the absence of such restraint imposed by applicable law) have been paid in full. Section 3.2. FEES. (a) COMMITMENT FEES. The Borrower shall pay to the Administrative Agent for pro rata distribution to each Non-Defaulting Lender having a Revolving Commitment a commitment fee (the "COMMITMENT FEE"), payable in Dollars, for the period commencing on the Initial Borrowing Date to and including the Revolver Termination Date or the earlier termination of the Revolving Commitments (and repayment in full of the Revolving Loans and payment in full, or cash collateralization by the deposit of cash into the Collateral Account in amounts and pursuant to arrangements reasonably satisfactory to the Administrative Agent, of the LC Obligations), computed at a rate equal to the Applicable Commitment Fee Percentage per annum on the average daily Total Available Revolving Commitment (with the Available Revolving Commitment of each Lender determined without reduction for such Lender's Revolver Pro Rata Share of the Assigned Dollar Value of Swing Line Loans outstanding). Unless otherwise specified, accrued Commitment Fees shall be due and payable (i) on each Quarterly Payment Date occurring after the Initial Borrowing Date, (ii) on the Revolver Termination Date and (iii) 65 upon any reduction or termination in whole or in part of the Revolving Commitments (but only, in the case of a reduction, on the portion of the Revolving Commitments then being reduced). (b) AGENCY FEES. The Borrower shall pay to the Administrative Agent for its own account and for the account of the Agents, such other fees in the amount and at the times set forth in any letter agreement between the Borrower and the Agents. Section 3.3. COMPUTATION OF INTEREST AND FEES. Interest on all Loans and fees payable hereunder shall be computed on the basis of the actual number of days elapsed over a year of 360 days; PROVIDED that interest on all Base Rate Loans shall be computed on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be. Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at any time and from time to time upon request of the Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate applicable to Domestic Revolving Loans pursuant to this Agreement. Each change in the Applicable Base Rate Margin or Applicable Eurodollar Margin or the Applicable Commitment Fee Percentage or any change in the LC Commission as a result of a change in the Borrower's Most Recent Leverage Ratio shall become effective on the date upon which such change in such ratio occurs. Section 3.4. INTEREST PERIODS. At the time it gives any Notice of Borrowing or a Notice of Conversion or Continuation with respect to Eurocurrency Loans, the Borrower shall elect, by giving the Administrative Agent written notice, the Interest Period (each an "INTEREST PERIOD") which Interest Period shall, at the option of the Borrower, be one, two, three or six months or, if available or otherwise satisfactory to each of the applicable Lenders (as determined by each such applicable Lender in its sole discretion) a nine or twelve month period, PROVIDED that: (i) all Eurocurrency Loans comprising a Borrowing shall at all times have the same Interest Period; (ii) the initial Interest Period for any Eurocurrency Loan shall commence on the date of such Borrowing of such Eurocurrency Loan (including the date of any conversion thereto from a Loan of a different Type) and each Interest Period occurring thereafter in respect of such Eurocurrency Loan shall commence on the last day of the immediately preceding Interest Period; (iii) if any Interest Period relating to a Eurocurrency Loan begins on a day for which there is no numerically corresponding day in the calendar month at the end of such 66 Interest Period, such Interest Period shall end on the last Business Day of such calendar month; (iv) if any Interest Period would otherwise expire on a day which is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; PROVIDED, HOWEVER, that if any Interest Period for a Eurocurrency Loan would otherwise expire on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day; (v) no Interest Period (a) with respect to any Loan (other than a Multicurrency Revolving Loans) may be selected at any time when an Unmatured Event of Default or Event of Default is then in existence and (b) with respect to any Multicurrency Revolving Loan in excess of one month may be selected at any time when an Unmatured Event of Default or Event of Default is then in existence; (vi) no Interest Period shall extend beyond the Term A Loan Maturity Date for any Term A Loan, the New Term B Loan Maturity Date for any New Term B Loan or the Revolver Termination Date for any Revolving Loan; and (vii) no Interest Period in respect to any Borrowing of Term A Loans or New Term B Loans, as the case may be, shall be selected which extends beyond any date upon which a mandatory repayment of such Term Loans will be required to be made under SECTION 4.4(b) or (c), as the case may be, if the aggregate principal amount of Term A Loans or New Term B Loans, as the case may be, which have Interest Periods which will expire after such date will be in excess of the aggregate principal amount of Term A Loans or New Term B Loans, as the case may be, then outstanding less the aggregate amount of such required prepayment. Notwithstanding anything to the contrary herein, with respect to the New Term B Facility, the Borrower may only have Base Rate Loans and Eurocurrency Loans with a one month Interest Period prior to the Syndicated Date. Section 3.5. COMPENSATION FOR FUNDING LOSSES. The Borrower shall compensate each Lender, upon its written request (which request shall set forth the basis for requesting such amounts, showing the calculation thereof in reasonable detail), for all losses, expenses and liabilities (including, without limitation, any interest paid by such Lender to lenders of funds borrowed by it to make or carry its Eurocurrency Loans to the extent not recovered by the Lender in connection with the liquidation or re-employment of such funds and including the compensation payable by such Lender to a Participant) and any loss sustained by such Lender in connection with the liquidation or re-employment of such funds (including, without limitation, a return on such liquidation or re-employment that would result in such Lender receiving less than it would have received had such Eurocurrency Loan remained outstanding until the last day of the Interest Period applicable to such Eurocurrency Loans) which 67 such Lender may sustain as a result of: (i) for any reason (other than a default by such Lender or the Administrative Agent) a continuation or Borrowing of, or conversion from or into, Eurocurrency Loans does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion or Continuation (whether or not withdrawn); (ii) any payment, prepayment or conversion or continuation of any of its Eurocurrency Loans occurring for any reason whatsoever on a date which is not the last day of an Interest Period applicable thereto; (iii) any repayment of any of its Eurocurrency Loans not being made on the date specified in a notice of payment given by the Borrower; or (iv) (A) any other failure by the Borrower to repay its Eurocurrency Loans when required by the terms of this Agreement or (B) an election made by the Borrower pursuant to SECTION 3.7. A written notice as to additional amounts owed such Lender under this SECTION 3.5 and delivered to the Borrower and the Administrative Agent by such Lender shall be delivered within 30 days of such event and shall, absent manifest error, be final, conclusive and binding for all purposes. Calculation of all amounts payable to a Lender under this SECTION 3.5 shall be made as though that Lender had actually funded its relevant Eurocurrency Loan through the purchase of a Eurocurrency deposit bearing interest at the Eurocurrency Rate in an amount equal to the amount of that Loan, having a maturity comparable to the relevant Interest Period and through the transfer of such Eurocurrency deposit from an offshore office of that Lender to a domestic office of that Lender in the United States of America; PROVIDED, HOWEVER, that each Lender may fund each of its Eurocurrency Loans in any manner it sees fit and the foregoing assumption shall be utilized only for the calculation of amounts payable under this SECTION 3.5. Section 3.6. INCREASED COSTS, ILLEGALITY, ETC. (a) GENERALLY. In the event that any Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by the Administrative Agent): (i) on any Interest Rate Determination Date that, by reason of any changes arising after the Initial Borrowing Date affecting the interbank Eurocurrency market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurocurrency Rate; or (ii) at any time that any Lender shall incur increased costs or reduction in the amounts received or receivable hereunder with respect to any Eurocurrency Loan because of (x) any change since the Initial Borrowing Date in any applicable law or governmental rule, regulation, order or guideline (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order or guideline, such as, for example, but not limited to: (A) a change in the basis of taxation of payments to any Lender of the principal of or interest on the Notes or any other amounts payable hereunder (except for taxes described in SECTIONS 4.7(a)(i) through (IV)) or (B) a change in official reserve requirements (but, in all events, excluding reserves required under 68 Regulation D to the extent included in the computation of the Eurocurrency Rate) and/or (y) other circumstances since the Initial Borrowing Date affecting such Lender or the interbank Eurocurrency market or the position of such Lender in such market (excluding, however, differences in a Lender's cost of funds from those of the Administrative Agent which are solely the result of credit differences between such Lender and the Administrative Agent); or (iii) at any time that the making or continuance of any Eurocurrency Loan has been made (x) unlawful by any law or governmental rule, regulation or order, (y) impossible by compliance by any Lender in good faith with any governmental guideline (whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the Initial Borrowing Date which materially and adversely affects the interbank Eurocurrency market; then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i) above) shall promptly give notice (by telephone confirmed in writing) to the Borrower and, except in the case of clause (i) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurocurrency Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion or Continuation given by the Borrower with respect to Eurocurrency Loans (other than with respect to conversions to Base Rate Loans) which have not yet been incurred (including by way of conversion) shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to such Lender, upon written demand therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing the basis for the calculation thereof, submitted to the Borrower by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto; however the failure to give any such notice shall not release or diminish the Borrower's obligations to pay additional amounts pursuant to this SECTION 3.6(a) provided that the Borrower shall not be required to compensate such Lender pursuant to this section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Borrower of the increased costs or reductions and of such Lender's intention to claim compensation therefor; PROVIDED FURTHER that, if the change in law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in SECTION 3.6(b) as promptly as possible and, in any event, within the time period required by law. In determining such additional amounts pursuant to clause (y) of the immediately preceding sentence, each Lender shall act reasonably and in good faith and will, to the extent the increased costs or reductions in amounts receivable relate to such Lender's loans in 69 general and are not specifically attributable to a Loan hereunder, use averaging and attribution methods which are reasonable and which cover all loans similar to the Loans made by such Lender whether or not the loan documentation for such other loans permits the Lender to receive increased costs of the type described in this SECTION 3.6(a). (b) EUROCURRENCY LOANS. At any time that any Eurocurrency Loan is affected by the circumstances described in SECTION 3.6(a)(ii) or (iii), the Borrower may (and, in the case of a Eurocurrency Loan affected by the circumstances described in SECTION 3.6(a)(iii), shall) either (i) if the affected Eurocurrency Loan is then being made initially or pursuant to a conversion, by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that the Borrower was notified by the affected Lender or the Administrative Agent pursuant to SECTION 3.6(a)(ii) or (iii), cancel the respective Borrowing, or (ii) if the affected Eurocurrency Loan is then outstanding, upon at least three (3) Business Days' written notice to Administrative Agent, require the affected Lender to (A) if denominated in Dollars, convert such Eurocurrency Loan into a Base Rate Loan, and (B) if denominated in Euro, either (x) repay such Loan or (y) convert such Loan to a Base Rate Loan denominated in Dollars, PROVIDED, that if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this SECTION 3.6(b). (c) CAPITAL REQUIREMENTS. If any Lender determines that, after the Initial Borrowing Date, the introduction of or any change in any applicable law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) concerning capital adequacy, or any change in (after the Initial Borrowing Date) interpretation or administration thereof by any Governmental Authority, central bank or comparable agency, will have the effect of increasing the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender based on the existence of such Lender's Commitments hereunder or its obligations hereunder, then the Borrower shall pay to such Lender, upon its written notice as hereafter described, such additional amounts as shall be required to compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in the rate of return to such Lender or such other corporation as a result of such increase of capital. In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable and which will, to the extent the increased costs or reduction in the rate of return relates to such Lender's commitments or obligations in general and are not specifically attributable to the Commitments and obligations hereunder, cover all commitments and obligations similar to the Commitments and obligations of such Lender hereunder whether or not the loan documentation for such other commitments or obligations permits the Lender to make the determination specified in this SECTION 3.6(c), and such Lender's determination of compensation owing under this SECTION 3.6(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto. Each Lender, upon determining that any additional amounts will be payable pursuant to this SECTION 3.6(c), will give prompt written notice thereof to the Borrower, which notice shall show the basis for calculation of such additional amounts, although the failure to 70 give any such notice shall not release or diminish any of the Borrower's obligations to pay additional amounts pursuant to this SECTION 3.6(c) PROVIDED that the Borrower shall not be required to compensate such Lender pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Borrower of the increased costs or reductions and of such Lender's intention to claim compensation thereof; PROVIDED FURTHER that, if the change in law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. (d) CHANGE OF LENDING OFFICE. Each Lender which is or will be owed compensation pursuant to SECTION 3.6(a) or (c) or SECTION 4.7 will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to cause a different branch or Affiliate to make or continue a Loan or Letter of Credit if such designation will avoid the need for, or materially reduce the amount of, such compensation to such Lender and will not, in the judgment of such Lender, be otherwise disadvantageous to such Lender as determined by such Lender in its sole discretion. Nothing in this SECTION 3.6(d) shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided for herein. Section 3.7. REPLACEMENT OF AFFECTED LENDERS. (a) If any Revolving Lender becomes a Defaulting Lender or otherwise defaults in its Obligations to make Loans or fund Unpaid Drawings, (y) if any Lender (or in the case of SECTION 2.10(i), any Facing Agent) is owed increased costs under SECTION 2.10(i), SECTION 3.6(a)(ii) or (iii), or SECTION 3.6(c), or the Borrower is required to make any payments under SECTION 4.7(c) to any Lender materially in excess of those to the other Lenders or (z) as provided in SECTION 12.1(b) in the case of certain refusals by a Lender to consent to certain proposed amendments, changes, supplements, waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders, the Borrower shall have the right, if no Event of Default or Unmatured Event of Default then exists, to replace such Lender (the "REPLACED LENDER") with one or more other Eligible Assignees, none of whom shall constitute a Defaulting Lender at the time of such replacement (collectively, the "REPLACEMENT LENDER") acceptable to the Administrative Agent, PROVIDED that (i) at the time of any replacement pursuant to this SECTION 3.7, the Replaced Lender and Replacement Lender shall enter into one or more assignment agreements, in form and substance satisfactory to such parties and the Administrative Agent, pursuant to which the Replacement Lender shall acquire all of the Commitments and outstanding Loans of, and participation in Letters of Credit and Swing Line Loans by, the Replaced Lender and (ii) all obligations of the Borrower owing to the Replaced Lender (including, without limitation, such increased costs and excluding those specifically described in clause (i) above in respect of which the assignment purchase price has been, or is concurrently being paid) shall be paid in full to such Replaced Lender concurrently with such replacement. Upon the execution of the respective assignment documentation, the payment of amounts referred to in clauses (i) and (ii) above and, if so requested by the Replacement Lender, 71 delivery to the Replacement Lender of the appropriate Note or Notes executed by the Borrower, the Replacement Lender shall become a Lender hereunder and, unless the Replaced Lender continues to have outstanding Loans hereunder, the Replaced Lender shall cease to constitute a Lender hereunder, except with respect to indemnification provisions under this Agreement, which shall survive as to such Replaced Lender. Notwithstanding anything to the contrary contained above, no Lender that acts as a Facing Agent may be replaced hereunder at any time during which it has Letters of Credit outstanding hereunder unless arrangements satisfactory to, such Facing Agent (including the furnishing of a standby letter of credit in form and substance, and issued by an issuer satisfactory to such Facing Agent or the depositing of cash collateral into the Collateral Account in amounts and pursuant to arrangements satisfactory to such Facing Agent) have been made with respect to such outstanding Letters of Credit. Section 3.8. BORROWER CONTROLS ON NON-DOLLAR LOANS; PREPAYMENTS. (a) The Borrower will implement and maintain internal accounting controls to monitor the borrowings and repayments of Multicurrency Revolving Loans and the issuance of and drawings under Multicurrency Letters of Credit with the object of preventing any request for an extension of credit that would result in the Borrower failing to comply with this Agreement, and of promptly identifying and remedying any circumstance in accordance with clause (c) below where, by reason of changes in exchange rates, the Borrower fails to be in compliance with such subsection. (b) The Administrative Agent will calculate the Multicurrency Outstandings (i) three (3) Business Days prior to the date of a proposed Borrowing or, if applicable, date of conversion/continuation of a Loan, (ii) on and as of the first Business Day of each calendar month, and (iii) any other Business Day elected by the Administrative Agent in its discretion or upon instruction of the Required Lenders. Each day upon or as of which the Administrative Agent determines the Multicurrency Outstandings described in the preceding clauses (i), (ii) and (iii) is herein described as a "COMPUTATION DATE" with respect to each Loan or LC Obligation for which a Dollar Equivalent amount is determined on or as of such day. (c) In the event that the Borrower (in accordance with paragraph (a) above) or the Administrative Agent (in accordance with (b) above) determines that the Multicurrency Outstandings exceed the Multicurrency Commitment by more than 5%, the Borrower will, within four (4) Business Days of making such determination or of the Computation Date, as applicable, make or cause to be made such repayments or prepayments of Multicurrency Revolving Loans or cash collateralize Multicurrency LC Obligations on terms and conditions satisfactory to the Administrative Agent, pursuant to SECTION 4.4(a), as shall be necessary to reduce the Multicurrency Outstandings to less than or equal to the Multicurrency Commitment. 72 (d) Any prepayment pursuant to subsection (c) above shall be accompanied by payment of amounts payable, if any, pursuant to SECTION 3.5. ARTICLE IV REDUCTION OF COMMITMENTS; PAYMENTS AND PREPAYMENTS Section 4.1. VOLUNTARY REDUCTION OF COMMITMENTS. (a) Upon at least three (3) Business Days' prior written notice (or telephonic notice confirmed in writing) to the Administrative Agent at the Notice Office (which notice the Administrative Agent shall promptly transmit to each Lender), the Borrower shall have the right, without premium or penalty, to terminate the unutilized portion of the Revolving Commitments and/or, the Swing Line Commitment, as the case may be, in part or in whole; PROVIDED that (w) any such voluntary termination of the Revolving Commitments shall apply to proportionately and permanently reduce the Revolving Commitment of each Revolving Lender, (x) any partial voluntary reduction pursuant to this SECTION 4.1 shall be in the amount of at least $1,000,000 and integral multiples of $500,000 in excess of that amount, and (y) any such voluntary termination of the Revolving Commitments shall occur simultaneously with a voluntary prepayment pursuant to SECTION 4.3, such that the total of the Revolving Commitments shall not be reduced below the aggregate Assigned Dollar Value of outstanding Revolving Loans plus the Assigned Dollar Value of the aggregate LC Obligations and the Assigned Dollar Value of the Swing Line Loans. (b) In the event of certain refusals by a Lender to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders as provided in SECTION 12.1(b), the Borrower shall have the right, upon five (5) Business Days' prior written notice to the Administrative Agent (which notice the Administrative Agent shall promptly transmit to each of the Lenders), to terminate the entire Revolving Commitment of such Lender, so long as all Loans, together with accrued and unpaid interest, fees and all other amounts, due and owing to such Lender are repaid concurrently with the effectiveness of such termination at which time SCHEDULE 1.1(a) shall be deemed modified to reflect such changed amounts pursuant to SECTION 4.3(b) and the Borrower cash collateralizes such Lender's Revolver Pro Rata Share of the Assigned Dollar Value of the LC Obligations (in the manner set forth in SECTION 4.4(a)) then outstanding. At such time, such Lender shall no longer constitute a "Lender" for purposes of this Agreement, except with respect to indemnifications in favor of such Lender under this Agreement which shall survive as to such repaid Lender. 73 Section 4.2. Mandatory Reductions of Commitments. (a) REDUCTION OF REVOLVING COMMITMENT. The Revolving Commitments shall be reduced at the time and in the amounts required to be reduced pursuant to SECTION 4.4(d) and (j), subject to the provisions of this Agreement. (b) REDUCTION OF NEW TERM B COMMITMENTS. The New Term B Commitments shall terminate on the Amendment/Restatement Effective Date, after giving effect to the Borrowing of the New Term B Loans on such date. (c) PROPORTIONATE REDUCTIONS. Each reduction or adjustment to the Term Commitments or the Revolving Commitments pursuant to this SECTION 4.2 shall apply proportionately to the New Term B Commitment or the Revolving Commitment, as the case may be, of each Lender. Section 4.3. VOLUNTARY PREPAYMENTS. (a) The Borrower shall have the right to prepay the Loans in whole or in part, from time to time, without premium or penalty, on the following terms and conditions: (i) the Borrower shall give the Administrative Agent irrevocable written notice at its Notice Office (or telephonic notice promptly confirmed in writing) of its intent to prepay the Loans, whether such Loans are Term Loans, Revolving Loans or Swing Line Loans, the amount and currency, if applicable, of such prepayment and the specific Borrowings to which such prepayment is to be applied, which notice shall be given by the Borrower to the Administrative Agent by 1:00 p.m. (New York City time) at least three (3) Business Days prior in the case of Eurocurrency Loans and at least one Business Day prior in the case of Base Rate Loans to the date of such prepayment and which notice shall (except in the case of Swing Line Loans) promptly be transmitted by the Administrative Agent to each of the applicable Lenders; (ii) each partial prepayment of any Borrowing (other than a Borrowing of Swing Line Loans) shall be in an aggregate Dollar Equivalent principal amount of at least $1,000,000 and each partial prepayment of a Swing Line Loan shall be in an aggregate principal amount of at least $100,000; PROVIDED, that no partial prepayment of Eurocurrency Loans made pursuant to a single Borrowing shall reduce the aggregate principal amount of the outstanding Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto; (iii) Eurocurrency Loans may only be prepaid pursuant to this SECTION 4.3 on the last day of an Interest Period applicable thereto or on any other day subject to SECTION 3.5; (iv) each prepayment in respect of any Borrowing shall be applied pro rata among the Loans comprising such Borrowing; PROVIDED, that such prepayment shall not be applied to any Revolving Loans of a Defaulting Lender at any time when the aggregate amount of Revolving Loans of any Non-Defaulting Lender exceeds such Non-Defaulting Lender's Revolver Pro Rata Share of all Revolving Loans then outstanding; (v) each voluntary prepayment of Term Loans shall be applied to the Scheduled Term A Repayments and Scheduled New Term B Repayments due 74 within the 12 month period following the date of such prepayment in direct order of maturity and, thereafter, subject to SECTION 4.5(0) shall be applied in proportional amounts equal to the Term A Percentage and the New Term B Percentage (in each case, after giving effect to the prepayments made to the Scheduled Term A Repayments and the Scheduled New Term B Repayments due within such twelve month period as specified above), as the case may be, of such remaining prepayment, if any, and within each Term Loan, shall be applied to reduce the remaining Scheduled Term A Repayments and Scheduled New Term B Repayments on a pro rata basis (based upon the then remaining principal amount of such Scheduled Term A Repayments and Scheduled New Term B Repayments, respectively). Unless otherwise specified by the Borrower, such prepayment shall be applied first to the payment of Base Rate Loans and second to the payment of such Eurocurrency Loans as the Borrower shall request (and in the absence of such request, as the Administrative Agent shall determine). In the event that any New Term B Lender waives all or part of its right to receive its portion of a voluntary prepayment pursuant to SECTION 4.5(c), the Administrative Agent shall apply one hundred percent (100%) of the amount so waived, if any, by such New Term B Lender pro-rata to the Term A Loans in accordance with this SECTION 4.3(a). The notice provisions, the provisions with respect to the minimum amount of any prepayment, and the provisions requiring prepayments in integral multiples above such minimum amount of this SECTION 4.3 are for the benefit of the Administrative Agent and may be waived unilaterally by the Administrative Agent. (b) In the event of certain refusals by a Lender to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders as provided in SECTION 12.1(b), the Borrower shall have the right, upon five (5) Business Days' prior written notice to the Administrative Agent (which notice the Administrative Agent shall promptly transmit to each of the Lenders), to repay all Loans, together with accrued and unpaid interest, fees and all other amounts due and owing to such Lender in accordance with said SECTION 12.1(b), so long as (A) in the case of the repayment of Revolving Loans of any Revolving Lender pursuant to this CLAUSE (B), the Revolving Commitment of such Revolving Lender is terminated concurrently with such repayment pursuant to SECTION 4.1(b), and (b) in the case of the repayment of Loans of any Lender, the consents required by SECTION 12.1(b) in connection with the repayment pursuant to this CLAUSE (B) shall have been obtained. Section 4.4. MANDATORY PREPAYMENTS. (a) PREPAYMENT UPON OVERADVANCE. The Borrower shall prepay the outstanding principal amount of the Revolving Loans and Swing Line Loans on any date on which (x) the aggregate outstanding Assigned Dollar Value of such Revolving Loans and such Swing Line Loans together with the Assigned Dollar Value of the aggregate LC Obligations (after giving effect to any other repayments or prepayments on such day) exceeds the Total Revolving Commitments or (y) the aggregate outstanding Multicurrency Outstandings (after giving effect to any other repayments or prepayments on such day) exceeds the total Multicurrency Commitment 75 in the amount equal to the greater of either such excess. If, after giving effect to the prepayment of all outstanding Revolving Loans and Swing Line Loans, (A) the Assigned Dollar Value of the aggregate LC Obligations exceeds the Total Revolving Commitment then in effect, or (B) the Assigned Dollar Value of the aggregate Multicurrency Obligations exceeds the Multicurrency Commitment then in effect, then, in either case, the Borrower shall cash collateralize LC Obligations by depositing, pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent, cash with Administrative Agent in an amount equal to the difference between the Assigned Dollar Value of such LC Obligations and the Total Revolving Commitment then in effect (or the Multicurrency LC Obligation and the Multicurrency Commitment, as the case may be). The Administrative Agent shall establish in its name for the benefit of the Revolving Lenders a cash collateral account (the "COLLATERAL ACCOUNT") into which it shall deposit such cash to hold as collateral security for the LC Obligations. (b) SCHEDULED TERM A REPAYMENTS. The Borrower shall cause to be paid Scheduled Term A Repayments on the Term A Loans until the Term A Loans are paid in full in the amounts and at the times specified in the definition of Scheduled Term A Repayments to the extent that prepayments have not previously been applied to such Scheduled Term A Repayments (and such Scheduled Term A Repayments have not otherwise been reduced) pursuant to the terms hereof. To the extent not previously paid, all Term A Loans shall be due and payable on the Term A Maturity Date. (c) SCHEDULED NEW TERM B REPAYMENTS. The Borrower shall cause to be paid Scheduled New Term B Repayments on the New Term B Loans until the New Term B Loans are paid in full in the amounts and at the times specified in the definition of Scheduled New Term B Repayments to the extent that prepayments have not previously been applied to such Scheduled New Term B Repayments (and such Scheduled New Term B Repayments have not otherwise been reduced) pursuant to the terms hereof. To the extent not previously paid, all New Term B Loans shall be due and payable on the New Term B Loan Maturity Date. (d) MANDATORY PREPAYMENT UPON ASSET DISPOSITION. On the first Business Day or, in the case of an Asset Disposition by a Foreign Subsidiary of the Borrower, such later date (but in any event not later than the 365th day) after the date of receipt thereof by the Borrower and/or any of its Subsidiaries of Net Sale Proceeds from any Asset Disposition, an amount equal to 100% of the Net Sale Proceeds from such Asset Disposition shall be applied as a mandatory repayment of principal of the Term Loans pursuant to the terms of SECTION 4.5(a) (in each case subject to modification of such application as set forth in SECTION 4.5(c)), PROVIDED, that with respect to no more than the Dollar Equivalent of $25,000,000 in the aggregate of such Net Sale Proceeds in any Fiscal Year of the Borrower, the Net Sale Proceeds therefrom shall not be required to be so applied on such date to the extent that no Event of Default or Unmatured Event of Default then exists and the Borrower delivers a certificate to the Administrative Agent on or prior to such date stating that such Net Sale Proceeds are expected to be used to purchase assets 76 used or to be used in the businesses referred to in SECTION 8.9 within 365 days following the date of such Asset Disposition (which certificate shall set forth the estimates of the proceeds to be so expended), PROVIDED, FURTHER, that (1) if all or any portion of such Net Sale Proceeds not so applied to the repayment of Term Loans are not so used (or contractually committed to be used) within such 365 day period as provided above, such remaining portion shall be applied on the last day of the period as a mandatory repayment of principal of outstanding Term Loans as provided above in this SECTION 4.4(d) and (2) if all or any portion of such Net Sale Proceeds are a result of an Asset Disposition involving the sale of Collateral owned by the Borrower or a Subsidiary (other than the Capital Stock of a Foreign Subsidiary), then such Net Sale Proceeds shall be required to be reinvested in assets constituting Collateral. After the prepayment in full of all Term Loans, the Borrower shall repay Revolving Loans, pro rata, and thereafter, cash collateralize LC Obligations on the date of receipt of such proceeds by an amount equal to the lesser of (y) the Assigned Dollar Value of Revolving Loans and LC Obligations then outstanding or (z) the remaining portion of such Net Sale Proceeds not used to repay Term Loans, and the Revolving Commitments shall be permanently reduced, pro rata, by that portion of Net Sale Proceeds not used to repay Term Loans. Notwithstanding the foregoing or the terms of SECTION 4.5(a), if, as of the date of any prepayment from Net Sale Proceeds required pursuant to this SECTION 4.4(d), the Leverage Ratio of the Borrower, calculated for the Test Period ending on the last day of the most recently ended Fiscal Quarter, is less than 2.50 to 1.00, the Borrower may elect, in its sole discretion, to apply 100% of such Net Sale Proceeds (x) to purchase assets used or to be used in the businesses referred to in SECTION 8.9, (y) to repay, pro rata, Term A Loans and New Term B Loans or (z) to repay, pro rata, Revolving Loans (without a permanent reduction of the Revolving Commitments). (e) MANDATORY PREPAYMENT WITH EXCESS CASH FLOW. On each Excess Cash Payment Date, an amount equal to 50% of Excess Cash Flow of the Borrower and its Subsidiaries for the relevant Excess Cash Flow Period shall be applied as a mandatory repayment of principal of the Term Loans pursuant to the terms of SECTION 4.5(a) (in each case subject to modification of such application as set forth in SECTION 4.5(c)); PROVIDED, HOWEVER, that if as of the last day of the relevant Excess Cash Flow Period, the Leverage Ratio is less than 2.50 to 1.00, the amount required to be paid pursuant to this SECTION 4.4(e) shall be 0%. (f) MANDATORY PAYMENT WITH PROCEEDS OF CAPITAL STOCK. On the first Business Day after receipt thereof by the Borrower and/or any of their Subsidiaries, an amount equal to 100% of the Net Offering Proceeds of the sale or issuance of Capital Stock of (or cash capital contributions to) the Borrower or any of their Subsidiaries shall be applied as a mandatory repayment of principal of the Term Loans pursuant to the terms of SECTION 4.5(a) (in each case subject to modification of such application as set forth in SECTION 4.5(c)). Notwithstanding the foregoing or the terms of SECTION 4.5(a), if, as of the date of any prepayment from Net Offering Proceeds required pursuant to this SECTION 4.4(f), the Leverage Ratio of the Borrower, calculated for the Test Period ending on the last day of the most recently ended Fiscal Quarter, is less than 2.50 to 1.00, the Borrower may elect, in its sole discretion, to apply 100% of such Net Offering 77 Proceeds (x) to purchase assets used or to be used in the businesses referred to in SECTION 8.9, (y) to repay, pro rata, Term A Loans and New Term B Loans or (z) to repay, pro rata, Revolving Loans (without a permanent reduction of the Revolving Commitments). (g) MANDATORY PAYMENT WITH PROCEEDS OF SALE AND LEASEBACK TRANSACTION. On the Business Day of receipt thereof by the Borrower and/or any of its Subsidiaries, an amount equal to 100% of net cash proceeds from a Sale and Leaseback Transaction by the Borrower or any of its Subsidiaries shall be applied as a mandatory repayment of principal of the Term Loans pursuant to the terms of SECTION 4.5(a) (in each case subject to modification of such application as set forth in SECTION 4.5(c)). Notwithstanding the foregoing or the terms of SECTION 4.5(a), if, as of the date of any prepayment from net cash proceeds of a Sale and Leaseback Transaction required pursuant to this SECTION 4.4(g), the Leverage Ratio of the Borrower, calculated for the Test Period ending on the last day of the most recently ended Fiscal Quarter, is less than 2.50 to 1.00, the Borrower may elect, in its sole discretion, to apply 100% of such net cash proceeds (x) to purchase assets used or to be used in the businesses referred to in SECTION 8.9, (y) to repay, pro rata, Term A Loans and New Term B Loans or (z) to repay, pro rata, Revolving Loans (without a permanent reduction of the Revolving Commitments). (h) MANDATORY PREPAYMENT UPON INCURRENCE OF INDEBTEDNESS. On the Business Day of receipt thereof by the Borrower, an amount equal to 100% of the Net Offering Proceeds of any Indebtedness (other than Indebtedness permitted by SECTION 8.2) hereof shall be applied as a mandatory repayment of principal of the Term Loans pursuant to the terms of SECTION 4.5(a), subject to modification of such application as set forth in SECTION 4.5(c). Notwithstanding the foregoing or the terms of SECTION 4.5(a), if, as of the date of any prepayment from Net Offering Proceeds required pursuant to this SECTION 4.4(h), the Leverage Ratio of the Borrower, calculated for the Test Period ending on the last day of the most recently ended Fiscal Quarter, is less than 2.50 to 1.00, the Borrower may elect, in its sole discretion, to apply 100% of such Net Offering Proceeds (x) to purchase assets used or to be used in the businesses referred to in SECTION 8.9, (y) to repay, pro rata, Term A Loans and New Term B Loans or (z) to repay, pro rata, Revolving Loans (without a permanent reduction of the Revolving Commitments). (i) MANDATORY PREPAYMENT UPON PURCHASE PRICE ADJUSTMENT. On the Business Day following receipt of the net cash proceeds of any payment by the OTS Seller to the Borrower pursuant to any adjustment to the Purchase Price (as such term is defined in the OTS Business Acquisition Agreement) an amount equal to 100% of such payment shall be applied as a mandatory repayment of principal of the Term Loans pursuant to the terms of SECTION 4.5(a), subject to modification of such application as set forth in SECTION 4.5(c)); PROVIDED that no such payment shall be required to be so applied if the proceeds of such adjustment do not equal or exceed $5,000,000.00. (j) MANDATORY PAYMENT UPON RECOVERY EVENT. Within ten (10) days following each date on which the Borrower or any of its Subsidiaries receives any proceeds from 78 any Recovery Event, an amount equal to 100% of the proceeds of such Recovery Event (net of reasonable costs and taxes incurred in connection with such Recovery Event and amounts due to the federal government of the United States in satisfaction of any contractual obligation of the Borrower thereto) shall be applied as a mandatory repayment of principal of the Term Loans as provided in SECTION 4.5 in each case subject to modification of such application as set forth in SECTION 4.5(d), PROVIDED that (1) so long as no Event of Default or Unmatured Event of Default then exists, if the net proceeds from any Recovery Event are less than the Dollar Equivalent of $10,000,000, then no prepayment shall be required pursuant to this SECTION 4.4(j), and (2) so long as no Event of Default or Unmatured Event of Default then exists, with respect to any single or series of related Recovery Events the net proceeds therefrom which are equal to or greater than the Dollar Equivalent of $10,000,000 but less than the Dollar Equivalent of $25,000,000, such proceeds shall not be required to be so applied on such date to the extent that (x) Borrower has delivered a certificate to the Administrative Agent on or prior to such date stating that such proceeds shall be used to replace or restore any properties or assets in respect of which such proceeds were paid within 365 days following the date of the receipt of such proceeds (which certificate shall set forth the estimates of the proceeds to be so expended) and (y) such proceeds are deposited in an escrow account with Administrative Agent for the benefit of the Secured Creditors (the "RECOVERY EVENT ESCROW ACCOUNT") (PROVIDED, HOWEVER, that if the Borrower has satisfied the last sentence of this SECTION 4.4(j), no such escrow account shall be established with the Administrative Agent and the Borrower shall retain control of such proceeds), from which interest-bearing escrow account amounts may be withdrawn only to repay the Term Loans or to be used for the purposes described in clause (x) above, PROVIDED, FURTHER, that (i) if the amount of such proceeds from any single or series of related Recovery Events exceeds the Dollar Equivalent of $25,000,000, then the entire amount and not just the portion in excess of the Dollar Equivalent of $25,000,000 shall be applied as a mandatory repayment of Term Loans as provided above in this SECTION 4.4(j), (ii) if all or any portion of such proceeds not required to be applied to the repayment of Term Loans pursuant to the first proviso of this SECTION 4.4(j) are not so used (or contractually committed to be used) within 365 days after the day of the receipt of such proceeds, such remaining portion shall be applied on the last day of such period as a mandatory repayment of principal of the Term Loans as provided in this SECTION 4.4(j) and (iii) if all or any portion of such proceeds are not required to be applied on the 365th day referred to in clause (ii) above because such amount is contractually committed to be used and subsequent to such date such contract is terminated or expires without such portion being so used, then such remaining portion shall be applied on the date of such termination or expiration as a mandatory repayment of principal of outstanding Term Loans as provided in this SECTION 4.4(j). After the prepayment in full of all Term Loans, the Borrower shall repay Revolving Loans pro rata, and thereafter, cash collateralize LC Obligations on the date of receipt of such proceeds by an amount equal to the lesser of (y) the Assigned Dollar Value of Revolving Loans and LC Obligations then outstanding or (z) the remaining portion of such net proceeds not used to repay Term Loans, and the Revolving Commitments shall be permanently reduced, pro rata, by that portion of net proceeds not used to repay Term Loans. Notwithstanding the foregoing or the terms of SECTION 4.5(a), if, as of the date of any prepayment from net proceeds of any Recovery Event required pursuant to 79 this SECTION 4.4(j), the Leverage Ratio of the Borrower, calculated for the Test Period ending on the last day of the most recently ended Fiscal Quarter, is less than 2.50 to 1.00, the Borrower may elect, in its sole discretion, to apply 100% of such net proceeds (x) to purchase assets used or to be used in the businesses referred to in SECTION 8.9, (y) to repay, pro rata, Term A Loans and New Term B Loans or (z) to repay, pro rata, Revolving Loans (without a permanent reduction of the Revolving Commitments). Section 4.5. APPLICATION OF PREPAYMENTS; WAIVER OF CERTAIN PREPAYMENTS. (a) PREPAYMENTS. Subject in all events to the final proviso set forth in SECTION 4.4(d), (f), (g), (h) and (j) and except as otherwise expressly provided in SECTION 4.4(d) and (j), all prepayments of principal made by the Borrower pursuant to SECTION 4.4 (other than with respect to 4.4(A), (B) and (C) shall be applied to repay the Term A Loans and the New Term B Loans (with the Term A Percentage of such repayment to be applied as a repayment of Term A Loans and the New Term B Percentage of such repayment to be applied as a repayment of New Term B Loans). Any prepayment of Loans pursuant to SECTION 4.4(d) and (j) shall be applied (i) FIRST, to the payment of the unpaid principal amount of the Term A Loans and the New Term B Loans (with the Term A Percentage of such repayment to be applied as a repayment of Term A Loans and the New Term B Percentage of such repayment to be applied as a repayment of New Term B Loans), SECOND, to the prepayment of the then outstanding balance of Swing Line Loans, THIRD, to the payment, pro rata, of the then outstanding balance of the Revolving Loans, and FOURTH, to the cash collateralization of LC Obligations; (ii) within each of the foregoing Loans, first to the payment of Base Rate Loans and second to the payment of Eurocurrency Loans; and (iii) with respect to Eurocurrency Loans, in such order as the Borrower shall request (and in the absence of such request, as the Administrative Agent shall determine). Each prepayment of Term Loans made pursuant to SECTION 4.4(d), (e), (f), (g), (h) and (j) shall be allocated FIRST to the Term A Loans and the New Term B Loans based on the aggregate principal amount of the Scheduled Term A Repayments and the Scheduled New Term B Repayments due within the twelve month period following the date of such prepayment in direct order of maturity, and, thereafter, shall be allocated SECOND to the Term A Loans and the New Term B Loans in proportional amounts equal to the Term A Percentage and the New Term B Percentage (in each case, after giving effect to the prepayments made to the Scheduled Term A Repayments and Scheduled New Term B Repayments due within such twelve month period as specified above), as the case may be, of such remaining prepayment, if any, and, within each Term A Loan or New Term B Loan, shall be applied to reduce the remaining Scheduled Term A Repayments and Scheduled New Term B Repayments on a pro rata basis (based upon the then remaining principal amount of such Scheduled Term A Repayments and Scheduled New Term B Repayments, respectively). Any prepayment of Term Loans pursuant to SECTION 4.4(i) shall be applied pro rata to each of the Scheduled Term A Repayments and Scheduled New Term B Repayments. If any prepayment of Eurocurrency Loans made pursuant to a single Borrowing shall reduce the outstanding Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount, such Borrowing shall immediately be converted into Base Rate Loans, in the case of Loans 80 denominated in Dollars, or into Loans with a one month Interest Period, in the case of Loans denominated in Euro. All prepayments shall include payment of accrued interest on the principal amount so prepaid, shall be applied to the payment of interest before application to principal and shall include amounts payable, if any, under SECTION 3.5. (b) PAYMENTS. All Scheduled Repayments shall be applied (i) first to the payment of Base Rate Loans, if any, and second to the payment of Eurocurrency Loans and (ii) with respect to Eurocurrency Loans, in such order as the Borrower shall request (and in the absence of such request, as the Administrative Agent shall determine). All payments shall include payment of accrued interest on the principal amount so paid, shall be applied to the payment of interest before application to principal and shall include amounts payable, if any, under SECTION 3.5. (c) WAIVER OF CERTAIN PREPAYMENTS BY NEW TERM B LENDERS. Notwithstanding anything to the contrary contained in this SECTION 4.5 with respect to any voluntary prepayment or mandatory prepayment of New Term B Loans otherwise required pursuant to SECTIONS 4.3, 4.4(d), (e), (f), (g), (h), (i) AND (j), if the Borrower has given the Administrative Agent written notification that the Borrower has elected, in its sole discretion, to give each Lender with a New Term B Loan the right to waive such Lender's rights to receive its PRO RATA percentage of such prepayment (any such repayment, a "WAIVABLE PREPAYMENT"), the Administrative Agent shall notify such Lenders thereof and the amount required to be applied to each such Lender's New Term B Loans pursuant to the Waivable Prepayment. In the event any such Lender desires to waive its right to receive any or all of its percentage of the Waivable Prepayment, such Lender shall so advise the Administrative Agent in writing no later than 5:00 P.M. (New York time) two (2) Business Days after the date of such notice from the Administrative Agent, which reply shall also include the amount, if any, of its portion of the Waivable Prepayment that such Lender still desires to receive. If any such Lender does not reply to the Administrative Agent within the two (2) Business Day period or responds but does not specify the amount of the Waivable Prepayment that such Lender wishes to receive, if any, such Lender will be deemed to have elected to receive 100% of the Waivable Prepayment. In the event that any such New Term B Lender waives its right to any such Waivable Prepayment, the Administrative Agent shall apply 100% of the amount so waived by such New Term B Lenders to prepay the Term A Loans as otherwise provided in this SECTION 4.5. All payments of the New Term B Loans shall be made PRO RATA, reduced for any New Term B Lender who has waived any of its portion of a Waivable Prepayment by the amount so waived. (d) CONVERSION OF CURRENCY. If any payment made under this Agreement or any other Loan Document is made in a currency other than the Specified Currency expressed to be payable herein, the Administrative Agent is authorized to, and at its sole election may, convert such currency to the Specified Currency prior to distribution to the Lenders. All such conversions of currency shall be subject to SECTION 3.5. 81 Section 4.6. METHOD AND PLACE OF PAYMENT. (a) Except as otherwise specifically provided herein, all payments under this Agreement shall be made to the Administrative Agent, for the ratable account of the Lenders entitled thereto, not later than 1:00 p.m. (New York City time) on the date when due and shall be made in immediately available funds and in each case to the account specified therefor for the Administrative Agent or if no account has been so specified at the Payment Office. The Administrative Agent will thereafter cause to be distributed on the same day (if payment was actually received by the Administrative Agent prior to 1:00 p.m. (New York City time) on such day) like funds relating to the payment of principal or interest or fees ratably to the Lenders entitled to receive any such payment in accordance with the terms of this Agreement. If and to the extent that any such distribution shall not be so made by the Administrative Agent in full on the same day (if payment was actually received by the Administrative Agent prior to 1:00 p.m. (New York City time) on such day), the Administrative Agent shall pay to each Lender its ratable amount thereof and each such Lender shall be entitled to receive from the Administrative Agent, upon demand, interest on such amount at the overnight Federal Funds Rate (or the applicable cost of funds with respect to amounts denominated in Euro) for each day from the date such amount is paid to the Administrative Agent until the date the Administrative Agent pays such amount to such Lender. (b) Any payments under this Agreement which are made by the Borrower later than 1:00 p.m. (New York City time) shall, for the purpose of calculation of interest, be deemed to have been made on the next succeeding Business Day. Whenever any payment to be made hereunder shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable during such extension at the applicable rate in effect immediately prior to such extension, except that with respect to Eurocurrency Loans, if such next succeeding applicable Business Day is not in the same month as the date on which such payment would otherwise be due hereunder or under any Note, the due date with respect thereto shall be the next preceding Business Day. Section 4.7. NET PAYMENTS. (a) All payments made by the Borrower hereunder or under any Loan Document will be made without setoff, counterclaim or other defense. Except as provided in SECTION 4.7(d), all payments hereunder and under any of the Loan Documents (including, without limitation, payments on account of principal and interest and fees) shall be made by the Borrower free and clear of and without deduction or withholding for or on account of any present or future tax, duty, levy, impost, assessment or other charge of whatever nature now or hereafter imposed by any Governmental Authority, but excluding therefrom (i) a tax imposed on or measured by the overall net income (including a franchise tax based on net income) of the lending office of the Lender in respect of which the payment is made by the jurisdiction in which the Lender is 82 incorporated or the jurisdiction (or political subdivision or taxing authority thereof) in which its lending office is located, (ii) in the case of any Lender organized under the laws of any jurisdiction other than the United States or any state thereof (including the District of Columbia), any taxes imposed by the United States by means of withholding at the source unless such withholding results from a change in applicable law, treaty or regulations or the interpretation or administration thereof (including, without limitation, any guideline or policy not having the force of law) by any authority charged with the administration thereof subsequent to the date such Lender becomes a Lender with respect to the Loan or portion thereof affected by such change, (iii) any taxes to which the Lender is subject (to the extent of the tax rate then in effect) on the date this Agreement is executed or to which such Lender would be subject on such date if a payment hereunder had been received by the Lender on such date and with respect to any Lender that becomes a party hereto after the Initial Borrowing Date, any taxes to which such Lender is subject on the date it becomes a party hereto (other than taxes which each of the other Lenders is entitled to reimbursements for pursuant to the terms of this Agreement) and (iv) taxes to which the Lender becomes subject subsequent to the date referred to in clause (iii) above as a result of a change in the residence, place of incorporation, or principal place of business of the Lender, a change in the branch or lending office of the Lender participating in the transactions set forth herein or other similar circumstances or as a result of the recognition by the Lender of gain on the sale, assignment or participation by the Lender of the participating interests in its creditor positions hereunder (such tax or taxes, other than excluded tax or taxes being herein referred to as "TAX" or "TAXES"). If the Borrower is required by law to make any deduction or withholding of any Taxes from any payment due hereunder or under any of the Loan Documents, then the amount payable will be increased to such amount which, after deduction from such increased amount of all such Taxes required to be withheld or deducted therefrom, will not be less than the amount due and payable hereunder had no such deduction or withholding been required. A certificate as to any additional amounts payable to a Lender under this SECTION 4.7 submitted to the Borrower by such Lender shall show in reasonable detail the amount payable and the calculations used to determine in good faith such amount and shall, absent manifest error, be final, conclusive and binding upon all parties hereto. (b) If the Borrower makes any payment hereunder or under any of the Loan Documents in respect of which it is required by law to make any deduction or withholding of any Taxes, it shall pay the full amount to be deducted or withheld to the relevant taxation or other authority within the time allowed for such payment under applicable law and shall deliver to the Lenders within 60 days after it has made such payment to the applicable authority a receipt issued by such authority evidencing the payment to such authority of all amounts so required to be deducted or withheld from such payment. (c) Without prejudice to the other provisions of SECTION 4.7, if any Lender, or the Administrative Agent on its behalf, is required by law to make any payment on account of Taxes on or in relation to any amount received or receivable hereunder or under any of the Loan Documents by such Lender, or the Administrative Agent on its behalf, or any liability for Tax in 83 respect of any such payment is imposed, levied or assessed against any Lender or the Administrative Agent on its behalf, the Borrower will promptly, following receipt of the certificate described in the immediately following sentence, indemnify such person against such Tax payment or liability, together with any interest, penalties and expenses (including reasonable counsel fees and expenses) payable or incurred in connection therewith, including any tax of any Lender arising by virtue of payments under this SECTION 4.7(c), computed in a manner consistent with this SECTION 4.7(c). A certificate as to the amount of such payment by such Lender, or the Administrative Agent on its behalf, showing calculations thereof in reasonable detail, absent manifest error, shall be final, conclusive and binding upon all parties hereto for all purposes. (d) Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) agrees to deliver to Borrower and the Administrative Agent on or prior to the Initial Borrowing Date or the Amendment/Restatement Effective Date, as applicable, or in the case of a Lender that is an Assignee of an interest under this Agreement pursuant to SECTION 3.7 or 12.8 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment), on the date of such assignment to such Lender, together with any other certificate or statement of exemption required under the Code to establish that such Lender is not subject to deduction or withholding of United States federal income tax with respect to any payments to such Lender, (i) two accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or successor forms) certifying to such Lender's entitlement to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Note, or (ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and does not comply with the requirements of clause (i) above, (x) a certificate substantially in the form of EXHIBIT 4.7(D) (any such certificate, a "SECTION 4.7(d)(ii) CERTIFICATE") and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding) or Form W-8ECI (Certificate of Foreign Person's Claim for Exemption From Withholding On Income Effectively Connected with the Conduct of a Trade or Business in the United States). In addition, each Lender agrees that from time to time after the delivery of any certificates or forms required pursuant to this SECTION 4.7(d), when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower and the Administrative Agent two new accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN and a Section 4.7(d)(ii) Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding Tax with respect to payments under this Agreement and any Note, or it shall immediately notify the Borrower and the Administrative Agent of its inability to deliver any such form or certificate. Notwithstanding anything to the contrary contained in SECTION 4.7(a), but subject to SECTION 12.8(c) and the immediately succeeding sentence, (x) the Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold income or similar Taxes imposed by the United States (or any political subdivision or 84 taxing authority thereof or therein) from interest, fees or other amounts payable hereunder for the account of any Lender which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for United States Federal income tax purposes to the extent that such Lender has not provided to the Borrower IRS Forms that establish a complete exemption from such deduction or withholding and (y) the Borrower shall be obligated pursuant to SECTION 4.7(a) hereof to gross-up payments to be made to a Lender in respect of income or similar Taxes imposed by the United States unless (i) upon timely notice from the Borrower, such Lender has not provided to the Borrower the IRS Forms required to be provided to Borrowers pursuant to this SECTION 4.7(d), or (ii) in the case of a payment, other than interest, to a Lender described in clause (ii) above, to the extent that such IRS Forms do not establish a complete exemption from withholding of such Taxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this SECTION 4.7 and except as set forth in SECTION 12.8(c), the Borrower agrees to pay additional amounts and to indemnify each Lender in the manner set forth in SECTION 4.7(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any amounts deducted or withheld by it as described in the immediately preceding sentence as a result of any changes after the Initial Borrowing Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of income or similar Taxes. (e) If the Borrower pays any additional amount under this SECTION 4.7 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a "TAX BENEFIT"), such Lender shall pay the Borrower an amount that the Lender shall, in its sole discretion, determine is equal to the net benefit, after tax, which was obtained by such Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine in its sole discretion consistent with the policies of such Lender whether to seek a Tax Benefit; (ii) any Taxes that are imposed on a Lender as a result of a disallowance or reduction (including through the expiration of any tax carryover or carryback of such Lender that otherwise would not have expired) of any Tax Benefit with respect to which such Lender has made a payment to the Borrower pursuant to this SECTION 4.7 shall be treated as a Tax for which the Borrower is obligated to indemnify such Lender pursuant to this SECTION 4.7 without any exclusions or defenses; and (iii) nothing in this SECTION 4.7(e) shall require a Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns). ARTICLE V CONDITIONS OF CREDIT Section 5.1. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The obligation of each Lender to make Loans (including Loans made on the Amendment/Restatement Effective Date) and the obligation of any Facing Agent to issue or any 85 Lender to participate in any Letter of Credit hereunder in each case shall be subject to the fulfillment at or prior to the time of each such Credit Event of each of the following conditions: (a) REPRESENTATIONS AND WARRANTIES. The representations and warranties contained in this Agreement and the other Loan Documents shall each be true and correct in all material respects at and as of such time, as though made on and as of such time, except to the extent such representations and warranties are expressly made as of a specified date in which event such representation and warranties shall be true and correct as of such specified date; (b) NO DEFAULT. No Event of Default or Unmatured Event of Default shall have occurred and shall then be continuing on such date or will occur after giving effect to such Credit Event; (c) NOTICE OF BORROWING; LETTER OF CREDIT REQUEST. (i) Prior to the making of each Loan, the Administrative Agent shall have received a Notice of Borrowing meeting the requirements of SECTION 2.5; and (ii) Prior to the issuance of each Letter of Credit, the Administrative Agent and the respective Facing Agent shall have received a Letter of Credit Request meeting the requirements of SECTION 2.10(b); (d) ADVERSE CHANGE. At the time of each such Credit Event and after giving effect thereto, since the Amendment/Restatement Effective Date, nothing shall have occurred (and the Lenders shall not have become aware of any facts or conditions previously unknown) which has, or is reasonably likely to have, a Material Adverse Effect; (e) OTHER INFORMATION. The Administrative Agent shall have received such other instruments, documents and opinions as it may reasonably request in connection with such Credit Event, and all such instruments and documents shall be reasonably satisfactory in form and substance to the Administrative Agent. The acceptance of the benefits of each such Credit Event by the Borrower shall be deemed to constitute a representation and warranty by it to the effect of paragraphs (a), (b), (c) and (d) of this SECTION 5.1 (except that no opinion need be expressed as to any Agent's or Required Lenders' satisfaction with any document, instrument or other matter). 86 ARTICLE VI REPRESENTATIONS AND WARRANTIES In order to induce the Lenders to enter into this Agreement and to make the Loans, and issue (or participate in) the Letters of Credit as provided herein, the Borrower makes the following representations and warranties as of the Amendment/Restatement Effective Date and as of the date of each subsequent Credit Event, all of which shall survive the execution and delivery of this Agreement and the Notes and the making of the Loans and issuance of the Letters of Credit: Section 6.1. CORPORATE STATUS. The Borrower and each of its Subsidiaries (i) is a duly organized and validly existing corporation, partnership or limited liability company or other entity in good standing under the laws of the jurisdiction of its organization, (ii) has the requisite power and authority to own its property and assets and to transact the business in which it is engaged and presently proposed to engage in and (iii) is duly qualified and is authorized to do business and is in good standing (where relevant) in (y) its jurisdiction of organization and (z) in each other jurisdiction where the ownership, leasing or operation of property or the conduct of its business requires such qualification, except for such failure to be so qualified which, in the aggregate, would not have a Material Adverse Effect. Section 6.2. CORPORATE POWER AND AUTHORITY. The Borrower and each of its Subsidiaries has the applicable power and authority to execute, deliver and perform the terms and provisions of each of the Documents to which it is a party and has taken all necessary corporate action to authorize the execution, delivery and performance by it of each of such Documents. The Borrower and each of its Subsidiaries has duly executed and delivered each of the Documents to which it is a party, and each of such Documents constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors' rights and by equitable principles (regardless of whether enforcement is sought in equity or at law). Section 6.3. NO VIOLATION. Neither the execution, delivery or performance by the Borrower and each of its Subsidiaries of the Documents to which it is a party (including, without limitation, the granting of Liens pursuant to the Security Documents), nor compliance by it with the terms and provisions thereof, nor the consummation of the transactions contemplated therein (i) will contravene any provision of any Requirement of Law applicable to the Borrower and each of its Subsidiaries, except for such contravention which, individually or in the aggregate, would not have a Material Adverse Effect, (ii) will conflict with or result in any breach of or constitute a tortious interference with any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the 87 creation or imposition of (or the obligation to create or impose) any Lien (except pursuant to the Security Documents) upon any of the property or assets of the Borrower and each of its Subsidiaries pursuant to the terms of any Contractual Obligation to which the Borrower and each of its Subsidiaries is a party or by which it or any of its property or assets is bound or to which it may be subject, except for such conflict or interference which, individually or in the aggregate, would not have a Material Adverse Effect, (iii) will violate any provision of any Organizational Document of the Borrower and each of its Subsidiaries or (iv) require any approval of stockholders or any approval or consent of any Person (other than a Governmental Authority) except as have been obtained on or prior to the Amendment/Restatement Effective Date or as set forth on SCHEDULE 6.3. Section 6.4. GOVERNMENTAL AND OTHER APPROVALS. Except as set forth on SCHEDULE 6.4 hereto and except for the recording of the Mortgages and filings in respect of certain Security Documents and actions with appropriate Governmental Authorities which have been recorded and filed prior to the Amendment/Restatement Effective Date, no order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except as have been obtained or made on or prior to the Amendment/Restatement Effective Date), or exemption by, any Governmental Authority, is required to authorize, or is required in connection with, (i) the execution, delivery and performance of any Document or (ii) the legality, validity, binding effect or enforceability of any such Document. Section 6.5. FINANCIAL STATEMENTS; FINANCIAL CONDITION; UNDISCLOSED LIABILITIES; PROJECTIONS ETC. (a) FINANCIAL STATEMENTS. (i) The consolidated balance sheets of the Borrower dated November 30, 2001, November 30, 2000 and November 30, 1999 and the related consolidated statements of operations, cash flows and shareholders' equity of the Borrower for the Fiscal Year ended on such dates, and copies of which have hereto been furnished to the Lenders prior to the Amendment/Restatement Effective Date which have been examined by Ernst & Young LLP, independent certified public accountants, who delivered an unqualified opinion in respect thereto, present fairly, in accordance with GAAP, the financial condition and results of operations of the Borrower and its Subsidiaries for the periods referred to therein; (ii) The pro forma (after giving effect to the Transactions, the related financing thereof and the other transactions contemplated hereby and thereby) consolidated balance sheet of the Borrower attached hereto as SCHEDULE 6.5(a) (the "PRO FORMA BALANCE SHEET") presents fairly the consolidated financial condition of the Borrower and its Subsidiaries at the date of such balance sheet and presents a good faith estimate of the pro forma consolidated 88 financial condition of the Borrower and the Subsidiaries (after giving effect to the Transactions, the related financing thereof and the other transactions contemplated hereby and thereby) at the date thereof. The Pro Forma Balance Sheet has been prepared in accordance with GAAP consistently applied (except as may be indicated in the notes thereto) subject to normal year-end adjustments. (b) SOLVENCY. On and as of the Amendment/Restatement Effective Date, after giving effect to the Transaction and to all Indebtedness (including the Loans) being incurred, and to be incurred (and the use of proceeds thereof), and Liens created, and to be created, by the Borrower and its Subsidiaries in connection with the transactions contemplated hereby, the Borrower and each of its Material Subsidiaries are Solvent. (c) NO UNDISCLOSED LIABILITIES. Except as fully reflected in the financial statements and the notes related thereto delivered pursuant to SECTION 6.5(a) and set forth on SCHEDULE 6.5(c) there were as of the Amendment/Restatement Effective Date (and after giving effect to the Transaction and the other transactions contemplated hereby) no liabilities or obligations other than in the ordinary course of business consistent with past practices (with respect to the Borrower and its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, would be material to the Borrower and its Subsidiaries, taken as a whole. As of the Amendment/Restatement Effective Date (and after giving effect to the Transaction and the other transactions contemplated hereby), the Borrower knows of no basis for the assertion against the Borrower or any of its Subsidiaries of any such liability or obligation of any nature whatsoever that is not fully reflected in the financial statements or the notes related thereto delivered pursuant to SECTION 6.5(a) or set forth on SCHEDULE 6.5(c) which, either individually or in the aggregate, could be material to the Borrower and its Subsidiaries, taken as a whole. (d) INDEBTEDNESS. SCHEDULE 8.2(b) sets forth a true and complete list of all Indebtedness (other than the Loans and the Letters of Credit) of the Borrower and its Subsidiaries as of the Amendment/Restatement Effective Date and which is to remain outstanding after giving effect to the Transaction (the "INDEBTEDNESS TO REMAIN OUTSTANDING"), in each case showing the aggregate principal amount thereof (and the aggregate amount of any undrawn commitments with respect thereto) and the name of the respective obligor and any other entity which directly or indirectly guaranteed such debt. No Indebtedness to Remain Outstanding has been incurred in connection with, or in contemplation of, the Transaction or the other transactions contemplated hereby. The Borrower has delivered or caused to be delivered to the Administrative Agent a true and complete copy of the form of each instrument evidencing Indebtedness for money borrowed listed on SCHEDULE 8.2(b) and of each instrument pursuant to which such Indebtedness for money borrowed was issued, in each case, other than Indebtedness of the type described in SECTION 8.2(o). 89 (e) PROJECTIONS. On and as of the Amendment/Restatement Effective Date, the financial projections, attached hereto as SCHEDULE 6.5(e) (the "PROJECTIONS") and each of the Projections delivered after the Amendment/Restatement Effective Date pursuant to SECTION 7.2(e) are, or will be at the time made, based on good faith estimates and assumptions made by the management of the Borrower, and there are no statements or conclusions in any of the Projections which, at the time made, are based upon or include information known to the Borrower to be misleading or which fail to take into account material information regarding the matters reported therein. On and as of the Amendment/Restatement Effective Date, the Borrower believes that the Projections are reasonable and attainable, it being understood that uncertainty is inherent in any forecasts or projections and that no assurance can be given that the results set forth in the Projections will actually be obtained. (f) NO MATERIAL ADVERSE CHANGE. (i) Since November 30, 2001 there has been no material adverse change in the business, operations, property, assets, liabilities or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole. (ii) As of the Amendment/Restatement Effective Date and at any time thereafter, there has been no material adverse change in the business, condition (financial or otherwise), assets, liabilities, property, operations or prospects of the Borrower and its Subsidiaries (taken as a whole) since November 30, 2001 based on the financial statements delivered pursuant to SECTION 6.5(a)(i). (iii) To the knowledge of the Borrower, as of the Amendment/Restatement Effective Date, there has been no material adverse change in the business, condition (financial or otherwise), assets, liabilities, property, operations or prospects of those businesses being purchased by the Borrower pursuant to the OTS Acquisition Documents (taken as a whole) since December 31, 2001. Section 6.6. LITIGATION. Except as set forth in SCHEDULE 6.6, there are no actions, suits or proceedings pending or, to the knowledge of the Borrower or any of its Subsidiaries, threatened in writing against the Borrower or any of its Subsidiaries (i) with respect to any Loan Document or (ii) that are reasonably likely to have a Material Adverse Effect. Section 6.7. DISCLOSURE. All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of the Borrower or any of its Subsidiaries in writing to any Lender (including, without limitation, all information contained in the Documents) (other than the Projections as to which SECTION 6.5(e) applies which fairly discloses the matters therein in good faith in accordance with applicable law)) for purposes of or in connection with this Agreement or any transaction 90 contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of the Borrower or any of its Subsidiaries in writing to any Lender for purposes of or in connection with this Agreement or any transaction contemplated herein are and will be true and accurate in all material respects on the date as of which such information is dated or certified and not incomplete by omitting to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided. The financial projections and other pro forma financial information contained therein are based on good faith estimates and assumptions believed by such Persons to be reasonable at the time made, it being recognized by the Administrative Agent and the Lenders that projections as to future events are not to be viewed as facts or factual information and that actual results during the period or periods covered thereby may differ from the projected results. As of the Amendment/Restatement Effective Date, the Borrower has disclosed to the Lenders on or before the Amendment/Restatement Effective Date, all agreements, instruments and corporate or other restrictions to which the Borrower or any of its Subsidiaries is or will be subject to as of the Amendment/Restatement Effective Date, and all other matters known to any of them, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. Section 6.8. USE OF PROCEEDS; MARGIN REGULATIONS. (a) TERM LOAN PROCEEDS. The Borrower shall have utilized the proceeds of the Term A Loans made under the Original Credit Agreement as required under SECTION 6.8 of the Original Credit Agreement. All proceeds of the New Term B Loans incurred on the Amendment/Restatement Effective Date shall be used by the Borrower (x) to finance, in part, the OTS Business Acquisition, (y) to refinance certain Revolving Loans and (z) to pay related fees and expenses in connection herewith and therewith. (b) REVOLVING LOAN PROCEEDS. All proceeds of the Revolving Loans incurred hereunder shall be used by the Borrower (x) to finance, in part, the Transaction and (y) for ongoing working capital needs and general corporate purposes (other than to voluntarily prepay any Term Loan). (c) SWING LINE LOANS. All proceeds of the Swing Line Loans incurred hereunder shall be used by the Borrower for ongoing working capital needs and general corporate purposes (other than to voluntarily prepay any Term Loan); PROVIDED, HOWEVER, that no Swing Line Loans may be requested by the Borrower on the Amendment/Restatement Effective Date. (d) MARGIN REGULATIONS. No part of the proceeds of any Loan will be used to purchase or carry any margin stock (as defined in Regulation U of the Board), directly or indirectly, or to extend credit for the purpose of purchasing or carrying any such margin stock for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the loans or 91 extensions of credit under this Agreement to be considered a "purpose credit" within the meaning of Regulation T, U or X of the Board. Section 6.9. TAX RETURNS AND PAYMENTS. The Borrower and each of its Subsidiaries have timely filed or caused to be filed all tax returns (the "RETURNS") which are required to be filed, except where failure to file any of the Returns would not reasonably be expected to have a Material Adverse Effect, and have paid or caused to be paid all taxes shown to be due and payable on the Returns or on any assessments made against them or any of their respective material properties and all other material taxes, fees or other charges imposed on them or any of their respective properties by any Governmental Authority (other than those the amount or validity of which is contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Borrower or any such Subsidiary, as the case may be), except where failure to take any such action could not reasonably be expected to have a Material Adverse Effect; and no tax liens have been filed and no claims are being asserted with respect to any such taxes, fees or other charges (other than such liens or claims, the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP (or prior to the Amendment/Restatement Effective Date, applicable accounting practice) have been provided) which could be reasonably expected to have a Material Adverse Effect. Section 6.10. COMPLIANCE WITH ERISA. (a) SCHEDULE 6.10 sets forth each Plan as of the Amendment/Restatement Effective Date, after giving effect to the Transaction. Each Plan has been operated and administered in a manner so as not to result in any material liability of the Borrower or any of its Subsidiaries for failure to comply with the applicable provisions of ERISA and the Code; no Reportable Event which could reasonably be expected to result in the termination of any Plan has occurred with respect to a Plan; to the knowledge of the Borrower, no Multiemployer Plan is insolvent or in reorganization; the aggregate fair market value of the assets of each Plan equals or exceeds the aggregate present value of the accrued benefits under such Plan (using the actuarial funding assumptions then in effect for such Plan); no Plan has an accumulated or waived funding deficiency, has permitted decreases in its funding standard account or has applied for an extension of any amortization period within the meaning of Section 412 of the Code; neither the Borrower nor any of its Subsidiaries nor any ERISA Affiliate has incurred any material liability to or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code; no proceedings have been instituted to terminate any Plan; using actuarial assumptions and computation methods consistent with subpart 1 of Subtitle E of Title IV of ERISA, and its Subsidiaries and its ERISA Affiliates would not have any material liability to all Plans which are Multiemployer Plans in the event of a complete withdrawal therefrom, as of the close of the most recent Fiscal Year of each such Plan 92 ending prior to the date of any Credit Event; no Lien imposed under the Code or ERISA on the assets of the Borrower or any of its Subsidiaries or any ERISA Affiliate exists or is likely to arise on account of any Plan; and, except as disclosed in the annual audited financial statements delivered pursuant to SECTION 7.1(b) herein, the Borrower and its Subsidiaries do not maintain or contribute to any employee welfare benefit plan (as defined in Section 3(1) of ERISA) which provides benefits to retired employees (other than as required by Section 601 of ERISA) or any employee pension benefit plan (as defined in Section 3(2) of ERISA), the ongoing annual obligations with respect to either of which could reasonably be expected to have a Material Adverse Effect. (b) To the knowledge of the Borrower, (i) each Foreign Pension Plan has been maintained in substantial compliance with its terms and with the requirements of any and all applicable laws, statutes, rules, regulations and orders and has been maintained, where required, in good standing with applicable regulatory authorities; (ii) all contributions required to be made with respect to a Foreign Pension Plan have been timely made; (iii) neither the Borrower nor any of its Subsidiaries has incurred any obligation in connection with the termination of, or withdrawal from, any Foreign Pension Plan; and (iv) the present value of the accrued benefit liabilities (whether or not vested) under each Foreign Pension Plan, determined as of the end of the Borrower's most recently ended fiscal year on the basis of the actuarial assumptions set forth in the most recent actuarial report for such plan, did not exceed the aggregate of (a) the current value of the assets of such Foreign Pension Plan allocable to such benefit liabilities, and (b) the amount then reserved on the Borrower's consolidated balance sheet in respect of such liabilities (and such amount reserved on Borrower's consolidated balance sheet is not likely to have a Material Adverse Effect). Section 6.11. OWNERSHIP OF PROPERTY. The Borrower and each of its Subsidiaries has good and marketable title or, with respect to real property, valid fee simple title (or in each case, the relevant foreign equivalent, if any) to, or a subsisting leasehold interest in, or a valid contractual agreement or other valid right to use, all such Person's material real property, and good title (or relevant foreign equivalent) to, a valid leasehold interest in, or valid contractual rights or other valid right to (or an agreement for the acquisition of same) use all of such Person's other material property (but excluding Intellectual Property), and, in each case, none of such property is subject to any Lien except for Permitted Liens. The items of real and personal property (but excluding Intellectual Property) owned by, leased to or used by the Borrower and each of its Subsidiaries constitute all of the assets used in the conduct of such Person's business as presently conducted, and neither this Agreement nor any other Documents, nor any transaction contemplated under any such agreement, will affect any right, title or interest of the Borrower or any of its Subsidiaries in and to any of such assets in a manner that would have or is reasonably likely to have a Material Adverse Effect. 93 Section 6.12. CAPITALIZATION OF THE BORROWER. On the Amendment/Restatement Effective Date after giving effect to the Transaction, the capitalization of the Borrower will be as set forth on SCHEDULE 6.12 hereto. The outstanding Capital Stock of the Borrower shall have been duly authorized and validly issued. Except as set forth on SCHEDULE 6.12, no authorized but unissued or treasury shares of Capital Stock of the Borrower are subject to any option, warrant, right to call or commitment of any kind or character. A complete and correct copy of each of the agreements in effect with respect to such options, warrants, right to call or otherwise relating to the Borrower's Capital Stock to which the Borrower is a party on the Amendment/Restatement Effective Date has been delivered to the Administrative Agent. Except as set forth on SCHEDULE 6.12 or pursuant to the Transaction Documents or with respect to stock option plans and restricted stock option plans relating to the Borrower's or its Subsidiaries' compensation plans, neither the Borrower nor any of its Subsidiaries has any outstanding stock or securities convertible into or exchangeable for any shares of its Capital Stock, or any rights issued to any Person (either preemptive or other) to subscribe for or to purchase, or any options for the purchase of, or any agreements providing for the issuance (contingent or otherwise) of, or any calls, commitments or claims or any character relating to any of its Capital Stock or any stock or securities convertible into or exchangeable for any of its Capital Stock (other than as set forth in the certificate of incorporation of the Borrower). Neither the Borrower nor any of its Subsidiaries is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its Capital Stock or any convertible securities, rights or options of the type described in the preceding sentence. Section 6.13. SUBSIDIARIES. (a) ORGANIZATION. SCHEDULE 6.13 sets forth as of the Amendment/Restatement Effective Date a true, complete and correct list of each direct and indirect Subsidiary of the Borrower (after giving effect to the Transaction) and indicates for each such Subsidiary (i) its jurisdiction of organization and (ii) its ownership (by holder and percentage interest). The Borrower has no Subsidiaries except for Subsidiaries permitted to be created pursuant to this Agreement and those Subsidiaries listed as on SCHEDULE 6.13. (b) CAPITALIZATION. All of the issued and outstanding Capital Stock of each direct or indirect Subsidiary of the Borrower is owned as set forth on SCHEDULE 6.13. All of the Capital Stock of each Subsidiary of the Borrower has been duly authorized and validly issued, is fully paid and non-assessable and is owned as set forth on SCHEDULE 6.13, free and clear of all Liens except for Permitted Liens. No authorized but unissued or treasury shares of Capital Stock of any Subsidiary of the Borrower are subject to any option, warrant, right to call or commitment of any kind or character except pursuant to the Transaction Documents or with respect to stock 94 option plans and restricted stock option plans relating to the Borrower's or its Subsidiaries' compensation plans. (c) RESTRICTIONS ON OR RELATING TO SUBSIDIARIES. There does not exist any consensual encumbrance or restriction on the ability of (i) any Subsidiary of the Borrower to pay dividends or make any other distributions on its capital stock or any other interest or participation in its profits owned by the Borrower or any Subsidiary of the Borrower, or to pay any Indebtedness owed to the Borrower or a Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower to make loans or advances to the Borrower or any of the Borrower's Subsidiaries or (iii) the Borrower or any of its Subsidiaries to transfer any of its properties or assets to the Borrower or any of its Subsidiaries, except, in each case, for such encumbrances or restrictions permitted under SECTION 8.5. Section 6.14. COMPLIANCE WITH LAW, ETC. Neither the Borrower nor any of its Subsidiaries is in default under or in violation of any Requirement of Law or Contractual Obligation or under its Organizational Documents, as the case may be, in each case the consequences of which default or violation, either in any one case or in the aggregate, would have a Material Adverse Effect. Section 6.15. INVESTMENT COMPANY ACT. Neither the Borrower nor any of its Subsidiaries is an "investment company" or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. Section 6.16. PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower nor any of its Subsidiaries is a "holding company," or a "subsidiary company" of a "holding company," or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended. Section 6.17. ENVIRONMENTAL MATTERS. (i) Except as set forth in SCHEDULE 6.17, the operations of and the real property owned or operated by the Borrower and each of its Subsidiaries are, and to the knowledge of the Borrower, the past operations of and the real property formerly owned or operated by the Borrower and each of its Subsidiaries are, in compliance with all applicable Environmental Laws except where the failure to be in compliance, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; (ii) the Borrower and each of its Subsidiaries has obtained and will continue to maintain all such Environmental Permits, and all such Environmental 95 Permits are in good standing and the Borrower and its Subsidiaries are in compliance with all terms and conditions of such Environmental Permits, except where failure to so obtain, maintain or comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; (iii) neither the Borrower nor any of its Subsidiaries nor any of their present or past properties or operations (whether owned or leased) is subject to: (A) any Environmental Claim or other written claim, request for information, or agreement from or with any Governmental Authority or Person related to any violation of, non-compliance with or liability arising under Environmental Laws or Environmental Permits to the extent any of the foregoing could reasonably be expected to have a Material Adverse Effect, (B) any pending or, to the knowledge of the Borrower, threatened judicial or administrative proceeding, action, suit or investigation related to any Environmental Laws or Environmental Permits which could reasonably be expected to have a Material Adverse Effect, (C) any Remedial Action which if not taken could reasonably be expected to have a Material Adverse Effect or (D) any liabilities, obligations or costs arising from the Release or threat of a Release of Hazardous Materials into the environment regardless of whether the Release or threat of a Release is occurring on the Borrower's or any of its Subsidiaries' present or past properties (whether owned or leased) or at any other location, in each case where such Release or threat of a Release could reasonably be expected to have a Material Adverse Effect; (iv) neither the Borrower nor any of its Subsidiaries has received any written notice or claim to the effect that the Borrower or any of its Subsidiaries is or may be liable to any Person as a result of the Release or threat of a Release of Hazardous Materials into the environment, which notice or claim could reasonably be expected to result in a Material Adverse Effect, and (v) no Environmental Lien has attached to any property (whether owned or leased) of the Borrower or of any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect, nor are there any facts or circumstances currently known to the Borrower or any of its Subsidiaries that may reasonably be expected to give rise to such an Environmental Lien. Section 6.18. LABOR RELATIONS. Neither the Borrower nor any of its Subsidiaries is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect. Except as disclosed on SCHEDULE 6.6, there is (i) no significant unfair labor practice complaint pending against the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower, threatened against any of them before the National Labor Relations Board or appropriate national court or other forum, and no significant grievance or significant arbitration proceeding arising out of or under any collective bargaining agreement is so pending against the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower, threatened against any of them, (ii) no significant strike, labor dispute, slowdown or stoppage is pending against the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower, threatened against the Borrower or any of its Subsidiaries and (iii) to the knowledge of the Borrower, no question concerning union representation exists with respect to the employees of the Borrower or any of its Subsidiaries except (with respect to any matter specified in clause 96 (i), (ii) or (iii) above, either individually or in the aggregate) such as could reasonably be expected to have a Material Adverse Effect. Section 6.19. INTELLECTUAL PROPERTY, LICENSES, FRANCHISES AND FORMULAS. The Borrower and its Subsidiaries owns or holds licenses or other rights to or under all of the patents, patent applications, trademarks, service marks, trademark and service mark registrations and applications therefor, trade names, copyrights, copyright registrations and applications therefor, trade secrets, proprietary information, computer programs or data bases (collectively, "INTELLECTUAL PROPERTY") except where the failure to own or hold such Intellectual Property could not reasonably be expected to result in a Material Adverse Effect, and has obtained assignments of all franchises, licenses and other rights of whatever nature, regarding Intellectual Property necessary for the present conduct of its business, without any known conflict with the rights of others, except such conflicts which could not reasonably be expected to have a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries has knowledge of any existing or threatened claim by any Person contesting the validity, enforceability, use or ownership of the Intellectual Property which could reasonably be expected to have a Material Adverse Effect, or of any existing state of facts that would support a claim that use by the Borrower or any of its Subsidiaries of any such Intellectual Property has infringed or otherwise violated any proprietary rights of any other Person which could reasonably be expected to have a Material Adverse Effect. To the knowledge of the Borrower or its Subsidiaries, no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding is pending or has been threatened by any Person against the Borrower or any Subsidiary (or any licensor of any patent or other intellectual property or property right) with respect to any patent or other intellectual property or property right that could adversely affect the Borrower's or any of its Subsidiaries' right to utilize any material technology in its production operations. Section 6.20. CERTAIN FEES. Except as disclosed to the Agents prior to the Amendment/Restatement Effective Date, no broker's or finder's fees or commissions or any similar fees or commissions will be payable by the Borrower or any of its Subsidiaries with respect to the incurrence and maintenance of the Obligations, any other transaction contemplated by the Documents or any services rendered in connection with such transactions. Section 6.21. SECURITY DOCUMENTS. (a) SECURITY AGREEMENT COLLATERAL. The provisions of the Security Agreements upon execution and delivery thereof are effective to create in favor of the Collateral Agent for the benefit of the Secured Creditors a legal, valid and enforceable security interest in all right, title and interest of the applicable Credit Party in the Collateral (other than the Collateral described in the Mortgages) owned by such Credit Party, and the Security Agreements, together with the 97 filings of Form UCC-1 (or other similar filing, if any) in all relevant jurisdictions and delivery of all possessory collateral create a first lien on, and security interest in (or similar interest in respect of), all right, title and interest of the Borrower and such Credit Parties in all of the Collateral described therein, subject to no other Liens other than Permitted Liens. All such Liens are fully perfected Liens (or similar legal status). The recordation in the United States Patent and Trademark Office and in the United States Copyright Office of assignments for security made pursuant to the Security Agreements will be effective, under Federal law, to perfect the security interest granted to the Collateral Agent for the benefit of the Secured Creditors in the trademarks, patents and copyrights covered by such the Security Agreements. Each Credit Party has good and marketable title to, or rights in, all Security Agreement Collateral, free and clear of all Liens except Permitted Liens. (b) PLEDGED SECURITIES. The security interests created in favor of the Collateral Agent, as pledgee for the benefit of the Secured Creditors under the Pledge Agreements, constitute perfected security interests in the Pledged Securities, if any, subject to no security interests of any other Person. No filings or recordings are required in order to perfect the security interests created in the Pledged Securities under the Pledge Agreement other than with respect to filings required by applicable foreign law and UCC financing statements with respect to uncertificated Pledged Securities. (c) REAL ESTATE COLLATERAL. The Mortgages create, as security for the obligations purported to be secured thereby, a valid and enforceable (and upon the due recording thereof under applicable law) perfected security interest in and Lien on all of the Mortgaged Property (including, without limitation, all fixtures and improvements relating to such Mortgaged Property and affixed or added thereto on or after the Initial Borrowing Date) in favor of the Collateral Agent (or such other agent or trustee as may be named therein) for the benefit of the Secured Creditors, superior to and prior to the rights of all third Persons (except that the security interest created in the Mortgaged Property may be subject to the Permitted Liens related thereto). SCHEDULE 6.21(c) contains a true and complete list of the street address (or such other identifying information as is acceptable to the Administrative Agent) for each parcel of real property owned or leased by the Borrower and its Subsidiaries in the United States, other jurisdiction in which a material plant is located and the type of interest therein held by the Borrower or such Subsidiary. The Borrower or a Subsidiary of the Borrower has good and marketable title to all Mortgaged Property free and clear of all Liens except those described in the first sentence of this SECTION 6.21(c) or as otherwise may be acceptable to the Administrative Agent. 98 Section 6.22. DOCUMENTS. (a) The Borrower has on or prior to the Amendment/Restatement Effective Date delivered to the Administrative Agent true, correct and complete copies of the Transaction Documents entered into by the Borrower or any Subsidiary on or before the Amendment/Restatement Effective Date in connection with the Transaction and, with respect to any such Transaction Document entered into after the Amendment/Restatement Effective Date, the terms thereof shall be reasonably satisfactory to the Administrative Agent. The Borrower and each of its Subsidiaries have, concurrently with the execution and delivery of this Agreement or will have by the Amendment/Restatement Effective Date, consummated the transactions contemplated by the Documents pursuant thereto, and the Documents set forth the entire agreement among the parties thereto with respect to the subject matter thereof. No party to the Transaction Documents has waived the fulfillment of any material condition precedent set forth therein to the consummation of the transactions contemplated thereby, no party is in default or has failed to perform any of its material obligations thereunder or under any material instrument or document executed and delivered in connection therewith. (b) All representations and warranties of the Borrower set forth in the Documents were true and correct in all material respects (taken as a whole) at the time as of which such representations and warranties were made or deemed made and as of the Initial Borrowing Date. Section 6.23. INTERCOMPANY NOTES. Upon execution and delivery thereof, the Intercompany Notes constitute legal, valid and binding obligations of the Persons party thereto (except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors' rights and by equitable principles (regardless of whether enforcement is sought in equity or at law)) and are in full force and effect. Section 6.24. AEROJET SETTLEMENT AGREEMENT. The Aerojet Settlement Agreement is in full force and effect on the Amendment/Restatement Effective Date, no party thereto has opted out of the Aerojet Settlement Agreement, no Governmental Authority party thereto has any defense to its obligations thereunder or to the terms thereof, and there are no facts and circumstances known to the Borrower or any of its Subsidiaries that would reasonably be expected to void or otherwise render invalid the Aerojet Settlement Agreement or that would allow any Governmental Authority party to avoid its obligations thereunder. 99 ARTICLE VII AFFIRMATIVE COVENANTS The Borrower hereby agrees that, so long as any of the Commitments remain in effect, or any Loan or LC Obligation remains outstanding and unpaid or any other amount is owing to any Lender or the Administrative Agent hereunder, the Borrower shall: Section 7.1. FINANCIAL STATEMENTS. Furnish, or cause to be furnished, to each Lender: (a) QUARTERLY FINANCIAL STATEMENTS. Within the earlier of (i) five (5) days after the time period specified by the SEC under the Exchange Act or (ii) forty-five (45) days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, unaudited financial statements consisting of a consolidated and consolidating balance sheet and statement of stockholders' equity of the Borrower and its Subsidiaries as at the end of such quarter and consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such quarter and for the Fiscal Year through such quarter, all in reasonable detail and certified on behalf of the Borrower by a Responsible Officer of the Borrower as having been prepared in accordance with generally accepted accounting principles consistently applied (other than for normal year-end adjustments and, unless then required by the Borrower's reporting obligations to the Securities and Exchange Commission or by generally accepted accounting principles, footnote disclosure). (b) ANNUAL FINANCIAL STATEMENTS. Within the earlier of (i) five (5) days after the time period specified by the SEC under the Exchange Act or (ii) ninety (90) days after the end of each Fiscal Year of the Borrower, financial statements consisting of a consolidated and consolidating balance sheet and statement of stockholder's equity of the Borrower and its Subsidiaries as at the end of such Fiscal Year and consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Year, certified (without adverse opinions, scope limitations or qualifications with respect to departures from generally accepted, accounting principles other than departures (x) which are not material, (y) which will not cause the financial statements to fail to meet the requirements of the Securities and Exchange Commission for financial information to be contained or incorporated by reference in registration statements, and (z) which do not cause the financial statements to fail to accurately reflect the financial condition of the Borrower without qualification as to scope of examination by independent public accountants of recognized national standing and reputation selected by the Borrower). (c) ANNUAL SCHEDULE OF INTERCOMPANY NOTES. As soon as available, but in any event within 90 days after the end of each Fiscal Year of the Borrower an unaudited schedule of Intercompany Notes as at the end of such year, separately presenting the Foreign Intercompany Notes, all indebtedness permitted under SECTION 8.2 (including overdraft facilities) and cash 100 balances, for each consolidated Subsidiary with total assets in excess of $20,000,000 as at the end of such period. Section 7.2. CERTIFICATES; OTHER INFORMATION. Furnish to each Lender (or, if specified below, to the Administrative Agent): (a) ACCOUNTANT'S CERTIFICATES. Concurrently with the delivery of the financial statements referred to in SECTION 7.1(b), (i) a certificate from Ernst & Young LLP or other independent certified public accountants of nationally recognized standing, stating that, in the course of their annual audit of the books and records of the Borrower and its Subsidiaries, no Event of Default or Unmatured Event of Default has come to their attention which was continuing at the end of such Fiscal Year or on the date of their certificate, or if such an Event of Default or Unmatured Event of Default has come to their attention, the certificate shall indicate the nature of such Event of Default or Unmatured Event of Default; and (ii) a letter, in form satisfactory to the Administrative Agent from such accountants with respect to reliance on such accountant's certificate and report on the annual consolidated financial statements referred to in this SECTION 7.2(a). (b) OFFICER'S CERTIFICATES. Concurrently with the delivery of the financial statements referred to in SECTIONS 7.1(a) and 7.1(b), a certificate of a Responsible Financial Officer substantially in the form of EXHIBIT 7.2(B) stating that, to the best of such officer's knowledge, (i) such financial statements present fairly, in accordance with GAAP, the financial condition and results of operations of the Borrower and its Subsidiaries for the period referred to therein (subject, in the case of interim statements, to normal recurring adjustments), (ii) no Event of Default or Unmatured Event of Default has occurred, except as specified in such certificate and, if so specified, the action which the Borrower proposes to take with respect thereto, which certificate shall set forth detailed computations to the extent necessary to establish the Borrower's compliance with the covenants set forth in ARTICLE IX of this Agreement and (iii) setting forth the then current outstanding amount of each Intercompany Loan; (c) AUDIT REPORTS AND STATEMENTS. Promptly following the Borrower's receipt thereof, copies of all consolidated financial or other consolidated reports or statements, if any, submitted to the Borrower or any of its Subsidiaries by independent public accountants relating to any annual or interim audit of the books of the Borrower or any of its Subsidiaries; (d) MANAGEMENT LETTERS. Promptly after receipt thereof, a copy of any "management letter" received by the Borrower or any of its Subsidiaries from its certified public accountants; (e) PROJECTIONS. As soon as available and in any event within sixty (60) days following the first day of each Fiscal Year of the Borrower, projections (prepared on a business 101 segment basis) in form satisfactory to the Administrative Agent and the Required Lenders covering the period from such Fiscal Year through the next two Fiscal Years prepared in reasonable detail, with appropriate presentation and discussion of the principal assumptions upon which such projections are based, which shall be accompanied by the statement of the chief executive officer or Responsible Financial Officer of the Borrower to the effect that, to the best of his knowledge, such projections are a reasonable estimate for the periods respectively covered thereby; (f) PUBLIC FILINGS. Within 20 days after the same become public, copies of all financial statements and reports which the Borrower may make to, or file with the SEC or any successor or analogous Governmental Authority; (g) INSURANCE. Prior to the Amendment/Restatement Effective Date, the Borrower shall have delivered to the Administrative Agent evidence of insurance complying with the requirements of SECTION 7.8 for the business and properties of the Borrower and its Subsidiaries, in form reasonably satisfactory to the Administrative Agent and the Required Lenders, and naming the Administrative Agent as an additional insured, mortgagee and/or loss payee, and stating that such insurance shall not be cancelled or revised without 30 days' prior written notice by the insurer to the Administrative Agent; (h) INSURANCE INFORMATION. The Borrower shall deliver to the Administrative Agent information concerning insurance at the times and in the manner specified in SECTION 7.8; (i) ENVIRONMENTAL REPORT. Concurrently with the delivery of the financial statements referred to in SECTIONS 7.1(a) and 7.l(b), a report of the Borrower (i) with respect to the environmental matters affecting the Borrower and the Subsidiaries in the form set forth in the 10-K or Form 10-Q, as applicable, of the Borrower relating to such fiscal period as to which the financial statements being concurrently delivered therewith pertain; PROVIDED, HOWEVER, that to the extent the Borrower becomes aware of any potential Environmental Claim or threat of judicial or administrative action regarding an Environmental Claim, the Borrower shall include in such report such information as the Borrower may have regarding such matter even if all facts regarding such matter are not known or the potential liability is not quantifiable and (ii) as to the progress of the Borrower and applicable Subsidiaries in connection with obtaining the environmental permits and making the declarations detailed in the post-closing agreement dated as of the Initial Borrowing Date, as amended, between the Borrower and the Administrative Agent, and the Borrower shall further provide to the Administrative Agent copies of any environmental audit reports to be prepared by or on behalf of the Borrower or any Subsidiary and shall, as part of such report, provide a status report to the Administrative Agent as to any material environmental issues, liabilities or compliance costs identified in such audit reports; and (j) OTHER REQUESTED INFORMATION. Such other information respecting the respective properties, business affairs, financial condition and/or operations of the Borrower or 102 any of its Subsidiaries as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request. Section 7.3. NOTICES. Promptly and in any event within three (3) Business Days in the case of CLAUSES (A), (D), (E) and (F) below, 15 days in the case of CLAUSES (B) and (C) below, or one Business Day in the case of CLAUSE (G) below after an officer of the Borrower or of any of its Subsidiaries obtains knowledge thereof, give written notice to the Administrative Agent (which shall promptly provide a copy of such notice to each Lender) of: (a) EVENT OF DEFAULT OR UNMATURED EVENT OF DEFAULT. The occurrence of any Event of Default or Unmatured Event of Default, accompanied by a statement of a Responsible Financial Officer setting forth details of the occurrence referred to therein and stating what action the Borrower proposes to take with respect thereto. (b) LITIGATION AND RELATED MATTERS. The commencement of, or any material development in, any action, suit, proceeding or investigation affecting the Borrower or any of its Subsidiaries or any of their respective properties before any arbitrator or Governmental Authority, (i) in which the amount involved that the Borrower reasonably determines is not covered by insurance or other indemnity arrangement is $10,000,000 or more, (ii) with respect to any Document or any material Indebtedness of the Borrower or any of its Subsidiaries or (iii) which, if determined adversely to the Borrower or any of its Subsidiaries, could reasonably be expected to have a Material Adverse Effect. (c) ENVIRONMENTAL. (i) The occurrence of one or more of the following, to the extent that any of the following, if adversely determined, could reasonably be expected to have a Material Adverse Effect: (A) written notice of an Environmental Claim or written notice or request for information to the effect that the Borrower or any of its Subsidiaries is or may be liable to any Person as a result of the presence of or the Release or threat of a Release of any Hazardous Materials into the environment; (B) written notice that the Borrower or any of its Subsidiaries is subject to investigation by any Governmental Authority evaluating whether any Remedial Action is needed to respond to the presence or to the Release or threat of a Release of any Hazardous Materials into the environment; (C) written notice that any property, whether presently owned or leased by, or operated on behalf of, the Borrower or its Subsidiaries is subject to an Environmental Lien; (D) written notice of violation to the Borrower or any of its Subsidiaries of any Environmental Laws or Environmental Permits by the Borrower or any of its Subsidiaries, or (E) commencement or written threat of any judicial or administrative proceeding alleging a violation of or liability under any Environmental Laws or Environmental Permits. 103 (ii) Upon written request by the Administrative Agent, the Borrower shall promptly submit to the Administrative Agent and the Lenders a report providing an update of the status of each environmental, health or safety compliance, hazard or liability issue identified in any notice or report required pursuant to clause (i) above and any other environmental, health and safety compliance obligation, remedial obligation or liability that could reasonably be expected to have a Material Adverse Effect. All such notices shall describe in reasonable detail the nature of the Environmental Claim, notice, request for information, proceeding investigation, condition, occurrence or removal or Remedial Action and the Borrower's or such Subsidiary's response thereto. (d) NOTICE OF CHANGE OF CONTROL. Each occasion that any Change of Control shall occur and such notice shall set forth in reasonable detail the particulars of each such occasion. (e) NOTICES UNDER TRANSACTION DOCUMENTS. Promptly following the receipt or delivery thereof, copies of any material demands, notices or documents received or delivered by the Borrower or any Subsidiary of the Borrower outside of the ordinary course of business under or pursuant to the Transaction Documents, any material joint venture agreement and any other material agreement from time to time identified by the Administrative Agent. (f) AEROJET SETTLEMENT AGREEMENT. Any notice or any other communication received with respect to or pursuant to the Aerojet Settlement Agreement concerning any party's election to opt out of or otherwise not to comply with the terms thereof or to propose any material modifications thereof. (g) INSOLVENCY PROCEEDINGS. A meaningful threat of or notice in respect of any insolvency proceeding involving any Foreign Subsidiary. Section 7.4. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. Continue to engage in business of the same general type as now conducted by it and preserve, renew and keep in full force and effect its and each Subsidiary's corporate existence and take all reasonable action to maintain all rights, privileges and franchises material to its and those of each of its Subsidiaries' businesses except to the extent that failure to take any such action could not in the aggregate reasonably be expected to have a Material Adverse Effect or as otherwise permitted pursuant to SECTIONS 8.3 and comply and cause each of its Subsidiaries to comply with all Requirements of Law (excluding Environmental Laws which are governed by SECTION 7.9) except to the extent that failure to comply therewith would not in the aggregate reasonably be expected to have a Material Adverse Effect. 104 Section 7.5. PAYMENT OF OBLIGATIONS. Pay or discharge or otherwise satisfy at maturity or, to the extent permitted hereby, prior to maturity or before they become delinquent, as the case may be, and cause each of its Subsidiaries to pay or discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be: (i) all material taxes, assessments and governmental charges or levies imposed upon any of them or upon any of their income or profits or any of their respective properties or assets prior to the date on which penalties attach thereto; and (ii) all lawful claims prior to the time they become a Lien (other than Permitted Liens) upon any of their respective properties or assets; PROVIDED, HOWEVER, that neither the Borrower nor any of its Subsidiaries shall be required to pay or discharge any such material tax, assessment, charge, levy or claim while the same is being contested by it in good faith and by appropriate proceedings diligently pursued so long as the Borrower or such Subsidiary, as the case may be, shall have set aside on its books adequate reserves in accordance with GAAP (segregated to the extent required by GAAP) with respect thereto and title to any material properties or assets is not jeopardized in any material respect. Section 7.6. INSPECTION OF PROPERTY, BOOKS AND RECORDS. Keep, or cause to be kept, and cause each of its Subsidiaries to keep or cause to be kept, adequate records and books of account, in which complete entries are to be made reflecting its and their business and financial transactions, such entries to be made in accordance with sound accounting principles consistently applied and permit, and cause each of its Subsidiaries to permit, any Lender or its respective representatives, at any reasonable time, and from time to time at the reasonable request of such Lender made to the Borrower and upon reasonable notice, to visit and inspect its and their respective properties, to examine and make copies of and take abstracts from its and their respective records and books of account, and to discuss its and their respective affairs, finances and accounts with its and their respective principal officers, directors and independent public accountants (and by this provision the Borrower authorizes such accountants to discuss with the Lenders and such representatives the affairs, finances and accounts of the Borrower and its Subsidiaries). Section 7.7. ERISA. (i) As soon as practicable and in any event within ten (10) days after the Borrower or any of its Subsidiaries or ERISA Affiliates knows or has reason to know that a Reportable Event has occurred with respect to any Plan, deliver, or cause such Subsidiary or ERISA Affiliate to deliver, to the Administrative Agent a certificate of a Responsible Officer of the Borrower or such Subsidiary or ERISA Affiliate, as the case may be, setting forth the details 105 of such Reportable Event and the action, if any, which the Borrower or such Subsidiary or ERISA Affiliate is required or proposes to take, together with any notices required or proposed to be given; (ii) upon the request of any Lender made from time to time, deliver, or cause each Subsidiary or ERISA Affiliate to deliver, to each Lender a copy of the most recent actuarial report and annual report completed with respect to any Plan; (iii) as soon as possible and in any event within ten (10) days after the Borrower or any of its Subsidiaries or ERISA Affiliates knows or has reason to know that any of the following have occurred or is reasonably likely to occur with respect to any Plan: (A) such Plan has been terminated, reorganized, petitioned or declared insolvent under Title IV of ERISA, (B) the Plan Sponsor intends to terminate such Plan, (C) the PBGC has instituted or will institute proceedings under Section 515 of ERISA to collect a delinquent contribution to such Plan or under Section 4042 of ERISA to terminate such Plan, (D) that an accumulated funding deficiency has been incurred or that an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including any required installment payments) or an extension of any amortization period under Section 412 of the Code, or (E) that the Borrower, or any Subsidiary of the Borrower or any ERISA Affiliate will incur any material liability (including, but not limited to, contingent or secondary liability) to or on account of the termination of or withdrawal from a Plan under Section 401(a)(29), 4971 or 4975 of the Code or Section 409 or 502(1) of ERISA, deliver, or cause such Subsidiary or ERISA Affiliate to deliver, to the Administrative Agent a written notice thereof; and (iv) as soon as possible and in any event within thirty (30) days after the Borrower or any of its Subsidiaries or ERISA Affiliates knows or has reason to know that any of them has caused a complete withdrawal or partial withdrawal (within the meaning of Sections 4203 and 4205, respectively, of ERISA) from any Multiemployer Plan, deliver, or cause such Subsidiary or ERISA Affiliate to deliver, to the Administrative Agent a written notice thereof. For purposes of this SECTION 7.7, the Borrower shall be deemed to have knowledge of all facts known by the Plan Administrator of any Plan of which the Borrower is the Plan Sponsor, and each Subsidiary and ERISA Affiliate of the Borrower shall be deemed to have knowledge of all facts known by the Plan Administrator of any Plan of which such Subsidiary or ERISA Affiliate, respectively, is a Plan Sponsor. In addition to its other obligations set forth in this ARTICLE VII, the Borrower shall, and shall cause each of its Subsidiaries and ERISA Affiliates to: (A) provide the Administrative Agent with prompt written notice, with respect to any Plan, of any failure to satisfy the minimum funding standard requirements of Section 412 of the Code, (B) furnish to the Administrative Agent, promptly after delivery of the same to the PBGC, a copy of any delinquency notice pursuant to Section 412(n)(4) of the Code, (C) correct any such failure to satisfy funding requirements or delinquency referred to in the foregoing clauses (A) and (B) within ninety (90) days after the 106 occurrence thereof, except where the failure to so satisfy would not reasonably be expected to have a Material Adverse Effect; (D) comply in good faith in all material respects with the requirements set forth in Section 4980B of the Code and with Sections 601(a) and 606 of ERISA; (E) at the request of any Lender, deliver to such Lender (and a copy to the Administrative Agent) a complete copy of the most recent annual report (Form 5500) of each Plan required to be filed with the Internal Revenue Service; and (F) at the request of any Lender, deliver to such Lender (and a copy to the Administrative Agent) copies of the most recent annual reports received by the Borrower or any Subsidiary of the Borrower or any ERISA Affiliate with respect to any Plan or Foreign Pension Plan no later than ten (10) days after the date of such request. Section 7.8. MAINTENANCE OF PROPERTY; INSURANCE. (i) Keep, and cause each of its Subsidiaries to keep, all property (including, but not limited to, equipment) useful and necessary for its business in good working order and condition, normal wear and tear and damage by casualty excepted, subject to SECTION 8.3(b), (ii) maintain, and shall cause each of its Subsidiaries to maintain insurance with respect to its material properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons. Such insurance shall be maintained with financially sound and reputable insurers, except that a portion of such insurance program (not to exceed that which is customary in the case of companies engaged in the same or similar business or having similar properties similarly situated) may be effected through self-insurance, provided adequate reserves therefor, in accordance with GAAP, are maintained. All insurance policies or certificates (or certified copies thereof) with respect to such insurance (A) shall be endorsed to the Administrative Agent's reasonable satisfaction for the benefit of the Lenders (including, without limitation, by naming the Administrative Agent as loss payee or additional insured, as appropriate); and (B) shall state that such insurance policy shall not be canceled or revised without thirty days' prior written notice thereof by the insurer to the Administrative Agent and (iii) furnish to the Administrative Agent, on the Amendment/Restatement Date and on the date of delivery of each annual financial statement, full information as to the insurance carried. At any time that insurance at levels described in SCHEDULE 7.8 is not being maintained by or on behalf of the Borrower or any of its Subsidiaries, the Borrower will notify the Lenders in writing within ten (10) Business Days thereof and, if thereafter notified by the Administrative Agent or the Required Lenders to do so, the Borrower or any such Subsidiary, as the case may be, shall obtain insurance at such levels at least equal to those set forth on SCHEDULE 7.8. 107 Section 7.9. ENVIRONMENTAL LAWS. (a) Materially comply with and will cause each of its Subsidiaries, tenants and subtenants to materially comply with, all Environmental Laws and obtain and comply in all material respects with and maintain, and take reasonable steps to ensure that all tenants and subtenants obtain and comply in all material respects with and maintain, any and all Environmental Permits. (b) Take and shall cause each of its Subsidiaries to take, prompt and appropriate action as required by Environmental Laws to fully respond to any material non-compliance with all Environmental Laws or Environmental Permits or to any material Release or threat of a material Release of Hazardous Materials, in each case, in compliance with Environmental Laws, and upon request from the Administrative Agent, shall regularly report to the Administrative Agent on such response. Without limiting the generality of the foregoing, whenever the Administrative Agent or any Lender has a reasonable basis to believe that the Borrower is not in material compliance with applicable Environmental Laws or Environmental Permits or that any property of the Borrower or its Subsidiaries (whether owned or leased), or any property to which Hazardous Materials generated by the Borrower or its Subsidiaries have come to be located ("OFFSITE PROPERTY") has or may become contaminated or subject to an order or decree such that any non-compliance, contamination or order or decree could reasonably be expected to have a Material Adverse Effect, then, to the extent the Borrower has the legal right to do so, the Borrower agrees to, at the Administrative Agent's request and the Borrower's sole expense: (i) cause an independent environmental engineer reasonably acceptable to the Administrative Agent to conduct such studies, evaluations, investigations, or tests of the site where the alleged or actual non-compliance or contamination has occurred and prepare and deliver to the Administrative Agent, the Lenders and the Borrower a report(s) reasonably acceptable to the Administrative Agent setting forth the results of such studies, evaluations, investigations, or tests, the Borrower's proposed plan and schedule for responding to any environmental problems described therein, and the Borrower's estimate of the costs thereof, and (ii) provide the Administrative Agent, the Lenders and the Borrower a supplemental report(s) of such engineer whenever the scope of the environmental problems or the Borrower's response thereto or the estimated costs thereof, shall materially change. Notwithstanding the above, the Borrower shall not be obligated (other than as required by applicable law) to undertake any tests or remediation at any Offsite Property that (x) is not owned or operated by the Borrower or any of its Subsidiaries and (y) where Hazardous Materials generated by persons other than the Borrower or any of its Subsidiaries have also come to be located. (c) Defend, indemnify and hold harmless the Administrative Agent and the Lenders, and their respective employees, the Administrative Agents, officers and directors, from and against any and all Environmental Claims or any demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature known or unknown, contingent or otherwise, arising out of, or in any way relating to the violation of, noncompliance 108 with or liability under, any Environmental Law applicable to the operations of the Borrower, any of its Subsidiaries or their respective properties (whether currently or formerly owned, leased or operated), or any orders, requirements or demands of Governmental Authorities related thereto, including, without limitation, attorneys' and consultants' fees, investigation and laboratory fees, costs arising from any Remedial Actions, court costs and litigation expenses, except to the extent that any of the foregoing arise out of the gross negligence or willful misconduct of the party seeking indemnification therefor. The agreements in this SECTION 7.9(c) shall survive repayment of the Notes and all other Obligations. Section 7.10. USE OF PROCEEDS. Use all proceeds of the Loans as provided in SECTION 6.8. Section 7.11. INTEREST RATE PROTECTION. No later than 90 days (the "HEDGE DATE") following the Amendment/Restatement Effective Date, enter into and maintain arrangements acceptable to the Administrative Agent which have the effect of establishing a fixed or maximum interest rate reasonably acceptable to the Administrative Agent for an aggregate notional principal amount of Indebtedness equal to at least $100,000,000 (the "NOTIONAL AMOUNT") with an initial average life of not less than two (2) years; PROVIDED, HOWEVER, that the Notional Amount may be reduced on a dollar-for-dollar basis simultaneously with the reduction of the principal amount outstanding of the Term Loans. Section 7.12. ADDITIONAL SECURITY; FURTHER ASSURANCES. (a) AGREEMENT TO GRANT ADDITIONAL SECURITY. Promptly, and in any event within 30 days after the acquisition by the Borrower or any Material Subsidiary of assets or real or personal property or leasehold interests of the type that would have constituted Collateral on the Amendment/Restatement Effective Date, in each case in which the Collateral Agent or the Administrative Agent does not have a perfected security interest under the Security Documents and within 30 days after request by the Administrative Agent with respect to any other after acquired collateral deemed material by the Administrative Agent or Required Lenders (the "ADDITIONAL COLLATERAL"), the Borrower will, and will cause each of its respective Material Subsidiaries to, take all necessary action, including (i) the filing of appropriate financing statements under the provisions of the UCC, applicable foreign, domestic or local laws, rules or regulations in each of the offices where such filing is necessary or appropriate to grant the Collateral Agent or the Administrative Agent for the benefit of the Secured Creditors pursuant to the Security Agreement a perfected Lien (subject only to Permitted Liens) in such Collateral pursuant to and to the full extent required by the Security Documents and this Agreement and (ii) with respect to real estate, the execution of a Mortgage, the obtaining of title insurance policies or indemnification agreements satisfactory to the Administrative Agent, title surveys, Mortgage Policies and real estate appraisals satisfying the Requirements of Law. In the event the Lien 109 against the Mortgaged California Real Estate is released pursuant to SECTION 12.15(b) but thereafter, the Leverage Ratio of the Borrower is equal to or greater than 2.00 to 1.00, the Administrative Agent shall have the right to require the Borrower to execute a Mortgage, or cause any of its Subsidiaries to execute a Mortgage, with respect to the Mortgaged California Real Estate and take all other necessary action on behalf of the Collateral Agent or the Administrative Agent for the benefit of the Secured Creditors, all in accordance with SECTION 7.12(e). In furtherance of the foregoing, except as otherwise permitted by SECTION 8.14, the Borrower hereby agrees that in no event shall it, in any manner or at any time, transfer, modify or otherwise affect, or permit any Subsidiary of the Borrower to transfer, modify or otherwise affect, the legal title of the Mortgaged California Property such that the Borrower or any such Subsidiary shall no longer be the legal titleholder in the Mortgaged California Real Estate or shall in any other manner be restricted from granting such Mortgage in favor of the Collateral Agent or the Administrative Agent for the benefit of the Secured Creditors. (b) ADDITIONAL SUBSIDIARY GUARANTORS. The Borrower agrees to cause each new Material Domestic Subsidiary established or created in accordance with this Agreement to execute and deliver the Subsidiary Guaranty (or a supplement thereto) promptly, and in any event, within 30 days of such Person's having become a Material Domestic Subsidiary. (c) PLEDGE OF NEW SUBSIDIARY STOCK. The Borrower agrees to pledge (or cause its Subsidiaries to pledge) (i) all of the Capital Stock of each new Material Domestic Subsidiary and any Subsidiary owning the Stock of a Material Domestic Subsidiary, and (ii) 65% of the Capital Stock of each new Material Foreign Subsidiary and 65% of the Capital Stock of any Subsidiary owning the Stock of Material Foreign Subsidiary established, acquired or created after the Amendment/Restatement Effective Date to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Pledge Agreements promptly, and in any event, within 30 days of the creation or acquisition of such new Subsidiary. (d) GRANT OF SECURITY BY NEW SUBSIDIARIES. Subject to the provisions of SECTIONS 7.12(a) and 7.12(c), the Borrower will promptly and, in any event, within 30 days of the establishment, acquisition or creation of a Material Subsidiary, cause each Material Domestic Subsidiary and each Material Foreign Subsidiary (but only to the extent reasonably requested by the Administrative Agent) established or created in accordance with SECTION 8.7 to grant to the Collateral Agent for the benefit of the Secured Creditors a first priority Lien (subject to Permitted Liens) on all property (tangible and intangible) of such Material Subsidiary upon terms satisfactory in form and substance to the Administrative Agent. The Borrower shall cause each Material Subsidiary, at its own expense, to execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record in any appropriate governmental office, any document or instrument reasonably deemed by the Administrative Agent to be necessary or desirable for the creation and perfection of the foregoing Liens. The Borrower will cause each of its Material Subsidiaries to take all action requested by 110 the Administrative Agent or the Required Lenders (including, without limitation, the filing of UCC-1's) in connection with the granting of such security interests. (e) DOCUMENTATION FOR ADDITIONAL SECURITY. The security interests required to be granted pursuant to this SECTION 7.12 shall be granted pursuant to such security documentation satisfactory in form and substance to the Administrative Agent and the Required Lenders and shall constitute valid and enforceable perfected security interests prior to the rights of all third Persons and subject to no other Liens except Permitted Liens or, in the case of Mortgages, Permitted Real Property Encumbrances. The Additional Security Documents and other instruments related thereto shall be duly recorded or filed in such manner and in such places and at such times as are required by law to establish, perfect, preserve and protect the Liens, in favor of the Administrative Agent for the benefit of the Secured Creditors, required to be granted pursuant to the Additional Security Document and, all taxes, fees and other charges payable in connection therewith shall be paid in full by the Borrower or its Subsidiaries. At the time of the execution and delivery of the Additional Security Documents, the Borrower shall cause to be delivered to the Administrative Agent such agreements, opinions of counsel, title surveys, real estate appraisals satisfying any Requirements of Law, and other related documents as may be reasonably requested by the Administrative Agent or the Required Lenders to assure themselves that this SECTION 7.12 has been complied with. Section 7.13. END OF FISCAL YEARS; FISCAL QUARTERS. Cause the Borrower's and each of its Subsidiaries' annual accounting periods to end on November 30 of each year (each a "FISCAL YEAR"), with quarterly accounting periods ending on February 28 (or 29, if applicable), May 31, August 31 and November 30 of each Fiscal Year (each a "FISCAL QUARTER"), unless otherwise required by applicable law. Section 7.14. FOREIGN SUBSIDIARIES SECURITY. If, following a change in the relevant sections of the Code, the regulations and rules promulgated thereunder and any rulings issued thereunder and at the request of the Administrative Agent or the Required Lenders, counsel for the Borrower acceptable to the Administrative Agent and the Required Lenders does not within 30 days after such request deliver evidence reasonably satisfactory to the Administrative Agent with respect to any Foreign Subsidiary that is a Wholly-Owned Subsidiary of the Borrower that any of (i) a pledge of 662/3% or more of the total combined voting power of all classes of Capital Stock of such Foreign Subsidiary entitled to vote, (ii) the entering into by such Foreign Subsidiary of a guaranty in substantially the form of the Subsidiary Guaranty or (iii) the entering into by such Foreign Subsidiary of a security agreement in substantially the form of the Security Agreement, in any case could cause all or a portion of the earnings of such Foreign Subsidiary to be treated as a deemed dividend to such Foreign Subsidiary's United States parent or would otherwise violate applicable law or result in adverse tax consequences to the Borrower or its Subsidiaries, then in the case of a failure to 111 deliver the evidence described in clause (i) above, that portion of such Foreign Subsidiary's outstanding Capital Stock not theretofore pledged pursuant to the Security Documents shall be pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents (or another pledge agreement in substantially similar form, if needed), (ii) in the case of a failure to deliver the evidence described in clause (ii) above, such Foreign Subsidiary shall execute and deliver a guaranty of the Obligations of the Borrower under the Loan Documents (subject to compliance with financial assistance laws or similar laws applicable to such Foreign Subsidiary), and (iii) in the case of a failure to deliver the evidence described in clause (iii) above, such Foreign Subsidiary (subject to compliance with financial assistance laws or similar laws applicable to such Foreign Subsidiary) shall execute and deliver a security agreement granting the Administrative Agent for the benefit of the Lenders a security interest in all of such Foreign Subsidiary's assets, in each case with all documents delivered pursuant to this SECTION 7.14 to be in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders, but in each case, only to the extent permitted without violating applicable law or resulting in adverse tax consequences. Section 7.15. CERTAIN FEES INDEMNITY. The Borrower covenants that it will indemnify the Administrative Agent and each Lender against and hold the Administrative Agent and each Lender harmless from any claim, demand or liability for broker's or finder's fees or similar fees or commissions alleged to have been incurred by third parties other than the Lenders in connection with any of the transactions contemplated hereby. Section 7.16. OTS ACQUISITION DOCUMENTS. The Borrower will, and will cause its Subsidiaries to promptly provide to the Administrative Agent (i) drafts of any proposed amendment, modification or supplement to the OTS Acquisition Agreement or schedules thereto, (ii) drafts of any document to be executed pursuant to, or in connection with, the OTS Acquisition Agreement, the form of which is not attached to, or deviates in any material respect from the form attached to, the OTS Acquisition Agreement and (iii) any change in the structure of the transactions contemplated by the OTS Acquisition Documents (including, without limitation, corporate and organizational structure, Intercompany debt and equity structure, asset and operations structure, and the process to achieve such structures) to be effected on or prior to the Amendment/Restatement Effective Date. The rights of the Administrative Agent to approve any of the foregoing matters shall be governed by the express terms of this Agreement, including, without limitation, SECTION 8.11. Section 7.17. ADDITION OF COLLATERAL. The Borrower hereby agrees to grant a mortgage (or cause its applicable Subsidiary to grant a mortgage) to the Administrative Agent, all in accordance with the terms of SECTION 7.12 of this Agreement, as soon as possible but in no event later than November 30, 2002, on the real 112 property of the Borrower or any of its Subsidiaries holding such title located in or near Sacramento, California and as further identified to the Administrative Agent (the "MORTGAGED CALIFORNIA REAL ESTATE"), in favor of the Administrative Agent on behalf of the Lenders to secure payment of their respective Loans, a continuing security interest of first priority in all the right, title and interest of the Borrower and such applicable Subsidiaries, as the case may be, in the Mortgaged California Real Estate. ARTICLE VIII NEGATIVE COVENANTS The Borrower hereby covenants and agrees that, so long as any of the Commitments remain in effect or any Loan or LC Obligation remains outstanding and unpaid or any other amount is owing to any Lender or the Administrative Agent hereunder: Section 8.1. LIENS. The Borrower will not, and will not permit any of its Subsidiaries to create, incur, assume or suffer to exist or agree to create, incur or assume any Lien in, upon or with respect to any of its properties or assets (including, without limitation, any securities or debt instruments of any of its Subsidiaries), whether now owned or hereafter acquired, or assign or otherwise convey any right to receive income to secure any obligation, except for the following Liens (herein referred to as "PERMITTED LIENS"): (a) Liens created under the Security Documents; (b) Customary Permitted Liens; (c) Liens on any property securing Indebtedness incurred or assumed for the purpose of financing all or any part of the acquisition, construction, repair or improvement cost of such property (or financing of the purchase price within 120 days after the respective purchase of assets), and any Lien arising out of the refinancing, extension, renewal or refunding of any Indebtedness secured by any Lien permitted by this clause (c); PROVIDED, that (A) any such Lien does not extend to any other property (other than accessions and additions to the property covered thereby), (B) such Lien either exists on the Amendment/Restatement Effective Date or is created in connection with the refinancing, acquisition, construction, repair or improvement of such property as permitted by this Agreement, (C) the indebtedness secured by any such Lien (or the Capitalized Lease Obligation with respect to any Capitalized Lease) when incurred, (x) does not exceed 100% of the fair market value of such assets and (y) is not less than 70% of the fair market value of such assets (unless the Administrative Agent has a perfected second lien on such sset); and (D) the Indebtedness secured thereby is permitted to be incurred pursuant to SECTION 113 8.2(d), PROVIDED that such Indebtedness is not increased and is not secured by any additional assets; (d) additional Liens incurred by the Borrower and its Subsidiaries which do not secure Indebtedness for money borrowed so long as the value of the property subject to such Liens, and the obligations secured thereby, do not exceed $5,000,000 in the aggregate at any one time outstanding; (e) Liens securing Indebtedness of Foreign Subsidiaries; PROVIDED, that the amount of such Indebtedness shall not exceed $5,000,000 (or the Dollar Equivalent thereof) in the aggregate at any one time outstanding; (f) Liens existing on the Amendment/Restatement Effective Date listed on SCHEDULE 8.1(f) hereto and any extension, renewal or replacement thereof but only if the principal amount of the Indebtedness (including, for purposes of this SECTION 8.1(f), any additional Indebtedness incurred pursuant to revolving commitments in an amount not in excess of the available commitment as set forth on SCHEDULE 8.2(b) secured thereby) is not increased and such Liens do not extend to or cover any other property or assets; (g) Liens securing Indebtedness permitted pursuant to SECTION 8.2(j), PROVIDED, that any such Lien does not extend to any other property (other than accessions and additions to the property secured thereby); and (h) Liens on any property of Foreign Subsidiaries of the Borrower securing Indebtedness permitted pursuant to SECTION 8.2(o), PROVIDED that the aggregate fair market value of the assets of such Foreign Subsidiaries subject to such Liens shall not exceed 200% of the aggregate outstanding Indebtedness permitted pursuant to SECTION 8.2(o). In connection with the granting of Liens of the type described in clause (c) of this SECTION 8.1 by the Borrower or any of its Subsidiaries, at the reasonable request of the Borrower, and at the Borrower's expense, the Administrative Agent or the Collateral Agent shall take (and is hereby authorized to take) any actions reasonably requested by the Borrower in connection therewith (including, without limitation, by executing appropriate lien releases in favor of the holder or holders of such Liens, in either case solely with respect to the item or items of equipment or other assets subject to such Liens). Notwithstanding the foregoing clauses (a) through (h) of this SECTION 8.1, the Borrower agrees that it will not, nor will it permit any of its Subsidiaries to pledge, encumber or otherwise suffer to exist thereon any Lien (other than Customary Permitted Liens or Liens pursuant to the Loan Documents) on any real property owned by the Borrower or any of its Subsidiaries which is located in the State of California or the State of Nevada. In addition, except as otherwise permitted by SECTION 8.14, the Borrower agrees that it will not, nor will it 114 permit any of its Subsidiaries to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction (other than pursuant to the Loan Documents) on the ability of the Borrower or any Subsidiary of the Borrower to grant a Lien or other encumbrance on the Mortgaged California Real Estate. Section 8.2. INDEBTEDNESS. The Borrower will not, and will not permit any of its Subsidiaries to, incur, create, assume directly or indirectly, or suffer to exist any Indebtedness except: (a) Indebtedness incurred pursuant to this Agreement and the other Loan Documents; (b) Indebtedness to Remain Outstanding on the Amendment/Restatement Effective Date (which, to the extent required by SECTION 6.5(d), is to be listed on SCHEDULE 8.2(b)), without giving effect to any subsequent extension, renewal or refinancing thereof; (c) Indebtedness of the Borrower under Interest Rate Agreements entered into to protect the Borrower or any of its Subsidiaries against fluctuations in interest rates; (d) Indebtedness of the Borrower and its Subsidiaries secured by purchase money Liens permitted under SECTION 8.1(c); PROVIDED that the aggregate amount of such Indebtedness at any time shall not exceed $15,000,000; (e) Indebtedness of the Borrower under Other Hedging Agreements providing protection against fluctuations in currency or commodity values (in the case of commodity values, for a period not to exceed 36 months) in connection with the Borrower's or any of its Subsidiaries' operations so long as management of the Borrower or such Subsidiary, as the case may be, has determined that the entering into of such Other Hedging Agreements are BONA FIDE hedging activities; (f) Indebtedness of the Borrower and its Subsidiaries resulting from the refinancing of Indebtedness permitted by CLAUSES (B) and (D) above and CLAUSE (I) below; PROVIDED, HOWEVER, that (i) the principal amount of any such refinancing Indebtedness (as determined as of the date of the incurrence of such refinancing Indebtedness in accordance with GAAP), does not exceed the principal amount of the Indebtedness refinanced thereby on such date (ii) the Weighted Average Life to Maturity of such Indebtedness is not decreased and (iii) in the case of any such refinancing Indebtedness which is in excess of $5,000,000 (or the Dollar Equivalent thereof), such refinancing Indebtedness is upon terms and subject to documentation which is in form and substance reasonably satisfactory to the Administrative Agent; 115 (g) unsecured Indebtedness of the Borrower and its Subsidiaries to the Borrower or any of its Subsidiaries; PROVIDED, HOWEVER, that (x) in the case of such intercompany Indebtedness consisting of a loan or advance by a Credit Party, each such loan or advance made on or after the Amendment/Restatement Effective Date shall be evidenced by an Intercompany Note payable to the Credit Party, in form and substance satisfactory to Administrative Agent, which Intercompany Notes shall be delivered and pledged to the Collateral Agent as part of the Collateral, and (y) in the case of such intercompany Indebtedness consisting of a loan or advance to a Subsidiary of the Borrower which is not a Credit Party, each such loan or advance, together with all other outstanding Indebtedness permitted by this CLAUSE (G)(Y), PLUS the amount of all outstanding Indebtedness referred to in CLAUSE (H)(Y) below that is incurred by Subsidiaries that are not Credit Parties, plus the amount of all outstanding Indebtedness permitted under SECTION 8.2(o), shall not exceed in the aggregate at any time the Dollar Equivalent of $60,000,000; (h) Indebtedness incurred by a Foreign Subsidiary to the Borrower or any of its Subsidiaries; PROVIDED, HOWEVER, that (x) in the case of such Indebtedness consisting of a loan or advance by a Credit Party, each such loan or advance made on or after the Amendment/Restatement Effective Date shall be evidenced by an Intercompany Note payable to the Credit Party, in form and substance satisfactory to Administrative Agent, which Intercompany Notes shall be delivered and pledged to the Collateral Agent as part of the Collateral and (y) in the case of such Indebtedness consisting of a loan or advance to a Foreign Subsidiary of the Borrower which is not a Credit Party, each such loan or advance, together with all other outstanding Indebtedness permitted by this CLAUSE (h)(y), PLUS the amount of all outstanding Indebtedness referred to in CLAUSE (G)(Y) above that is incurred by Foreign Subsidiaries that are not Credit Parties, plus the amount of all outstanding Indebtedness permitted under SECTION 8.2(o), shall not exceed in the aggregate at any time the Dollar Equivalent of $60,000,000; (i) Indebtedness consisting of (a) Guarantee Obligations of any Subsidiary of the Borrower of the Obligations under any Loan Document, and (b) a guarantee by the Borrower of obligations of a Subsidiary or by any Foreign Subsidiary of obligations of its Subsidiary under any lease or other agreement otherwise permitted hereunder or entered into in the ordinary course of business and not constituting Indebtedness; (j) Indebtedness of a Subsidiary of the Borrower issued and outstanding on or prior to the date on which such Subsidiary was acquired by the Borrower or a Subsidiary of the Borrower in a transaction constituting an Acquisition (other than Indebtedness issued as consideration in, or to provide all or any portion of the funds utilized to consummate such Acquisition) and any extension, renewal or replacement thereof; PROVIDED, that the aggregate amount of such Indebtedness outstanding at any time, together with Indebtedness outstanding and 116 permitted by SECTION 8.2(d) (without double counting and without giving effect to SECTION 8.1(c)(c)(x)) does not exceed the Dollar Equivalent of $10,000,000; (k) Indebtedness of the Borrower consisting of unsecured Guarantee Obligations incurred to (x) satisfy bonding obligations not in excess of the Dollar Equivalent of $5,000,000 at any one time which arise in the ordinary course of business or (y) to support obligations of Subsidiaries in connection with a transaction otherwise permitted pursuant to this Agreement; PROVIDED, that such Guarantee Obligations under this clause (y) shall not at any time exceed the Dollar Equivalent of $5,000,000, and (ii) obligations (whether in respect of letters of credit, bank guarantees, Guarantee Obligations or otherwise) of Foreign Subsidiaries (including, without duplication, unsecured Guarantee Obligations of Foreign Subsidiaries and of the Borrower in respect thereof) in an aggregate amount not to exceed the Dollar Equivalent of $5,000,000 at any time outstanding in respect of customs bonding, regulatory (including, without limitation, environmental agency) requirements or arrangements and other operational obligations or bonding arrangements arising in the ordinary course of business other than in respect of borrowed money; (l) unsecured Indebtedness of the Borrower on terms and conditions not more restrictive to the Borrower and its Subsidiaries than those set forth in this Agreement (and at or below a market interest rate for comparable instruments) which Indebtedness is subordinated to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent, but in no event shall the aggregate principal amount of such Indebtedness exceed 7.5% of Consolidated Total Assets on any date of incurrence thereof, so long as at the time of the incurrence thereof no Unmatured Event of Default or Event of Default exists; (m) Indebtedness of the Borrower and of its Subsidiaries and unsecured Guarantee Obligations with respect thereto by the Borrower and/or its Subsidiaries pursuant to over-draft or similar lines of credit such that the aggregate amount of such Indebtedness outstanding under this clause (m) at any one time does not exceed (without duplication) $25,000,000 (or the Dollar Equivalent thereof) at any time; (n) additional unsecured Indebtedness for money borrowed not otherwise covered by clauses (a) through (m) above or clauses (o) or (p) below, provided that the aggregate outstanding principal amount of all such other Indebtedness permitted under this clause (n) shall in no event exceed $20,000,000 ( or the Dollar Equivalent thereof) at any time; (o) Indebtedness incurred by any Foreign Subsidiary of the Borrower under any foreign currency working capital facility, provided that the aggregate amount of such foreign working capital facilities shall not exceed $25,000,000 (or the Dollar Equivalent thereof) at any 117 (p) time; and Indebtedness of the Borrower consisting of unsecured Guaranteed Obligations in favor of the United States Environmental Protection Agency which are incurred on behalf of Aerojet in connection with the sale by the Borrower of all or substantially all of the electronics and information systems operations of Aerojet or in connection with future carve-outs of restricted real property; PROVIDED, that such Guaranteed Obligations permitted under this clause (p) shall not at any time exceed $100,000,000 (or the Dollar Equivalent thereof). Section 8.3. CONSOLIDATION, MERGER, PURCHASE OR SALE OF ASSETS, ETC. The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve any of its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of any of its properties or assets (or, with respect to a transaction involving all or substantially all of the assets of the Borrower, agree to do any of the foregoing at any future time without the Administrative Agent's prior written consent unless the effectiveness of such agreement is conditional upon the consent of the Administrative Agent) or convey, sell or otherwise dispose of any part of its property or assets, or enter into any Sale and Leaseback Transaction, except that: (a) the Borrower and its Subsidiaries may consummate the Transaction; (b) each of the Borrower and its Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business and (y) sell, lease or otherwise dispose of any other assets, provided that the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to this clause (y) which are not reinvested to acquire assets to be used in such Person's business in the manner described in SECTION 4.4(d) shall not exceed $20,000,000 (or the Dollar Equivalent thereof) in any Fiscal Year of the Borrower; (c) Investments may be made to the extent permitted by SECTION 8.7; (d) each of the Borrower and its Subsidiaries may lease (as lessee) real or personal property in the ordinary course of business; (e) each of the Borrower and its Subsidiaries may make sales or transfers of inventory, Cash Equivalents and Foreign Cash Equivalents in the ordinary course of business; (f) the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business (x) which are overdue, or (y) which the Borrower or such Subsidiary may reasonably determine are difficult to collect but only in connection with the compromise or 118 collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables); (g) the Borrower and its Subsidiaries may license its patents, trade secrets, know-how and other intellectual property (the "TECHNOLOGY") provided that such license shall be assignable to the Administrative Agent or any assignee of the Administrative Agent without the consent of the licensee and no such license shall (i) transfer ownership of such Technology to any other Person or (ii) require the Borrower to pay any fees for any such use (such licenses permitted by this SECTION 8.3(g), hereafter "PERMITTED TECHNOLOGY LICENSES"); (h) any Subsidiary of the Borrower may be merged or consolidated (x) with or into the Borrower so long as the Borrower is the surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of the Borrower; PROVIDED, HOWEVER, that the Wholly-Owned Subsidiary or Subsidiaries shall be the surviving entity or (z) with or into any Person in connection with the consummation of an Acquisition; PROVIDED, HOWEVER, that after giving effect to such merger or consolidation the surviving Subsidiary shall be a Wholly-Owned Subsidiary; (i) the Borrower and its Subsidiaries may sell, transfer or otherwise dispose of any asset in connection with any Sale and Leaseback Transaction involving Indebtedness, Capitalized Lease Obligations or an Operating Financing Lease to the extent the fair market value of all real or personal property subject to any such arrangement or arrangements (measured at the time of the transfer giving rise to such arrangement), in the aggregate does not exceed $20,000,000 (or the Dollar Equivalent thereof) at any time; (j) any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to the Borrower or any other Wholly-Owned Subsidiary of the Borrower (other than from (x) a Domestic Subsidiary party to the Subsidiary Security Agreement to a Domestic Subsidiary which is not a party to the Subsidiary Security Agreement or (y) a Domestic Subsidiary party to the Subsidiary Security Agreement to a Foreign Subsidiary at any time that the assets subject to such sales, leases or transfers in the aggregate for all dispositions under this clause (y) exceed the Dollar Equivalent of $20,000,000 during the existence of this Agreement or (z) from a Foreign Subsidiary party to a pledge agreement or security agreement in favor of the Collateral Agent to a Foreign Subsidiary which is not a party to a pledge agreement or security agreement in favor of the Collateral Agent); (k) [intentionally omitted]; (l) the sale, lease or transfer of real property of the Borrower or any Subsidiary, so long as such real property is not, in the reasonable business judgment of the Borrower, necessary for the conduct of the business of the Borrower or any of its Subsidiaries. In the event that any real property of the Borrower or any Subsidiary is sold or transferred pursuant 119 to this SECTION 8.3(l), the Borrower shall apply the Net Sale Proceeds received in connection with such disposition in accordance with SECTION 4.4(d); (m) the transfer, sale or other dispositions of assets in connection with the sale of AFC, so long as (A) the proceeds of such transaction are in cash or converted into cash, and (B) such proceeds (net of payments, if any, required to be made by the Borrower to NextPharma Technologies, S.A. pursuant to that certain Contribution and Purchase Agreement dated as of November 21, 2001 with the Borrower) are used to prepay Loans in accordance with SECTION 4.4(d); PROVIDED that the Borrower or applicable Subsidiary has satisfied the Consent Procedure and received the Required Lenders' Consent prior to transfer, sale or other dispositions of such assets; and (n) the Borrower may sell, transfer, lease or otherwise dispose of any or all of the assets of a Subsidiary (including Capital Stock), or may transfer, sell or dispose of assets or Capital Stock of the Borrower, in exchange for the assets or Capital Stock of a Person in connection with an Acquisition; PROVIDED, HOWEVER, that (x) the fair market value of the assets or Capital Stock subject to such arrangement or arrangements shall not exceed $50,000,000 (or the Dollar Equivalent thereof) at any time and (y) the Borrower shall comply with SECTION 7.12 with respect to the assets or Capital Stock received pursuant to the transactions contemplated by this SECTION 8.3(n). Section 8.4. DIVIDENDS OR OTHER DISTRIBUTIONS. Neither the Borrower nor any of its Subsidiaries will: (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock or to the direct or indirect holders of its Capital Stock (other than (x) dividends or distributions payable solely in such Capital Stock or in options, warrants or other rights to purchase such Capital Stock, (y) dividends and distributions payable to the Borrower or a Wholly-Owned Subsidiary of the Borrower or payable to holders of minority interests in any Subsidiary so long as the Borrower or any other Subsidiary having an interest in such Subsidiary shall receive its proportionate share of such dividend or distribution; and (z) distributions to effect the Transactions on the Amendment/Restatement Effective Date), (ii) purchase, redeem or otherwise acquire or retire for value any Capital Stock of the Borrower, (iii) make any interest or principal payment on or purchase, defease, redeem, prepay, or otherwise acquire or retire for value, prior to any scheduled final maturity or applicable redemption date any Indebtedness that is subordinate or junior in right of payment to the Obligations (collectively, "RESTRICTED PAYMENTS"); PROVIDED, HOWEVER, that, during such time as no Event of Default or Unmatured Event of Default has occurred or is continuing or would result therefrom, the Borrower may make the following Restricted Payments in any Fiscal Year: (a) dividends as determined by the Board of Directors of the Borrower in its reasonable discretion and (b) such other Restricted Payments not to exceed $15,000,000 (or the Dollar Equivalent thereof) in the aggregate; PROVIDED that the following conditions shall be satisfied in connection therewith: (i) no Event of Default or Unmatured Event of Default shall have occurred and be continuing either 120 immediately prior to or immediately after giving effect to such payments, (ii) the Borrower shall have furnished to the Administrative Agent (A) pro forma historical financial statements as of the end of the most recently completed Fiscal Year of the Borrower and most recent interim fiscal quarter, if applicable, giving effect to such payments and (B) a certificate, which is satisfactory to the Administrative Agent, prepared on a historical pro forma basis as of the most recent date for which financial statements have been furnished pursuant to SECTION 6.5(a) or SECTION 7.1(a) or (B) giving effect to such payments, which certificate shall demonstrate that no Event of Default or Unmatured Event of Default would exist immediately after giving effect to such payments, and (iii) if the Leverage Ratio of the Borrower and its Subsidiaries after giving pro forma effect to such transaction shall be greater than 1.00 to 1.00, then the payments made with respect to such transaction shall not exceed $50,000,000 (or the Dollar Equivalent thereof). Section 8.5. LIMITATION ON CERTAIN RESTRICTIONS ON SUBSIDIARIES. The Borrower will not, and will not permit any of its Subsidiaries to create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction (other than pursuant to the Loan Documents) on the ability of any Subsidiary of the Borrower to (i) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligation owed to the Borrower or any of its other Subsidiaries, (ii) make any loans or advances to the Borrower or any of its other Subsidiaries, or (iii) transfer any of its property or assets to the Borrower or any of its other Subsidiaries, except: (a) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Effective Date and reflected on SCHEDULE 8.5(a) hereto or any extension, replacement or refinancing thereof not prohibited herein; (b) any such encumbrance or restriction consisting of customary non-assignment provisions in leases or licenses restricting leasehold interests or licenses, as applicable, entered into in the ordinary course of business; (c) in the case of clause (iii) above, Permitted Liens or other restrictions contained in security agreements securing Indebtedness permitted hereby to the extent such restrictions restrict the transfer of the property subject to such security agreements; and (d) any restrictions on transfer of an asset pursuant to an agreement to sell such asset to the extent such sale would be permitted hereby. Section 8.6. ISSUANCE OF STOCK. (a) The Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, issue, sell, assign, pledge or otherwise encumber or dispose of any shares of Capital Stock of any Subsidiary of the Borrower, except (i) to the Borrower, (ii) to another 121 Wholly-Owned Subsidiary of the Borrower, (iii) to qualifying directors or to satisfy other similar requirements, in each case, pursuant to Requirements of Law, or (iv) pursuant to the Loan Documents, including, without limitation, SECTION 8.3(n), or (v) to directors, management or employees of the Borrower and its Subsidiaries pursuant to stock option plans or other benefit plans. (b) The Borrower shall not issue any Capital Stock, except as permitted by SECTION 8.4(i) and except for such issuances of Capital Stock (including private placements) (x) where after giving effect to such issuance, no Event of Default will exist under SECTIONS 10.1(l) and (y) where the Administrative Agent and the Required Lenders have consented (such consent not to be unreasonably withheld) to the terms and conditions of such offering. In the event any Capital Stock of the Borrower is issued pursuant to this SECTION 8.6(b), the Borrower shall apply the Net Offering Proceeds received in connection with such disposition in accordance with SECTION 4.4(f). Section 8.7. LOANS AND INVESTMENTS. The Borrower will not, and will not permit any Subsidiary to make or own any Investments except: (a) the Borrower and its Domestic Subsidiaries may acquire and hold Cash and Cash Equivalents; (b) the Borrower and its Subsidiaries may hold the Investments identified on SCHEDULE 8.7(b) which shall not exceed the amount thereof on the Amendment/Restatement Effective Date (after giving effect to the Transaction) in each case as such Investments may be adjusted due to appreciation, repayment of principal, payment of interest, return of capital or similar circumstances; (c) the Borrower and its Subsidiaries may make or maintain advances (i) for relocation and related expenses and other advances to their employees in the ordinary course of business and (ii) for any other advances to their employees in the ordinary course of business in an aggregate principal amount not exceeding $2,000,000 (or the Dollar Equivalent thereof) at any one time outstanding; (d) the Borrower and its Subsidiaries may acquire and hold Investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and other Persons and in settlement of delinquent obligations of, and other disputes with, customers and suppliers and other Persons arising in the ordinary course of business; 122 (e) the Borrower and its Subsidiaries may make deposits in a customary fashion in the ordinary course of business; (f) the Borrower and its Subsidiaries may acquire and hold debt securities as partial consideration for a sale of assets pursuant to SECTION 8.3 or 4.4(d) to the extent permitted by any such Section; (g) the Borrower may make intercompany loans and advances to any of its Wholly-Owned Subsidiaries, any Subsidiary of the Borrower may make intercompany loans and advances to the Borrower, and any Subsidiary of the Borrower may make intercompany loans and advances to any other Wholly-Owned Subsidiary of the Borrower (collectively, "INTERCOMPANY LOANS"), in accordance with and to the extent permitted by SECTION 8.2(g) and (h); (h) the Borrower and its Subsidiaries may make capital contributions to existing Foreign Subsidiaries of the Borrower, and may capitalize or forgive any Indebtedness owed to them by a Foreign Subsidiary of the Borrower, PROVIDED, that the aggregate amount of such contributions, capitalizations and forgiveness, without duplication as to amounts contributed from one Subsidiary to its Subsidiary (determined without regard to any write-downs or write-offs thereof), shall not exceed an amount equal to $5,000,000 (or the Dollar Equivalent thereof); (i) Foreign Subsidiaries of the Borrower may invest in cash, Cash Equivalents and Foreign Cash Equivalents; (j) in addition to Investments permitted by clauses (a) through (i) above and clause (k) below, the Borrower may make additional Investments, so long as the aggregate outstanding amount of such Investments does not exceed $15,000,000 (or the Dollar Equivalent thereof); PROVIDED FURTHER, that the Borrower may not make or own any investment in Margin Stock; and (k) the Borrower or any Domestic Subsidiary may purchase all or a significant part of the assets of a business conducted by another Person, make any Investment in any Person which, after the Amendment/Restatement Effective Date as a result of such Investment becomes a Wholly-Owned Domestic Subsidiary of the Borrower or, to the extent permitted under SECTION 8.3, enter into any merger, consolidation or amalgamation with any other Person (any such purchase, Investment or merger, a "PERMITTED ACQUISITION"); PROVIDED, HOWEVER, that such Acquisition shall not be permitted unless (i) after giving effect thereto on a pro forma basis for the period (the "PRO FORMA PERIOD") of four Fiscal Quarters ending with the Fiscal Quarter for which financial statements have most recently been delivered (or were required to be delivered) under SECTION 7.1 (on the basis that (A) any Indebtedness incurred or assumed in connection with such Acquisition was incurred or assumed at the beginning of the Pro Forma Period, (B) such Indebtedness was repaid from operating cash flow over the Pro Forma Period at the intervals and 123 in the amounts reasonably projected to be paid in respect of such Indebtedness over the 12-month period immediately following the Acquisition, (C) if such Indebtedness bears a floating interest rate, such interest shall be paid over the Pro Forma Period at the rate in effect on the date of such Acquisition, and (D) all income and expense associated with the assets or entity acquired in connection with such Acquisition for the most recently ended four Fiscal Quarter period for which such income and expense amounts are available (with good faith estimates thereof being permitted if financial statements indicating such amounts are not available) shall be treated as being earned or incurred by the Borrower over the Pro Forma Period on a pro forma basis), no Event of Default or Unmatured Event of Default would exist hereunder; (ii) if the Leverage Ratio for the Pro Forma Period is (A) equal to or greater than 2.50 to 1.00, the total consideration given and Indebtedness assumed in connection with such Permitted Acquisition shall not exceed $50,000,000 (or the Dollar Equivalent thereof), individually or in the aggregate, or (B) less than 2.50 to 1.00, after giving effect to such Acquisition, the Borrower's Total Available Revolving Commitment, shall equal or exceed $25,000,000 (or the Dollar Equivalent thereof), (iii) the Borrower and its Subsidiaries have complied with the requirements of SECTION 7.12 hereof with respect to any required additional Security Documents, and (iv) such acquisition has been approved by the board of directors of the Person to be acquired. Section 8.8. TRANSACTIONS WITH AFFILIATES. Other than transactions contemplated by the Transaction Documents, the Borrower will not, and the Borrower will not cause or permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with or for the benefit of any of the Borrower's Affiliates or any Affiliate of a Subsidiary of the Borrower (an "AFFILIATE TRANSACTION"), other than (x) transactions that are on terms that are fair and reasonable to the Borrower or to any such Subsidiary and that are on terms that are no less favorable to the Borrower or to such Subsidiary than those that might reasonably have been obtained in a comparable transaction on an arm's-length basis from a Person that is not an Affiliate, and (y) any transaction arising in the ordinary course of business of the Borrower or of such Subsidiary; provided, HOWEVER, that with respect to transactions between the Borrower or any of its Subsidiaries and any of their respective Affiliates arising in the ordinary course of business, a Responsible Officer of the Borrower shall, not later than the date of delivery of the annual Financial Statements, have reviewed the aggregate of such transactions and determined that, in the aggregate, such transactions are on terms that are fair and reasonable to the Borrower or to such Subsidiary and are no less favorable to the Borrower or to such Subsidiary than those that might reasonably have been obtained in a comparable transactions on an arm's-length basis from a Person that is not an Affiliate. The foregoing restrictions will not apply to (1) reasonable and customary directors' fees, indemnification and similar arrangements and payments thereunder; (2) any transaction between the Borrower and any Wholly-Owned Subsidiary of the Borrower or between Wholly-Owned Subsidiaries to the extent that any such transaction is otherwise in compliance with the terms of this Agreement and (3) loans or advances to officers of the 124 Borrower and of its Subsidiaries for BONA FIDE business purposes of the Borrower or of such Subsidiary not to exceed $2,000,000 (or the Dollar Equivalent thereof) in the aggregate at any one time outstanding for the Borrower and its Subsidiaries. Section 8.9. LINES OF BUSINESS. The Borrower will not, and will not permit any Subsidiary to enter into or acquire any line of business which is not reasonably related to the vehicle sealing, fine chemicals, real estate, aerospace or defense business, or any business similar, ancillary or related thereto or which constitutes a reasonable extension or expansion thereof. Section 8.10. FISCAL YEAR. The Borrower will not change its Fiscal Year; PROVIDED that the Foreign Subsidiaries of the Borrower shall be permitted to change their respective fiscal years. Section 8.11. LIMITATION ON VOLUNTARY PAYMENTS AND MODIFICATIONS OF INDEBTEDNESS; MODIFICATIONS OF CERTIFICATE OF INCORPORATION, BY-LAWS AND CERTAIN OTHER AGREEMENTS; ETC. The Borrower will not, and will not permit any of its Subsidiaries to: (i) amend, modify or permit the amendment, termination or modification in any way adverse to the interests of the Lenders (as reasonably determined by the Administrative Agent in its reasonable discretion after reasonable advance notice of such proposed change) any provision of the OTS Acquisition Documents; (ii) amend, modify or change in any way adverse to the interests of the Lenders (as reasonably determined by the Administrative Agent in its reasonable discretion after reasonable advance notice of such proposed change), its Organizational Documents (including, without limitation, by filing or modification of any certificate of designation) or by-laws, or any agreement entered into by it, with respect to its Capital Stock, or enter into any new agreement with respect to its Capital Stock or any new tax sharing agreement which in any way could reasonably be expected to be adverse to the interests of the Lenders; or (iii) issue any class of its Capital Stock other than (y) in the case of the Subsidiaries, non-redeemable Capital Stock (including by private placements) and (z) in the case of the Borrower, issuances of Capital Stock (including by private placements) where, after giving effect to such issuance, no Event of Default will exist under SECTION 10.1(l) and to the extent the proceeds thereof are applied in accordance with this Agreement. 125 The Administrative Agent agrees that, with respect to any matters required to be reasonably satisfactory or acceptable to it, it shall exercise its reasonable judgment in making, and shall not unreasonably withhold or delay, such determination. Section 8.12. ACCOUNTING CHANGES. The Borrower shall not, nor shall it permit any of its Subsidiaries to make or permit to be made any change in accounting policies affecting the presentation of financial statements or reporting practices from those employed by it on the date hereof, unless (i) such change is required by GAAP, (ii) such change is disclosed to the Lenders through the Administrative Agent or otherwise and (iii) relevant prior financial statements that are affected by such change are restated (in form and detail satisfactory to the Administrative Agent) as may be required by GAAP to show comparative results. If any changes in GAAP or the application thereof from that used in the preparation of the financial statements referred to in SECTION 6.5(a) hereof occur after the date hereof and such changes result in, in the sole judgment of the Administrative Agent, a meaningful change in the calculation of any financial covenants or restrictions set forth in this Agreement, then the parties hereto agree to enter into and diligently pursue negotiations in order to amend such financial covenants and restrictions so as to equitably reflect such changes, with the desired result that the criteria for evaluating the financial condition and results of operations of the Borrower and its Subsidiaries shall be the same after such changes as if such changes had not been made. Section 8.13. AEROJET GOVERNMENT CONTRACTING AUTHORITY. The Borrower shall not, nor shall it permit any of its Subsidiaries to become suspended or debarred from contracting or otherwise engaging in business with any Governmental Authority or from exporting products in any material amount for any material amount of time, which such suspension or debarment has not been stayed or removed within sixty (60) days of its imposition. Section 8.14. SALE OF MORTGAGED PROPERTY OR MORTGAGED CALIFORNIA REAL ESTATE. Notwithstanding any other provision in this Agreement to the contrary, including, without limitation, SECTION 8.3(l), the Borrower will not, nor will it permit any of its Subsidiaries to, sell or contribute all or any portion of the Mortgaged Property or the Mortgaged California Real Estate on or after the Amendment/Restatement Effective Date to the extent that the sum of the estimated fair market value (as determined by the Borrower in good faith and as agreed to by the Administrative Agent) of the remaining Mortgaged Property and the Mortgaged California Real Estate (assuming the consummation of such sale) shall be less than an amount equal to (x) the sum of the total Revolving Commitments and Term A Loans then outstanding, as adjusted to reflect any mandatory repayments required from the net proceeds from such sale of Mortgaged Property or Mortgaged California Real Estate, multiplied by (y) the number 2.0; PROVIDED, HOWEVER, that this SECTION 8.14 shall not apply to (A) sales of Mortgaged Property or Mortgaged 126 California Real Estate which in the aggregate do not exceed $25,000,000 in any Fiscal Year and (B) contributions to any Joint Venture of Mortgaged Property or Mortgaged California Real Estate which in the aggregate do not exceed $10,000,000 at any time (and the parties hereto agree that such contributed real property shall be included when calculating (A) above and/or clause (ii) of the definition of "Asset Disposition"), so long as the Borrower or any of its Subsidiaries party to such a Joint Venture complies with SECTION 7.12 with respect to its interest in such Joint Venture; and PROVIDED, FURTHER, HOWEVER, that if as of any date of sale of all or any portion of the Mortgaged Property or the Mortgaged California Real Estate, the Most Recent Leverage Ratio of the Borrower is less than 2.50 to 1.00, this SECTION 8.14 shall not apply to the Borrower or its Subsidiaries. ARTICLE IX FINANCIAL COVENANTS The Borrower hereby agrees that, so long as the Commitments remain in effect or any Loan or LC Obligation remains outstanding and unpaid or any other amount is owing to any Lender or the Administrative Agent hereunder: Section 9.1. CAPITAL EXPENDITURES. (a) The Borrower will not, and will not permit any of its Subsidiaries to, make any Consolidated Capital Expenditures, except that during any Fiscal Year the Borrower and its Subsidiaries may make Consolidated Capital Expenditures so long as the aggregate amount so made by the Borrower and its Subsidiaries after the Amendment/Restatement Effective Date during any such Fiscal Year does not exceed the amount set forth opposite such Fiscal Year below: FISCAL YEAR ENDING AMOUNT November 30, 2002 $50,000,000 November 30, 2003 $55,000,000 November 30, 2004 $60,000,000 November 30, 2005 $65,000,000 and thereafter (b) Notwithstanding the foregoing, in the event that the amount of Consolidated Capital Expenditures permitted to be made by the Borrower and its Subsidiaries pursuant to CLAUSE (A) above in any Fiscal Year is greater than the amount of such Consolidated Capital Expenditures made by the Borrower and it Subsidiaries during such Fiscal Year, such amount equal to the amount of Consolidated Capital Expenditures permitted pursuant to the preceding CLAUSE (A) for the immediately preceding Fiscal Year and not utilized during such Fiscal 127 Year (the "ROLLOVER AMOUNT") may be carried forward and utilized to make Consolidated Capital Expenditures in the next succeeding Fiscal Year, PROVIDED, that no amount once carried forward to the next Fiscal Year may be carried forward to a Fiscal Year thereafter, and PROVIDED FURTHER, that Consolidated Capital Expenditures made during any Fiscal Year shall be first deemed made in respect of the Rollover Amount and then deemed made in respect of the scheduled amount permitted for such Fiscal Year. In addition, notwithstanding the foregoing, the Borrower and its Subsidiaries may make Consolidated Capital Expenditures on any date with (i) proceeds of Indebtedness incurred pursuant to SECTION 8.2(i), (ii) Net Offering Proceeds which are not required to be applied as a mandatory prepayment under SECTION 4.4(f), (iii) the insurance proceeds received by the Borrower or any of its Subsidiaries from any Recovery Event so long as such Consolidated Capital Expenditures are to replace or restore any properties or assets in respect to which such proceeds were paid within 365 days (or committed to be paid within such 365 days so long as such replacement or restoration is made within 365 days after the end of such 365 day period) following the date of such receipt to the extent such proceeds are not required to repay Term Loans pursuant to SECTION 4.4(j), and (iv) the Net Sale Proceeds received by the Borrower or any of its Subsidiaries from any Asset Disposition, so long as such insurance proceeds and/or Net Sale Proceeds are used or contractually committed to be used within 365 days to make Consolidated Capital Expenditures in accordance with SECTION 4.4(d). Section 9.2. MAINTENANCE OF CONSOLIDATED NET WORTH. The Borrower will not permit its Consolidated Net Worth on the last day of (i) the Fiscal Quarter ending August 31, 2002 to be less than $238,500,000 or (ii) any Fiscal Quarter ending after the Amendment/Restatement Effective Date to be less than the sum of (a) $300,000,000, PLUS (b) an amount equal to 50% of the aggregate Consolidated Net Income of the Borrower for all Fiscal Quarters ended on or after November 30, 2002 and through and including the then ended Fiscal Quarter, PLUS (c) an amount equal to 100% of the Net Offering Proceeds from primary issuances of capital stock by the Borrower or any of its Subsidiaries that have occurred since September 1, 2002; PROVIDED, HOWEVER, that in the event that the Borrower has Consolidated Net Income of less than zero for any Fiscal Quarter, Consolidated Net Income for purposes only of this SECTION 9.2 shall be deemed to be zero for such Fiscal Quarter. Section 9.3. INTEREST COVERAGE RATIO. ----------------------- The Borrower will not permit the Interest Coverage Ratio for any Test Period ending on the last day of each Fiscal Quarter set forth below to be less than the ratio set forth opposite such date: Fiscal Quarter Ratio -------------- ----- August 31, 2002 3.75 to 1.00 November 30, 2002 4.00 to 1.00 February 28, 2003 4.00 to 1.00 May 31, 2003 4.00 to 1.00 128 August 31, 2003 4.00 to 1.00 November 30, 2003 4.50 to 1.00 February 28, 2004 4.50 to 1.00 Fiscal Quarter Ratio -------------- ----- May 31, 2004 4.50 to 1.00 August 31, 2004 4.50 to 1.00 November 30, 2004 and thereafter 5.00 to 1.00 Section 9.4. LEVERAGE RATIO. The Borrower will not permit the Leverage Ratio for any Test Period ending on the last day of each Fiscal Quarter set forth below to exceed the ratio set forth opposite such date: Fiscal Quarter Ratio -------------- ----- August 31, 2002 2.75 to 1.00 November 30, 2002 3.50 to 1.00 February 28, 2003 3.50 to 1.00 May 31, 2003 3.50 to 1.00 August 31, 2003 3.25 to 1.00 November 30, 2003 3.25 to 1.00 February 28, 2004 3.25 to 1.00 May 31, 2004 3.00 to 1.00 August 31, 2004 3.00 to 1.00 November 30, 2004 2.75 to 1.00 February 28, 2005 2.75 to 1.00 May 31, 2005 and thereafter 2.50 to 1.00 Section 9.5. FIXED CHARGE COVERAGE RATIO. The Borrower will not permit the Fixed Charge Coverage Ratio for any Test Period ending on the last day of each Fiscal Quarter set forth below to be less than the ratio set forth opposite such date: Fiscal Quarter Ratio -------------- ----- August 31, 2002 and thereafter 1.05 to 1.00 129 ARTICLE X EVENTS OF DEFAULT Section 10.1. EVENTS OF DEFAULT. Any of the following events, acts, occurrences or states of facts shall constitute an "EVENT OF DEFAULT" for purposes of this Agreement: (a) FAILURE TO MAKE PAYMENTS WHEN DUE. The Borrower (i) shall default in the payment of principal on any of the Loans or any reimbursement obligation with respect to any Letter of Credit; or (ii) shall default in the payment of interest on any of the Loans or default in the payment of any fee or any other amount owing hereunder or under any other Loan Document when due and such default in payment shall continue for five (5) Business Days; or (b) REPRESENTATIONS AND WARRANTIES. Any representation or warranty made by or on the part of the Borrower or any Credit Party, as the case may be, contained in any Loan Document or any document, instrument or certificate delivered pursuant hereto or thereto shall have been incorrect or misleading in any material respect when made or deemed made; or (c) COVENANTS. The Borrower shall (i) default in the performance or observance of any term, covenant, condition or agreement on its part to be performed or observed under ARTICLE VIII and ARTICLE IX hereof or SECTIONS 7.3(a) or 7.11 or (ii) default in the due performance or observance by it of any other term, covenant or agreement contained in this Agreement and such default shall continue unremedied for a period of thirty (30) days after written notice to the Borrower by the Administrative Agent or any Lender; or (d) DEFAULT UNDER OTHER LOAN DOCUMENTS. Any Credit Party shall default in the performance or observance of any term, covenant, condition or agreement on its part to be performed or observed hereunder or under any Loan Document (and not constituting an Event of Default under any other clause of this SECTION 10.1) and such default shall continue unremedied for a period of thirty (30) days after written or telephonic (immediately confirmed in writing) notice thereof has been given to the Borrower by the Administrative Agent; or (e) VOLUNTARY INSOLVENCY, ETC. The Borrower or any of its Subsidiaries shall become insolvent or generally fail to pay, or admit in writing its inability to pay, its debts as they become due, or shall voluntarily commence any proceeding or file any petition under any bankruptcy, insolvency or similar law or seeking dissolution or reorganization or the appointment of a receiver, trustee, administrator, custodian or liquidator for it or a substantial portion of its property, assets or business or to effect a plan or other arrangement with its creditors, or shall file any answer admitting the jurisdiction of the court and the material allegations of an involuntary petition filed against it in any bankruptcy, insolvency or similar proceeding, or shall be 130 adjudicated bankrupt, or shall make a general assignment for the benefit of creditors, or shall consent to, or acquiesce in the appointment of, a receiver, trustee, custodian, administrator or liquidator for a substantial portion of its property, assets or business, shall call a meeting of its creditors with a view to arranging a composition or adjustment of a substantial portion of its debts or shall take any corporate action authorizing any of the foregoing; or (f) INVOLUNTARY INSOLVENCY, ETC. Involuntary proceedings or an involuntary petition shall be commenced or filed against the Borrower or any of its Subsidiaries under any bankruptcy, insolvency or similar law or seeking the dissolution or reorganization of it or the appointment of a receiver, trustee, custodian, administrator or liquidator for it or of a substantial part of its property, assets or business, or any similar writ, judgment, warrant of attachment, execution or process shall be issued or levied against a substantial part of its property, assets or business, and (other than a petition for administration) such proceedings or petition shall not be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded, within sixty (60) days after commencement, filing or levy, as the case may be, or any order for relief shall be entered in any such proceeding; or (g) DEFAULT UNDER OTHER AGREEMENTS. (i) The Borrower or any of its Subsidiaries shall default in the payment when due, whether at stated maturity or otherwise, of any Indebtedness (other than Indebtedness owed to the Lenders under the Loan Documents) in excess of $10,000,000 (or the Dollar Equivalent thereof) in the aggregate beyond the period of grace if any, provided in the instrument or agreement under which such Indebtedness was created, or (ii) a default shall occur in the performance or observance of any agreement under any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (determined without regard to whether any notice of acceleration or similar notice is required), any such Indebtedness to become due or be repaid prior to its stated maturity or (iii) any such Indebtedness of the Borrower or any of its Subsidiaries shall be declared to be due and payable, or required to be prepaid other than by a regularly scheduled required prepayment (other than with proceeds of the event giving rise to such prepayment), prior to the stated maturity thereof; or (h) JUDGMENTS. One or more judgments or decrees shall be entered against the Borrower or any of its Subsidiaries involving, individually or in the aggregate, a liability (to the extent not paid or covered by a reputable insurance company or indemnitor as to which coverage or indemnification, as the case may be, has not been disclaimed) of $10,000,000 (or the Dollar Equivalent thereof) or more and all such judgments or decrees shall not have been vacated, discharged, satisfied, stayed or bonded pending appeal within sixty (60) days from the entry thereof; or 131 (i) SECURITY DOCUMENTS. At any time after the execution and delivery thereof, any of the Security Documents shall cease to be in full force and (other than as a result of the actions taken by the Collateral Agent or the Lenders to release such Security Document) effect or shall cease to give the Collateral Agent the Liens, rights, powers and privileges purported to be created thereby (including, without limitation, a first priority perfected security interest in, and Lien on, all of the Collateral), in favor of the Collateral Agent, for the benefit of the Secured Creditors in the order of priority of interest set forth in such Security Document, superior to and prior to the rights of all third Persons and subject to no other Liens (except to the extent expressly permitted herein or therein); or (j) GUARANTIES. Any Subsidiary Guaranty or any provision thereof shall (other than as a result of the actions taken by the Administrative Agent or the Lenders to release such Guaranty) cease to be in full force and effect in accordance with its terms, or any Credit Party or any Person acting by or on behalf of such Subsidiary Guarantor shall deny or disaffirm such Credit Party's obligations under any Subsidiary Guaranty; or (k) ERISA. Either (i) any Reportable Event which the Required Lenders determine constitutes reasonable grounds for the termination of any Plan by the PBGC or of any Multiemployer Plan or for the appointment by the appropriate United States District Court of a trustee to administer or liquidate any Plan or Multiemployer Plan shall have occurred, (ii) a trustee shall be appointed by a United States District Court to administer any Plan or Multiemployer Plan, (iii) the PBGC shall institute proceedings to terminate any Plan or Multiemployer Plan or to appoint a trustee to administer any Plan; (iv) the Borrower or any of its Subsidiaries or any of their ERISA Affiliates shall become liable to the PBGC or any other party under Section 4062, 4063 or 4064 of ERISA with respect to any Plan; or (v) the Borrower or any of its Subsidiaries or any of their ERISA Affiliates shall become liable to make a current payment with respect to any Multiemployer Plan under Section 4201 ET SEQ. of ERISA; if as of the date thereof or any subsequent date, the sum of each of the Borrower's and its Subsidiaries' and their ERISA Affiliates' various liabilities (such liabilities to include, without limitation, any liability to the PBGC or to any other party under Section 4062, 4063 or 4064 of ERISA with respect to any Plan, or to any Multiemployer Plan under Section 4201 ET SEQ. of ERISA) as a result of such events listed in subclauses (i) through (v) above exceeds $10,000,000 (or the Dollar Equivalent thereof); or (l) CHANGE OF CONTROL. A Change of Control shall occur; or (m) ENVIRONMENTAL LIABILITY. The Borrower or any of its Subsidiaries receives notice of any violation, non-compliance, or liability or potential liability under Environmental Laws, or the Borrower or any of its Subsidiaries is in violation of or is not in compliance with or has incurred liability or potential liability under Environmental Laws, which would reasonably be expected to result in a Material Adverse Effect and which, with respect to any violation or non-compliance, has not been cured in all material respects during any applicable cure period, that the 132 Required Lenders have given the Borrower notice that the same constitutes an Event of Default; or (n) AEROJET SETTLEMENT AGREEMENT. The Aerojet Settlement Agreement shall at any time cease to be in full force and effect pursuant to its terms as in effect on the Amendment/Restatement Effective Date, or any party thereto shall opt out of such Aerojet Settlement Agreement, or any Governmental Authority party thereto shall raise any defense to its obligations thereunder, except to the extent such occurrence will not, in the opinion of the Administrative Agent, be reasonably likely to have a Material Adverse Effect. If any of the foregoing Events of Default shall have occurred and be continuing, the Administrative Agent, at the written direction of the Required Lenders, shall take one or more of the following actions: (i) by written or oral or telephonic notice (in the case of oral or telephonic notice confirmed in writing immediately thereafter) to the Borrower declare the Total Commitments to be terminated whereupon the Total Commitments shall forthwith terminate, (ii) by written or oral or telephonic notice (in the case of oral or telephonic notice confirmed in writing immediately thereafter) to the Borrower declare all sums then owing by the Borrower hereunder and under the Loan Documents to be forthwith due and payable, whereupon all such sums shall become and be immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrower, (iii) terminate any Letter of Credit in accordance with its terms, (iv) direct the Borrower to pay (and the Borrower agrees that upon receipt of such notice, or upon the occurrence of any Event of Default specified in SECTION 10.1(e) or SECTION 10.1(f) with respect to the Borrower it will pay) to the Administrative Agent at the Payment Office such additional amount of cash, to be held as security by the Administrative Agent, as is equal to the Assigned Dollar Value of the aggregate Stated Amount of all Letters of Credit issued for the account of the Borrower and its Subsidiaries and then outstanding, and (v) enforce, as the Administrative Agent (to the extent permitted under the applicable Security Documents), or direct the Collateral Agent to enforce pursuant to the Security Documents, as the case may be, all of the Liens and security interests created pursuant to the Security Documents. In cases of any occurrence of any Event of Default described in SECTION 10.1(e) or SECTION 10.1(f) with respect to the Borrower, the Loans, together with accrued interest thereon, shall become due and payable forthwith without the requirement of any such acceleration or request, and without presentment, demand, protest or other notice of any kind, all of which are expressly waived by the Borrower, any provision of this Agreement or any other Loan Document to the contrary notwithstanding, and other amounts payable by the Borrower hereunder shall also become immediately due and payable all without notice of any kind. Anything in this SECTION 10.1 to the contrary notwithstanding, the Administrative Agent shall, at the request of the Required Lenders, rescind and annul any acceleration of the Loans by written instrument filed with the Borrower; PROVIDED that at the time such acceleration is so rescinded and annulled: (A) all past due interest and principal (other than principal due solely as a result of such acceleration), if any, on the Loans and all other sums payable under this Agreement and the 133 other Loan Documents shall have been duly paid, and (B) no other Event of Default shall have occurred and be continuing which shall not have been waived in accordance with the provisions of SECTION 12.1 hereof. Upon any such rescission and annulment, the Administrative Agent shall return to the Borrower any cash collateral delivered pursuant to the preceding paragraph. Section 10.2. RIGHTS NOT EXCLUSIVE. The rights provided for in this Agreement and the other Loan Documents are cumulative and are not exclusive of any other rights, powers, privileges or remedies provided by law or in equity, or under any other instrument, document or agreement now existing or hereafter arising. ARTICLE XI THE ADMINISTRATIVE AGENT In this ARTICLE XI, the Lenders agree among themselves as follows: Section 11.1. APPOINTMENT. The Lenders hereby appoint DBTCA as the Administrative Agent (for purposes of this ARTICLE XI, the term "Administrative Agent" shall, except for purposes of SECTION 11.9, include DBTCA in its capacity as the Administrative Agent and the Collateral Agent pursuant to the Security Documents) to act as specified herein and in the other Loan Documents and any Affiliate of DBTCA performing any of the duties or functions of the Administrative Agent hereunder or any other Loan Documents. Each Lender hereby irrevocably authorizes and each holder of any Note by the acceptance of such Note shall be deemed to irrevocably authorize the Administrative Agent to take such action on its behalf under the provisions hereof, the other Loan Documents (including, without limitation, to give notices and take such actions on behalf of the Required Lenders as are consented to in writing by the Required Lenders or all Lenders, as the case may be) and any other instruments, documents and agreements referred to herein or therein and to exercise such powers hereunder and thereunder as are specifically delegated to the Administrative Agent by the terms hereof and thereof and such other powers as are reasonably incidental thereto. The Administrative Agent may perform any of its duties hereunder and under the other Loan Documents, by or through its officers, directors, Administrative Agents employees or affiliates. Section 11.2. NATURE OF DUTIES. The Administrative Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement. The duties of the Administrative Agent shall be mechanical and administrative in nature. EACH LENDER HEREBY ACKNOWLEDGES AND AGREES THAT THE ADMINISTRATIVE AGENT SHALL NOT HAVE, BY REASON OF THIS 134 AGREEMENT OR ANY OTHER LOAN DOCUMENT, A FIDUCIARY RELATIONSHIP TO OR IN RESPECT OF ANY LENDER. Nothing in any of the Loan Documents, expressed or implied, is intended to or shall be so construed as to impose upon the Administrative Agent any obligations in respect of any of the Loan Documents except as expressly set forth herein or therein. Each Lender shall make its own independent investigation of the financial condition and affairs of the Borrower in connection with the making and the continuance of the Loans hereunder and shall make its own appraisal of the credit worthiness of the Borrower, and the Administrative Agent shall not have any duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before making of the Loans or at any time or times thereafter. The Administrative Agent will promptly notify each Lender at any time that the Required Lenders have instructed it to act or refrain from acting pursuant to ARTICLE X. Section 11.3. EXCULPATION, RIGHTS ETC. Neither the Administrative Agent nor any of its officers, directors, agents, employees or affiliates shall be liable to any Lender for any action taken or omitted by them hereunder or under any of the other Loan Documents, or in connection herewith or therewith, unless caused by its or their gross negligence or willful misconduct. The Administrative Agent shall not be responsible to any Lender for any recitals, statements, representations or warranties herein or for the execution, effectiveness, genuineness, validity, enforceability, collectibility, or sufficiency of any of the Loan Documents or any other document or the financial condition of the Borrower. The Administrative Agent shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any of the Loan Documents or any other document or the financial condition of the Borrower, or the existence or possible existence of any Unmatured Event of Default or Event of Default unless requested to do so by the Required Lenders. The Administrative Agent may at any time request instructions from the Lenders with respect to any actions or approvals (including the failure to act or approve) which by the terms of any of the Loan Documents, the Administrative Agent is permitted or required to take or to grant, and if such instructions are requested, the Administrative Agent shall be absolutely entitled to refrain from taking any action or to withhold any approval and shall not be under any liability whatsoever to any Person for refraining from any action or withholding any approval under any of the Loan Documents until it shall have received such instructions from the Required Lenders. Without limiting the foregoing, no Lender shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting, approving or refraining from acting or approving under any of the Loan Documents in accordance with the instructions of the Required Lenders or, to the extent required by SECTION 12.1, all of the Lenders. 135 Section 11.4. RELIANCE. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any notice, writing, resolution notice, statement, certificate, order or other document or any telephone, telex, teletype or telecopier message believed by it to be genuine and correct and to have been signed, sent or made by the proper Person, and, with respect to all matters pertaining herein or to any of the other Loan Documents and its duties hereunder or thereunder, upon advice of counsel selected by the Administrative Agent. Section 11.5. INDEMNIFICATION. To the extent the Administrative Agent is not reimbursed and indemnified by the Borrower, the Lenders will reimburse and indemnify the Administrative Agent for and against any and all liabilities, obligations, losses, damages, claims, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Administrative Agent, acting pursuant hereto in such capacity, in any way relating to or arising out of this Agreement or any of the other Loan Documents or any action taken or omitted by the Administrative Agent under this Agreement or any of the other Loan Documents, in proportion to each Lender's Aggregate Pro Rata Share of the Total Commitment; PROVIDED, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, claims, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent's gross negligence or willful misconduct. The obligations of the Lenders under this SECTION 11.5 shall survive the payment in full of the Notes and the termination of this Agreement. For purposes of this SECTION 11.5, "Aggregate Pro Rata Share" means, when used with reference to any Lender and any described aggregate or total amount, an amount equal to the result obtained by multiplying such desired aggregate or total amount by a fraction the numerator of which shall be the aggregate principal amount of such Lender's Revolving Loan, Term A Loan and New Term B Loan and the denominator of which shall be aggregate of all of the Loans outstanding hereunder. Section 11.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. With respect to its Loans and Commitments (and its Revolver Pro Rata Share, Term A Pro Rata Share and New Term B Pro Rata Share, as applicable, thereof), the Administrative Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender or holder of Obligations. The terms "Lenders", "holder of Obligations" or "Required Lenders" or any similar terms shall, unless the context clearly otherwise indicates, include the Administrative Agent in its individual capacity as a Lender, one of the Required Lenders or a holder of Obligations. The Administrative Agent may accept deposits from, lend money to, and generally engage in any kind 136 of banking, trust or other business with the Borrower or any Subsidiary or affiliate of the Borrower as if it were not acting as the Administrative Agent hereunder or under any other Loan Document, including, without limitation, the acceptance of fees or other consideration for services without having to account for the same to any of the Lenders. Section 11.7. NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default or Unmatured Event of Default hereunder unless the Administrative Agent has received written notice from a Lender or the Borrower referring to this Agreement describing such Event of Default or Unmatured Event of Default and stating that such notice is a "notice of default". In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders. Section 11.8. HOLDERS OF OBLIGATIONS. The Administrative Agent may deem and treat the payee of any Obligation as reflected on the books and records of the Administrative Agent as the owner thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof shall have been filed with the Administrative Agent pursuant to SECTION 12.8(c). Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is the holder of any Obligation shall be conclusive and binding on any subsequent holder, transferee or assignee of such Obligation or of any Obligation or Obligations granted in exchange therefor. Section 11.9. RESIGNATION BY THE ADMINISTRATIVE AGENT. (a) The Administrative Agent may resign from the performance of all its functions and duties hereunder at any time by giving fifteen (15) Business Days' prior written notice to the Borrower and the Lenders. Such resignation shall take effect upon the acceptance by a successor Administrative Agent of appointment pursuant to clauses (b) and (c) below or as otherwise provided below. (b) Upon any such notice of resignation, the Required Lenders shall appoint a successor the Administrative Agent who shall be satisfactory to the Borrower and shall be an incorporated bank or trust company. (c) If a successor the Administrative Agent shall not have been so appointed within said fifteen (15) Business Day period, the Administrative Agent, with the consent of the Borrower, shall then appoint a successor who shall serve as the Administrative Agent until such time, if any, as the Required Lenders, with the consent of the Borrower, appoint a successor the Administrative Agent as provided above. 137 (d) If no successor the Administrative Agent has been appointed pursuant to clause (b) or (c) by the twentieth (20th) Business Day after the date such notice of resignation was given by the Administrative Agent, the Administrative Agent's resignation shall become effective and the Required Lenders shall thereafter perform all the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders, with the consent of the Borrower, appoint a successor Administrative Agent as provided above. ARTICLE XII MISCELLANEOUS Section 12.1. NO WAIVER; MODIFICATIONS IN WRITING. (a) No failure or delay on the part of the Administrative Agent or any Lender in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Administrative Agent or any Lender at law or in equity or otherwise. Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the Borrower and the Required Lenders, PROVIDED that no such amendment, modification, supplement waiver, discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations directly affected thereby: (i) extend the final scheduled maturity of any Loan or Note, or extend the stated maturity of any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest or fees thereon, or reduce the principal amount thereof, (ii) release all or substantially all of the Collateral (except as expressly provided in the Security Documents) or Subsidiary Guarantor except as expressly provided in the Security Documents or in a transaction permitted by SECTION 8.3, (iii) amend, modify or waive any provision of this SECTION 12.1, (iv) reduce the percentage specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders, the definition of "Required Lenders" shall include lenders with respect to additional revolving loans or term loans pursuant to this Agreement so long as such additional revolving loans or term loans are on substantially the same basis as the extensions of Revolving Loans or Term Loans, as the case may be, are included on the Amendment/Restatement Effective Date) or (v) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; PROVIDED, FURTHER, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall (1) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender, except as otherwise provided in SECTION 2.8 (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default shall not constitute an increase of the Commitment of 138 any Lender, and that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender), (2) without the consent of each affected Facing Agent, amend, modify or waive any provision of SECTION 2.10 or alter its rights or obligations with respect to any Letter of Credit, (3) without the consent of the Administrative Agent, amend, modify or waive any provision of ARTICLE XI as same applies to the Administrative Agent or any other provisions as same relates to the rights or obligations of the Administrative Agent, (4) without the consent of the Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of the Administrative Agent under the other Loan Documents, (5) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the various Facilities pursuant to the first sentence of SECTION 4.5(a) and the second and third sentence of SECTION 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment, repayment or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or commitment reduction which is still required to be made is not altered), (6) without the consent of the Majority Lenders of each Facility, amend the definition of Majority Lenders, (7) without the consent of the Majority Lenders of the Term A Facility, amend the definition of Term A Pro Rata Share; without the consent of the Majority Lenders of the New Term B Facility, amend the definition of New Term B Pro Rata Share; or without the consent of the Majority Lenders of the Revolving Facility, amend the definition of Revolver Pro Rata Share, (8) without the consent of the Majority Lenders of the Term A Facility, amend the definition of Scheduled Term A Repayments; and without the consent of the Majority Lenders of the New Term B Facility, amend the definition of Scheduled New Term B Repayments or (9) without the consent of 66 2/3% of the Lenders (other than Defaulting Lenders) amend, modify or waive any provision of SECTION 9.4. Notwithstanding the foregoing, (i) prior to the date specified in clause (ii) of the definition of "SYNDICATED DATE" set forth in SECTION 1.1, the Borrower and the Administrative Agent may, without the consent of any Lender, agree to change, modify or alter the terms of the New Term B Facility (including, without limitation, pricing) and (ii) upon the execution and delivery of all documentation required by the Administrative Agent to be delivered pursuant to SECTION 2.8 in connection with a Commitment Increase Amount or the addition of the Incremental Term C Facility, this Agreement shall be deemed amended without further action by any Lender to reflect, as applicable, the new Lenders and their new Commitments and any increase in the Commitment of any existing Lender and the terms of such Commitment Increase Amount or Incremental Term C Facility. (b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (v), inclusive, of the first proviso to the third sentence of SECTION 12.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders (or, at the option of the 139 Borrower if the respective Lender's consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender's individual consent) with one or more Replacement Lenders pursuant to SECTION 3.7 so long as at the time of such replacement, each such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other change or (B) terminate such non-consenting Lender's Revolving Commitment, as the case may be, and repay all outstanding Loans of such Lender which gave rise to the need to obtain such Lender's consent, in accordance with SECTION 4.L(b) and/or 4.3; PROVIDED that, unless the Revolving Commitment, as the case may be, terminated and Loans repaid pursuant to the preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Commitments and/or outstanding Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B) the Required Lenders (determined before giving effect to the proposed action) shall specifically consent thereto, PROVIDED, FURTHER, that in any event the Borrower shall not have the right to replace a Lender, terminate its Revolving Commitment or repay its Loans solely as a result of the exercise of such Lender's rights (and the withholding of any required consent by such Lender) contemplated by the second proviso to the third sentence of SECTION 12.1(a). Section 12.2. FURTHER ASSURANCES. The Borrower agrees to do such further acts and things and to execute and deliver to the Administrative Agent such additional assignments, agreements, powers and instruments, as the Administrative Agent may reasonably require or deem advisable to carry into effect the purposes of this Agreement or any of the Loan Documents or to better assure and confirm unto the Administrative Agent its rights, powers and remedies hereunder. Section 12.3. NOTICES, ETC. Except where oral or telephonic instructions or notices are authorized herein to be given, all notices, demands, instructions and other communications required or permitted to be given to or made upon any party hereto or any other Person shall be in writing and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, or by a reputable overnight or courier delivery service, or by telecopier, and shall be deemed to be given for purposes of this Agreement on the third day after deposit in registered or certified mail, postage prepaid, and otherwise on the date that such writing is delivered or sent to the intended recipient thereof, or in the case of notice delivered by telecopy, upon completion of transmission with a copy of such notice also being delivered under any of the other methods provided above, all in accordance with the provisions of this SECTION 12.3. Unless otherwise specified in a notice sent or delivered in accordance with the foregoing provisions of this SECTION 12.3, notices, demands, instructions and other communications in writing shall be given to or made upon the respective parties hereto at their respective addresses (or to their respective telecopier numbers) 140 indicated on SCHEDULE 12.3 or, in the case of any Assignee, in the applicable Assignment and Assumption Agreement and, in the case of telephonic instructions or notices, by calling the telephone number or numbers indicated for such party on its signature page to this Agreement or such Assignment and Assumption Agreement, as the case may be. Section 12.4. COSTS, EXPENSES AND TAXES; INDEMNIFICATION. (a) GENERALLY. The Borrower agrees (without duplication) to pay all reasonable costs and expenses of the Agents in connection with the negotiation, preparation, printing, typing, reproduction, execution and delivery of this Agreement and the other Loan Documents and the documents and instruments referred to herein and therein and any amendment, waiver, consent relating hereto or thereto or other modifications of (or supplements to) any of the foregoing and any and all other documents and instruments furnished pursuant hereto or thereto or in connection herewith or therewith, including without limitation, the reasonable fees and out-of-pocket expenses of Winston & Strawn, special counsel to the Administrative Agent and the Syndication Agent, and any local counsel retained by the Administrative Agent relative thereto or the reasonable allocated costs of staff counsel as well as the fees and out-of-pocket expenses of counsel, independent public accountants and other outside experts retained by the Administrative Agent in connection with the administration of this Agreement and the other Loan Documents, and all search fees, appraisal fees and expenses, title insurance policy fees, costs and expenses and filing and recording fees and all costs and expenses (including, without limitation, Attorney Costs), if any, of the Agents and the Lenders in connection with the enforcement of this Agreement, any of the Loan Documents or any other agreement furnished pursuant hereto or thereto or in connection herewith or therewith. In addition, the Borrower shall pay any and all present and future stamp, transfer, excise and other similar taxes payable or determined to be payable in connection with the execution and delivery of this Agreement, any Loan Document, or the making of any Loan (other than taxes based on the net income of the Lenders), and agrees to save and hold the Administrative Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay by the Borrower in paying, or omission by the Borrower to pay, such taxes. Any portion of the foregoing fees, costs and expenses which remains unpaid more than thirty (30) days following the Administrative Agent's, any Agents' or any Lender's statement and request for payment thereof shall bear interest from the date of such statement and request to the date of payment at the Default Rate. The Borrower will indemnify and hold harmless the Administrative Agent, each Agent and each Lender and each director, officer, employee, partner, agent, attorney, trustee and Affiliate of the Administrative Agent, each Agent and each Lender (each such Person an "INDEMNIFIED PARTY") from and against all losses, claims, damages, penalties, obligations (including removal or remedial actions), expenses or liabilities which arise out of, in any way relate to, or result from the transactions contemplated by this Agreement or any of the other Loan Documents and to reimburse each Indemnified Party upon their demand, for any Attorney Costs incurred in connection with investigating, preparing to defend or defending any such loss, claim, damage, liability, action or claim; PROVIDED, HOWEVER, (a) that no Indemnified Party shall have the 141 right to be so indemnified hereunder for any loss, claim, damage, penalties, obligations, expense or liability to the extent it arises or results from the gross negligence or willful misconduct of such Indemnified Party as finally determined by a court of competent jurisdiction and (b) that nothing contained herein shall affect the obligations and liabilities of the Lenders to the Borrower contained herein. If any action, suit or proceeding arising from any of the foregoing is brought against the Administrative Agent, any Agent, any Lender or any other Indemnified Party, the Borrower will, if requested by the Administrative Agent, any Agent, any Lender or any such Indemnified Party, resist and defend such action, suit or proceeding or cause the same to be resisted and defended by counsel reasonably satisfactory to the Person or Persons indemnified or intended to be indemnified. Each Indemnified Party shall, unless the Administrative Agent, an Agent, a Lender or other Indemnified Party has made the request described in the preceding sentence and such request has been complied with, have the right to employ its own counsel (or (but not as well as) staff counsel) to investigate and control the defense of any matter covered by such indemnity and the reasonable fees and expenses of such counsel shall be at the expense of the indemnifying party. Excluding any liability arising out of the gross negligence or willful misconduct of any Indemnified Party, the Borrower further agrees to indemnify and hold each Indemnified Party harmless from all loss, cost (including Attorney Costs), liability and damage whatsoever incurred by any Indemnified Party by reason of any violation of any Environmental Laws or Environmental Permits or for the Release or threatened Release of any Contaminants into the environment for which the Borrower or any of its Subsidiaries has any liability or which occurs upon the Mortgaged Property or which is related to any property currently or formerly owned, leased or operated by or on behalf of the Borrower or any of its Subsidiaries, or by reason of the imposition of any Environmental Lien in respect of the Borrower or its Subsidiaries or which occurs by a breach of any of the representations, warranties or covenants relating to environmental matters contained herein, including, without limitation, by reason of any matters disclosed in SCHEDULE 6.17, PROVIDED that, with respect to any liabilities arising from acts or failure to act for which the Borrower or any of its Subsidiaries is strictly liable under any Environmental Law or Environmental Permit, the Borrower's obligation to each Indemnified Party under this indemnity shall likewise be without regard to fault on the part of the Borrower or any such Subsidiary. If the Borrower shall fail to do any act or thing which it has covenanted to do hereunder or any representation or warranty on the part of the Borrower or any Subsidiary contained herein or in any other Loan Document shall be breached, the Administrative Agent may (but shall not be obligated to) do the same or cause it to be done or remedy any such breach, and may expend its funds for such purpose, and will use its best efforts to give prompt written notice to the Borrower that it proposes to take such action. Any and all amounts so expended by the Administrative Agent shall be repaid to it by the Borrower promptly upon the Administrative Agent's demand therefor, with interest at the Default Rate in effect from time to time during the period including the date so expended by the Administrative Agent to the date of repayment. To the extent that the undertaking to indemnify, pay or hold harmless the Administrative Agent or any Lender as set forth in this SECTION 12.4 may be unenforceable because it is violative of any law or public policy, the Borrower shall make the maximum contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under applicable law. 142 The obligations of the Borrower under this SECTION 12.4 shall survive the termination of this Agreement, the assignment by any Lender of all or any part of its Credit Exposure hereunder and the discharge of the Borrower's other Obligations hereunder. (b) FOREIGN EXCHANGE INDEMNITY. If any sum due from the Borrower under this Agreement or any order or judgment given or made in relation hereto has to be converted from the currency (the "FIRST CURRENCY") in which the same is payable hereunder or under such order or judgment into another currency (the "SECOND CURRENCY") for the purpose of (i) making or filing a claim or proof against the Borrower with any Governmental Authority or in any court or tribunal, or (ii) enforcing any order or judgment given or made in relation hereto, the Borrower shall indemnify and hold harmless each of the Persons to whom such sum is due from and against any loss actually suffered as a result of any discrepancy between (a) the rate of exchange used to convert the amount in question from the first currency into the second currency, and (b) the rate or rates of exchange at which such Person, acting in good faith in a commercially reasonable manner, purchased the first currency with the second currency after receipt of a sum paid to it in the second currency in satisfaction, in whole or in part, of any such order, judgment, claim or proof. The foregoing indemnity shall constitute a separate obligation of the Borrower distinct from its other obligations hereunder and shall survive the giving or making of any judgment or order in relation to all or any of such other obligations. Notwithstanding the foregoing, payments of principal and interest on Loans denominated in Euro shall be made in Euro. Section 12.5. CONFIRMATIONS. Each of the Borrower and each holder of any portion of the Obligations agrees from time to time, upon written request received by it from the other, to confirm to the other in writing (with a copy of each such confirmation to the Administrative Agent) the aggregate unpaid principal amount of the Loan or Loans and other Obligations then outstanding. Section 12.6. ADJUSTMENT; SETOFF. ------------------ (a) If any Lender (a "BENEFITED LENDER") shall at any time receive any payment of all or part of its Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by setoff, pursuant to events or proceedings of the nature referred to in SECTION 10.1(e) or SECTION 10.1(f) hereof, or otherwise) in a greater proportion than any such payment to and collateral received by any other Lender in respect of such other Lender's Loans or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders such portion of each such other Lender's Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each Lender; PROVIDED, HOWEVER, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the 143 purchase price and benefits returned, to the extent of such recovery, but without interest unless the Benefited Lender from which such excess payment is recovered is required by court order to pay interest thereon, in which case each Lender returning funds to such Benefited Lender shall pay its pro rata share of such interest. The Borrower agrees that each Lender so purchasing a portion of another Lender's Loans may exercise all rights of payment (including, without limitation, rights of setoff) with respect to such portion as fully as if such Lender were the direct holder of such portion. (b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to the Borrower, any such notice being expressly waived by the Borrower, upon the occurrence and during the continuance of an Event of Default, to setoff and apply against any Obligations, whether matured or unmatured, of the Borrower to such Lender, any amount owing from such Lender to the Borrower, at or at any time after, the happening of any of the above-mentioned events, and the aforesaid right of setoff may be exercised by such Lender against the Borrower or against any trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receivers, or execution, judgment or attachment creditor of the Borrower, or against anyone else claiming through or against, the Borrower or such trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receivers, or execution, judgment or attachment creditor, notwithstanding the fact that such right of setoff shall not have been exercised by such Lender prior to the making, filing or issuance, or service upon such Lender of, or of notice of, any such petition, assignment for the benefit of creditors, appointment or application for the appointment of a receiver, or issuance of execution, subpoena, order or warrant. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application. (c) The Borrower expressly agrees that to the extent the Borrower makes a payment or payments and such payment or payments, or any part thereof, are subsequently invalidated, declared to be fraudulent or preferential, set aside or are required to be repaid to a trustee, receiver, or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the Indebtedness to the Lenders or part thereof intended to be satisfied shall be revived and continued in full force and effect as if said payment or payments had not been made. Section 12.7. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement. 144 Section 12.8. BINDING EFFECT; ASSIGNMENT; ADDITION AND SUBSTITUTION OF LENDERS. (a) This Agreement shall be binding upon, and inure to the benefit of, the Borrower, the Administrative Agent, the Lenders, all future holders of the Notes and their respective successors and assigns; PROVIDED, however, that the Borrower may not assign its rights or obligations hereunder or in connection herewith or any interest herein (voluntarily, by operation of law or otherwise) without the prior written consent of the Administrative Agent and all of the Lenders. (b) Each Lender may at any time sell to one or more banks or other entities ("PARTICIPANTS") participating interests in all or any portion of its Commitment and Loans or participation in Letters of Credit or any other interest of such Lender hereunder (in respect of any Lender, its "CREDIT EXPOSURE"). In the event of any such sale by a Lender of participating interests to a Participant, such Lender's obligations under this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, and the Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. Each Lender shall from time to time upon request of the Borrower notify the Borrower of the identity of any Participants with respect to its Credit Exposure hereunder, provided, however, that failure to provide such notice will not affect the validity of such participation. The Borrower agrees that if amounts outstanding under this Agreement or any of the Loan Documents are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any other Loan Document, PROVIDED, HOWEVER, that such right of setoff shall be subject to the obligation of such Participant to share with the Lenders, and the Lenders agree to share with such Participant, as provided in SECTION 12.6. The Borrower also agrees that each Participant shall be entitled to the benefits of SECTION 3.5, 3.6 and 4.7 with respect to its participation in the Loans outstanding from time to time, PROVIDED that such Participant's benefits under SECTIONS 3.5, 3.6 and 4.7 shall be limited to the benefits that the primary Lender would be entitled to thereunder. Each Lender agrees that any agreement between such Lender and any such Participant in respect of such participating interest shall not restrict such Lender's right to approve or agree to any amendment, restatement, supplement or other modification to, waiver of, or consent under, this Agreement or any of the Loan Documents except to the extent that any of the foregoing would (i) extend the final scheduled maturity of any Loan or Note in which such Participant is participating (it being understood that amending the definitions of Scheduled Term A Repayments (other than the Term Loan A Maturity Date) and Scheduled New Term B Repayments (other than the New Term B Loan Maturity Date) shall not constitute an extension of the final scheduled maturity of any Loan or Note) or extend the stated maturity of any Letter of Credit in which such Participant is participating beyond the Revolver Termination Date, or reduce the rate or extend the time of payment of interest or fees on any such Loan, Note or Letter 145 of Credit (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the Participant's participation over the amount thereof then in effect (it being understood that waivers or modifications of conditions precedent, covenants, Events of Default or Unmatured Events of Default or of a mandatory reduction in Commitments shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any Participant if the Participant's participation is not increased as a result thereof), (ii) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement or (iii) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Loan Documents) supporting the Loans and/or Letters of Credit hereunder in which such Participant is participating. (c) Any Lender may at any time assign to one or more Eligible Assignees, including an Affiliate or Related Fund thereof (each an "ASSIGNEE"), all or any part of its Credit Exposure pursuant to an Assignment and Assumption Agreement, PROVIDED that (i) it assigns its Credit Exposure in an amount not less than (A) the Dollar Equivalent of $5,000,000 (or if less the entire amount of such Lender's Credit Exposure) of the Revolving Facility and/or Term A Facility or (B) $1,000,000 (or if less the entire amount of such Lenders' Credit Exposure) of the New Term B Facility (PROVIDED that in the case of contemporaneous assignments by a Lender to more than one Related Fund, the minimum amount of $1,000,000 shall be applicable in the aggregate to all such contemporaneous assignments) and (ii) any assignment of all or any portion of any Lender's Credit Exposure to an Assignee other than an Affiliate of such Lender or another Lender, or in the case of a Lender that is a fund any Related Fund of such Lender, shall require the prior written consent of the Administrative Agent and, in the absence of an Unmatured Event of Default or Event of Default, the Borrower (the consent of the Borrower not to be unreasonably withheld or delayed), PROVIDED, HOWEVER, that for the first twenty (20) Business Days following the Amendment/Restatement Effective Date, assignments by the Agents shall not require the consent of the Borrower) and PROVIDED FURTHER, that notwithstanding the foregoing limitations, any Lender may at any time assign all or any part of its Credit Exposure to any Affiliate of such Lender or to any other Lender (treating any Related Fund of such Lender as a single Lender). Upon execution of an Assignment and Assumption Agreement and the payment by the parties thereto of a nonrefundable assignment fee of $3,500 in immediately available funds to the Administrative Agent at its Payment Office in connection with each such assignment (PROVIDED, that in the case of contemporaneous assignments by a Lender to more than one Related Fund, only a single fee of $3,500 shall be payable for all such contemporaneous assignments), written notice thereof by such transferor Lender to the Administrative Agent and the recording by the Administrative Agent in the Register of such assignment and the resulting effect upon the Loans and/or Revolving Commitment of the assigning Lender and the Assignee, the Assignee shall have, to the extent of such assignment, the same rights and benefits as it would have if it were a Lender hereunder and the holder of the Obligations (PROVIDED that the Borrower and the Administrative Agent shall be entitled to continue to deal solely and directly with the assignor Lender in connection with the interests so assigned to the Assignee until written notice of such 146 assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to the Borrower and the Administrative Agent by the assignor Lender and the Assignee) and, if the Assignee has expressly assumed, for the benefit of the Borrower, some or all of the transferor Lender's obligations hereunder, such transferor Lender shall be relieved of its obligations hereunder to the extent of such assignment and assumption, and except as described above, no further consent or action by the Borrower, the Lenders or the Administrative Agent shall be required. At the time of each assignment pursuant to this SECTION 12.8(c) to a Person which is not already a Lender hereunder and which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for United States Federal income tax purposes, the respective Assignee shall provide to the Borrower and the Administrative Agent the appropriate IRS Forms (and, if applicable a Section 4.7(d)(ii) Certificate) described in SECTION 4.7(d). Each Assignee shall take such Credit Exposure subject to the provisions of this Agreement and to any request made, waiver or consent given or other action taken hereunder, prior to the receipt by the Administrative Agent and the Borrower of written notice of such transfer, by each previous holder of such Credit Exposure. Such Assignment and Assumption Agreement shall be deemed to amend this Agreement and SCHEDULE 1.1(a) hereto, to the extent, and only to the extent, necessary to reflect the addition of such Assignee as a Lender and the resulting adjustment of all or a portion of the rights and obligations of such transferor Lender under this Agreement, the Maximum Commitment, the determination of its Term A Pro Rata Share, New Term B Pro Rata Share, Revolver Pro Rata Share, as the case may be (in each case, rounded to twelve decimal places), the Loans, any outstanding Letters of Credit and any new Notes to be issued, at the Borrower's expense, to such Assignee, and no further consent or action by the Borrower or the Lenders shall be required to effect such amendments. (d) The Borrower authorizes each Lender to disclose to any Participant or Assignee (or its investment advisor) (each, a "TRANSFEREE") and any prospective Transferee any and all financial information in such Lender's possession concerning the Borrower and any Subsidiary of the Borrower which has been delivered to such Lender by the Borrower pursuant to this Agreement or which has been delivered to such Lender by the Borrower in connection with such Lender's credit evaluation of the Borrower prior to entering into this Agreement. Any Transferee or any prospective Transferee to whom such financial information is disclosed shall be required to maintain the confidentiality of such information pursuant to SECTION 12.14 as if they were parties to this Agreement. (e) Notwithstanding any other provision set forth in this Agreement, (i) any Lender may at any time pledge or assign all or any portion of its rights under this Agreement and the other Loan Documents (including, without limitation, the Notes held by it) to any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Board without notice to, or the consent of, the Borrower or the Administrative Agent and (ii) any Lender which is a fund may pledge all or any portion of its Notes or Loans to its trustee in support of its obligations to its 147 trustee without the consent of, or notice to, the Borrower or the Administrative Agent. No such pledge or assignment shall release the transferor Lender from its obligations hereunder. Section 12.9. CONSENT TO JURISDICTION; MUTUAL WAIVER OF JURY TRIAL. (A) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE BORROWER HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION SYSTEM WITH OFFICES ON THE DATE HEREOF AT 111 EIGHTH STREET, NEW YORK, NEW YORK 10011 AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE BORROWER AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO AGENT UNDER THIS AGREEMENT. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY, AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION. (B) THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY IRREVOCABLY WAIVE ANY OBJECTION WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT 148 BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. (C) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY COURT OR JURISDICTION, INCLUDING WITHOUT LIMITATION THOSE REFERRED TO IN CLAUSE (A) ABOVE, IN RESPECT TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. Section 12.10. GOVERNING LAW. THIS AGREEMENT AND EACH NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Section 12.11. SEVERABILITY OF PROVISIONS. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. Section 12.12. HEADINGS. The Table of Contents and Article and Section headings used in this Agreement are for convenience of reference only and shall not affect the construction of this Agreement. Section 12.13. TERMINATION OF AGREEMENT. This Agreement shall terminate when the Commitment of each Lender has terminated and all outstanding Obligations and Loans have been paid in full and all Letters of Credit have expired or been terminated; PROVIDED, HOWEVER, that the rights and remedies of the Administrative Agent and each Lender with respect to any representation and warranty made by the Borrower pursuant to this Agreement or any other Loan Document, and the indemnification provisions contained in this Agreement and any other Loan Document, shall be continuing and shall survive any termination of this Agreement or any other Loan Document. 149 Section 12.14. CONFIDENTIALITY. Each of the Lenders severally agrees to keep confidential all non-public information pertaining to the Borrower and its Subsidiaries and their respective predecessors in interest which is provided to it by any such parties in accordance with such Lender's customary procedures for handling confidential information of this nature and in a prudent fashion, and shall not disclose such information to any Person except (i) to the extent such information is public when received by such Lender or becomes public thereafter due to the act or omission of any party other than a Lender, (ii) to the extent such information is independently obtained from a source other than the Borrower or its Subsidiaries and such information from such source is not, to such Lender's knowledge, subject to an obligation of confidentiality or, if such information is subject to an obligation of confidentiality, that disclosure of such information is permitted, (iii) to an Affiliate of such Lender (or its investment advisor), counsel, auditors, ratings agencies, examiners of any regulatory authority having or asserting jurisdiction over such Lender, accountants and other consultants retained by the Administrative Agent or any Lender, (iv) in connection with any litigation or the enforcement of the rights of any Lender or the Administrative Agent under this Agreement or any other Loan Document, (v) to the extent required by any applicable statute, rule or regulation or court order (including, without limitation, by way of subpoena) or pursuant to the request of any Governmental Authority having or asserting jurisdiction over any Lender or the Administrative Agent; provided, however, that in such event, if the Lender(s) are able to do so, the Lender shall provide the Borrower with prompt notice of such requested disclosure so that the Borrower may seek a protective order or other appropriate remedy, and, in any event, the Lenders will endeavor in good faith to provide only that portion of such information which, in the reasonable judgment of the Lender(s), is relevant and legally required to be provided, (vi) to any direct or indirect contractual counterparty in swap agreements or such contractual counterparty's professional advisors (so long as such contractual counterparty and its professional advisors agree to be bound by the provisions of this SECTION 12.14), or (vii) to the extent disclosure to other entities is appropriate in connection with any proposed or actual assignment or grant of a participation by any of the Lenders of interests in this Agreement and/or any of the other Loan Documents to such other entities (who will in turn be required to maintain confidentiality as if they were Lenders parties to this Agreement). In no event shall the Administrative Agent or any Lender be obligated or required to return any such information or other materials furnished by the Borrower. Section 12.15. CONCERNING THE COLLATERAL AND THE LOAN DOCUMENTS. (a) AUTHORITY. Each Lender authorizes and directs DBTCA to act as Collateral Agent under the Security Documents and to enter into the Loan Documents relating to the Collateral (including, without limitation, the Security Agreements) for the benefit of the Lenders and the other Secured Creditors. Each Lender agrees that any action taken by the Administrative Agent or the Required Lenders (or, where required by the express terms hereof, a different proportion of the Lenders) in accordance with the provisions hereof or of the other Loan 150 Documents, and the exercise by the Administrative Agent, the Collateral Agent or the Required Lenders (or, where so required, such different proportion) of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. Without limiting the generality of the foregoing, the Administrative Agent or the Collateral Agent, as the case may be, shall have the sole and exclusive right and authority to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection herewith and with the Loan Documents relating to the Collateral; (ii) execute and deliver each Loan Document relating to the Collateral and accept delivery of each such agreement delivered by the Borrower or any of its Subsidiaries, (iii) act as Collateral Agent for the Lenders and certain other Secured Creditors for purposes stated in the Security Documents to the extent such perfection is required under the Loan Documents, PROVIDED, HOWEVER, the Collateral Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for the Collateral Agent and the Lenders for purposes of the perfection of all security interests and Liens with respect to the Borrower's and its Subsidiaries' respective deposit accounts maintained with, and cash and Cash Equivalents held by, such Lender; (iv) manage, supervise and otherwise deal with the Collateral; (v) take such action as is necessary or desirable to maintain the perfection and priority of the security interests and liens created or purported to be created by the Loan Documents, and (vi) except as may be otherwise specifically restricted by the terms hereof or of any other Loan Document, exercise all remedies given to the Administrative Agent or the Lenders with respect to the Collateral under the Loan Documents relating thereto, applicable law or otherwise. (b) RELEASE OF COLLATERAL. (i) The Administrative Agent and the Lenders hereby direct the Administrative Agent or the Collateral Agent, as the case may be, to release, in accordance with the terms hereof, any Lien held by the Administrative Agent or the Collateral Agent, as the case may be, for the benefit of the Secured Creditors: (A) against all of the Collateral, upon final and indefeasible payment in full of the Loans and Obligations and termination hereof; (B) against any part of the Collateral sold or disposed of by the Borrower or any of its Subsidiaries to the extent such sale or disposition is permitted hereby (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited hereby); (C) against any Collateral acquired by the Borrower or any of its Subsidiaries after the Amendment/Restatement Effective Date and at least 70% of the purchase price therefor is within 120 days of the acquisition thereof financed with Indebtedness secured by a Lien permitted by SECTION 8.1(c); 151 (D) so long as no Default or Event of Default has occurred and is continuing, in the sole discretion of the Administrative Agent upon the request of the Borrower, against any part of the Collateral with a fair market value of less than $5,000,000 in the aggregate during the term of this Agreement as such fair market value may be certified to the Administrative Agent and the Collateral Agent by the Borrower in an officer's certificate acceptable in form and substance to the Administrative Agent and the Collateral Agent; (E) against a part of the Collateral which release does not require the consent of all of the Lenders as set forth in SECTION 12.1(a)(ii), if such release is consented to by the Required Lenders; and (F) so long as no Default or Event of Default has occurred and is continuing, against the Mortgaged California Real Estate upon the Leverage Ratio, calculated for the Test Period ending on the last day of the most recently ended Fiscal Quarter, being less than the ratio 2.00 to 1.00. (ii) Each of the Lenders hereby directs the Administrative Agent to (or to cause the Administrative Agent to) execute and deliver or file such termination and partial release statements and such other things as are necessary to release Liens to be released pursuant to this SECTION 12.15 promptly upon the effectiveness of any such release or enter into intercreditor agreements contemplated or permitted herein. (c) NO OBLIGATION. Neither the Administrative Agent nor the Collateral Agent shall have any obligation whatsoever to any Lender or to any other Person to assure that the Collateral exists or is owned by the Borrower or any of its Subsidiaries or is cared for, protected or insured or has been encumbered or that the Liens granted to the Administrative Agent or the Collateral Agent herein or pursuant to the Loan Documents have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Administrative Agent or the Collateral Agent in any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Administrative Agent and the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Administrative Agent's and the Collateral Agent's own interests in the Collateral as one of the Lenders and that neither the Administrative Agent nor the Collateral Agent shall have any duty or liability whatsoever to any Lender, provided, that, notwithstanding the foregoing, the Administrative Agent and the Collateral Agent shall be responsible for their respective grossly negligent actions or actions constituting intentional misconduct. Section 12.16. EFFECTIVENESS. This Agreement shall become effective on the date on which (i) the Borrower and each of the 152 Lenders shall have signed a counterpart of this Agreement (whether the same or different counterparts) and shall have delivered the same to the Administrative Agent at the Notice Office (or to the Administrative Agent's counsel as directed by such counsel) or, in the case of the Lenders, shall have given to the Administrative Agent telephonic (confirmed in writing), written, telex or facsimile notice (actually received) at such office or the office of the Administrative Agent's counsel that the same has been signed and mailed to it and (ii) all other conditions described in Article V have been satisfied. The Administrative Agent will give the Borrower and each Lender prompt written notice of the occurrence of the Amendment/Restatement Effective Date. Section 12.17. REGISTRY. The Borrower hereby designates the Administrative Agent to serve as the Borrower's agent, solely for purposes of this SECTION 12.17 to maintain a register (the "REGISTER") on which it will record the Commitments from time to time of each of the Lenders, the Loans made by each of the Lenders and each repayment in respect of the principal amount of the Loans of each Lender. Failure to make any such recordation, or any error in such recordation shall not affect the Borrower's obligations in respect of such Loans. With respect to any Lender, the transfer of the Commitments of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Commitments shall not be effective until such transfer is recorded on the Register maintained by the Administrative Agent with respect to ownership of such Commitments and Loans and prior to such recordation all amounts owing to the transferor with respect to such Commitments and Loans shall remain owing to the transferor. The registration of assignment or transfer of all or part of any Commitments and Loans shall be recorded by the Administrative Agent on the Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment and Assumption Agreement pursuant to SECTION 12.8(c) and no Assignment and Assumption Agreement shall be effective until so recorded. Coincident with the delivery of such an Assignment and Assumption Agreement to the Administrative Agent for acceptance and registration of assignment or transfer of all or part of a Loan, or as soon thereafter as practicable, the assigning or transferor Lender shall surrender the Note evidencing such Loan, and thereupon one or more new Notes in the same aggregate principal amount then owing to such assignor or transferor Lender shall be issued to the assigning or transferor Lender and/or the new Lender. The Borrower agrees to indemnify the Administrative Agent from and against any and all losses, claims, damages and liabilities of whatsoever nature which may be imposed on, asserted against or incurred by the Administrative Agent in performing its duties under this SECTION 12.17; PROVIDED, HOWEVER that the Administrative Agent shall not have the right to be so indemnified under this SECTION 12.17 for any loss, claim, damage, penalties, obligations, expense or liability to the extent it arises from the gross negligence or willful misconduct of the Administrative Agent as finally determined by a court of competent jurisdiction. 153 Section 12.18. MATTERS RELATING TO THIS AGREEMENT. On and after the date hereof each reference in this Agreement to "this Agreement," "hereunder," "hereof," "herein," or words of like import, and each reference to the Credit Agreement, as the case may be, in the Loan Documents and all other documents delivered in connection with this Agreement shall mean and be a reference to the Original Credit Agreement as amended and restated by this Agreement. 154 SCHEDULE 1.1(a) LOAN/COMMITMENTS

- ------------------------------- --------------------- ----------------------- --------------------- --------------------- Multicurrency Commitment (as a Amount of Amount of Amount of subcomponent of Term A New Term B Revolving the Revolving Lender Loan Loan Commitment Commitment Commitment) ------ ---- --------------- ---------- ----------- - ------------------------------- --------------------- ----------------------- --------------------- --------------------- Deutsche Bank Trust $ 7,894,737.49 $ 40,000,000.00 $ 25,000,000.00 $12,500,000.00 Company Americas - ------------------------------- --------------------- ----------------------- --------------------- --------------------- ABN Amro Bank, N.V. $ 8,552,631.38 $ 40,000,000.00 $ 24,166,666.66 $12,083,333.33 - ------------------------------- --------------------- ----------------------- --------------------- --------------------- Bank One, NA $ 7,894,737.45 $ - - $ 25,000,000.00 $12,500,000.00 --------------- - ------------------------------- --------------------- ----------------------- --------------------- --------------------- The Bank of Nova Scotia $ 11,249,999.76 $ 20,000,000.00 $ 15,000,000.00 $ 7,500,000.00 - ------------------------------- --------------------- ----------------------- --------------------- --------------------- ING Capital LLC $ - - $ 15,000,000.00 $ - - $ - - -------------- --------------- -------------- - ------------------------------- --------------------- ----------------------- --------------------- --------------------- The Bank of New York $ 9,374,999.78 $ - - $ 12,500,000.00 $ 6,250,000.00 --------------- - ------------------------------- --------------------- ----------------------- --------------------- --------------------- Wachovia Bank $ 9,374,999.78 $ - - $ 12,500,000.00 $ 6,250,000.00 -------------- - ------------------------------- --------------------- ----------------------- --------------------- --------------------- National City Bank $ 5,624,999.87 $ - - $ 7,500,000.00 $ 3,750,000.00 -------------- - ------------------------------- --------------------- ----------------------- --------------------- --------------------- The Northern Trust Company $ 5,624,999.87 $ - - $ 7,500,000.00 $ 3,750,000.00 -------------- - ------------------------------- --------------------- ----------------------- --------------------- --------------------- Wells Fargo Bank, NA $ 5,624,999.87 $ - - $ 7,500,000.00 $ 3,750,000.00 --------------- - ------------------------------- --------------------- ----------------------- --------------------- --------------------- TOTAL $ 71,217,105.25 $115,000,000.00 $136,666,666.66 $68,333,333.33 - ------------------------------- --------------------- ----------------------- --------------------- ---------------------

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EX-10.1

                                                                   Exhibit 10.1


                                  GENCORP INC.
                   1999 EQUITY AND PERFORMANCE INCENTIVE PLAN

                           RESTRICTED STOCK AGREEMENT




            WHEREAS, ________________________ (the "Grantee") is an employee of
GenCorp Inc. (the "Company") or a Subsidiary; and

            WHEREAS, the execution of a restricted stock agreement in the form
hereof (the "Agreement") has been authorized by a resolution of the Organization
and Compensation Committee (the "Committee") of the Board of Directors (the
"Board") of the Company duly adopted on _________________________;

            NOW, THEREFORE, pursuant to the Company's 1999 Equity and
Performance Incentive Plan (the "Plan"), the Company grants, as of
___________________________ (the "Date of Grant"), to the Grantee
____________________ (_______) shares of the Company's common stock, par value
$0.10 per share (the "Stock"), subject to the terms and conditions of the Plan
and the following terms, conditions, limitations and restrictions:

         1. ISSUANCE OF STOCK. The Stock covered by this Agreement shall be
fully paid and nonassessable and shall be represented by certificates registered
in the name of the Grantee and bearing a legend referring to the restrictions
hereinafter set forth.

         2. RESTRICTIONS ON TRANSFER OF STOCK. The Stock subject to this
Agreement may not be transferred, sold, pledged, exchanged, assigned or
otherwise encumbered or disposed of by the Grantee, except to the Company, until
it has become vested in accordance with Section 3 of this Agreement; provided,
however, that the Grantee's interest in the Stock covered by this Agreement may
be transferred at any time by will or the laws of descent and distribution. Any
purported transfer, encumbrance or other disposition of the Stock covered by
this Agreement that is in violation of this Section will be null and void, and
the other party to any such purported transaction will not obtain any rights to
or interest in the Stock covered by this Agreement. When and as permitted by the
Plan, the Company may waive the restrictions set forth in this Section with
respect to all or any portion of the Stock covered by this Agreement.

         3. VESTING OF STOCK. (a) Provided that the Grantee remains in the
continuous employ of the Company or a Subsidiary, the Stock covered by this
Agreement will become nonforfeitable immediately upon achievement of the Target
Price, as follows:










                                                        Percent Nonforfeitable
                                                        ----------------------

           Achievement of the Target Price                       100%
           no later than ___________________
           (three years from date of grant)

           Achievement of the Target Price                        50%
           after _______________ (three years
           from date of grant) and no
           later than ______________________
           (four years from date of grant)

The Target Price will be achieved if, and only if, the Market Value (as defined
in the Plan) for shares of the Stock is $19.00 or higher for ten (10)
consecutive days on which the New York Stock Exchange is open for trading.

            (b) For the purposes of this Agreement, the continuous employment of
the Grantee with the Company or a Subsidiary shall not be deemed to have been
interrupted, and the Grantee will not be deemed to have ceased to be an employee
of the Company or a Subsidiary, by reason of (A) the transfer of his employment
among the Company and its Subsidiaries or (B) an approved leave of absence.

            (c) Notwithstanding the provisions of Subsection (a) of this
Section, in the event of the death, disability or retirement of the Grantee: (i)
any of the Stock covered by this Agreement that has become nonforfeitable prior
to the death, disability or retirement of the Grantee shall remain
nonforfeitable; and, (ii) the Committee will consider whether, in its sole
discretion, to accelerate pursuant to Section 17(e) of the Plan the vesting of
any or all of the Stock subject to this Agreement which remains subject to
forfeiture. For purposes of this Agreement, "Retirement" of the Grantee shall
mean normal or early retirement under the defined benefit retirement plan of the
Company applicable to the Grantee (as determined by the Committee).

            (d) Notwithstanding the provisions of Subsection (a) of this
Section, all of the Stock covered by this Agreement will become immediately
nonforfeitable upon the occurrence of a change in control of the Company that
shall occur while the Grantee is an employee of the Company or a Subsidiary. For
the purposes of this Agreement, the term "change in control" will have the
meaning given such term under the Plan as in effect on the Date of Grant.

         4. FORFEITURE OF STOCK. Unless the Committee determines to provide
otherwise, any of the Stock covered by this Agreement that has not become vested
in accordance with Section 3 of this Agreement will be forfeited as follows:

         (i)      Fifty percent (50%) of the shares of Stock covered by this
                  Agreement will be forfeited if the Target Price is not
                  achieved before ______________ (three years, plus one day,
                  after date of grant); and

         (ii)     The remaining fifty percent (50%) of the shares of Stock
                  covered by the Agreement will be forfeited if the Target Price
                  is not achieved before ___________________________________
                  (four years, plus one day, after date of grant).






In the event of a forfeiture, the certificates representing all of the Stock
covered by this Agreement that has not become vested in accordance with Section
3 of this Agreement shall be cancelled.

        5. DIVIDEND, VOTING AND OTHER RIGHTS. The Grantee will have all of the
rights of a shareholder with respect to the Stock covered by this Agreement,
including the right to vote the Stock and receive any dividends that may be paid
thereon. Any additional Stock that the Grantee may become entitled to receive
pursuant to a share dividend or a merger or reorganization in which the Company
is the surviving Company or any other change in the capital structure of the
Company will be subject to the same restrictions as the Stock covered by this
Agreement.

        6. RETENTION OF SHARE CERTIFICATES BY COMPANY. The certificates
representing the Stock covered by this Agreement will be held in custody by the
Company, together with stock powers endorsed in blank by the Grantee with
respect thereto, until those shares have become vested in accordance with
Section 3 of this Agreement.

        7. COMPLIANCE WITH LAW. The Company will make reasonable efforts to
comply with all applicable federal and state securities laws; provided, however,
notwithstanding any other provision of this Agreement, the Company will not be
obligated to issue any restricted or unrestricted Stock pursuant to this
Agreement if the issuance thereof would result in a violation of any such law.

        8. ADJUSTMENTS. The Committee will make any adjustments in the number or
kind of shares of stock or other securities covered by this Agreement that the
Committee may determine to be equitably required to prevent any dilution or
enlargement of the Grantee's rights under this Agreement that would result from
any (a) stock dividend, stock split, combination of shares, recapitalization or
other change in the capital structure of the Company, (b) merger, consolidation,
spin-off, spin-out, split-off, split-up, reorganization, partial or complete
liquidation or other distribution of assets, issuance of rights or warrants to
purchase securities or (c) other corporate transaction or event having an effect
similar to any of the foregoing.

        9. WITHHOLDING. To the extent that the Company is required to withhold
federal, state, local or foreign taxes in connection with any issuance of
restricted or unrestricted Stock or other securities pursuant to this Agreement,
and the amounts available to the Company for such withholding are insufficient,
it will be a condition to the receipt of such Stock that the Grantee make
arrangements satisfactory to the Company for payment of the balance of such
taxes required to be withheld. If necessary, the Committee may require
relinquishment of a portion of such Stock to cover the payment of taxes.

        10. EMPLOYMENT RIGHTS. The Plan and this Agreement will not confer upon
the Grantee any right with respect to the continuance of employment or other
service with the Company or any Subsidiary and will not interfere in any way
with any right that the Company or any Subsidiary would otherwise have to
terminate any employment or other service of the Grantee at any time.





        11. RELATION TO OTHER BENEFITS. Any economic or other benefit to the
Grantee under this Agreement will not be taken into account in determining any
benefits to which the Grantee may be entitled under any profit-sharing,
retirement or other benefit or compensation plan maintained by the Company or a
Subsidiary and shall not affect the amount of any life insurance coverage
available to any beneficiary under any life insurance plan covering employees of
the Company or a Subsidiary.

        12. AGREEMENT SUBJECT TO THE PLAN. The Stock granted under this
Agreement and all of the terms and conditions hereof are subject to all of the
terms and conditions of the Plan. In the event of any inconsistency between this
Agreement and the Plan, the terms of the Plan will govern.

        13. AMENDMENTS. Any amendment to the Plan will be deemed to be an
amendment to this Agreement to the extent that the amendment is applicable
hereto; provided, however, that no amendment will adversely affect the rights of
the Grantee under this Agreement without the Grantee's consent.

        14. SEVERABILITY. In the event that one or more of the provisions of
this Agreement is invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated shall be deemed to be separable from
the other provisions hereof, and the remaining provisions hereof will continue
to be valid and fully enforceable.

        15. GOVERNING LAW. This Agreement will be construed and governed in
accordance with the laws of the State of Ohio.

        16. CERTAIN DEFINED TERMS. In addition to the terms defined elsewhere
herein, when used in the Agreement, terms with initial capital letters have the
meaning given such term under the Plan, as in effect from time to time.

            This Agreement is executed as of the _____ day of ________________.

                                     GENCORP INC.


                                     By:
                                        -------------------------------------
                                         Name
                                         Title



         The undersigned Grantee hereby acknowledges receipt of an executed
original of this Restricted Stock Agreement and accepts the right to receive the
Stock subject to the terms and conditions of the Plan and the terms and
conditions herein above set forth.



                                        --------------------------------------






                             IRREVOCABLE STOCK POWER
                       FOR CERTIFICATE NO. _______________



FOR VALUE RECEIVED, _______________________________________________ does hereby

sell, assign and transfer to____________________________________________________

________________________________________________________________________________
                                   (Social Security or Taxpayer Identifying No.)

_________ shares of the common stock of GenCorp Inc. issued on

_______________,_____, pursuant to that certain Restricted Stock Agreement

executed by and between GenCorp Inc. and ______________________________________

effective as of ________________, such shares to be represented by a

certificate, the number of which shall be entered in the indicated space in the

caption immediately upon issuance of said certificate.


The undersigned does hereby irrevocably constitute and appoint _________________

_________________________________ attorney to transfer the said stock on the

books of said company with full power of substitution in the premises.



Dated ____________________________, _______




                                                ________________________________

EX-10.2

                                                                    Exhibit 10.2

                                                               EXECUTION VERSION








                            ASSET PURCHASE AGREEMENT

                                   DATED AS OF

                                 AUGUST 26, 2002

                                 BY AND BETWEEN

                     GENERAL DYNAMICS OTS (AEROSPACE), INC.

                                       AND

                           AEROJET-GENERAL CORPORATION

















Washington DC 10853

                                TABLE OF CONTENTS



ARTICLE/SECTION                                                                           PAGE
- ---------------                                                                           ----
                                                                                       
ARTICLE I - DEFINITIONS.............................................................        1
      1.1      Definitions..........................................................        1

ARTICLE II - PURCHASE AND SALE OF ASSETS AND ASSUMPTION OF LIABILITIES..............        6
      2.1      Purchase and Sale of Purchased Assets................................        6
      2.2      Excluded Assets......................................................        8
      2.3      Assumption of Liabilities............................................        8
      2.4      Excluded Liabilities.................................................        9

ARTICLE III - PURCHASE PRICE........................................................        9
      3.1      Initial Purchase Price...............................................        9
      3.2      Post-Closing Adjustment of Initial Purchase Price....................        9
      3.3      Allocation of Purchase Price.........................................       11

ARTICLE IV - THE CLOSING............................................................       11
      4.1      Closing..............................................................       11
      4.2      Closing Date.........................................................       12
      4.3      Deliveries at the Closing............................................       12

ARTICLE V - REPRESENTATIONS AND WARRANTIES OF SELLER................................       12
      5.1      Organization.........................................................       12
      5.2      Authorization of Transaction.........................................       12
      5.3      Noncontravention; Consents...........................................       13
      5.4      Financial Statements.................................................       13
      5.5      Absence of Certain Changes or Events Subsequent to Balance Sheet.....       14
      5.6      Tax Matters..........................................................       14
      5.7      Contracts............................................................       14
      5.8      Government Contracts.................................................       15
      5.9      Real Property........................................................       16
      5.10     Title and Sufficiency of Assets......................................       17
      5.11     Intellectual Property................................................       17
      5.12     Litigation...........................................................       19
      5.13     Employees and Employee Benefits......................................       19
      5.14     Environmental Matters................................................       20
      5.15     Legal Compliance.....................................................       21
      5.16     Permits..............................................................       21
      5.17     Insurance............................................................       21
      5.18     Brokers' Fees........................................................       21
      5.19     Customers and Suppliers..............................................       21
      5.20     Limitation on Warranties.............................................       22

ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF PURCHASER............................       22
      6.1      Organization of the Purchaser........................................       22
      6.2      Authorization of Transaction.........................................       22
      6.3      Noncontravention; Consents...........................................       22
      6.4      Litigation...........................................................       23
      6.5      Availability of Funds................................................       23


                                       i

                                                                                        
      6.6      Brokers' Fees........................................................       23

ARTICLE VII - COVENANTS OF THE PARTIES..............................................       23
      7.1      General..............................................................       23
      7.2      Notices and Consents.................................................       23
      7.3      Carry on in Regular Course...........................................       24
      7.4      No General Increases.................................................       24
      7.5      Contracts and Commitments............................................       25
      7.6      Sale of Capital Assets...............................................       25
      7.7      No Default...........................................................       25
      7.8      Full Access..........................................................       25
      7.9      Notice of Developments...............................................       25
      7.10    Survey................................................................       26
      7.11    Estoppel Certificates.................................................       26
      7.12    General...............................................................       26
      7.13    Post-Closing Consents; Nonassignable Contracts........................       26
      7.14    Novation of Government Contracts......................................       26
      7.15    Litigation Support....................................................       27
      7.16    Agreements Regarding Tax Matters......................................       27
      7.17    Records and Documents.................................................       28
      7.18    Use of Excluded Trademarks............................................       28
      7.19    Non-Competition.......................................................       28
      7.20    Non-Solicitation of Employees.........................................       29

ARTICLE VIII - EMPLOYEE MATTERS.....................................................       30
      8.1      Employment...........................................................       30
      8.2      Employee Benefit Matters.............................................       30
      8.3      Allocation of Pension Plan Responsibilities..........................       32

ARTICLE IX - CLOSING CONDITIONS.....................................................       32
      9.1      Conditions to Obligation of the Purchaser............................       32
      9.2      Conditions to Obligation of the Seller...............................       33

ARTICLE X - INDEMNIFICATION.........................................................       34
      10.1    Survival..............................................................       34
      10.2    Indemnification Provisions for Benefit of the Purchaser...............       34
      10.3    Indemnification Provisions for Benefit of the Seller..................       35
      10.4    Limitation on Indemnification Obligation..............................       35
      10.5    Environmental Indemnification.........................................       35
      10.6    Matters Involving Third Parties.......................................       36
      10.7    Determination of Loss.................................................       36
      10.8    Exclusive Remedy......................................................       36
      10.9    Treatment of Indemnity Payments.......................................       37

ARTICLE XI - TERMINATION............................................................       37
      11.1    Termination of Agreement..............................................       37
      11.2    Effect of Termination.................................................       37

ARTICLE XII - MISCELLANEOUS.........................................................       37
      12.1    Press Releases and Announcements......................................       37
      12.2    Expenses; Transfer Taxes..............................................       37



                                       ii

                                                                                        
      12.3    Bulk Sales or Transfer Laws...........................................       38
      12.4    Remedies..............................................................       38
      12.5    Consent to Amendments.................................................       38
      12.6    Successors and Assigns................................................       38
      12.7    Severability..........................................................       38
      12.8    Counterparts..........................................................       38
      12.9    Descriptive Headings..................................................       38
      12.10   Notices...............................................................       38
      12.11   No Third-Party Beneficiaries..........................................       39
      12.12   Force Majeure.........................................................       39
      12.13   Confidentiality.......................................................       40
      12.14   Entire Agreement......................................................       40
      12.15   Construction..........................................................       40
      12.16   Incorporation of Exhibits and Schedules...............................       40
      12.17   Governing Law.........................................................       40


EXHIBITS:

Exhibit A                   Bill of Sale
Exhibit B                   Assignment and Assumption Agreement
Exhibit C                   Deed
Exhibit D                   Building Lease
Exhibit E                   Assignment of Patents
Exhibit F                   General Dynamics Guaranty
Exhibit G                   GenCorp Guaranty
Exhibit H                   Knowledge Group
Exhibit I                   Transition Services Agreement

SCHEDULES:

Schedule 2.1(c)             Contracts
Schedule 2.1(d)             Machinery and Equipment
Schedule 2.2(g)             Excluded Assets
Schedule 2.4(e)             Excluded Liabilities
Schedule 3.2                Certain Current Liabilities
Schedule 5.3                Noncontravention; Consents
Schedule 5.4                Financial Statements
Schedule 5.5                Events Subsequent to Balance Sheet
Schedule 5.8                Government Contracts
Schedule 5.9(a)             Owned Real Property
Schedule 5.9(b)             Leased Real Property
Schedule 5.10               Title and Related Matters
Schedule 5.11               Intellectual Property
Schedule 5.12               Litigation
Schedule 5.13               Employees and Employee Benefits
Schedule 5.14               Environmental Matters
Schedule 5.15               Legal Compliance
Schedule 5.16               Permits
Schedule 5.17               Insurance
Schedule 5.19               Customers and Suppliers
Schedule 8.1(b)             Employees on Long-Term Disability
Schedule 8.2(d)             Employment Agreements



                                      iii

                         
Schedule 8.2(e)             Eligible Former Employees
Schedule 9.1(h)             Required Consents



                                       iv

                            ASSET PURCHASE AGREEMENT

         ASSET PURCHASE AGREEMENT dated as of August 26, 2002 by and among
GENERAL DYNAMICS OTS (AEROSPACE), INC., a Washington corporation (the "Seller"),
and AEROJET-GENERAL CORPORATION, an Ohio corporation (the "Purchaser").

         WHEREAS, the Seller's space systems business located in Redmond,
Washington, is engaged directly in the (a) design, manufacture, sale,
distribution and service of (i) thrusters, electronic systems and fuel systems
for propulsion of spacecraft, launch vehicles for spacecraft, and anti-missile
mid-flight diversion; and (ii) tow reels for aircraft and turbo products used to
generate power on aircraft; and (b) manufacture and assembly of equipment used
for extinguishing and/or suppression of fires (collectively, the "Business");
and

         WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Seller substantially all of the assets and assume
certain liabilities of the Business.

         NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the value, receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:

                                    ARTICLE I
                                   DEFINITIONS

      1.1 Definitions. For purposes of this Agreement, the following terms have
the meanings set forth below:

         "Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.

         "Agreement" means this Asset Purchase Agreement, as the same may be
amended from time to time in accordance with the terms hereof.

         "Allocation Statement" has the meaning set forth in Section 3.3(a).

         "Ancillary Agreements" means, collectively, the Bill of Sale, the
Assignment and Assumption Agreement, the Assignment of Patents, the Building
Lease and the Transition Services Agreement.

         "Antitrust Laws" has the meaning set forth in Section 5.3(b).

         "Arbiter" has the meaning set forth in Section 3.2(b).

         "Assumed Liabilities" has the meaning set forth in Section 2.3

         "Assignment and Assumption Agreement" has the meaning set forth in
Section 4.3.

         "Auditor's Report" has the meaning set forth in Section 3.2(b).

         "Balance Sheet" has the meaning set forth in Section 5.4(a).

         "Basket Amount" has the meaning set forth in Section 10.4(a).

         "Bill of Sale" has the meaning set forth in Section 4.3.

         "Buildings" means the buildings and improvements located on the Owned
Real Property and commonly known as Buildings 51, 52, 53, 54 and 65, together
with approximately eighteen (18) acres of land used in connection with the
Seller's operations in such buildings.

         "Building Lease" means the lease agreement between the Purchaser and
the Seller in the form of Exhibit D attached hereto pursuant to which the Seller
will occupy the Buildings after the Closing for the period set forth therein.

         "Business" has the meaning set forth in the Recitals to this Agreement.

         "Business Activities" has the meaning set forth in Section 7.19(a).

         "Business Employees" has the meaning set forth in Section 5.13(a).

         "Ceiling Amount" has the meaning set forth in Section 10.4(a).

         "Closing" has the meaning set forth in Section 4.1.

         "Closing Date" has the meaning set forth in Section 4.2.

         "Closing Date Balance Sheet" has the meaning set forth in Section
3.2(a).

         "Closing Date Working Capital" has the meaning set forth in Section
3.2(a).

         "Code" means the Internal Revenue Code of 1986, as amended.

         "Confidentiality Agreement" means the confidentiality agreement dated
October 16, 2001 between General Dynamics Corporation and GenCorp Inc.

         "Contracts" has the meaning set forth in Section 2.1(c).

         "Deed" has the meaning set forth in Section 4.3.

         "Disclosure Schedules" means, collectively, the various Schedules
referred to in this Agreement.

         "Employee Benefit Plan" means an Employee Pension Benefit Plan or an
Employee Welfare Benefit Plan, where no distinction is required by the context
in which the term is used.

         "Employee Pension Benefit Plan" has the meaning set forth in Section
3(2) of ERISA.

         "Employee Welfare Benefit Plan" has the meaning set forth in Section
3(1) of ERISA.


                                       2

         "Environmental Law" means any Law with respect to any Hazardous
Materials, drinking water, groundwater, wetlands, landfills, open dumps, storage
tanks, underground storage tanks, solid waste, waste water, storm water run-off,
waste emissions or wells. Without limiting the generality of the foregoing, the
term will encompass each of the following statutes and the regulations
promulgated thereunder (a) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), (b) the
Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.),
(c) the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.),
(d) the Toxic Substances Control Act (15 U.S.C. Section 2061 et seq.), (e) the
Clean Water Act (33 U.S.C. Section 7401 et seq.), (f) the Clean Air Act (42
U.S.C. Section 7401 et seq.), (g) the Safe Drinking Water Act; (42 U.S.C.
Section 201 and Section 300f et seq.), (h) the National Environmental Policy Act
of 1969 (42 U.S.C. Section 4321) and (i) Title III of the Superfund Amendment
and Reauthorization Act (42 U.S.C. Section 11001 et seq.).

         "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.

         "Excluded Assets" has the meaning set forth in Section 2.2.

         "Excluded Liabilities" has the meaning set forth in Section 2.4.

         "Excluded Trademarks" has the meaning set forth in Section 7.18.

         "Financial Statements" has the meaning set forth in Section 5.4(a).

         "Force Majeure Event" has the meaning set forth in Section 12.12.

         "GAAP" means generally accepted accounting principles in the United
States.

         "Government Contract" means any prime contract (including letter
contract) or subcontract relating primarily to the Business between the Seller
and the U.S. Government, or the Seller and a prime contractor to the U.S.
Government as the case may be.

         "Governmental Entity" means any government or any agency, bureau,
board, commission, court, department, official, political subdivision, tribunal
or other instrumentality of any government, whether federal, state or local,
domestic or foreign.

         "GenCorp Guaranty" has the meaning set forth in Section 4.3.

         "General Dynamics Guaranty" has the meaning set forth in Section 4.3.

         "Hart-Scott-Rodino Act" means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.

         "Hazardous Materials" means each and every element, compound, chemical
mixture, contaminant, pollutant, material, waste or other substance which is
defined, determined or identified as hazardous or toxic under any Environmental
Law or the Release of which is prohibited under any Environmental Law. Without
limiting the generality of the foregoing, the term will include (a) "hazardous
substances" as defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, (b) "hazardous waste" as defined in the Resource
Conservation and Recovery Act of 1976, (c) "hazardous materials" as defined in
the


                                       3

Hazardous Materials Transportation Act and (d) "chemical substance or mixture"
as defined in the Toxic Substances Control Act.

         "Income Tax" means any federal, state or local tax based upon, measured
by or calculated with respect to net income, profits, receipts or gains.

         "Indemnified Party" has the meaning set forth in Section 10.6.

         "Indemnifying Party" has the meaning set forth in Section 10.6.

         "Initial Purchase Price" has the meaning set forth in Section 3.1.

         "Intellectual Property" has the meaning set forth in Section 2.1(e).

         "IRS" means the Internal Revenue Service of the Department of the
Treasury.

         "Knowledge" with respect to the Seller means the actual knowledge of
only those officers and employees of the Seller listed on the schedule attached
hereto as Exhibit G.

         "Law" means any constitutional provision, statute, law, rule,
regulation, permit, decree, injunction, judgment, order, ruling, determination,
finding or writ of any Governmental Entity.

         "Leased Real Property" has the meaning set forth in Section 2.1(j).

         "Lien" means any mortgage, lien, pledge, security interest, charge,
claim or other encumbrance other than the Permitted Encumbrances.

         "Losses" has the meaning set forth in Section 10.2(a).

         "Machinery and Equipment" has the meaning set forth in Section 2.1(d).

         "Management Security Plan" means the retirement security plan provided
by the Seller to certain Business Employees and all insurance contracts related
thereto.

         "Material Adverse Effect" means any change or effect that is materially
adverse to the business, operations or condition (financial or otherwise) of the
Business or the Purchased Assets, taken as a whole.

         "Multiemployer Plan" has the meaning set forth in Section 3(37) of
ERISA.

         "Novation Agreement" has the meaning set forth in Section 7.14.

         "Owned Real Property" has the meaning set forth in Section 2.1(i).

         "PBGC" means the Pension Benefit Guaranty Corporation.

         "Permit" means any license, permit, franchise, certificate of authority
or order, or any waiver of the foregoing, issued by any Governmental Entity.


                                       4

         "Permitted Encumbrances" means any (a) mechanics', materialmens' and
similar liens with respect to amounts not yet due and payable, (b) liens for
Taxes not yet due and payable or the validity of which is being contested in
good faith by appropriate proceedings, (c) liens securing rental payments under
capital lease arrangements, (d) the encumbrances and title exceptions referenced
in Section 5.9(a)(i) and (e) such other encumbrances (including without
limitation covenants, conditions, restrictions, rights of way and encroachments)
or imperfections in or failure of title which would not, individually or in the
aggregate, reasonably be expected to materially impair the continued use and
operation of the Purchased Assets as currently conducted or reasonably be
expected to result in a material reduction in the value of the Purchased Assets
as a whole.

         "Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a Governmental Entity.

         "Prohibited Transaction" has the meaning set forth in Section 406 of
ERISA and Section 4975 of the Code.

         "Purchase Price" has the meaning set forth in Section 3.2(d).

         "Purchased Assets" has the meaning set forth in Section 2.1.

         "Purchaser" has the meaning set forth in the Preamble to this
Agreement.

         "Purchaser Employee Benefit Plan" means an Employee Benefit Plan
provided by the Purchaser to its employees.

         "Purchaser Material Adverse Effect" has the meaning set forth in
Section 6.1.

         "Purchaser's Accounting Firm" means Ernst & Young LLC.

         "Release" means any releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, storing, escaping, leaching,
dumping, discarding, burying, abandoning or disposing into the environment in
violation of any Environmental Law.

         "Reportable Event" has the meaning set forth in Section 4043 of ERISA.

         "Schedule" means, unless the context otherwise requires, the referenced
Schedule included in the Disclosure Schedules.

         "Seller" has the meaning set forth in the Preamble to this Agreement.

         "Seller Employee Benefit Plan" means an Employee Benefit Plan provided
by the Seller to the Business Employees.

         "Seller's Accounting Firm" means KPMG LLP.

         "Statement of Closing Date Working Capital" has the meaning set forth
in Section 3.2(a).


                                       5

         "Tax" means any federal, state, local or foreign net income, gross
income, gross receipts, sales, use, ad valorem, transfer, franchise, profits,
license, lease, service, service use, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, real or personal property, windfall
profits, customs, duties or other tax, fee, assessment (general or special) or
charge, including any interest, penalty or addition thereto.

         "Tax Return" means any return, declaration, report, form, claim for
refund or information return or statement required to be supplied to any
Government Entity with respect to Taxes, including any schedule or attachment
thereto.

         "Title Company" means Fidelity National Title Insurance Company.

         "Title Policy" means, with respect to the Owned Real Property, an
owner's policy of title insurance (ALTA Form B-1992) insuring, in an amount
reasonably determined by the Purchaser, that fee simple title will, at the
Closing, be vested in the Purchaser (or its designee), free and clear of all
Liens and exceptions to title other than (i) matters set forth in Part II of
Schedule B to the policy, (ii) Permitted Encumbrances and (iii) the Title
Company's so-called "standard exceptions," together with such endorsements as
may be reasonably required by the Purchaser and available from the Title
Company; provided, however, that all endorsements other than the so-called
extended coverage endorsements will be at the Purchaser's sole cost and expense.

         "Transfer Taxes" has the meaning set forth in Section 12.2.

         "Transition Services Agreement" means the transition services agreement
between the Purchaser and the Seller in the form of Exhibit I attached hereto.

         "U.S. Government" means the federal government of the United States of
America and any agencies, instrumentalities and departments thereof.

                                   ARTICLE II
            PURCHASE AND SALE OF ASSETS AND ASSUMPTION OF LIABILITIES

      2.1 Purchase and Sale of Purchased Assets. On the terms and subject to the
conditions set forth in this Agreement, at the Closing the Purchaser will
purchase and acquire from the Seller, and the Seller will sell, transfer,
assign, convey and deliver to the Purchaser, all of its right, title and
interest in and to all of the assets used primarily in the operation of the
Business, other than the Excluded Assets, wherever located and whether or not
reflected on the Balance Sheet (collectively, the "Purchased Assets"), including
the following assets:

         (a) all accounts and notes receivable and other claims for money due to
the Seller, arising from the rendering of services or the sale of goods or
materials by the Business, as the same exist on the Closing Date;

         (b) all raw materials, work in process, supplies, spare parts and
finished goods inventories owned by the Seller and used primarily in the
operation of the Business, as the same exist on the Closing Date;

         (c) all contracts, agreements, commitments (including pending bids and
proposals) and instruments to which the Seller is a party used in the operation
of the Business, as of the Closing Date, including those listed on Schedule
2.1(c) of the Disclosure Schedules, all unfilled


                                       6

orders outstanding as of the Closing Date for the purchase of raw materials,
goods or services by the Seller in connection with the Business, and all
unfilled orders outstanding as of the Closing Date for the sale of goods or
services provided by the Business (collectively, the "Contracts");

         (d) all machinery, equipment, tools, dies, test equipment, furniture,
fixtures, vehicles and other personal property owned by the Seller and used or
held for use primarily in the operation of the Business as of the Closing Date,
including the items listed on Schedule 2.1(d) of the Disclosure Schedules, and,
to the extent of the Seller's interest therein, all machinery and equipment used
or held for use primarily in the operation of the Business, which is (i) owned
and/or furnished by the U.S. Government or (ii) subject to the terms of an
equipment lease (collectively, the "Machinery and Equipment");

         (e) all patents, patent applications, licenses, trademarks, trade names
(except for the right to use the name "General Dynamics"), domain names,
computer software, data, copyrights, documentation, trade secrets, confidential
business information (including formulas, compositions, inventions and
manufacturing and production processes and techniques, drawings, designs,
technical data, customer and supplier data, pricing and cost information), all
results and other information related to any research and development project,
in each of the foregoing cases owned by the Seller primarily in connection with
the Business, and all other intellectual property rights (in whatever form or
medium), to the extent of the Seller's interest therein, used primarily in the
operation of the Business as of the Closing Date (collectively, the
"Intellectual Property");

         (f) to the extent legally transferable, all Permits held by the Seller
and used primarily in the operation of the Business as of the Closing Date;

         (g) all of the Seller's claims, deposits, prepayments, prepaid assets,
refunds (excluding Tax refunds with respect to periods prior to the Closing
Date), causes of action, rights of recovery, rights of set off and rights of
recoupment of the Seller as of the Closing Date, in each case to the extent they
relate primarily to the Business, including all rights of the Seller under any
property, casualty, workers' compensation or other insurance policy or related
insurance services contract and warranties and guaranties received from vendors,
suppliers or manufacturers, to the extent such rights relate to any Assumed
Liability or any of the Purchased Assets;

         (h) all books, records, ledgers, files, documents, correspondence,
lists, plats, specifications, surveys, invoices, customer and supplier lists,
drawings, creative materials, advertising and promotional materials, studies,
reports and other materials (in whatever form or medium) owned by the Seller as
of the Closing Date, in each case to the extent that they relate primarily to
the Business or the Business Employees; provided, however, that the Seller will
be entitled to retain copies of any materials it deems reasonably necessary for
its tax, accounting, human resources, legal or other business purposes;

         (i) all real property owned by the Seller used in the operation of the
Business as of the Closing Date, together with all buildings, structures,
improvements, fixtures and fittings located on or attached to such real
property, and all rights, privileges, easements and other appurtenances
belonging thereto, in each case as described on Schedule 5.9(a) of the
Disclosure Schedules (the "Owned Real Property");

         (j) all leasehold interests of the Seller in the leases and occupancy
agreements, in each case as described on Schedule 5.9(b) of the Disclosure
Schedules (the "Leased Real Property"); and


                                       7

         (k) except for cash and cash equivalents, all other assets not
specifically set forth herein but reflected on the Balance Sheet, except any
sales, transfers, retirements or dispositions of such assets made between the
date of the Balance Sheet and the Closing Date in accordance with the terms of
this Agreement.

      2.2 Excluded Assets. Notwithstanding the provisions of Section 2.1, the
Purchased Assets will not include the following assets, properties or rights
(collectively, the "Excluded Assets"):

         (a) all cash and cash equivalents (including any marketable securities
or certificates of deposit) of the Seller through 11:59 p.m., Pacific time, on
the Closing Date;

         (b) any rights of the Seller with respect to any Tax refund or credit
relating to periods ending prior to the Closing Date;

         (c) any property, casualty, workers' compensation or other insurance
policy or related insurance services contract relating to the Seller, and any
rights of the Seller or any of its Affiliates under any such insurance policy or
contract, other than rights under such policies or contracts with respect to any
Assumed Liability or any of the Purchased Assets;

         (d) any rights of the Seller in the Management Security Plan;

         (e) any rights of the Seller under this Agreement, any Ancillary
Agreement or under any other agreement between the Seller and the Purchaser;

         (f) except as set forth in Section 7.18, any rights to use or exploit
the name or mark "General Dynamics" or "General Dynamics Ordnance and Tactical
Systems" or any derivative names or marks; and

         (g) all assets listed on Schedule 2.2(g) of the Disclosure Schedules.

      2.3 Assumption of Liabilities. On the terms and subject to conditions set
forth in this Agreement, at the Closing the Purchaser will assume and become
responsible for all of the liabilities and obligations, direct or indirect,
known or unknown, relating to or arising out of the Purchased Assets, or the
operation of the Business or as otherwise specified below, other than the
Excluded Liabilities (collectively, the "Assumed Liabilities"):

         (a) except as specifically excluded in Section 2.4, all liabilities and
obligations of the Seller related to the Business as of the Closing Date
including, but not limited to, all liabilities and obligations reflected on the
Balance Sheet, except for any such liabilities or obligations that have been
paid or discharged since the date of the Balance Sheet;

         (b) all liabilities and obligations of the Seller arising with respect
to the performance of the Contracts, excluding any liability or obligation
resulting from any criminal activity, civil fraud or intentional wrongdoing by
the Seller prior to the Closing Date;

         (c) all warranty and product liabilities relating to products
manufactured, sold, serviced or repaired on or prior to the Closing Date in
connection with the Business;


                                       8

         (d) all liabilities and obligations of the Seller relating to
employment, compensation and employee benefits for the Business Employees,
including benefits related to former employees of the Business, all to the
extent the Purchaser has agreed to assume them pursuant to Article VIII;

         (e) all environmental liabilities relating to the ownership or
operation of the Business or the Purchased Assets, arising out of any event,
transaction, condition, practice, Release or occurrence, including any
liabilities resulting from violations of Environmental Laws in connection with
the generation, storage, presence, use, handling, treatment, transportation,
disposal or Release of any Hazardous Materials prior to, on or after the Closing
Date; and

         (f) all liabilities and obligations arising after the Closing Date in
connection with the operation of the Business.

      2.4 Excluded Liabilities. The Purchaser will not assume or become
responsible for, and will not be deemed to have assumed or to have become
responsible for the following liabilities and obligations (collectively the
"Excluded Liabilities"):

         (a) any liability or obligation relating to or arising out of any
Excluded Asset;

         (b) any liability or obligation of the Seller in respect of
indebtedness for borrowed money;

         (c) any liability or obligation of the Seller under the Management
Security Plan;

         (d) any liability or obligation (whether assessed or unassessed) of the
Seller with respect to any Taxes arising in connection with the Business or the
Purchased Assets (subject to Section 12.2), including any Taxes arising by
reason of the transactions contemplated by this Agreement or any of the
Ancillary Agreements, as of or for any taxable period or portion thereof on or
prior to the Closing Date; or

         (e) any liability or obligation for aircraft products (including,
without limitation, turbo products and fire and explosion suppression products)
liability occurring on or prior to the Closing Date; or

         (f) any liability or obligation set forth on Schedule 2.4(f).

                                   ARTICLE III
                                 PURCHASE PRICE

      3.1 Initial Purchase Price. On the terms and subject to the conditions set
forth in this Agreement, at the Closing, the Purchaser will deliver to the
Seller Ninety Million Dollars $90,000,000 (the "Initial Purchase Price") by bank
wire transfer of immediately available funds to an account designated in writing
by the Seller. The Initial Purchase Price will be subject to adjustment as
provided in Section 3.2.

      3.2 Post-Closing Adjustment of Initial Purchase Price.

         (a) Within 90 days after the Closing Date, the Seller will deliver to
the Purchaser (i) a balance sheet of the Business as of the Closing Date (the
"Closing Date Balance Sheet")


                                       9

prepared in accordance with GAAP, using the same accounting methods, policies,
practices and procedures and applied on a basis consistent with that employed by
the Seller in the preparation of the Financial Statements, (ii) a schedule of
working capital of the Business as of the Closing Date (the "Statement of
Closing Date Working Capital") setting forth the working capital of the Business
as of the Closing Date (the "Closing Date Working Capital"), calculated by
subtracting (x) total current liabilities minus the amount calculated pursuant
to Schedule 3.2 from the sum of (y) accounts receivable, contracts in progress
and inventories, and (iii) a certificate signed by Seller's Accounting Firm (the
"Auditor's Report") together with the Closing Date Balance Sheet and the
Statement of Closing Date Working Capital to which such Auditor's Report
relates. The Auditor's Report will report, without qualification or other
limitation arising out of the scope of the audit, that the Closing Date Balance
Sheet presents fairly the financial position of the Business as of the Closing
Date in conformity with GAAP, except the Closing Date Balance Sheet will not
give effect to any purchase accounting adjustments arising from the transactions
contemplated by this Agreement.

         (b) Within 30 days after the receipt of the Closing Date Balance Sheet,
the Statement of Closing Date Working Capital and the Auditor's Report, the
Purchaser will deliver written notice to the Seller of any objections thereto,
and will attempt in good faith to reach an agreement with the Seller as to any
matters in dispute. If the Purchaser and the Seller, notwithstanding such good
faith effort, fail to resolve all matters in dispute within 30 days after the
Purchaser advises the Seller of its objections, then any remaining disputed
matters will be finally and conclusively determined by an independent auditing
firm of recognized national standing (the "Arbiter") selected by the Purchaser
and the Seller. Promptly, but not later than 30 days after its acceptance of its
appointment, the Arbiter will determine (based solely on presentations by the
Seller and the Purchaser and not by independent review) only those matters in
dispute and will render a written report as to the disputed matters and the
resulting calculation of the Closing Date Working Capital, which report will be
conclusive and binding upon the parties. The fees and expenses of the Arbiter
will be shared equally by the Purchaser and the Seller.

         (c) For purposes of complying with the terms set forth herein, each
party will cooperate with and make available to the other party and its auditors
and representatives all information, records and data, and will permit access to
its facilities and personnel, as may be reasonably required in connection with
the preparation and analysis of the Closing Date Balance Sheet, the Statement of
Closing Date Working Capital and all related information and the resolution of
any disputes thereunder. Without limiting the generality of the foregoing, the
Seller will cause Seller's Accounting Firm to make available at its office to
the Purchaser and the Purchaser's Accounting Firm within 10 business days after
delivery of the Auditor's Report pursuant to Section 3.2(a) the workpapers
therefor.

         (d) In the event that the Closing Date Working Capital, as finally
determined pursuant to this Section 3.2, is (i) less than $11,700,000, then the
Seller will pay to the Purchaser the amount of such difference or (ii) greater
than $16,700,000, then the Purchaser will pay to the Seller the amount of such
difference. Any payment pursuant to this Section 3.2(d) will be made in cash
plus interest thereon (calculated based on the actual number of days elapsed in
a year consisting of 365 days) from the Closing Date to the date of such payment
at the per annum rate equal to the rate announced by Citibank, N.A. in the City
of New York as its prime rate as in effect on the Closing Date. Any payment
pursuant to this Section 3.2(d) will be made within five business days following
the final determination of the Closing Date Working Capital in accordance with
this Section 3.2 by bank wire transfer of immediately available funds to an


                                       10

account designated in writing by the Seller or the Purchaser, as the case may
be. The payment pursuant to this Section 3.2 (other than the portion thereof
that is attributable to the payment of interest pursuant to this Section 3.2(d))
will be treated by the parties as an adjustment to the Initial Purchase Price
and the Initial Purchase Price as so adjusted will be referred to in this
Agreement as the "Purchase Price."

      3.3 Allocation of Purchase Price.

         (a) Within 120 days after the Closing Date, the Seller will deliver to
the Purchaser a preliminary allocation among the Purchased Assets of the
Purchase Price and among such other consideration paid to the Seller pursuant to
this Agreement; and as soon as practicable following the Closing, the Seller
will deliver to the Purchaser a statement (the "Allocation Statement") setting
forth its calculation of the amount of the total consideration allocable to the
Purchased Assets sold at the Closing.

         (b) The Allocation Statement will be prepared in accordance with
Section 1060 of the Code and the rules and regulations promulgated thereunder.

         (c) The Purchaser will review the Allocation Statement and, to the
extent the Purchaser disagrees in good faith with the content of the Allocation
Statement, the Purchaser will inform the Seller of such disagreement within 30
days after receipt of the Allocation Statement. The Seller and the Purchaser
will attempt to resolve any such disagreement. If the Seller and the Purchaser
are unable to reach a good faith agreement on the content of the Allocation
Statement within 180 days of the Closing Date, the Seller and the Purchaser will
each use their respective allocation statements.

         (d) If the Purchaser and the Seller agree on the Allocation Statement,
the Purchaser and the Seller will report the allocation of the total
consideration among the Purchased Assets in a manner consistent with the
Allocation Statement and will act in accordance with the Allocation Statement in
the preparation and timely filing of all Income Tax returns (including filing
Form 8594 with their respective federal income tax returns for the taxable year
that includes the Closing and any other forms or statements required by the
Code, Treasury regulations, the Internal Revenue Service or any applicable state
or local taxing authority). Each of the Purchaser and the Seller agrees to
promptly provide the other party with any additional information and reasonable
assistance required to complete Form 8594 or compute Taxes arising in connection
with (or otherwise affected by) the transactions contemplated hereunder.

         (e) The Purchaser and the Seller will promptly inform one another of
any challenge by any taxing authority to any allocation made pursuant to this
Section 3.3 and agree to consult with and keep one another informed with respect
to the status of, and any discussion, proposal or submission with respect to,
such challenge.

                                   ARTICLE IV
                                   THE CLOSING

      4.1 Closing. Upon the terms and subject to the satisfaction of the
conditions contained in Article IX, the consummation of the transactions
contemplated by this Agreement (the "Closing") will take place at the offices of
Jenner & Block, LLC, 601 Thirteenth Street, NW, Suite 1200 South, Washington, DC
20036, at 10:00 a.m., Pacific time, and will be effective at 11:59 p.m., Pacific
time, on or before the fifth business day after the satisfaction or waiver of
all


                                       11

of the closing conditions set forth in Article IX, or at such other place or on
such other date as the Seller and the Purchaser may agree.

      4.2 Closing Date. The date on which the Closing actually takes place is
referred to in this Agreement as the "Closing Date."

      4.3 Deliveries at the Closing. At the Closing: (a) the Seller will deliver
to the Purchaser the various certificates, instruments and documents referred to
in Section 9.1; (b) the Purchaser will deliver to the Seller the various
certificates, instruments and documents referred to in Section 9.2; (c) the
Seller will execute, acknowledge (if appropriate) and deliver to the Purchaser
(i) a bill of sale substantially in the form attached hereto as Exhibit A (the
"Bill of Sale"), (ii) a counterpart of the assignment and assumption agreement
substantially in the form attached hereto as Exhibit B (the "Assignment and
Assumption Agreement"), (iii) a bargain and sale deed conveying fee simple title
to the Owned Real Property to the Purchaser subject to all Permitted
Encumbrances, substantially in the form attached hereto as Exhibit C (the
"Deed"), (iv) a counterpart of the Building Lease substantially in the form
attached hereto as Exhibit D, (v) an assignment of patents substantially in the
form attached hereto as Exhibit E (the "Assignment of Patents"), (vi) a guaranty
executed by General Dynamics Corporation, substantially in the form attached
hereto as Exhibit F (the "General Dynamics Guaranty"), (vii) a counterpart of
the Transition Services Agreement substantially in the form attached hereto as
Exhibit I, (viii) any affidavits required under Section 1445 of the Code and
such other instruments of sale, transfer, conveyance, and assignment as the
Purchaser and its counsel may reasonably request; (d) the Purchaser will
execute, acknowledge (if appropriate) and deliver to the Seller (i) a
counterpart of the Bill of Sale, (ii) a counterpart of the Assignment and
Assumption Agreement, (iii) a counterpart of the Building Lease, (iv) a guaranty
by GenCorp Inc. substantially in the form attached hereto as Exhibit G (the
"GenCorp Guaranty") (v) a counterpart of the Transition Services Agreement and
such other instruments of assumption as the Seller and its counsel may
reasonably request (including any relevant exemption certificates establishing
any exemptions from any Tax claimed by the Purchaser); and (e) the Purchaser
will deliver to the Seller the Initial Purchase Price as specified in Section
3.1.

                                    ARTICLE V
                    REPRESENTATIONS AND WARRANTIES OF SELLER

      The Seller represents and warrants to the Purchaser that the statements
contained in this Article V are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as though
made then and as though the Closing Date were substituted for the date of this
Agreement throughout this Article V).

      5.1 Organization. The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Washington. The
Seller is duly qualified or licensed to do business as a foreign corporation and
is in good standing in each jurisdiction in which the ownership or lease of the
Purchased Assets or the operation of the Business requires such qualification or
license, except where the failure to so qualify or be so licensed would not
create a Material Adverse Effect. The Seller has all requisite power and
authority to carry on the Business as currently conducted and to own and use the
Purchased Assets as and where currently owned, operated and leased.

      5.2 Authorization of Transaction. The Seller has all necessary corporate
power and authority to execute and deliver this Agreement and each of the
Ancillary Agreements to which it


                                       12

is a party and to perform its obligations hereunder and thereunder. This
Agreement constitutes, and each of the Ancillary Agreements when executed and
delivered by the Seller will constitute, the valid and legally binding
obligation of the Seller, enforceable in accordance with its terms and
conditions.

      5.3 Noncontravention; Consents.

         (a) Except as set forth on Schedule 5.3 of the Disclosure Schedules,
neither the execution and delivery of this Agreement or any of the Ancillary
Agreements by the Seller, nor the consummation by the Seller of the transactions
contemplated hereby or thereby, will: (i) violate any Law to which the Seller is
subject, except for violations which would not, individually or in the
aggregate, create a Material Adverse Effect; (ii) conflict with or result in a
breach of any provision of the charter or bylaws of the Seller; (iii) constitute
a violation of, be in conflict with, constitute or create a breach, default,
termination, cancellation or acceleration of any obligation under any contract,
agreement or commitment to which the Seller is a party or by which any of the
Purchased Assets or the Business is bound or subject, except for such violations
that would not, individually or in the aggregate, create a Material Adverse
Effect; (iv) result in the creation or imposition of any Lien (other than a
Permitted Encumbrance) upon the Purchased Assets; or (v) constitute an event
that, after notice or lapse of time or both, would result in such a violation,
conflict, breach, default, termination, cancellation or acceleration of any
obligation or imposition of a Lien, (other than a Permitted Exception) except
for any of the foregoing that would not, individually or in the aggregate,
create a Material Adverse Effect.

         (b) Except as set forth on Schedule 5.3 of the Disclosure Schedules and
except for (i) the filings by the Purchaser and the Seller required under the
Hart-Scott-Rodino Act and any other applicable competition, merger control,
antitrust or similar Laws of any other applicable jurisdiction (collectively,
the "Antitrust Laws") and the expiration or early termination of all waiting
periods under the Hart-Scott-Rodino Act (or approvals under Antitrust Laws), and
(ii) the novation of Government Contracts as contemplated by Section 7.14, no
notices, licenses, Permits, consents, approvals, authorizations, qualifications
and orders of Governmental Entities or third parties are required for the
consummation by the Seller of the transactions contemplated hereby or by the
Ancillary Agreements, other than such licenses, Permits, consents, approvals,
authorizations, qualifications and orders which, if not obtained or made, would
not, individually or in the aggregate, create a Material Adverse Effect or have
a material adverse effect upon the Seller's ability to consummate the
transactions contemplated by, and discharge its obligations under, this
Agreement and the Ancillary Agreements.

      5.4 Financial Statements.

         (a) Set forth as Schedule 5.4(a) of the Disclosure Schedules are
correct and complete copies of the unaudited balance sheet of the Business as of
May 26, 2002 (the "Balance Sheet") and the related statement of income for the
period then ended (collectively, the "Financial Statements"). The Financial
Statements were prepared in accordance with GAAP, consistently applied, and
present fairly the financial position and the results of operations of the
Business as of the date and for the period indicated therein, and are consistent
with the books and records of the Seller (which books and records are correct
and complete). The Financial Statements have not been prepared, reviewed or
audited by an outside accounting firm.

         (b) Except as included on the Balance Sheet, the Seller does not have,
with respect to the Business, any debts, liabilities, or obligations of any
nature, whether absolute, accrued,


                                       13

contingent or otherwise, which would be Assumed Liabilities, other than: (i)
liabilities incurred in the ordinary and usual course of business since the date
of the Balance Sheet or (ii) liabilities not required by GAAP to be included on
a balance sheet or disclosed in any notes thereto.

         (c) Substantially all the inventories of the Seller reflected on the
Balance Sheet are of a quality and quantity saleable or usable in the ordinary
course of business consistent with past practices, except to the extent reserves
therefor have been included in the Balance Sheet.

         (d) All accounts receivable of the Business reflected on the Balance
Sheet have arisen from bona fide transactions in the ordinary course of business
consistent with past practices and represent actual, bona fide obligations of
the Seller arising from arm's length sales in the ordinary course of business
consistent with past practices, except to the extent reserves therefor have been
included on the Balance Sheet, and, to the Seller's Knowledge, represent the
legal, valid and binding obligations of the obligors thereon. Except to the
extent reserved against the accounts receivable, none of the accounts receivable
reflected on the Balance Sheet are subject to any asserted or, to the Seller's
Knowledge, threatened, defenses, set-offs or counterclaims.

      5.5 Absence of Certain Changes or Events Subsequent to Balance Sheet.
Since the date of the Balance Sheet and except as set forth on Schedule 5.5 of
the Disclosure Schedules, (a) there has not been any change in the assets,
liabilities, financial position, operations or results of operations of the
Business, other than any such changes in the ordinary course of business or that
would not, individually or in the aggregate, create a Material Adverse Effect
and (b) the Seller has conducted the operations of the Business in the ordinary
course of business, consistent with past practices, except for matters that
would not, individually or in the aggregate, create a Material Adverse Effect.

      5.6 Tax Matters.

         (a) There are no liens for Taxes (other than for current Taxes not yet
due and payable) upon the Purchased Assets.

         (b) The transactions contemplated by this Agreement are not subject to
tax withholding pursuant to the provisions of Section 3406 or Subchapter A of
Chapter 3 of the Code or any other provision of applicable Law.

         (c) The Seller is not a Person other than a United States Person within
the meaning of the Code.

      5.7 Contracts.

         (a) Except for the Contracts listed on Schedule 2.1(c) of the
Disclosure Schedules, the Seller, in connection with the Business, is not a
party to or otherwise bound by any (i) contract, agreement or commitment that
involves commitments of more than $250,000 in any 12-month period; (ii)
contract, agreement or commitment with an agent, dealer, distributor or sales
representative; (iii) commitment to make a capital expenditure or to purchase a
capital asset or a proposal to do so, in excess of $100,000 in any single
instance, not contemplated by the capital expenditure budget of the Seller for
the Business; (iv) material contract with any Affiliate of the Seller; (v)
agreement including a non-compete provision or similar covenant restricting the
Business from competing with another Person; or (vi) contract, agreement or
commitment that is


                                       14

otherwise material to the condition (financial or otherwise) of the Business or
the Purchased Assets; (vii) contract, agreement or commitment with any Business
Employee that is not terminable at will by the Seller without cost and any
agreement, contract or commitment that will result in the payment by, or the
creation of any commitment or obligation (absolute or contingent) to pay on
behalf of the Purchaser or the Seller any severance, termination, "golden
parachute," or other similar payments to any Business Employee following
termination of employment or otherwise as a result of the consummation of the
transactions contemplated by this Agreement; or (viii) contract or agreement for
the storage, transportation, treatment or disposal of any hazardous material
under CERCLA, or contract for the storage, transportation, treatment or disposal
of any waste or by-product.

         (b) Except as prohibited by law, by the terms of such Contract or under
any confidentiality agreement, the Seller has delivered or made available to the
Purchaser copies of each written agreement listed on Schedule 2.1(c) of the
Disclosure Schedules, as amended to date. Each Contract is a valid, binding and
enforceable obligation of the Seller, and, to the Knowledge of the Seller, the
other party or parties thereto (subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar Laws affecting
creditors' rights and remedies generally and subject as to enforceability to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing) and, to the Knowledge of the Seller, is in full
force and effect.

         (c) Except as set forth on Schedule 5.7 of the Disclosure Schedules (i)
neither the Seller nor, to the Seller's Knowledge, any other party thereto is in
breach of or default under any term of any Contract or has repudiated any term
of any Contract, except for such breaches, defaults or repudiation which would
not, individually or in the aggregate, create a Material Adverse Effect or (ii)
the Seller has not received from any Person written notice of the termination or
cancellation of, or the intention to terminate or cancel, any Contract.

      5.8 Government Contracts.

         (a) Except as set forth on Schedule 5.8 of the Disclosure Schedules,
and in addition to the representations and warranties made by the Seller in
Section 5.7, with respect to each Government Contract of the Business:

            (i) the Seller has complied with all terms and conditions of such
Government Contract (including Laws or agreements pertaining thereto), except
where such failures to be in compliance would not, individually or in the
aggregate, create a Material Adverse Effect;

            (ii) neither the U.S. Government nor any prime contractor,
subcontractor or other Person has notified the Seller, either in writing or, to
the Seller's Knowledge, orally that the Seller has breached or violated any Law,
certification, representation, clause, provision or requirement pertaining to
such Government Contract;

            (iii) no termination for convenience, termination for default, cure
notice or show cause notice is currently in effect pertaining to such Government
Contract;

            (iv) no outstanding unresolved material cost of the Seller has been
disallowed; and


                                       15

            (v) to the Knowledge of the Seller, neither the Seller nor any of
its directors, officers or employees is under civil, administrative or criminal
investigation or indictment or has information with respect to any alleged
fraudulent or criminal activity involving a Government Contract or a bid for a
Government Contract.

         (b) Except as set forth on Schedule 5.8 of the Disclosure Schedules,
with respect to the Business there are (i) no outstanding claims against the
Seller, either by any Governmental Entity or by any prime contractor,
subcontractor, vendor or other Person, arising under or relating to any
Government Contract and (ii) no disputes between the Seller and the U.S.
Government under the Contract Disputes Act or any other federal statute or
between the Seller and any prime contractor, subcontractor or vendor arising
under or relating to any Government Contract.

         (c) Since January 1, 2002, the Seller, acting through the Business, has
not been debarred or suspended from participation in the award of contracts with
the U.S. Government or any other Governmental Entity (excluding for this purpose
ineligibility to bid on certain contracts due to generally applicable bidding
requirements).

      5.9 Real Property.

         (a) Schedule 5.9(a) of the Disclosure Schedules lists and describes in
reasonable detail the Owned Real Property. Except as set forth on Schedule
5.9(a) of the Disclosure Schedules, with respect to the Owned Real Property:

            (i) the Seller has, and the Seller will have as of the Closing Date,
fee simple title to such parcel, free and clear of any Lien, easement, covenant,
the rights of any third parties or other restriction, except for Permitted
Encumbrances;

            (ii) the Seller has not received any notice that any portion of the
Owned Real Property is subject to any pending condemnation proceeding and, to
the Seller's Knowledge, there are no threatened condemnation proceedings,
lawsuits or administrative actions relating to any parcel of Owned Real
Property;

            (iii) the Seller has not received written notice that either the
improvements on the Owned Real Property or the business conducted thereon is in
violation of any use or occupancy restriction, limitation, condition or covenant
of record or any zoning or building law, code or ordinance;

            (iv) no third party has any option or right of first refusal to
acquire the Owned Real Property;

            (v) there are no Persons (other than the Seller) in possession of
the Owned Real Property;

            (vi) the Owned Real Property is assessed as separate and distinct
tax parcels;

            (vii) the Seller has not received any written notice from any
insurance carrier regarding defects or inadequacies in the Owned Real Property
which, if not corrected, would result in the termination of the Seller's
insurance coverage or a material increase in the cost thereof.


                                       16

         (b) Schedule 5.9(b) of the Disclosure Schedules lists and describes in
reasonable detail all real property leased or subleased to the Seller in
connection with the Business (the "Leased Real Property"). For all Leased Real
Property, the Seller has delivered to the Purchaser copies of the leases and
subleases listed in Schedule 5.9(b) of the Disclosure Schedules, each as amended
to date. Except as set forth on Schedule 5.9(b) of the Disclosure Schedules,
with respect to the Leased Real Property:

            (i) each lease agreement is in full force and effect, is assignable
(upon receipt of necessary landlord consents) and, to the Seller's Knowledge,
the Seller has performed all material obligations required to be performed
thereunder;

            (ii) neither the Seller nor, to the Seller's Knowledge, any other
party to any Lease Agreement is in breach or default under any such lease
agreement;

            (iii) to the Seller's Knowledge, there exists no condition or event
that, after notice or lapse of time or both, would constitute a breach or
default of any lease agreement;

            (iv) the Seller has not received any written notice that any portion
of the Leased Real Property is subject to any pending condemnation proceeding;
and

            (v) there are no material agreements or options, written or oral,
giving to any Person (other than the Seller) the right, and the Seller has not
granted to any Person any material right, to purchase, use, possess or occupy
the Leased Real Property.

      5.10 Title and Sufficiency of Assets.

         (a) Except as set forth on Schedule 5.10 of the Disclosure Schedules,
the Seller has good title, free and clear of all Liens (other than Permitted
Encumbrances) or has the right to possess and use and on the Closing Date will
have and convey to the Purchaser to the extent of its interests therein, all of
the material tangible assets regularly used in the conduct of the Business or
otherwise necessary to operate the Business in the manner presently operated by
the Seller.

      5.11 Intellectual Property.

         (a) The Seller owns or has the right to use pursuant to license,
sublicense, agreement or permission all intellectual property rights necessary
for the operation of the Business as presently conducted. Except as set forth on
Schedule 5.11, the Business has not, to the Seller's Knowledge, interfered with,
infringed upon or otherwise misappropriated any intellectual property rights of
third parties, and the Seller has not received any written charge, complaint,
claim, demand or notice alleging any such misappropriation (including any such
claim that the Seller must license or refrain from using any intellectual
property rights of any third party). To the Seller's Knowledge, no third party
is currently interfering with, infringing upon, misappropriating or otherwise
coming into conflict with any Intellectual Property rights of the Seller in
connection with the Business.

         (b) Schedule 5.11(b) of the Disclosure Schedules identifies each
patent, copyright registration, trademark registration, domain name, pending
patent application and application for registration with respect to any material
Intellectual Property and each material license, sublicense, agreement or other
permission which the Seller in connection with the Business has


                                       17

granted to any third party with respect to any Intellectual Property. The Seller
has delivered or made available to the Purchaser copies of all such patents,
registrations, applications, licenses, sublicenses, agreements and permissions,
each as amended to date. With respect to each such item of Intellectual Property
required to be identified in Schedule 5.11(b) of the Disclosure Schedules and
except as set forth on Schedule 5.11(b):

            (i) subject to the consent requirements set forth on Schedule 5.3,
the Seller possesses, and at Closing will transfer to the Purchaser, all right,
title and interest in and to the item, free and clear of any Lien, license or
other restriction, and subject to rights conveyed to direct and indirect
customers of the Business (including the U.S. Government) and no contract,
agreement or commitment exists that would prevent the Seller from transferring
to the Purchaser all of its right, title and interest in and to such item;

            (ii) the item is not subject to any outstanding injunction,
judgment, order, decree, ruling or charge;

            (iii) no action, suit, proceeding, hearing, investigation, charge,
complaint, claim or demand is pending or, to the Seller's Knowledge, threatened
which challenges the legality, validity, enforceability, use or ownership of the
item; and

            (iv) subject to the consent requirements set forth on Schedule 5.3,
to the Knowledge of the Seller, the license, sublicense, agreement or permission
covering the item is valid, binding, enforceable and in full force and effect,
and no contract, agreement or understanding exists that would prevent the Seller
from transferring to the Purchaser all of Seller's right, title and interest in
and to such item.

         (c) Schedule 5.11(c) of the Disclosure Schedules identifies each
material license, sublicense, agreement or permission pursuant to which the
Business uses any material item of Intellectual Property owned by a third party.
Except as prohibited by law, by the terms therein or under any confidentiality
agreement, the Seller has delivered or made available to the Purchaser copies of
all such licenses, sublicenses, agreements and permissions, each as amended to
date. With respect to each such item of Intellectual Property required to be
identified in Schedule 5.11(c) of the Disclosure Schedules and except as set
forth on Schedule 5.11(c):

            (i) to the Knowledge of the Seller, the license, sublicense,
agreement or permission covering the item is valid, binding, enforceable and in
full force and effect and no contract, agreement or commitment exists that would
prevent the Seller from transferring to the Purchaser all of its right, title
and interest in such item;

            (ii) the license, sublicense, agreement or permission is not subject
to any outstanding injunction, judgment, order, decree, ruling or charge;

            (iii) no action, suit, proceeding, hearing, investigation, charge,
complaint, claim or demand is pending or, to the Seller's Knowledge, threatened
which challenges the legality, validity or enforceability of the license,
sublicense, agreement or permission; and

            (iv) the Seller has not granted any sublicense or similar right with
respect to the license, sublicense, agreement or permission.


                                       18


      5.12 Litigation. Except as set forth in Schedule 5.12 of the Disclosure
Schedules, there are no claims, actions, proceedings or investigations pending
or to the Seller's Knowledge, threatened against the Seller relating to the
Business, the Purchased Assets or the Assumed Liabilities which would,
individually or in the aggregate, be reasonably expected to create a Material
Adverse Effect. As of the date of this Agreement, there are no judicial or
administrative actions, proceedings or investigations pending or, to the
Seller's Knowledge, threatened that question the validity of this Agreement or
any of the Ancillary Agreements or any action taken or to be taken by the Seller
in connection with this Agreement or any of the Ancillary Agreements that, if
adversely determined, would create a Material Adverse Effect.

      5.13 Employees and Employee Benefits.

            (a) Schedule 5.13(a) of the Disclosure Schedules lists all employees
employed by the Seller in connection with the Business (the "Business
Employees").

            (b) Except as set forth on Schedule 5.13(b), with respect to the
Business: (i) there are no strikes, work stoppages or material disputes pending
or to the Seller's Knowledge, threatened, that involve any Business Employees;
(ii) the Business Employees are not currently represented by any labor union;
(iii) to the Seller's Knowledge, no union organization campaign is in progress
with respect to the Business Employees, and no question concerning
representation exists respecting such Business Employees; (iv) there is no
unfair labor practice charge or complaint relating to the Business against the
Seller or its Affiliates pending or, to the Seller's Knowledge, threatened,
before the National Labor Relations Board or similar governmental agency outside
of the United States; (v) there is no pending, or, to the Seller's Knowledge,
threatened grievance, arbitration, demand letter or claim involving a Business
Employee claiming damages in excess of $50,000; and (vi) there is no
discrimination charge by any Business Employee with respect to or relating to
the Business pending before the Equal Employment Opportunity Commission or any
other similar Governmental Entity responsible for the prevention of unlawful
employment practices.

            (c) Schedule 5.13(c) of the Disclosure Schedules lists each Employee
Benefit Plan that the Seller or any of its Affiliates maintains with respect to
the current or former employees of the Business or to which the Seller or any of
its Affiliates contributes with respect to the current or former employees of
the Business. With respect to each such Employee Benefit Plan, to the Seller's
Knowledge:

                  (i) such Employee Benefit Plan (and each related trust,
insurance contract or fund) complies in form and in operation with the
applicable requirements of ERISA, the Code and other applicable Laws, except for
such failures to comply with such requirements which would not, individually or
in the aggregate, create a Material Adverse Effect;

                  (ii) except as disclosed on Schedule 5.13(c), each such
Employee Benefit Plan which is intended to meet the qualification requirements
of Section 401(a) of the Code has received a favorable determination letter from
the IRS and would, subject to adoption (within any applicable required time
period) of amendments required by the IRS in the ordinary course pursuant to an
application for a determination letter, receive an updated favorable
determination letter from the IRS, and no amendment has been made nor has any
event occurred with respect to any such Employee Benefit Plan which would
reasonably be expected to cause the loss or denial of such qualification under
Code Section 401(a); and


                                       19

                  (iii) the Seller has delivered or made available to the
Purchaser copies of the plan documents and summary plan descriptions, the most
recent determination letter received from the IRS, the most recent Form 5500
Annual Report, and all related trust agreements, insurance contracts and other
funding agreements which implement such Employee Benefit Plans.

            (d) With respect to each Seller Employee Benefit Plan, to the
Seller's Knowledge:

                  (i) none of the Seller or its Affiliates has incurred any
material liability to the PBGC (other than PBGC premium payments) or otherwise
under Title IV of ERISA (including any material withdrawal liability) or under
the Code with respect to any such Employee Benefit Plan which is an Employee
Pension Benefit Plan; and

                  (ii) there have been no non-exempt Prohibited Transactions
with respect to such Employee Benefit Plan, no fiduciary has any liability for
breach of fiduciary duty or any other failure to act or comply in connection
with the administration or investment of the assets of such Employee Benefit
Plan, and no action, suit, proceeding, hearing or investigation with respect to
the administration or the investment of the assets of such Employee Benefit Plan
(other than routine claims for benefits) is pending or, to the Seller's
Knowledge, threatened, which would, individually or in the aggregate, create a
Material Adverse Effect.

            (e) Except as set forth on Schedule 5.13(e) of the Disclosure
Schedules, the Seller does not maintain or contribute nor, to the Seller's
Knowledge has it ever maintained or contributed or been required to contribute,
to any Employee Welfare Benefit Plan providing medical, health, life insurance
or other welfare benefits for current or future retired or terminated employees
of the Business, their spouses or their dependents (other than in accordance
with Section 4980B of the Code).

            (f) None of the Seller Employee Benefit Plans are Multiemployer
Plans.

            (g) The Seller has made full and timely payment of all amounts due,
owing and required to be contributed with respect to the Business Employees
under the terms of each Seller Employee Benefit Plan, or required to be paid as
expenses with respect to the Business Employees under such Seller Employee
Benefit Plans through the Closing Date.

      5.14 Environmental Matters. Except as set forth on Schedule 5.14 of the
Disclosure Schedules, to the Seller's Knowledge,

          (a) the Seller is in compliance with all Environmental Laws in
connection with the ownership and operation of the Owned Real Property, the
Leased Real Property and the Business, except for such failures to be in
compliance with such Environmental Laws, which would not, individually or in the
aggregate, create a Material Adverse Effect, (b) no written notices of any
violation or alleged violation under any Environmental Law relating to the
operations at the Owned Real Property, the Leased Real Property or with respect
to the Business have been received by the Seller or any Affiliate, except for
such matters as would not, individually or in the aggregate, create a Material
Adverse Effect, (c) with respect to the Business, the Seller has all applicable
environmental permits for the operations at the Owned Real Property and the
Leased Real Property and (d) there are no Liens (other than Permitted
Encumbrances) on the Owned Real Property, the Leased Real Property or the
Purchased Assets

                                       20

based upon any Environmental Law or for costs incurred in response to a Release
of Hazardous Materials.

          (b) To the Seller's Knowledge, except as set forth on Schedule 5.14 of
the Disclosure Schedules, and except as could not reasonably be expected to
result in a Material Adverse Effect:

                  (i) there have been no Releases of Hazardous Materials on or
from the Owned Real Property or Leased Real Property, except as in compliance
with applicable Environmental Laws;

                  (ii) Hazardous Materials have not at any time been generated,
treated, recycled, disposed or stored on or off the Owned Real Property or
Leased Real Property, except in substantial compliance with applicable
Environmental Laws; and

                  (iii) there are no underground storage tanks,
asbestos-containing materials, lead-based paint or polychlorinated biphenyls
located on the Owned Real Property or Leased Real Property, except as in
compliance with applicable Environmental Laws.

      5.15 Legal Compliance. Except as set forth in Schedule 5.15 of the
Disclosure Schedules, the Seller in connection with the Business and the
Purchased Assets has complied with all applicable Laws, and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand or notice
has been filed or commenced or, to the Seller's Knowledge, threatened against
the Seller alleging any failure to so comply, except for such failures to be in
compliance with such laws, which would not, individually or in the aggregate,
create a Material Adverse Effect.

      5.16 Permits. The Seller to its Knowledge has obtained or applied for, and
is in compliance with, all material Permits that are required by any
Governmental Entity to permit it to conduct the Business as presently conducted
and to operate the Purchased Assets as they are presently operated, except for
such failures to hold or comply with such Permits which would not, individually
or in the aggregate, create a Material Adverse Effect. Each such material Permit
is listed on Schedule 5.16 of the Disclosure Schedules. No suspension,
cancellation, termination or material violation of any of such Permits is
pending or, to the Seller's Knowledge, threatened.

      5.17 Insurance. Schedule 5.17 of the Disclosure Schedules contains a
correct and complete list of all policies of insurance owned by the Seller or
its Affiliates (other than those relating to employee benefits) under which the
Seller, in respect of the Business or any of the Purchased Assets is insured.
All such policies are in full force and effect.

      5.18 Brokers' Fees. The Seller has no liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which the Purchaser or any of
its Affiliates could become liable or obligated.

      5.19 Customers and Suppliers. Schedule 5.19 of the Disclosure Schedules
sets forth a complete and accurate list of the names and addresses of the
Business' (a) ten largest customers for the most recent fiscal year, showing the
approximate total sales in dollars by the Business to each such customer during
such fiscal year and (b) the ten largest suppliers for the most recent fiscal
year showing the approximate total purchases in dollars by the Business from
each such supplier during such fiscal year. As of the date hereof, the Seller
has not received any written, or

                                       21

to the Seller's Knowledge, oral notice from any customer or supplier named on
Schedule 5.19 of any intention to terminate or materially reduce purchases from
or supplies to the Business.

      5.20 LIMITATION ON WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
ARTICLE V, THE SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
AT LAW OR IN EQUITY, IN RESPECT OF ANY OF THE PURCHASED ASSETS OR THE BUSINESS,
INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. ALL OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY
DISCLAIMED. THE PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT TO THE
EXTENT SPECIFICALLY SET FORTH IN THIS ARTICLE V, THE PURCHASER IS PURCHASING THE
PURCHASED ASSETS ON AN "AS-IS, WHERE-IS" BASIS.

                                   ARTICLE VI

                   REPRESENTATIONS AND WARRANTIES OF PURCHASER

      The Purchaser represents and warrants to the Seller that the statements
contained in this Article VI are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as though
made then and as though the Closing Date were substituted for the date of this
Agreement throughout this Article VI).

      6.1 Organization of the Purchaser. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Ohio. The Purchaser is duly qualified or licensed to do business as a foreign
corporation and is in good standing in each jurisdiction where such
qualification or license is required, except where the failure to so qualify or
be so licensed would not be expected to result in a material adverse effect on
the Purchaser's ability to consummate the transactions contemplated by, and
discharge its obligations under, this Agreement and the Ancillary Agreements
("Purchaser Material Adverse Effect"). The Purchaser has all requisite power and
authority to own and use its properties and to carry on its business as
currently conducted.

      6.2 Authorization of Transaction. The Purchaser has all necessary
corporate power and authority to execute and deliver this Agreement and each of
the Ancillary Agreements to which it is a party and to perform its obligations
hereunder and thereunder. This Agreement constitutes, and each of the Ancillary
Agreements when executed and delivered by the Purchaser will constitute, the
valid and legally binding obligation of the Purchaser, enforceable in accordance
with its terms and conditions.

      6.3 Noncontravention; Consents.

            (a) Neither the execution and delivery of this Agreement or any of
the Ancillary Agreements by the Purchaser, nor the consummation by the Purchaser
of the transactions contemplated hereby or thereby, will: (i) violate any Law to
which the Purchaser is subject; (ii) conflict with or result in a breach of any
provision of the charter or bylaws of the Purchaser; (iii) constitute a
violation of, be in conflict with, constitute or create a breach, default,
termination, cancellation or acceleration of any obligation under any contract,
agreement or commitment to which the Purchaser or any of its Affiliates is a
party or by which the Purchaser, any of its Affiliates, or any of their
respective assets or properties are bound or subject, except in the case of
clauses (i) and (iii) for such violations, conflicts and defaults that would
not, individually or in the aggregate, create a Purchaser Material Adverse
Effect.

                                       22

            (b) Except for (i) the filings by the Purchaser and the Seller
required under the Hart-Scott-Rodino Act and Antitrust Laws and the expiration
or early termination of all waiting periods under the Hart-Scott-Rodino Act (or
approvals under Antitrust Laws), and (ii) the novation of Government Contracts
as contemplated by Section 7.14, no notices, licenses, Permits, consents,
approvals, authorizations, qualifications and orders of Governmental Entities or
third parties are required for the consummation by the Purchaser of the
transactions contemplated hereby or by the Ancillary Agreements, other than such
licenses, Permits, consents, approvals, authorizations, qualifications and
orders which, if not obtained or made, would not, individually or in the
aggregate, create a Purchaser Material Adverse Effect.

      6.4 Litigation. There are no judicial or administrative actions,
proceedings or investigations pending or, to the Purchaser's knowledge,
threatened that question the validity of this Agreement or any of the Ancillary
Agreements or any action taken or to be taken by the Purchaser in connection
with this Agreement or any of the Ancillary Agreements that, if adversely
determined, would create a Purchaser Material Adverse Effect.

      6.5 Availability of Funds. The Purchaser has sufficient funds available to
it or has received binding written commitments (copies of which have heretofore
been delivered to the Seller) from one or more nationally recognized financial
institutions to provide sufficient funds on the Closing Date to pay the Purchase
Price.

      6.6 Brokers' Fees. The Purchaser has no liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which the Seller or any of its
Affiliates could become liable or obligated.

                                  ARTICLE VII

                            COVENANTS OF THE PARTIES

      Pre-Closing Covenants. With respect to the covenants set forth in Sections
7.1 through 7.11 of this Article VII, which relate to the period between the
date of this Agreement and the Closing Date, the Seller and the Purchaser agree
as follows:

      7.1 General. Each of the parties will use its reasonable best efforts to
take all action and to do, as soon as possible, all things necessary, proper or
advisable to consummate and make effective the transactions contemplated by this
Agreement (including satisfying the closing conditions set forth in Article IX).
Neither of the parties will, without prior written consent of the other party,
take or fail to take, or permit their respective Affiliates to take or fail to
take, any action, which would reasonably be expected to prevent or materially
impede, interfere with or delay the consummation, as soon as possible, of the
transactions contemplated by this Agreement or the Ancillary Agreements. Without
limiting the generality of the foregoing, each of the parties will use its
reasonable best efforts to negotiate in good faith as soon as reasonably
practicable after the date of this Agreement, and enter into any other agreement
reasonably necessary to consummate the sale of the Purchased Assets pursuant to
this Agreement as soon as possible.

      7.2 Notices and Consents. Subject to the provisions relating to the
novation of Government Contracts and Government Subcontracts, as set forth in
Section 7.13, prior to the Closing Date, the Seller will give all notices and
will use reasonable efforts to obtain all material consents, approvals or
authorizations of any Governmental Entities, except for novations of any
Government Contracts or Government Subcontracts, or third parties that are
required in connection with the transactions contemplated by this Agreement.
Within ten business days

                                       23

following the execution and delivery of this Agreement, each of the Seller and
the Purchaser will file all notifications and related material with the Federal
Trade Commission and the Antitrust Division of the United States Department of
Justice under the Hart-Scott-Rodino Act, will use its best efforts to obtain
early termination of the applicable waiting period and will take further actions
and make all further filings pursuant thereto or under any Antitrust Laws that
may be necessary, proper or advisable in every applicable jurisdiction where
such notification or approval is required; provided, however, that nothing
contained herein will require the Purchaser or the Seller to take any such
action if the taking of such action would create a Purchaser Material Adverse
Effect or a Material Adverse Effect, as the case may be. In connection with the
foregoing, each party will (i) promptly notify the other party of any written
communication to that party or its Affiliates from any Governmental Entity and,
subject to applicable Law, provide the other party with a copy of any written
communication to any of the foregoing and (ii) not participate in any
substantive meeting or discussion with any Governmental Entity in respect of any
filings, investigation or inquiry concerning the transactions contemplated by
this Agreement unless it consults with the other party in advance and, to the
extent permitted by such Governmental Entity, give the other party the
opportunity to attend and participate thereat, with respect to this Agreement or
the Ancillary Agreements and the transactions contemplated hereby or thereby.

      7.3 Carry on in Regular Course.

            (a) Except with the written consent of the Purchaser (which consent
will not be unreasonably withheld or delayed), the Seller will: (i) maintain and
operate the Purchased Assets in good operating condition and repair; (ii)
operate the Business in the usual and ordinary course, substantially in the same
manner as heretofore conducted; and (iii) use its commercially reasonable
efforts to preserve and maintain the goodwill associated with the Business and
the ordinary and customary relationships of the Business with the customers,
suppliers, distributors, licensors and others with whom it has a business
relationship.

            (b) Without limiting the generality of the foregoing, except with
the written consent of the Purchaser (which consent will not be unreasonably
withheld or delayed), the Seller will not:

                  (i) make any change in the key management structure of the
Business, including the hiring of additional officers or the termination of
existing officers, except in the ordinary course of business consistent with
past practice;

                  (ii) adopt, enter into or amend any Employee Benefit Plan
(including any collective bargaining or employment agreement), or any trust or
fund for the benefit or welfare of any Business Employee, except in the ordinary
course of business consistent with past practice;

                  (iii) make any capital expenditure, capital commitment,
additions to property, plant or equipment, in excess of $100,000 in any single
instance, except in accordance with the capital expenditures budget of the
Seller for the Business; or

                  (iv) enter into any agreement, or otherwise become obligated,
to take any action prohibited under this Section 7.3.

      7.4 No General Increases. Except with the written consent of the Purchaser
(which consent will not be unreasonably withheld or delayed), the Seller in
connection with the Business

                                       24

Employees will not (a) grant any general or uniform increase in the rates of pay
of any employees, nor grant any general or uniform increase in the benefits
under any bonus or pension plan or other contract or commitment or (b) increase
the compensation payable or to become payable to any Business Employee or agent,
increase any bonus, insurance, pension or other benefit plan, payment or
arrangement made to, for or with any Business Employee or agent, except in the
case of either clause 7.4(a) or (b), in the ordinary course of business
consistent with past practice or to the extent required under the terms of any
consulting agreement, employment agreement or Seller Employee Benefit Plan in
effect on the date of this Agreement, or (c) grant any severance, continuation
or termination pay.

      7.5 Contracts and Commitments. Except with the written consent of the
Purchaser (which consent will not be unreasonably withheld or delayed), the
Seller in connection with the Business will not enter into any contract,
agreement, commitment or engage in any transaction, including any contract,
agreement, commitment or engagement with any Affiliate of the Seller, or effect
any change to any program, not in the usual and ordinary course of business and
consistent with the past operation of the Business.

      7.6 Sale of Capital Assets. Other than pursuant to this Agreement, except
with the written consent of the Purchaser (which consent will not be
unreasonably withheld or delayed), the Seller will not sell, assign, transfer,
otherwise dispose of or encumber, except for the Permitted Encumbrances, any of
the Purchased Assets or any interest therein, other than assets that become
obsolete or assets used, consumed or replaced in the ordinary course of business
consistent with past practice.

      7.7 No Default. Except with the written consent of the Purchaser (which
consent will not be unreasonably withheld or delayed), the Seller in connection
with the Business will not commit or omit to take any act which will cause a
termination of or material breach or default under any material contract,
commitment or obligation to which the Seller is a party or by which its assets
are bound, including the Contracts.

      7.8 Full Access. Subject to the Confidentiality Agreement, the Seller will
permit representatives of the Purchaser to have access during normal business
hours and under reasonable circumstances to all personnel, premises, properties,
assets, books, records, contracts and documents of the Business. The Seller will
furnish the Purchaser with all financial and other information in its possession
relating to the Business and the Purchased Assets as the Purchaser may from time
to time reasonably request. Notwithstanding anything in this Section 7.8 to the
contrary, (a) the Seller will not be required to provide such information or
access to any employee records other than records of Business Employees, (b) the
Purchaser will not have the right to perform or conduct any environmental
sampling or testing at, in, on, around or underneath the Purchased Assets and
(c) the Seller will not be required to provide such access or information with
respect to any Excluded Asset or Excluded Liability.

      7.9 Notice of Developments. The Seller will give prompt written notice to
the Purchaser of any material development affecting the Business. Each party
will give prompt written notice to the other of any material development
affecting the ability of the parties to consummate the transactions contemplated
by this Agreement or any of the Ancillary Agreements. No such written notice of
a material development will be deemed to have amended the Disclosure Schedules,
to have qualified the representations and warranties contained herein or to have
cured any misrepresentation or breach of warranty that otherwise might have
existed hereunder by reason of such material development.


                                       25

      7.10 Survey. At the Purchaser's option and upon request, the Seller will,
and will cause the Business to, use commercially reasonable efforts to assist
the Purchaser in obtaining, at the Purchaser's expense, prior to the Closing a
survey of the Owned Real Property.

      7.11 Estoppel Certificates. The Seller will make commercially reasonably
efforts to obtain estoppel certificates from the landlords with respect to the
Leased Real Property.


      Post-Closing Covenants. With respect to the covenants set forth in
Sections 7.12 through 7.19 of this Article VII, the Purchaser and the Seller
agree as follows:

      7.12 General. In case at any time after the Closing Date any further
action is reasonably necessary to carry out the purposes of this Agreement, each
of the parties will take such further action (including the execution and
delivery of such further instruments and documents) as the other party
reasonably may request, at the sole cost and expense of the requesting party
(unless otherwise specified herein or unless the requesting party is entitled to
indemnification therefor under Article X).

      7.13 Post-Closing Consents; Nonassignable Contracts.

            (a) The Seller and the Purchaser each will use its reasonable
commercial efforts after the Closing Date to obtain all consents, approvals or
authorizations of any Governmental Entities or third parties that are not
obtained prior to the Closing Date and that are required in connection with the
transactions contemplated by this Agreement; provided that neither the Seller
nor the Purchaser will be required to make any expenditures or incur any
liability to obtain any third party consent required in connection with the
consummation of the transactions contemplated by this Agreement.

            (b) To the extent that any Contract is not capable of being
transferred by the Seller to the Purchaser pursuant to this Agreement without
the consent of a third party (including a Governmental Entity) and such consent
is not obtained prior to Closing, or if such transfer or attempted transfer
would constitute a breach or a violation of the Contract or any Law, nothing in
this Agreement will constitute a transfer or an attempted transfer thereof.

            (c) In the event that any required consent is not obtained on or
prior to the Closing Date, the Seller will use reasonable commercial efforts to
(i) provide to the Purchaser the benefits of the applicable Contract (and the
Seller and the Purchaser will share equally any expenses related thereto), (ii)
cooperate in any reasonable and lawful arrangement designed to provide such
benefits to the Purchaser and (iii) enforce at the request and expense of the
Purchaser and for the account of the Purchaser, any rights of the Seller arising
from any such Contract (including the right to elect to terminate such Contract
in accordance with the terms thereof upon the request of the Purchaser).

            (d) To the extent that the Purchaser is provided the benefits of any
Contract referred to in Section 7.13(c), the Purchaser will perform the
obligations arising under such Contract for the benefit of the Seller and the
other party or parties thereto, except for any obligation under such Contract
that constitutes an Excluded Liability.

      7.14 Novation of Government Contracts. Following the Closing, the Seller
will, in accordance with, and to the extent required by, the Federal Acquisition
Regulation Part 42, Subpart 42.12, submit in writing to each responsible
contracting officer a request of the U.S.

                                       26

Government or Governmental Entity as the case may be, to (a) recognize the
Purchaser as the successor in interest to all of the Government Contracts and
(b) enter into a novation agreement (the "Novation Agreement") substantially in
the form contemplated by such regulations. The Seller will use reasonable
commercial efforts to obtain all consents, approvals and waivers required for
the purpose of processing, entering into and completing the Novation Agreements
with regard to the Government Contracts, including responding to any reasonable
request for information by the U.S. Government with regard to such Novation
Agreements. The Purchaser will use reasonable commercial efforts to provide all
information and take all other actions reasonably necessary to execute and
consummate such Novation Agreements, including responding promptly to any
request for information by the U.S. Government with regard to such Novation
Agreements.

      7.15 Litigation Support. In the event and for so long as any party is
actively contesting or defending against any third-party charge, complaint,
action, suit, proceeding, hearing, investigation, claim or demand in connection
with (a) any transaction contemplated under this Agreement or (b) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act or transaction on or prior
to the Closing Date involving the Business, the other party will cooperate with
the contesting or defending party and its counsel in the contest or defense,
make available its personnel and provide such testimony and access to its books
and records as may be necessary in connection with the contest or defense, at
the sole cost and expense of the contesting or defending party (unless the
contesting or defending party is entitled to indemnification therefor under
Article X).

      7.16 Agreements Regarding Tax Matters.

            (a) The Seller and the Purchaser will provide each other with such
assistance and information relating to the Business and the Purchased Assets as
may reasonably be requested in connection with the preparation of any Tax
Return, audit or other examination by any taxing authority or judicial or
administrative proceeding relating to liability for Taxes, and will each retain
and provide to the other party all records and other information which may be
relevant to any such Tax Return, audit or examination, proceeding or
determination. Without limiting the generality of the foregoing, each of the
Purchaser and the Seller will retain, until the expiration of the applicable
statute of limitation (including any extensions thereof) copies of all Tax
Returns, supporting work schedules and other records relating to the Business
and the Purchased Assets for tax periods or portions thereof ending prior to or
on the Closing Date.

            (b) The Seller and the Purchaser agree that the transactions
contemplated by this Agreement constitute a sale of a trade or business within
the meaning of Section 41(f)(3) of the Code and the regulations thereunder. The
Seller agrees to provide the Purchaser upon request with the information
necessary to permit the Purchaser to apply the provisions of Section 41(f)(3) of
the Code.

            (c) If, prior to the Closing, the Seller has paid any Tax relating
to any Purchased Asset for any taxable period that includes (but does not end
on) the Closing Date, Purchaser will reimburse the Seller for such payment on a
pro rata basis determined by the number of days in such taxable period beginning
on and after the Closing Date divided by the total number of days in such
taxable period. If, after the Closing, the Purchaser pays any Tax relating to
any Purchased Asset for any taxable period that includes (but does not end on)
the Closing Date, the Seller will reimburse the Purchaser for such payment on a
pro rata basis determined by the number of days in such taxable period prior to
(but not including) the Closing Date divided by

                                       27

the total number of days in such taxable period. The Seller will exercise
exclusive control over the handling, disposition and settlement of any
governmental inquiry, examination, or proceeding that could result in a
determination with respect to Taxes due or payable by the Purchaser for which
the Seller may be liable or against which the Seller may be required to
indemnify the Purchaser. The Purchaser will notify the Seller in writing
promptly upon learning of any such inquiry, examination or proceeding. The
Purchaser will cooperate with the Seller, as the Seller may reasonably request,
in any such inquiry, examination or proceeding. The Purchaser will not extend
the statute of limitations for any Tax for which the Seller may be required to
indemnify the Purchaser without the Seller's permission.

            (d) If the Purchaser receives a refund with respect to Taxes arising
in a period prior to the Closing Date, the Purchaser will pay, within 30 days
following the receipt of such Tax refund, the amount of such Tax refund to the
Seller.

            (e) The Purchaser and the Seller will not agree to settle any Tax
liability or compromise any claim with respect to Taxes which settlement or
compromise may affect the liability for Taxes hereunder (or right to tax
benefit) of the other party, without such other party's consent, which consent
will not be unreasonably withheld or delayed.

      7.17 Records and Documents. Following the Closing Date, the Seller will
grant to the Purchaser and its representatives, at the Purchaser's reasonable
request, reasonable access to and the right to make copies at the Purchaser's
sole expense of those records and documents in the Seller's possession related
to the Business or the Purchased Assets as may be reasonably necessary for the
Purchaser's operation of the Business after the Closing and which do not
constitute Purchased Assets. Following the Closing Date, the Purchaser will
grant to the Seller and its representatives, at the Seller's reasonable request,
reasonable access to and the right to make copies at the Seller's sole expense
of those records and documents covering any period prior to the Closing related
to the Business or the Purchased Assets as may be reasonably necessary for
third-party litigation, preparation of financial statements, tax returns and
audits or other valid business purposes. If the Purchaser elects to dispose of
any of such records within six (6) years after the Closing Date, the Purchaser
will first give the Seller 60 days' written notice, during which period the
Seller will have the right to take such records without payment of
consideration.

      7.18 Use of Excluded Trademarks. Except as otherwise expressly provided in
this Section 7.18, no interest in or right to use the names and marks
constituting Excluded Assets (the "Excluded Trademarks") is being conveyed
pursuant to this Agreement. As promptly as practicable following the Closing,
but in no event later than 90 days after the Closing Date, the Purchaser will
remove or cover all Excluded Trademarks that appear on any Purchased Asset,
including without limitation, signs, promotional or advertising literature,
labels, stationery, office forms and packaging materials. Neither the Purchaser
nor its Affiliates will in any way use any Excluded Trademark, or use any
trademark, tradename, service mark, brand name, tradedress or logo that is
likely to cause confusion with any of the Excluded Trademarks or be associated
with the Seller or its Affiliates on or as of the Closing Date after the Closing
Date, except pursuant to this Section 7.18.

      7.19 Non-Competition.

            (a) Seller agrees that, for a period commencing on the Closing Date
and terminating two years after the Closing Date, it will not directly, or
indirectly through any of its Affiliates,

                                       28

engage in the business of designing, manufacturing, selling or distributing
products designed, manufactured, sold or distributed by the Business as of the
date of this Agreement, anywhere in the world. The foregoing activities are
referred to in this Agreement collectively as "Business Activities."

            (b) Notwithstanding the above, the provisions of Section 7.19(a)
will not prohibit any of the Seller's Affiliates from engaging in any business
currently conducted by such Affiliate and any natural extensions thereof.

            (c) Notwithstanding the provisions of Section 7.19(a), the
acquisition (by asset purchase, stock purchase, merger, consolidation or
otherwise) by the Seller or any of its Affiliates of the stock, business or
assets of any Person that at the time of such acquisition is engaged in Business
Activities, and the continuation of such Business Activities following such
acquisition, will not be in breach of the terms of this Section 7.19 if: (i) the
portion of the revenues of such Person and its subsidiaries on a consolidated
basis for the fiscal year ending prior to the date of such acquisition that is
attributable to Business Activities by such Person and its subsidiaries account
for less than 20% of the revenues of such Person and its subsidiaries on a
consolidated basis for such fiscal year; or (ii) in the event the foregoing
condition is not satisfied, the Seller offers, or cause its Affiliates to offer
the portion of such business or assets that represents Business Activities to
the Purchaser and negotiates in good faith with the Purchaser as to the terms
and conditions of the Purchaser's purchase of such business and assets.

            (d) Nothing in this Section 7.19 will restrict or prevent the Seller
or any of its Affiliates from maintaining and/or undertaking passive investments
in Persons primarily engaged in the Business Activities so long as the aggregate
interest represented by such investments does not exceed (i) five percent (5%)
of any class of the outstanding debt or equity securities of any such Person, in
the case of a Person whose shares are listed on a national securities exchange
or the NASDAQ National Market System or equivalent foreign exchange or quotation
system or (ii) five percent (5%) of any class of the outstanding equity or debt
securities in the case of any other Person.

            (e) If the final judgment of a court of competent jurisdiction
declares that any term or provision of this Section 7.19 is invalid or
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability will have the power to reduce the scope, duration
or area of the term or provision, to delete specific words or phrases or to
replace any invalid or unenforceable term or provision with a term or provision
that is valid and enforceable and that comes closest to expressing the intention
of the invalid or unenforceable term or provision and this Agreement will be
enforceable as so modified.

      7.20 Non-Solicitation of Employees. For a period commencing on the Closing
Date and terminating two years after the Closing Date, (a) except for Business
Employees, the Purchaser will not, and will cause its Affiliates not to, solicit
any employee of the Seller for employment by the Purchaser or any of its
Affiliates without the prior written consent of the Seller, and (b) the Seller
will not, and will cause its Affiliates not to, solicit any employee of the
Business for employment by the Seller or any of its Affiliates, without the
prior written consent of the Purchaser. For the avoidance of doubt, an employee
will be deemed not to have been solicited for employment if (i) such employee or
its agent has initiated any communication or contact for the purpose of
discussing any potential employment of such employee or (ii) such employee
responds to a general public advertisement or other general solicitation of
employment. Nothing


                                       29

herein will prohibit either of the parties or any of their respective Affiliates
from employing or offering to employ any employee if such employee was not
solicited for employment.

                                  ARTICLE VIII
                                EMPLOYEE MATTERS

         8.1      Employment.

                  (a) The Purchaser will offer to each of the Business Employees
employed with the Seller on the Closing Date employment in the same or
comparable position as provided by the Seller as of the Closing Date. From the
Closing Date through November 30, 2003, such Business Employees will receive the
same or comparable compensation, salary or wage rate, plus the same or
comparable bonus opportunities while they remain employees of the Purchaser.
Except as otherwise specifically provided herein, the Purchaser will assume and
thereafter pay, perform and discharge any and all employment, compensation and
Seller Employee Benefit Plan liabilities, whether arising prior to, on or after
the Closing Date, with respect to the Business Employees as of the Closing Date.
Notwithstanding the foregoing, the preceding sentence will not apply to any
benefits arising prior to the Closing Date that are fully insured.

                  (b) Notwithstanding language to the contrary contained herein,
the term "Business Employee" will not include any employee of the Business
absent from work due to long-term disability as of the Closing Date and listed
separately on Schedule 8.1; provided that, in the event any such individual
presents himself or herself for active employment to the Purchaser during the
one-year period following the Closing Date, he or she will be treated as a
Business Employee under this Agreement as of his or her date of presentation.

                  (c) Notwithstanding language to the contrary contained herein,
this Agreement will not constitute a contract of employment and will not give
any Business Employee a right to be retained in the employ of either the Seller
or the Purchaser or any of their Affiliates.

         8.2      Employee Benefit Matters.

                  (a) As of the Closing Date, Business Employees will cease
participation in the Seller Employee Benefit Plans and fringe benefit programs.
Effective as of the Closing Date and continuing for a period ending no earlier
than November 30, 2003, the Purchaser will provide to the Business Employees
through Purchaser Employee Benefit Plans and fringe benefit programs (including,
as applicable, sick pay, vacation pay and tuition reimbursement programs),
employee benefits which are, in the aggregate, substantially comparable to the
employee benefits provided to the Business Employees under Seller Employee
Benefit Plans and fringe benefit programs as of the Closing Date.

                  (b) In addition to the foregoing: (i) coverage under such
Purchaser Employee Benefit Plans will be sufficient to eliminate any liability
of the Seller to the Business Employees for any benefits under the Consolidated
Omnibus Budget Reconciliation Act of 1985 (COBRA); and (ii) the Purchaser will
assume all accrued vacation liabilities for personal time off and other vacation
and sick leave of the Business Employees as of the Closing Date, provided such
liabilities are adequately reflected on the Closing Date Balance Sheet.

                  (c) Effective as of the Closing Date and continuing for a
period ending no earlier than November 30, 2003, the Purchaser will provide each
Business Employee with severance


                                       30

benefits under a Purchaser plan that are substantially comparable to the
severance benefits provided to each such Business Employee as of the Closing
Date.

                  (d) The Purchaser will assume the Seller's obligations with
respect to all of the agreements with Business Employees listed in Schedule
8.2(d).

                  (e) The Purchaser will assume and become solely responsible
for all obligations and liabilities of the Seller under all Employee Welfare
Benefit Plans providing for post-retirement medical and life insurance benefits
with respect to all Business Employees and former employees of the Business and
their eligible dependents and will be responsible for all liabilities with
respect to such benefits whether accrued before, on or after the Closing Date.
Schedule 8.2(e) of the Disclosure Schedules sets forth a list of former
employees eligible for such benefits. As of the Closing Date and continuing for
a period ending no earlier than November 30, 2003, the Purchaser will continue
such post-retirement and life insurance benefits at the benefit levels in effect
on the Closing Date. As part of the indemnification to the Seller provided under
Section 10.3, the Purchaser will indemnify the Seller for any Losses the Seller
may suffer resulting from, arising out of, relating to or caused by any change,
modification or termination of such post-retirement benefits following the
Closing Date.

                  (f) Solely for purposes of eligibility and vesting under the
Employee Benefit Plans of the Purchaser providing benefits to any employee or
former employee of the Business after the Closing Date, the Purchaser will cause
each employee or former employee of the Business to be credited with his or her
years of service with the Seller (and any predecessor entities thereof) before
the Closing Date, to the same extent as such employee or former employee was
entitled, as of the Closing Date, to credit for such service under any similar
Seller Employee Benefit Plan.

                  (g) Following the Closing Date, the Purchaser will (i) waive
any pre-existing condition limitation under any Employee Welfare Benefit Plan
maintained by the Purchaser in which employees or former employees of the
Business and their eligible dependents participate (except to the extent that
such pre-existing condition limitation would have been applicable immediately
prior to the Closing Date under the comparable Employee Welfare Benefit Plans of
the Seller) and (ii) provide each employee or former employee of the Business
with credit for any co-payments and deductibles incurred by any of them prior to
the Closing Date in order to satisfy any applicable deductible or out-of-pocket
requirements under any Welfare Benefit Plans in which any of the employees or
former employees of the Business participate after the Closing Date.

                  (h) The Seller will retain responsibility for its liabilities
and obligations under the Management Security Plan.

                  (i) The Purchaser will assume the Seller's obligations to pay
the Business Employees their bonus banks under the Management Incentive/Bonus
Plan in accordance with its terms as of the Closing Date, provided such
liabilities are adequately reflected on the Closing Date Balance Sheet.

                  (j) As of the Closing Date, the Seller will cause the portion
of its flexible reimbursement plan applicable to Business Employees to be
segregated into a separate component and all account balances of such employees
in the flexible reimbursement plan will be transferred to a flexible
reimbursement plan that the Purchaser will cause to be maintained for the
duration of the calendar year in which the Closing Date occurs.


                                       31

         8.3 Allocation of Pension Plan Responsibilities. With respect to any
Employee Pension Benefit Plan intended to be qualified under Section 401(a) of
the Code, maintained by or for the benefit of any of the Business Employees, the
Seller and the Purchaser agree as follows:

                  (a) the Seller will retain all liabilities attributable to
accrued benefits under the Seller's qualified Employee Pension Benefit Plan(s).
The Purchaser will have no liability of any kind with respect to benefits
accrued under any of such plans;

                  (b) as of the Closing Date, the Seller will cause all such
qualified Employee Pension Benefit Plans maintained by the Seller to cease any
and all accruals thereunder with respect to the Business Employees;

                  (c) the Seller will cause all Business Employees to be fully
vested in their account balances in the Seller's defined contribution plan; and

                  (d) following the Closing Date, the Business Employees will be
permitted to roll over their account balances in the Seller's defined
contribution plan (or any portion thereof) to the Purchaser's defined
contribution plan, including the ability to rollover any existing loans under
such Seller plan for 90 days after the Closing Date.

                                   ARTICLE IX
                               CLOSING CONDITIONS

         9.1 Conditions to Obligation of the Purchaser. The obligation of the
Purchaser to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction on or prior to the Closing Date of
the following conditions:

                  (a) the representations and warranties of the Seller set forth
in Article V will be true and correct in all material respects on the date
hereof and as of the Closing Date (except to the extent expressly made as of an
earlier date, in which case as of such date);

                  (b) the Seller will have performed or complied with in all
material respects its covenants, agreements and conditions hereunder which are
required to be performed or complied with on or prior to the Closing Date;

                  (c) the Seller will have delivered to the Purchaser a
certificate executed as of the Closing Date by an officer of the Seller to the
effect that each of the conditions specified above are satisfied;

                  (d) there will not be any judgment, order, decree,
stipulation, injunction or charge in effect preventing consummation of the
transactions contemplated by this Agreement;

                  (e) during the period from the date hereof through the Closing
Date, there will not have been any change or effect that is materially adverse
to the business, operations or condition (financial or otherwise) of the
Business or the Purchased Assets, taken as a whole, but not taking into account
any change or effect that is generally applicable to the United States economy
or securities markets as a whole or to industries in which the Business operates
generally, or any change or effect caused predominantly by the Purchaser's
involvement in the transactions contemplated by this Agreement;


                                       32

                  (f) the Seller will have delivered to the Purchaser the Bill
of Sale, the Deed, an executed counterpart of the Assignment and Assumption
Agreement, an executed counterpart of the Building Lease, the Transition
Services Agreement, the General Dynamics Guaranty, the Assignment of Patents and
such other instruments of transfer and assignment reasonably requested by
counsel to the Purchaser as will be effective to vest in the Purchaser all of
the Seller's right, title and interest in and to the Purchased Assets;

                  (g) the Title Company will have delivered to the Purchaser the
Title Policy (or a binding undertaking from the Title Company such as a marked
and down-dated commitment or a signed and down-dated pro-forma policy);

                  (h) the Seller will have delivered to the Purchaser in writing
all third-party consents listed on Schedule 9.1(h);

                  (i) all actions to be taken by the Seller in connection with
the consummation of the transactions contemplated hereby and all certificates,
instruments and other documents required to effect the transactions contemplated
hereby will be reasonably satisfactory in form and substance to the Purchaser;
and

                  (j) all applicable waiting periods (and any extensions
thereof) under the Hart-Scott-Rodino Act or any Antitrust Laws will have expired
or otherwise been terminated and all other approvals, if required, will have
been obtained without the objection of any of the relevant Governmental
Entities.

The Purchaser may waive any condition specified in this Section 9.1, except for
Section 9.1(j), if it executes a writing so stating at or prior to the Closing.

         9.2 Conditions to Obligation of the Seller. The obligation of the
Seller to consummate the transactions to be performed by it in connection with
the Closing is subject to satisfaction of the following conditions:

                  (a) the representations and warranties of the Seller set forth
in Article VI will be true and correct in all material respects on the date
hereof and as of the Closing Date (except to the extent expressly made as of an
earlier date, in which case as of such date);

                  (b) the Purchaser will have performed or complied with in all
material respects all of its covenants, agreements and conditions hereunder
which are required to be performed or complied with on or prior to the Closing
Date;

                  (c) the Purchaser will have delivered to the Seller a
certificate executed as of the Closing date by an officer of the Purchaser to
the effect that each of the conditions specified above is satisfied;

                  (d) there will not be any judgment, order, decree,
stipulation, injunction or charge in effect preventing consummation of the
transactions contemplated by this Agreement;

                  (e) the Purchaser will have delivered to the Seller executed
counterparts of the Assignment and Assumption Agreement, the Building Lease, the
GenCorp Guaranty and the Transition Services Agreement and such other
instruments of assumption as the Seller or its counsel may reasonably request in
order to consummate the transactions contemplated herein;


                                       33

                  (f) all actions to be taken by the Purchaser in connection
with consummation of the transactions contemplated hereby and all certificates,
instruments and other documents required to effect the transactions contemplated
hereby will be reasonably satisfactory in form and substance to the Seller; and

                  (g) all applicable waiting periods (and any extensions
thereof) under the Hart-Scott-Rodino Act or any Antitrust Laws will have expired
or otherwise been terminated and all other approvals, if required, will have
been obtained without the objection of any of the relevant federal authorities.

The Seller may waive any condition specified in this Section 9.2, except for
Section 9.2(g), if it executes in writing so stating at or prior to the Closing.

                                    ARTICLE X
                                 INDEMNIFICATION

         10.1 Survival. All of the representations and warranties contained in
this Agreement or in any certificate delivered pursuant to this Agreement will
survive the Closing and continue in full force and effect (a) in the case of the
representations and warranties contained in Sections 5.1, 5.2, 5.3, 5.10 and
5.18 and Sections 6.1, 6.2, 6.3 and 6.6, or contained in any certificate
relating thereto, forever thereafter, (b) in the case of the representations and
warranties contained in Section 5.13 and 5.14, or contained in any certificate
relating thereto, until the date that is the third anniversary of the Closing
Date and (c) in the case of all other representations and warranties contained
in this Agreement, or contained in any certificate relating thereto, until the
eighteen-month anniversary of the Closing Date.

         10.2 Indemnification Provisions for Benefit of the Purchaser.

                  (a) Provided that the Purchaser makes a written claim for
indemnification against the Seller prior to the expiration of any applicable
survival period, then the Seller will indemnify the Purchaser from and against
the entirety of any losses, costs, expenses (including reasonable attorney's,
accountant's and expert's fees and expenses), damages and other liabilities
reduced by any income tax benefits (collectively, "Losses") suffered or incurred
by the Purchaser or any of its Affiliates, or any of their respective
stockholders, directors, officers, employees and agents (collectively, the
"Purchaser Indemnified Parties"), resulting from, arising out of, relating to or
caused by: (i) any breach or non-performance by the Seller of any covenant or
agreement of the Seller contained in this Agreement or, prior to their
expiration in accordance with Section 10.1, the inaccuracy of any representation
or the breach of any warranty of the Seller contained in this Agreement, or
contained in any certificate delivered by the Seller relating thereto; (ii) the
Excluded Liabilities; (iii) any non-compliance by the Seller with bulk sales or
transfer laws as provided in Section 12.3; or (iv) any breach or non-performance
by the Seller of any Ancillary Agreement.

                  (b) Notwithstanding the provisions of Section 10.2, the Seller
will have no obligation to indemnify the Purchaser pursuant to this Agreement or
otherwise:

                           (i) with respect to incidental, special, punitive or
consequential damages, including consequential damages consisting of business
interruption or lost profits;


                                       34

                           (ii) with respect to any claim by or liability to any
Business Employee arising as the result of the termination of such employee's
employment with the Purchaser or any other action by the Purchaser subsequent to
the Closing Date; or

                           (iii) any Losses to the extent such Losses are
covered by the Title Policy.

         10.3 Indemnification Provisions for Benefit of the Seller.

                  (a) Provided that the Seller makes a written claim for
indemnification against the Purchaser, then the Purchaser agrees to indemnify
the Seller from and against the entirety of any Losses the Seller may suffer
resulting from, arising out of, relating to or caused by: (i) any breach or
non-performance by the Purchaser of any covenant or agreement of the Purchaser
contained in this Agreement or, prior to their expiration in accordance with
Section 10.1, the inaccuracy of any representation or the breach of any warranty
of the Purchaser contained in this Agreement, or contained in any certificate
delivered by the Purchaser relating thereto; (ii) the Assumed Liabilities
(subject to Section 10.5 below); or (iii) any breach or non-performance by the
Purchaser of any Ancillary Agreement.

                  (b) Notwithstanding the provisions of Section 10.3, the
Purchaser will have no obligation to indemnify the Seller with respect to
incidental, special, punitive or consequential damages, including consequential
damages consisting of business interruption or lost profits.

         10.4 Limitation on Indemnification Obligation.

                  (a) Notwithstanding the foregoing, the Seller will not be
required to indemnify and hold harmless the Purchaser for Losses arising under
Section 10.2(a)(i) or Section 10.2(a)(iv) until, and then only to the extent
that, the aggregate amount of such Losses exceeds $2,000,000 (the "Basket
Amount"), after which point the Seller will be obligated to indemnify and hold
harmless the Purchaser for all such Losses until the aggregate amount of such
Losses equals $9,000,000 (the "Ceiling Amount"), at which point the Seller will
have no further obligation to indemnify or hold harmless the Purchaser.

                  (b) Notwithstanding the foregoing, the Purchaser will not be
required to indemnify and hold harmless the Seller for Losses arising under
Section 10.3(a)(i) or Section 10.3(a)(iii) until, and then only to the extent
that, the aggregate amount of such Losses exceeds the Basket Amount, after which
point the Purchaser will be obligated to indemnify and hold harmless the Seller
for all such Losses until the aggregate amount of such Losses equals the Ceiling
Amount, at which point the Purchaser will have no further obligation to
indemnify or hold harmless the Seller.

         10.5 Environmental Indemnification.

                  (a) The Seller will indemnify and hold harmless the Purchaser
from and against 50% of all Losses suffered or incurred by the Purchaser
Indemnified Parties, which (i) result from or arise out of any environmental
liabilities relating to the ownership or operation of the Business or the
Purchased Assets and (ii) arise out of any event, transaction, condition,
practice, Release or occurrence prior to the Closing Date, including any such
liabilities resulting from violations of Environmental Laws in connection with
the generation, storage, presence, use, handling, treatment, transportation,
disposal or Release of any Hazardous Materials prior to the Closing Date. Any
amounts payable by the Seller hereunder will be paid to the Purchaser only upon
the


                                       35

Seller's receipt of written documentation from the Purchaser evidencing each
expenditure and identifying each Person to whom any payment was made.

                  (b) Notwithstanding the foregoing, the Seller will not be
required to indemnify and hold harmless the Purchaser for any Losses arising
under Section 10.5(a) until, and then only to the extent that, the aggregate
amount of such Losses exceeds $1,000,000. The Seller's indemnification
obligation under this Section 10.5 is not subject to any cap or limitation as to
the total amount payable to the Purchaser.

         10.6 Matters Involving Third Parties. If any third party notifies any
party hereto (the "Indemnified Party") with respect to any matter which may give
rise to a claim for indemnification against the other party hereto (the
"Indemnifying Party") under this Section 10.6, then the Indemnified Party will
notify the Indemnifying Party thereof promptly and in any event within 15 days
after receiving any written notice from a third party; provided that no delay on
the part of the Indemnified Party in notifying the Indemnifying Party will
relieve the Indemnifying Party from any obligation hereunder unless, and then
solely to the extent that, the Indemnifying Party is prejudiced thereby. Once
the Indemnified Party has given notice of the matter to the Indemnifying Party,
the Indemnifying Party will be entitled to participate in the defense thereof
and, if it so chooses, to assume the defense thereof; provided, however, (a) the
Indemnifying Party will defend the Indemnified Party against the matter with
counsel of its choice reasonably satisfactory to the Indemnified Party, (b) the
Indemnified Party may participate in (but not control) such defense with
separate counsel at its sole cost and expense, (c) the Indemnified Party will
not consent to the entry of a judgment or enter into any settlement with respect
to the matter without the written consent of the Indemnifying Party (not to be
withheld or delayed unreasonably) and (d) the Indemnifying Party will not
consent to the entry of a judgment with respect to the matter or enter into any
settlement which does not include a provision whereby the plaintiff or claimant
in the matter releases the Indemnified Party from all liability with respect
thereto, without the written consent of the Indemnified Party (not to be
withheld or delayed unreasonably). If the Indemnifying Party does not assume the
defense of such claim, the Indemnified Party will have the right to undertake
the defense, opposition, compromise or settlement of such claim, by counsel or
other representatives of its own choosing, on behalf of and for the account and
risk of the Indemnifying Party (subject to the right of the Indemnifying Party
to assume the defense of or opposition to such claim at any time prior to
settlement, compromise or final determination thereof).

         10.7 Determination of Loss. The amount of any Loss will be reduced to
the extent that the Indemnified Party receives any insurance proceeds with
respect to a Loss. If, at any time subsequent to the making of an indemnity
payment, the amount of such indemnity payment is reduced by recovery, settlement
or otherwise under or pursuant to any insurance coverage, or pursuant to any
claim, recovery, settlement or payment by or against other Person, the amount of
such reduction, less any costs, expenses or premiums incurred in connection
therewith, will promptly be repaid by the Indemnified Party to the Indemnifying
Party with respect to such Loss.

         10.8 Exclusive Remedy. In the absence of intentional misrepresentation,
omission or breach of this Agreement, the indemnification provisions set forth
in this Article X will constitute the sole and exclusive recourse and remedy for
monetary damages available to the parties hereto with respect to the breach of
any representation, warranty or covenant contained in this Agreement or the
Ancillary Agreements or in any certificate delivered pursuant hereto or thereto.


                                       36

         10.9 Treatment of Indemnity Payments. All indemnification payments made
pursuant to this Agreement will be treated by the parties as adjustments to the
Purchase Price.

                                   ARTICLE XI
                                   TERMINATION

         11.1 Termination of Agreement. The parties may terminate this Agreement
as provided below:

                  (a) the Purchaser and the Seller may terminate this Agreement
by mutual written consent at any time prior to the Closing;

                  (b) the Purchaser may terminate this Agreement by giving
written notice to the Seller at any time prior to the Closing if the Closing has
not occurred on or before November 30, 2002, by reason of the failure of any
closing condition under Section 9.1 (unless the failure results primarily from
the Purchaser itself breaching any representation, warranty or covenant
contained in this Agreement); or

                  (c) the Seller may terminate this Agreement by giving written
notice to the Purchaser at any time prior to the Closing if the Closing has not
occurred on or before November 30, 2002, by reason of the failure of any closing
condition under Section 9.2 (unless the failure results primarily from the
Seller itself breaching any representation, warranty or covenant contained in
this Agreement).

         11.2 Effect of Termination. If any party terminates this Agreement
pursuant to Section 11.1, all obligations of the parties hereunder will
terminate without liability of any party to the other party (except for any
liability of any party then in breach), except as may have occurred prior to
such termination and except as specifically set forth in this Agreement.

                                   ARTICLE XII
                                  MISCELLANEOUS

         12.1 Press Releases and Announcements. No party will issue any press
release or announcement relating to the subject matter of this Agreement prior
to the Closing Date without the prior approval of the other party, which
approval will not be unreasonably withheld or delayed; provided that any party
may make any public disclosure it believes in good faith is required by Law (in
which case the disclosing party will advise the other party prior to making such
disclosure).

         12.2 Expenses; Transfer Taxes. Each of the parties hereto will bear all
legal, accounting, investment banking and other expenses incurred by it or on
its behalf in connection with the transactions contemplated by this Agreement,
whether or not such transactions are consummated. The Purchaser and the Seller
will each pay 50% of all excise, sales, use, transfer, value added,
registration, stamp, recording, documentary, conveyancing, franchise, property,
gains and similar Taxes, levies, charges and recording, filing and other fees
(collectively, "Transfer Taxes") arising by reason of the transactions
contemplated by this Agreement. The Seller will file all necessary Tax Returns
and other documentation with respect to all such Transfer Taxes and, if required
by applicable law, the Purchaser will join in the execution of any Tax Returns
and other documentation at the Seller's request. The Purchaser and the Seller
will each pay 50% of the


                                       37

premium for the Title Policy, except that the Purchaser will pay the entire cost
of any endorsements to the Title Policy, other than extended coverage
endorsement.

         12.3 Bulk Sales or Transfer Laws. The Purchaser acknowledges that the
Seller may not comply with the provisions of any bulk sales or transfer laws of
any jurisdiction in connection with the transactions contemplated by this
Agreement. Without prejudice to its rights under Article X of this Agreement,
the Purchaser hereby waives compliance by the Seller with the provisions of the
bulk sales or transfer laws of all applicable jurisdictions.

         12.4 Remedies. Any party having any rights under any provision of this
Agreement will have all rights and remedies set forth in this Agreement and all
rights and remedies which such party may have been granted at any time under any
other agreement or contract and all of the rights which such party may have
under any Law. Any such party will be entitled to enforce such rights
specifically, without posting a bond or other security, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights granted by Law.

         12.5 Consent to Amendments. The provisions of this Agreement may be
amended or waived only by a written agreement executed and delivered by the
Seller and the Purchaser. No other course of dealing between the parties to this
Agreement or any delay in exercising any rights hereunder will operate as a
waiver of any rights of such parties.

         12.6 Successors and Assigns. No party hereto may assign or delegate any
of such party's rights or obligations under or in connection with this Agreement
without the prior written consent of the other party hereto, except in the case
of the Purchaser, to its lenders and their respective successors and assigns.
Except as otherwise expressly provided herein, all covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto will be
binding upon and enforceable against the respective successors and assigns of
such party and will be enforceable by and will inure to the benefit of the
respective successors and permitted assigns of such party.

         12.7 Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
Law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable Law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.

         12.8 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together will constitute one and
the same Agreement.

         12.9 Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.

         12.10 Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally to the
recipient or when sent to the recipient by telecopy (receipt confirmed), one
business day after the date when sent to the recipient by reputable express
courier service (charges prepaid) or two business days after the date when
mailed to the recipient by certified or registered mail, return receipt
requested and postage


                                       38

prepaid. Such notices, demands and other communications will be sent to the
Seller and the Purchaser at the addresses indicated below:

                                                            
If to the Seller:                                              General Dynamics Corporation
                                                               Corporate Headquarters
                                                               3190 Fairview Park Drive
                                                               Falls Church, VA  22042-4523
                                                               Attention:         David A. Savner, Esq.
                                                               Telecopy No.:      (703) 876-3554

With a copy (which will not constitute notice) to:             Jenner & Block, LLC
                                                               One IBM Plaza
                                                               Chicago, IL  60611
                                                               Attention:         Thaddeus J. Malik, Esq.
                                                               Telecopy No.       (312) 840-7313

If to the Purchaser:                                           Aerojet-General Corporation
                                                               PO Box 13222, Dept. 0106
                                                               Sacramento, CA 95813-6000
                                                               If by courier:
                                                               Highway 50 and Aerojet Road
                                                               Rancho Cordova, CA  95670
                                                               Attention:         Brian E. Sweeney, Esq.
                                                               Telecopy No.       (916) 351-8610

With a copy (which will not constitute notice) to:             Jones, Day, Reavis & Pogue
                                                               North Point
                                                               901 Lakeside Avenue
                                                               Cleveland, OH  44114
                                                               Attention:         Christopher M. Kelly, Esq.
                                                               Telecopy No.       216-579-0212



or to such other address or to the attention of such other party as the
recipient party has specified by prior written notice to the sending party.

         12.11 No Third-Party Beneficiaries. This Agreement will not confer any
rights or remedies upon any Person other than the Seller and the Purchaser and
their respective successors and permitted assigns. Nothing in this Agreement
will be construed as giving to any Business Employee or other person any legal
or equitable right against the Seller, the Purchaser or any of their respective
Affiliates or Employee Benefit Plans or programs.

         12.12 Force Majeure. No party hereto will be liable to the other party
for any failure or delay in the performance of its obligations under this
Agreement to the extent such failure or delay is caused by a fire, flood,
earthquake, riot, civil disorder, terrorism, war, labor disputes or any other
cause beyond the reasonable control of the party whose performance is delayed or
otherwise affected by such event (each such event, a "Force Majeure Event"). The
party whose performance is affected by a Force Majeure Event will use reasonable
efforts to (a) avoid, remove or minimize the impact of such event on the
performance of its obligations at the required level at the earliest possible
date. If any party is, or anticipates it is likely to be, delayed


                                       39

or prevented from performing its obligations in connection with a Force Majeure
Event, such party will promptly notify the other party by telephone with
confirmation in writing within two business days after the inception of such
delay.

         12.13 Confidentiality. The Seller agrees that, for a period commencing
on the Closing Date and terminating three years after the Closing Date, it will
keep confidential and will use its best efforts to cause its Affiliates and
representatives to keep confidential (except as may be disclosed to the Seller's
attorneys, accountants, financial advisors or other representatives) all
confidential information relating directly to the Business or the Purchased
Assets that remains in the possession of the Seller or its Affiliates after the
Closing. Notwithstanding the foregoing, the term "confidential information" will
not be deemed to include any information which (a) is or becomes generally known
by the public (other than as a result of a breach of this Agreement) or is a
recognized standard industry practice, (c) was or becomes available to the
Seller on a non-confidential basis from a Person who is not known to the Seller
to be legally prohibited from transmitting the information to the Seller or (d)
the Seller can demonstrate, by competent written proof, was independently
developed by the Seller.

         12.14 Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the parties and
supersedes any prior understandings, agreements or representations by or among
the parties, written or oral, that may have related in any way to the subject
matter hereof.

         12.15 Construction. The language used in this Agreement will be deemed
to be the language chosen by the parties to express their mutual intent and no
rule of strict construction will be applied against any party. The use of the
word "including" in this Agreement means "including without limitation" and is
intended by the parties to be by way of example rather than limitation.

         12.16 Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.

         12.17 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ANY LAW OR RULE THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF NEW YORK TO BE APPLIED.

                [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]


                                       40

         IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the date first written above.

                                        GENERAL DYNAMICS OTS (AEROSPACE), INC.



                                        By:____________________________________
                                            David A. Savner
                                            Vice President

                                        AEROJET-GENERAL CORPORATION



                                        By:____________________________________
                                            Michael F. Martin
                                            President

EX-10.3

                                                                    Exhibit 10.3

                                                                  Execution Copy


                         AGREEMENT TO AMEND AND RESTATE
                         ------------------------------

          This AGREEMENT TO AMEND AND RESTATE (this "AGREEMENT"), dated as of
October 2, 2002, among GENCORP INC., an Ohio corporation, the Lenders to be
party to the Credit Agreement referred to below on and after the
Amendment/Restatement Effective Date referred to below, THE BANK OF NOVA SCOTIA,
as Documentation Agent, ABN AMRO BANK, N.V., as Syndication Agent, and DEUTSCHE
BANK TRUST COMPANY AMERICAS (f/k/a Bankers Trust Company), as Administrative
Agent. Unless otherwise defined herein, all capitalized terms used herein shall
have the respective meanings provided such terms in the Original Credit
Agreement referred to below.

                              W I T N E S S E T H:
                              - - - - - - - - - -

          WHEREAS, the Borrower, certain lenders (the "EXISTING LENDERS"), the
Documentation Agent, the Syndication Agent and the Administrative Agent are
parties to a Credit Agreement, dated as of December 28, 2000 (as same was
previously amended prior to the date hereof and as in effect on the date
immediately prior to the Amendment/Restatement Effective Date, the "ORIGINAL
CREDIT AGREEMENT");

          WHEREAS, the Borrower wishes to incur New Term B Loans to, among other
purposes, provide the necessary financing to enable the Borrower to acquire
certain of the assets of the space systems business of General Dynamics OTS
(Aerospace), Inc. ("OTS"), including the payment of related fees and expenses;

          WHEREAS, the Borrower and the Lenders desire to amend and restate the
Original Credit Agreement as herein provided;

          NOW THEREFORE, subject to the terms and conditions of this Agreement,
the parties hereto agree as follows:

          1. The parties hereto hereby agree that on the Amendment/Restatement
Effective Date (defined in SECTION 10 herein) the Original Credit Agreement
shall be amended and restated in the form attached hereto as ANNEX I (as so
amended and restated, the "AMENDED AND RESTATED CREDIT AGREEMENT").

          2. The Lenders hereby consent to the consummation of the OTS Business
Acquisition (as defined in the Amended and Restated Credit Agreement) at a
purchase price not to exceed approximately $90 million.

          3. Each lending institution set forth on SCHEDULE I hereto (each a
"TERM B LENDER") agrees to make a term loan or loans (the "NEW TERM B LOANS") on
the Amendment/ Restatement Effective Date in the aggregate amounts set forth
opposite its name on SCHEDULE I under the heading "New Term B Loans", with the
proceeds of the New Term B Loans to be disbursed on the Amendment/Restatement
Effective Date in the manner provided for Loans under SECTION 2.7 of the Amended
and Restated Credit Agreement.

          4. The effectiveness of the Amended and Restated Credit Agreement and
the obligation of the New Term B Lenders to make New Term B Loans on the






Amendment/Restatement Effective Date is subject to the satisfaction of each of
the following conditions at such time:

          (a) AGREEMENT AND NOTES. The Borrower shall have duly executed and
delivered to the Administrative Agent, with a signed counterpart for each
Lender, this Agreement (including all schedules and exhibits), and the Borrower
shall have duly executed and delivered to the Administrative Agent the New Term
B Notes payable to the order of each applicable New Term B Lender which has
requested a New Term B Note in the amount of its Commitment and all other Loan
Documents shall have been duly executed and delivered by the appropriate Credit
Party to the Administrative Agent, all of which shall be in full force and
effect;

          (b) SECURITY AGREEMENTS. The Borrower shall have duly authorized,
executed and delivered an amended and restated Borrower Security Agreement, in
form and substance satisfactory to the Administrative Agent, and (ii) each
Subsidiary Guarantor shall have duly authorized, executed and delivered an
amended and restated Subsidiary Security Agreement, in form and substance
satisfactory to the Administrative Agent, in each case together with:

               (i) proper financing statements (or such other financial
statements or similar notices as shall be required by local law) and financing
statement amendments fully executed for filing under the UCC or other
appropriate filing offices of each jurisdiction as may be necessary or, in the
opinion of the Administrative Agent, desirable to perfect or continue the
perfection of the security interests purported to be created by such Security
Agreements;

               (ii) certified copies of Requests for Information or Copies, or
equivalent reports, listing all effective financing statements or similar
notices that name Borrower or its Subsidiaries (by its actual name or any trade
name, fictitious name or similar name), or any division or other operating unit
thereof, as debtor and that are filed in any relevant jurisdiction, together
with copies of such other financing statements (none of which shall cover the
Collateral except to the extent evidencing Permitted Liens or for which the
Administrative Agent shall have received termination statements (or such other
termination statements as shall be required by local law) fully executed for
filing);

               (iii) evidence of the completion of all other recordings and
filings of, or with respect to, such Security Agreement and all other actions as
may be necessary or, in the opinion of the Administrative Agent, desirable to
perfect or continue the perfection of the security interests intended to be
created by such Security Agreement;

               (iv) an executed Landlord Consent from each lessor of any leased
facility of the Borrower or any Subsidiary at which any Collateral may be
located as the Administrative Agent may request (provided that to the extent any
such Landlord Consent has not been delivered on the Amendment/Restatement
Effective Date, the Borrower shall use its reasonable best efforts to cause such
Landlord Consents to be executed and delivered within sixty (60) days following
the Amendment/Restatement Effective Date);






                                       2


               (v) a duly authorized, executed and delivered updated Perfection
Certificate properly completed by each Credit Party, in form and substance
satisfactory to the Administrative Agent; and

               (vi) evidence that all other actions necessary, or in the
reasonable opinion of the Administrative Agent, desirable to perfect or continue
the perfection of the security interests purported to be taken by the Security
Agreements have been taken;

          (c) PLEDGE AGREEMENTS. (i) The Borrower shall have duly authorized,
executed and delivered an amended and restated Borrower Pledge Agreement, in
form and substance satisfactory to the Administrative Agent and (ii) each
Material Subsidiary, each Subsidiary which directly or indirectly holds the
stock of a Material Subsidiary and each Foreign Subsidiary so requested to do so
by the Administrative Agent shall have authorized, executed and delivered an
amended and restated Subsidiary Pledge Agreement, in form and substance
satisfactory to the Administrative Agent, and in each case, shall have delivered
to the Administrative Agent, as Pledgee, all the Pledged Securities referred to
therein then owned, if any, by such Pledgor, (x) endorsed in blank in the case
of promissory notes constituting Pledged Securities and (y) together with
executed and undated stock powers, in the case of capital stock constituting
Pledged Securities, or other transfer assignment instruments in form and
substance satisfactory to the Administrative Agent, in the case of membership
interests constituting Pledged Securities and (z) such Pledge Agreement and such
other documents shall be in full force and effect, and such Subsidiary which is
a limited liability company shall have certificated all existing membership
interests and delivered to the Administrative Agent, as Pledgee, such pledged
certificates as Pledged Securities;

          (d) GUARANTY. Each Subsidiary Guarantor shall have duly authorized,
executed and delivered the amended and restated Subsidiary Guaranty, in form and
substance satisfactory to the Administrative Agent;

          (e) ACQUISITION DOCUMENTS. Each of the OTS Acquisition Documents (as
defined in the Amended and Restated Credit Agreement) shall have been executed
by each party thereto, and each such agreement or letter shall be in full force
and effect;

          (f) DOCUMENTS. Each of the following shall have been executed by each
Person party thereto, and each such document shall be in full force and effect:

               (i) Intercompany Notes executed by each Subsidiary receiving an
Intercompany Loan on the Amendment/Restatement Effective Date;

               (ii) the documents listed in Article IX of the OTS Acquisition
Agreement (as defined in the Amended and Restated Credit Agreement) scheduled to
be executed and delivered on the Amendment/Restatement Effective Date, each in
form and substance reasonably acceptable to the Administrative Agent as provided
in SECTION 7.16 of the Amended and Restated Credit Agreement; and

               (iii) an Assignment of Representations, Warranties, Covenants and
Indemnities, substantially in the form of EXHIBIT 4(f)(iii) attached hereto,
executed by Aerojet;



                                       3


          (g) CORPORATE PROCEEDINGS. (i) The Administrative Agent shall have
received from each Credit Party a certificate, dated the Amendment/Restatement
Effective Date, signed by a Responsible Officer of such Person, and attested to
by the secretary or any assistant secretary, or equivalent officer, or any
manager (in the case of a limited liability company) of such Person with
appropriate insertions, together with copies of such Person's Organizational
Documents and the consents of the members of such Person referred to in such
certificate and all of the foregoing (including each such Organizational
Document and consent) shall be satisfactory to the Administrative Agent;

               (ii) all corporate and/or limited liability company and legal
proceedings and all instruments and agreements to be executed by each Credit
Party in connection with the transactions contemplated by this Agreement and the
Loan Documents shall be reasonably satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received all
information and copies of all certificates, documents and papers, including good
standing certificates, bring-down certificates and any other records of
corporate and/or limited liability company proceedings and governmental
approvals, if any, which the Administrative Agent reasonably may have requested
in connection therewith, such documents and papers, where appropriate, to be
certified by proper corporate or governmental authorities; and

               (iii) the ownership and capital structure (including without
limitation, the terms of any capital stock, options, warrants or other
securities issued by the Borrower or any of its Subsidiaries) of the Borrower
and its Subsidiaries shall be in form and substance reasonably satisfactory to
the Administrative Agent and the Lenders;

          (h) INCUMBENCY. The Administrative Agent shall have received a
certificate of the secretary or assistant secretary, or equivalent officer, or
any manager (in the case of a limited liability company) of each Credit Party,
dated the Amendment/Restatement Effective Date, as to the incumbency and
signature of the officers of each such Person executing any document (in form
and substance satisfactory to the Administrative Agent) and any certificate or
other document or instrument to be delivered pursuant hereto or thereto by or on
behalf of such Person, together with evidence of the incumbency of such
secretary, assistant secretary, or equivalent officer or any manager (in the
case of a limited liability company);

          (i) HISTORICAL AND PRO FORMA FINANCIAL STATEMENTS. The Borrower shall
have delivered to the Administrative Agent and each Lender the financial
statements as provided in SECTION 6.5(A)(I) and (II) of the Amended and Restated
Credit Agreement in form and substance satisfactory to the Administrative Agent
and the Required Lenders;

          (j) APPROVALS. All necessary governmental (domestic and foreign) and
third party approvals in connection with the Transaction (as defined in the
Amended and Restated Credit Agreement) and otherwise referred to herein shall
have been obtained and remain in effect, and all applicable waiting periods
shall have expired without any action being taken by any competent authority
which restrains, prevents or imposes materially adverse conditions upon the
consummation of all or any part of the Transaction (as defined in the Amended
and Restated Credit Agreement) and otherwise referred to herein except for those
approvals of non-Governmental Authorities under contracts which are not material
and which are not required to




                                       4



be delivered at the closing thereof. Additionally, there shall not exist any
judgment, order, injunction or other restraint issued or filed or a hearing
seeking injunctive relief or other restraint pending or notified prohibiting or
imposing material adverse conditions upon all or any part of the Transaction (as
defined in the Amended and Restated Credit Agreement), or the making of the
Loans or the issuance of Letters of Credit;

          (k) LITIGATION. Except as otherwise set forth on SCHEDULE 6.6 to the
Amended and Restated Credit Agreement, no litigation by any entity (private or
governmental) shall be pending or, to the knowledge of the Borrower, threatened
with respect to this Agreement, any other Loan Document or any documentation
executed in connection herewith, or with respect to any of the Indebtedness to
Remain Outstanding, or any other pending or threatened litigation which the
Administrative Agent or the Required Lenders shall determine could reasonably be
expected to have a Material Adverse Effect;

          (l) PRO FORMA BALANCE SHEET. The Administrative Agent shall have
received the Pro Forma Balance Sheet in form and substance satisfactory to the
Administrative Agent and the Required Lenders;

          (m) OPINIONS OF COUNSEL. The Administrative Agent shall have received
from (i) Vedder Price Kaufman & Kammholz, special counsel to the Borrower, an
opinion addressed to the Administrative Agent and each of the Lenders and dated
the Amendment/Restatement Effective Date, in form and substance satisfactory to
the Administrative Agent, (ii) Gregory Kellam Scott, counsel to the Borrower, an
opinion addressed to the Administrative Agent and each of the Lenders and dated
the Amendment/Restatement Effective Date, in form and substance satisfactory to
the Administrative Agent, (iii) Heller Ehrman White & McAuliffe LLP, local
counsel to the Borrower, an opinion addressed to the Administrative Agent and
each of the Lenders and dated the Amendment/Restatement Effective Date, related
to the Redmond, Washington real property, in form and substance satisfactory to
the Administrative Agent, and (iv) confirmation from each counsel delivering a
legal opinion in connection with any portion of the Transaction (as defined in
the Amended and Restated Credit Agreement) that the Administrative Agent and
Lenders are entitled to rely upon their respective opinions delivered pursuant
to the Transaction (as defined in the Amended and Restated Credit Agreement);

          (n) FEES. The Borrower shall have paid to the Agents and the Lenders
all costs, fees and expenses (including, without limitation, legal fees and
expenses) payable to the Agents and the Lenders to the extent then due;

          (o) SOLVENCY. The Administrative Agent shall have received a solvency
certificate from each of the Credit Parties, addressed to the Administrative
Agent and each of the Lenders and dated the Amendment/Restatement Effective Date
and supporting the conclusions, that, after giving effect to the Transaction (as
defined in the Amended and Restated Credit Agreement) and the incurrence of all
financing contemplated herein, the Borrower and each such Credit Party is not
insolvent and will not be rendered insolvent by the indebtedness incurred in
connection herewith, will not be left with unreasonably small capital with which
to engage in its respective businesses and will not have incurred debts beyond
its ability to pay such debts in the ordinary course as they mature and become
due;



                                       5



          (p) OFFICER'S CERTIFICATE. The Administrative Agent shall have
received, with a signed counterpart for each Lender, a certificate executed by a
Responsible Officer on behalf of the Borrower, dated the Amendment/Restatement
Effective Date and in the form of EXHIBIT 4(p) hereto, stating that the
representations and warranties set forth in ARTICLE VI of the Amended and
Restated Credit Agreement are true and correct as of the date of the
certificate, that no Event of Default or Unmatured Event of Default has occurred
and is continuing, that the conditions of SECTION 4 hereof have been fully
satisfied (except that no opinion need be expressed as to the Administrative
Agent's or Required Lenders' satisfaction with any document, instrument or other
matter) and that to the best of Borrower's knowledge, no Liens (except for
Permitted Liens) have been placed against the Collateral since the respective
dates of the searches of financing statements filed under the UCC and delivered
pursuant to this SECTION 4;

          (q) ENVIRONMENTAL REPORTS. The Administrative Agent shall have
received all documents, including such environmental site assessment reports (to
the extent they exist) with respect to the real property of the Borrower and
their Subsidiaries as shall be requested by the Administrative Agent;

          (r) EXISTING INDEBTEDNESS.

               (i) After giving effect to the Transaction (as defined in the
Amended and Restated Credit Agreement) and the other transactions contemplated
hereby, the Subsidiaries shall not have any Indebtedness outstanding except for
the Loans and the Indebtedness to Remain Outstanding, and the Indebtedness to
Remain Outstanding shall not be incurred in connection with, or in contemplation
of, the Transaction (as defined in the Amended and Restated Credit Agreement)
and the terms and conditions of the Indebtedness to Remain Outstanding shall be
satisfactory to the Administrative Agent; and

               (ii) the Administrative Agent shall be satisfied that the
creditors under any financing arrangement to be repaid in connection with the
Transaction (as defined in the Amended and Restated Credit Agreement) have
terminated and released all security interests and Liens on the assets owned by
the Borrower and its Subsidiaries, and shall have received such releases of
security interest in and Liens on the assets owned by the Borrower and its
Subsidiaries or agreements to release the foregoing and/or proper termination
statements (Form UCC-3 or the appropriate equivalent) as may have been requested
by the Administrative Agent, which releases shall be in form and substance
satisfactory to the Administrative Agent;

          (s) CONSUMMATION OF OTS ACQUISITION AGREEMENT, ETC. The transactions
contemplated by the OTS Acquisition Agreement (as defined in the Amended and
Restated Credit Agreement) shall have been consummated without the waiver of any
conditions precedent thereto required to be performed on or prior to the
consummation of the transactions contemplated thereby which are for the benefit
of the Borrower and the waiver of which, in the reasonable judgment of the
Administrative Agent, could reasonably be expected to have a Material Adverse
Effect, and the Administrative Agent shall have received such evidence of the
consummation of such transactions as it may request; all representations and
warranties of the Borrower and the other parties thereto contained in the
Transaction Documents shall be true and correct in all material respects; and
all notifications, consents and approvals required pursuant to the Transaction
Documents shall have been given or obtained, as the case may be;



                                       6



          (t) APPOINTMENT OF AGENT. The Administrative Agent shall have received
a letter from CT Corporation System, presently located at 111 Eighth Avenue, New
York, New York 10011, in form and substance satisfactory to the Administrative
Agent, indicating its consent to its appointment by the Credit Parties as their
agent to receive service of process as specified in SECTION 12.9 of the Amended
and Restated Credit Agreement;

          (u) EMPLOYEE BENEFIT PLANS; SHAREHOLDERS' AGREEMENTS; COLLECTIVE
BARGAINING AGREEMENTS; TAX SHARING AGREEMENTS; DEBT AGREEMENTS. On or prior to
the Amendment/Restatement Effective Date, there shall have been delivered to the
Administrative Agent true and correct copies, certified as true and complete by
an appropriate officer of the Borrower, of:

               (i) all material employee benefit plans (other than multiemployer
plans as defined in Section 4001(a)(3) of ERISA), or any other similar plans or
arrangements for the benefit of employees of the Borrower or any of its Material
Subsidiaries and any profit sharing plans and deferred compensation plans of the
Borrower or any of its Material Subsidiaries (collectively, the "EMPLOYEE
BENEFIT Plans");

               (ii) all agreements entered into by the Borrower or any of its
Material Subsidiaries governing the terms and relative rights of its capital
stock and any agreements entered into by shareholders relating to the Borrower
or any of its Material Subsidiaries with respect to their capital stock
(collectively, the "SHAREHOLDER AGREEMENTS");

               (iii) all agreements with members of, or with respect to the,
management of the Borrower or any of its Material Subsidiaries other than
Employment Agreements (collectively, the "MANAGEMENT AGREEMENTS");

               (iv) any material employment agreements entered into by the
Borrower or any of its Material Subsidiaries (collectively, the "EMPLOYMENT
AGREEMENTS");

               (v) all collective bargaining agreements applying or relating to
any employee of the Borrower or any of its Material Subsidiaries (collectively,
the "COLLECTIVE BARGAINING AGREEMENTS");

               (vi) all agreements evidencing or relating to Indebtedness to
Remain Outstanding of the Borrower or any of its Material Subsidiaries and all
agreements evidencing or relating to any Indebtedness of the Borrower or any of
its Material Subsidiaries which is to remain outstanding after giving effect to
the incurrence of Loans on the Amendment/Restatement Effective Date
(collectively, the "DEBT AGREEMENTS"); and

               (vii) all tax sharing, disaffiliation tax allocation and other
similar agreements entered into by the Borrower or any of its Material
Subsidiaries (collectively, the "TAX SHARING AGREEMENTS");

all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Employment Agreements, Collective Bargaining Agreements, Debt
Agreements and Tax Sharing Agreements shall be in form and substance reasonably
satisfactory to the Administrative Agent and the Required Lenders; and shall be
in full force and effect on the




                                       7



Amendment/Restatement Effective Date, except such agreements previously
identified to the Administrative Agent and the Required Lenders which will be
terminated in connection with the consummation of the transaction.

          (v) ADVERSE CHANGE. On or prior to the Amendment/Restatement Effective
Date, nothing shall have occurred (and neither the Administrative Agent nor the
Lenders shall have become aware of any facts or conditions not previously known)
(i) which the Administrative Agent or the Required Lenders shall determine has
or reasonably could be expected to have, or could have, a Material Adverse
Effect or (ii) which materially disrupts or materially adversely changes
financial, banking or capital market conditions generally; and

          (w) OTHER MATTERS. All corporate and other proceedings taken in
connection with the Transaction (as defined in the Amended and Restated Credit
Agreement) at or prior to the Amendment/Restatement Effective Date, and all
documents incident thereto will be reasonably satisfactory in form and substance
to the Administrative Agent; and the Administrative Agent shall have received
such other instruments and documents as the Administrative Agent shall
reasonably request in connection with the execution of this Agreement, and all
such instruments and documents shall be reasonably satisfactory in form and
substance to the Administrative Agent.

          Each Lender hereby agrees that by its execution and delivery of its
signature page hereto and by the funding of its New Term B Loan (if applicable)
to be made on the Amendment/Restatement Effective Date, such Lender approves of
and consents to each of the matters set forth in this SECTION 4 which must be
approved by, or which must be satisfactory to, the Agents or the Required
Lenders or Lenders, as the case may be.

          5. In order to induce the undersigned Lenders to enter into this
Agreement, the Borrower hereby represents and warrants that (x) no Default or
Event of Default exists at the Amendment/Restatement Effective Date after giving
effect to this Agreement and (y) all of the representations and warranties
contained in the Amended and Restated Credit Agreement shall be true and correct
in all material respects as of the Amendment/Restatement Effective Date after
giving effect to this Agreement and the amendment and restatement of the
Original Credit Agreement contemplated hereby, with the same effect as though
such representations and warranties had been made on and as of the
Amendment/Restatement Effective Date (it being understood that any
representation or warranty made as of a specified date shall be required to be
true and correct in all material respects only as of such specific date).

          6. Each of the undersigned Lenders acknowledges and agrees to the
following: (a) the release from mortgage by the Administrative Agent of
approximately 80 acres of real property of the Borrower located in Sacramento,
California, with a fair market value (as represented by the Borrower) of
approximately $1,600,000 for the purposes of constructing a Country Day school,
(b) the execution by the Administrative Agent and the Borrower of Amendment No.
3 to Post Closing Agreement in order to extend the date to June 30, 2003
(previously, December 28, 2002) by which certain environmental permits and
filings must be in place with respect to the Borrower's Corvol l'Orgueilleux,
France facility and (c) the waiver and ratification of the Borrower's transfer
and sale of certain real property of the Borrower located in



                                       8



Marion, Indiana to the City of Marion, Indiana, which real property remains
subject to a mortgage in favor of the Administrative Agent on behalf of the
Secured Creditors.

          7. This Agreement is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Original Credit
Agreement or any other Loan Document.

          8. This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.

          9. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.

          10. This Agreement shall become effective on the first Business Day
upon which each of the following conditions have been satisfied (the
"AMENDMENT/RESTATEMENT EFFECTIVE DATE"):

               (i) the Borrower, the percentage of Lenders required by the
Original Credit Agreement and each of the New Term B Lenders shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile transmission) the same to the
Administrative Agent at Winston & Strawn, 35 West Wacker Drive, Chicago,
Illinois 60601, Attention: S. Kay McNab (facsimile number 312-558-5700);

               (ii) the conditions specified in SECTION 4 hereof shall be
satisfied; and

               (iii) the Borrower shall have paid each Lender which executed and
delivered a counterpart to this Agreement a non-refundable cash fee (the
"AMENDMENT FEE") in an amount equal to .125% of the sum of the outstanding
principal amount of Term A Loans and the Revolving Commitment of such Lender as
of the first Business Day immediately prior to the Amendment/Restatement
Effective Date.

          Notwithstanding the foregoing, the amendments to the Original Credit
Agreement that would be affected hereby and the obligations of the New Term B
Lenders to make New Term B Loans shall not become effective unless each of the
foregoing conditions is satisfied or waived at or prior to 5:00 p.m., New York
City time, on October 2, 2002. In the event such conditions are not so satisfied
or waived, the Original Credit Agreement shall remain in effect without giving
effect to any amendments thereto contemplated hereby.

          11. (a) On and after the date hereof each reference in the Amended and
Restated Credit Agreement to "this Agreement," "hereunder," "hereof," "herein,"
or words of like import, and each reference to the "Credit Agreement", as the
case may be, in the Loan Documents and all other documents (the "ANCILLARY
DOCUMENTS") delivered in connection with



                                       9



the Original Credit Agreement as amended and restated by the Amended and
Restated Credit Agreement shall mean and be a reference to the Original Credit
Agreement as amended and restated by the Amended and Restated Credit Agreement.

          (b) The execution, delivery and effectiveness of this Agreement shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Lenders or Agent under the Original Credit Agreement as
amended and restated by the Amended and Restated Credit Agreement or the Loan
Documents.

          (c) The Amended and Restated Credit Agreement amends and restates the
Original Credit Agreement and is not in satisfaction of payment of any
Obligations thereunder and does not constitute a novation, payment and
reborrowing, or termination of the Obligations under the Original Credit
Agreement, but rather shall relate back to the execution date of the Original
Credit Agreement for all purposes, including filing and perfection of all
security interests for the benefit of the Secured Creditors.

                            [signature page follows]
















                                       10






          IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement to Amend and Restate
as of the date first above written.

                                        GENCORP INC.



                                        By: /s/ Yasmin R. Seyal
                                            -----------------------------------
                                                Name: Yasmin R. Seyal
                                                Title: Senior Vice President and
                                                       Chief Financial Officer


















                Signature Page to Agreement to Amend and Restate






                                         DEUTSCHE BANK TRUST COMPANY
                                         AMERICAS (formerly known as Bankers
                                         Trust Company), as Administrative Agent
                                         and Lender



                                         By: /s/ Marguerite Sutton
                                             -----------------------------------
                                                 Name: Marguerite Sutton
                                                 Title: Vice President

















                Signature Page to Agreement to Amend and Restate







                                         ABN AMRO BANK N.V.,
                                         as Lender



                                         By: /s/ Terrence J. Ward
                                             -----------------------------------
                                                 Name: Terrence J. Ward
                                                 Title: Senior Vice President


                                         By: /s/ Peter J. Hallan
                                             -----------------------------------
                                                 Name: Peter J. Hallan
                                                 Title: Vice President

















                Signature Page to Agreement to Amend and Restate






                                         THE BANK OF NEW YORK,
                                         as Lender



                                         By: /s/ Elizabeth T. Ying
                                             -----------------------------------
                                                 Name: Elizabeth T. Ying
                                                 Title: Vice President




















                Signature Page to Agreement to Amend and Restate






                                         THE BANK OF NOVA SCOTIA,
                                         as Lender



                                         By: /s/ M. Sparrow
                                             -----------------------------------
                                                 Name: M. Sparrow
                                                 Title: Director






















                Signature Page to Agreement to Amend and Restate






                                         ING CAPITAL LLC,
                                         as Lender



                                         By: /s/ Ludwig Hoogstoel
                                             -----------------------------------
                                                 Name: Ludwig Hoogstoel
                                                 Title: Managing Director















                Signature Page to Agreement to Amend and Restate






                                         NATIONAL CITY BANK,
                                         as Lender



                                         By: /s/ Tom Gurbach
                                             -----------------------------------
                                                 Name: Tom Gurbach
                                                 Title: Vice President
























                Signature Page to Agreement to Amend and Restate






                                         THE NORTHERN TRUST COMPANY,
                                         as Lender



                                         By: /s/ Melissa W. Whitson
                                             -----------------------------------
                                                 Name: Melissa W. Whitson
                                                 Title: Vice President
























                Signature Page to Agreement to Amend and Restate






                                         WELLS FARGO BANK, N.A.,
                                         as Lender



                                         By: /s/ Rick A. Souza
                                             -----------------------------------
                                                 Name: Rick A. Souza
                                                 Title: Vice President


























                Signature Page to Agreement to Amend and Restate






                                         WACHOVIA BANK, N.A.,
                                         as Lender



                                         By: /s/ Katherine A. Harkness
                                             -----------------------------------
                                                 Name: Katherine A. Harkness
                                                 Title: Director


















                Signature Page to Agreement to Amend and Restate






                                   SCHEDULE I



NEW TERM B LENDERS                NEW TERM B LOANS
- ------------------                ----------------

Deutsche Bank Trust
Company Americas                   $ 40,000,000.00

ABN AMRO Bank, N.V.                $ 40,000,000.00

The Bank of Nova Scotia            $ 20,000,000.00

ING Capital LLC                    $ 15,000,000.00

                  TOTAL            $115,000,000.00













                                                                  Execution Copy

                                     ANNEX I


- --------------------------------------------------------------------------------

- --------------------------------------------------------------------------------

                      AMENDED AND RESTATED CREDIT AGREEMENT

                    DATED AS OF DECEMBER 28, 2000 AND AMENDED
                       AND RESTATED AS OF OCTOBER 2, 2002

                                      AMONG

                                  GENCORP INC.,

                                 AS THE BORROWER

                      DEUTSCHE BANK TRUST COMPANY AMERICAS,

                            AS ADMINISTRATIVE AGENT,

                              ABN AMRO BANK, N.V.,

                              AS SYNDICATION AGENT,

                          DEUTSCHE BANK SECURITIES INC.
                                       AND
                             ABN AMRO INCORPORATED,

                            AS JOINT LEAD ARRANGERS,

                            THE BANK OF NOVA SCOTIA,

                             AS DOCUMENTATION AGENT

                                       AND

                          VARIOUS LENDING INSTITUTIONS

- --------------------------------------------------------------------------------

- --------------------------------------------------------------------------------



                                TABLE OF CONTENTS



                                                                                                         Page


                                                                                                     
ARTICLE I - DEFINITIONS AND ACCOUNTING TERMS...............................................................1

         Section 1.1.     Definitions......................................................................1
         Section 1.2.     Accounting Terms; Financial Statements..........................................44

ARTICLE II - AMOUNT AND TERMS OF CREDIT...................................................................44

         Section 2.1.     The Commitments.................................................................44
         Section 2.2.     Notes...........................................................................48
         Section 2.3.     Minimum Amount of Each Borrowing; Maximum Number
                          of Borrowings...................................................................48
         Section 2.4.     Borrowing Options...............................................................49
         Section 2.5.     Notice of Borrowing.............................................................49
         Section 2.6.     Conversion or Continuation......................................................50
         Section 2.7.     Disbursement of Funds...........................................................51
         Section 2.8.     Additional Loan Commitments.....................................................52
         Section 2.9.     Pro Rata Borrowings.............................................................55
         Section 2.10.    Amount and Terms of Letters of Credit...........................................55

ARTICLE III - INTEREST AND FEES...........................................................................64

         Section 3.1.     Interest........................................................................64
         Section 3.2.     Fees............................................................................65
         Section 3.3.     Computation of Interest and Fees................................................66
         Section 3.4.     Interest Periods................................................................66
         Section 3.5.     Compensation for Funding Losses.................................................67
         Section 3.6.     Increased Costs, Illegality, Etc................................................68
         Section 3.7.     Replacement of Affected Lenders.................................................71
         Section 3.8.     Borrower Controls on Non-Dollar Loans; Prepayments..............................72

ARTICLE IV - REDUCTION OF COMMITMENTS; PAYMENTS AND
                             PREPAYMENTS..................................................................73

         Section 4.1.     Voluntary Reduction of Commitments..............................................73
         Section 4.2.     Mandatory Reductions of Commitments.............................................74
         Section 4.3.     Voluntary Prepayments...........................................................74
         Section 4.4.     Mandatory Prepayments...........................................................75
         Section 4.5.     Application of Prepayments; Waiver of Certain Prepayments.......................80
         Section 4.6.     Method and Place of Payment.....................................................82
         Section 4.7.     Net Payments....................................................................82



                                       i



                                                                                                      
ARTICLE V - CONDITIONS OF CREDIT..........................................................................85

         Section 5.1.      Conditions Precedent to All Credit Events......................................85

ARTICLE VI - REPRESENTATIONS AND WARRANTIES...............................................................87

         Section 6.1.     Corporate Status................................................................87
         Section 6.2.     Corporate Power and Authority...................................................87
         Section 6.3.     No Violation....................................................................87
         Section 6.4.     Governmental and Other Approvals................................................88
         Section 6.5.     Financial Statements; Financial Condition; Undisclosed
                          Liabilities; Projections; Etc...................................................88
         Section 6.6.     Litigation......................................................................90
         Section 6.7.     Disclosure......................................................................90
         Section 6.8.     Use of Proceeds; Margin Regulations.............................................91
         Section 6.9.     Tax Returns and Payments........................................................92
         Section 6.10.    Compliance With ERISA...........................................................92
         Section 6.11.    Ownership of Property...........................................................93
         Section 6.12.    Capitalization of the Borrower..................................................94
         Section 6.13.    Subsidiaries....................................................................94
         Section 6.14.    Compliance With Law, Etc........................................................95
         Section 6.15.    Investment Company Act..........................................................95
         Section 6.16.    Public Utility Holding Company Act..............................................95
         Section 6.17.    Environmental Matters...........................................................95
         Section 6.18.    Labor Relations.................................................................96
         Section 6.19.    Intellectual Property, Licenses, Franchises and Formulas........................97
         Section 6.20.    Certain Fees....................................................................97
         Section 6.21.    Security Documents..............................................................97
         Section 6.22.    Documents.......................................................................99
         Section 6.23.    Intercompany Notes..............................................................99
         Section 6.24.    Aerojet Settlement Agreement....................................................99

ARTICLE VII - AFFIRMATIVE COVENANTS......................................................................100

         Section 7.1.     Financial Statements...........................................................100
         Section 7.2.     Certificates; Other Information................................................101
         Section 7.3.     Notices........................................................................103
         Section 7.4.     Conduct of Business and Maintenance of Existence...............................104
         Section 7.5.     Payment of Obligations.........................................................105
         Section 7.6.     Inspection of Property, Books and Records......................................105
         Section 7.7.     ERISA..........................................................................105
         Section 7.8.     Maintenance of Property; Insurance.............................................107
         Section 7.9.     Environmental Laws.............................................................108





                                       ii



                                                                                                     
         Section 7.10.    Use of Proceeds................................................................109
         Section 7.11.    Interest Rate Protection.......................................................109
         Section 7.12.    Additional Security; Further Assurances........................................109
         Section 7.13.    End of Fiscal Years; Fiscal Quarters...........................................111
         Section 7.14.    Foreign Subsidiaries Security..................................................111
         Section 7.15.    Certain Fees Indemnity.........................................................112
         Section 7.16.    OTS Acquisition Documents......................................................112
         Section 7.17.    Addition of Collateral.........................................................112

ARTICLE VIII - NEGATIVE COVENANTS........................................................................113

         Section 8.1.     Liens..........................................................................113
         Section 8.2.     Indebtedness...................................................................115
         Section 8.3.     Consolidation, Merger, Purchase or Sale of Assets, Etc.........................118
         Section 8.4.     Dividends or Other Distributions...............................................120
         Section 8.5.     Limitation on Certain Restrictions on Subsidiaries.............................121
         Section 8.6.     Issuance of Stock..............................................................121
         Section 8.7.     Loans and Investments..........................................................122
         Section 8.8.     Transactions with Affiliates...................................................124
         Section 8.9.     Lines of Business..............................................................125
         Section 8.10.    Fiscal Year....................................................................125
         Section 8.11.    Limitation on Voluntary Payments and Modifications of
                          Indebtedness; Modifications of Certificate of Incorporation,
                          By-Laws and Certain Other Agreements; Etc......................................125
         Section 8.12.    Accounting Changes.............................................................126
         Section 8.13.    Aerojet Government Contracting Authority.......................................126
         Section 8.14.    Sale of Mortgaged Property or Mortgaged California
                          Real Estate....................................................................126

ARTICLE IX - FINANCIAL COVENANTS.........................................................................127

         Section 9.1.     Capital Expenditures...........................................................127
         Section 9.2.     Maintenance of Consolidated Net Worth..........................................128
         Section 9.3.     Interest Coverage Ratio........................................................128
         Section 9.4.     Leverage Ratio.................................................................129
         Section 9.5.     Fixed Charge Coverage Ratio....................................................129

ARTICLE X - EVENTS OF DEFAULT............................................................................130

         Section 10.1.    Events of Default..............................................................130
         Section 10.2.    Rights Not Exclusive...........................................................134




                                      iii



                                                                                                     
ARTICLE XI - THE ADMINISTRATIVE AGENT....................................................................134

         Section 11.1.    Appointment....................................................................134
         Section 11.2.    Nature of Duties...............................................................134
         Section 11.3.    Exculpation, Rights Etc........................................................135
         Section 11.4.    Reliance.......................................................................136
         Section 11.5.    Indemnification................................................................136
         Section 11.6.    The Administrative Agent In Its Individual Capacity............................136
         Section 11.7.    Notice of Default..............................................................137
         Section 11.8.    Holders of Obligations.........................................................137
         Section 11.9.    Resignation by the Administrative Agent........................................137

ARTICLE XII - MISCELLANEOUS..............................................................................138

         Section 12.1.    No Waiver; Modifications in Writing............................................138
         Section 12.2.    Further Assurances.............................................................140
         Section 12.3.    Notices, Etc...................................................................140
         Section 12.4.    Costs, Expenses and Taxes; Indemnification.....................................141
         Section 12.5.    Confirmations..................................................................143
         Section 12.6.    Adjustment; Setoff.............................................................143
         Section 12.7.    Execution in Counterparts......................................................144
         Section 12.8.    Binding Effect; Assignment; Addition and
                          Substitution of Lenders........................................................145
         Section 12.9.    CONSENT TO JURISDICTION;
                          MUTUAL WAIVER OF JURY TRIAL....................................................148
         Section 12.10.   GOVERNING LAW..................................................................149
         Section 12.11.   Severability of Provisions.....................................................149
         Section 12.12.   Headings.......................................................................149
         Section 12.13.   Termination of Agreement.......................................................149
         Section 12.14.   Confidentiality................................................................150
         Section 12.15.   Concerning the Collateral and the Loan Documents...............................150
         Section 12.16.   Effectiveness..................................................................152
         Section 12.17.   Registry.......................................................................153
         Section 12.18.   Matters Relating to this Agreement.............................................154





                                       iv




INDEX OF EXHIBITS AND SCHEDULES

EXHIBITS
- --------

Exhibit 1.1(a)      Form of Intercompany Subordinated Demand Promissory Note

Exhibit 2.1(d)      Form of Swing Line Loan Participation Certificate

Exhibit 2.2(a)      Form of New Term B Note

Exhibit 2.5-1       Form of Notice of Borrowing

Exhibit 2.5-2       Form of Appointment (or Revocation) of Responsible Officer

Exhibit 2.6         Form of Notice of Conversion or Continuation

Exhibit 2.10(b)     Form of Letter of Credit Request

Exhibit 4.7(d)      Form of Section 4.7(d)(ii) Certificate

Exhibit 7.2(b)      Form of Officer's Certificate Pursuant to Section 7.2(b)

Exhibit 12.8(c)     Form of Assignment and Assumption Agreement



                                       v




SCHEDULES
- ---------

Schedule 1.1(a)            Loan/Commitments

Schedule 2.10(a)           Letters of Credit Outstanding as of the
                           Amendment/Restatement Effective Date

Schedule 6.3               Approvals and Consents

Schedule 6.4               Governmental Approvals

Schedule 6.5(a)            Pro Forma Balance Sheet

Schedule 6.5(c)            Existing Liabilities

Schedule 6.5(e)            Projections

Schedule 6.6               Litigation

Schedule 6.10              ERISA Plans

Schedule 6.12              Capitalization of the Borrower

Schedule 6.13              List of Subsidiaries

Schedule 6.17              Existing Environmental Matters

Schedule 6.21(c)           Owned and Leased Properties

Schedule 7.8               Insurance Levels

Schedule 8.1(f)            Existing Liens

Schedule 8.2(b)            Existing Indebtedness to Remain Outstanding

Schedule 8.5(a)            Existing Restrictions on Subsidiaries

Schedule 8.7(b)            Existing Investments

Schedule 12.3              Notice Information



                                       vi






                      AMENDED AND RESTATED CREDIT AGREEMENT

                  THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "AGREEMENT"),
dated as of December 28, 2000 and amended and restated as of October 2, 2002,
and is made by and among GenCorp Inc., an Ohio corporation having its principal
place of business in Rancho Cordova, California ("GENCORP" or the "BORROWER"),
the undersigned financial institutions, including Deutsche Bank Trust Company
Americas (formerly Bankers Trust Company), in their capacities as lenders
hereunder (collectively, the "LENDERS," and each individually, a "LENDER"),
Deutsche Bank Trust Company Americas (formerly Bankers Trust Company), as
Administrative Agent (the "ADMINISTRATIVE AGENT") for the Lenders, ABN AMRO
Bank, N.V., as Syndication Agent (the "SYNDICATION AGENT") (collectively, the
"AGENTS" and each individually, an "AGENT"), and The Bank of Nova Scotia, as
Documentation Agent.

                              W I T N E S S E T H:

                  WHEREAS, subject to and upon the terms and conditions herein
set forth, the Lenders are willing to make available to the Borrower the credit
facilities provided for herein;

                  NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, and for other valuable consideration the
receipt and sufficiency of which are hereby acknowledged the parties hereto
agree as follows:

                                   ARTICLE I

                        DEFINITIONS AND ACCOUNTING TERMS

Section 1.1.      DEFINITIONS.

As used herein, and unless the context requires a different meaning, the
following terms have the meanings indicated:

                  "ADDITIONAL COLLATERAL" is defined in SECTION 7.12(a).

                  "ADDITIONAL SECURITY DOCUMENTS" means all mortgages, pledge
agreements, security agreements and other security documents entered into
pursuant to SECTION 7.12 with respect to Additional Collateral.

                  "ADJUSTED TOTAL REVOLVING LOAN COMMITMENT" shall mean at any
time the Total Revolving Commitment less the aggregate Commitments of all
Defaulting Lenders.

                  "ADJUSTED WORKING CAPITAL" means the difference between (i)
Consolidated Current Assets excluding from Consolidated Current Assets all Cash
and Cash Equivalents, and (ii) Consolidated Current Liabilities excluding from
Consolidated Current Liabilities all short-term borrowings, the current portion
of long-term Indebtedness and the current portion of Capitalized Lease
Obligations.



                  "ADMINISTRATIVE AGENT" has the meaning assigned to that term
in the introduction to this Agreement and any successor Administrative Agent in
such capacity.

                  "AEROJET" means Aerojet - General Corporation, an Ohio
corporation.

                  "AEROJET SETTLEMENT AGREEMENT" means that certain settlement
agreement by and between Aerojet and the federal government of the United
States, titled Modification No. 1 to the 29 November 1992 Settlement Agreement
Between the United States and Aerojet-General Corporation and effective as of
November 30, 1998, pursuant to which the federal government of the United States
has agreed to recognize, as allowable government contract costs, up to 88% of
the environmental site restoration costs (as defined therein) incurred by
Aerojet.

                  "AFC" means Aerojet Fine Chemicals LLC, a Delaware limited
liability company.

                  "AFFILIATE" means, with respect to any Person, any Person or
group acting in concert in respect of the Person in question that, directly or
indirectly, controls (including but not limited to all directors and officers of
such Person) or is controlled by or is under common control with such Person
provided that no Agent nor any Affiliate of an Agent shall be deemed to be an
Affiliate of the Borrower. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person or group of Persons,
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of management and policies of such Person, whether through
the ownership of voting securities or by contract or otherwise. For purposes of
this definition, a Person (and any director and officer thereof) shall be deemed
to control an entity if such Person possesses, directly or indirectly, the power
to vote 10% or more of the securities or other equity interests having ordinary
voting power for the election of directors (if a corporation) or to select the
managing member, trustee or equivalent controlling interest.

                  "AGENTS" is defined in the introduction to this Agreement and
any successor Agent in such respective capacity.

                  "AGREEMENT" means this Amended and Restated Credit Agreement,
as the same may at any time be amended, supplemented or otherwise modified in
accordance with the terms hereof and in effect.

                  "AGREEMENT TO AMEND" means the Agreement to Amend and Restate
dated as of October 2, 2002 among the Borrower, the Agents and the Persons that
are Lenders after giving effect to the effectiveness thereof.

                  "AMENDMENT/RESTATEMENT EFFECTIVE DATE" shall have the meaning
set forth in the Agreement to Amend.




                                       2


                  "APPLICABLE BASE RATE MARGIN" means at any date, (i) with
respect to Revolving Loans and Term A Loans, the applicable percentage set forth
in the following table under the column Applicable Base Rate Margin for
Revolving Loans and Term A Loans opposite the Most Recent Leverage Ratio as of
such date, and (ii) with respect to New Term B Loans, 2.75%:




- ----------------------------------------------------------- -------------------------
                                                              APPLICABLE BASE RATE
                       MOST RECENT                            MARGIN FOR REVOLVING
                      LEVERAGE RATIO                         LOANS AND TERM A LOANS
                      --------------                         ----------------------

- ----------------------------------------------------------- -------------------------
                                                                  
                  Less than 1.75 to 1.00                             0.75%
- ----------------------------------------------------------- -------------------------
 Equal to or greater than 1.75 to 1.00 but less than 2.00            1.00%
                         to 1.00
- ----------------------------------------------------------- -------------------------
 Equal to or greater than 2.00 to 1.00 but less than 2.25            1.25%
                         to 1.00
- ----------------------------------------------------------- -------------------------
 Equal to or greater than 2.25 to 1.00 but less than 2.50            1.50%
                         to 1.00
- ----------------------------------------------------------- -------------------------
 Equal to or greater than 2.50 to 1.00 but less than 3.00            1.75%
                         to 1.00
- ----------------------------------------------------------- -------------------------
          Equal to or greater than 3.00 to 1.00                      2.00%
- ----------------------------------------------------------- -------------------------



                  "APPLICABLE COMMITMENT FEE PERCENTAGE" means at any date, the
applicable percentage set forth in the following table under the column
Applicable Commitment Fee Percentage opposite the Most Recent Leverage Ratio as
of such date:




       ----------------------------------------------------- -------------------------------------------------------
                           MOST RECENT                                       APPLICABLE COMMITMENT
                          LEVERAGE RATIO                                         FEE PERCENTAGE
                          --------------                                         --------------

       ----------------------------------------------------- -------------------------------------------------------
                                                                                  
                      Less than 2.25 to 1.00                                         0.375%
       ----------------------------------------------------- -------------------------------------------------------
              Equal to or greater than 2.25 to 1.00                                  0.50%
       ----------------------------------------------------- -------------------------------------------------------



                  "APPLICABLE EUROCURRENCY MARGIN" means at any date, (i) with
respect to Revolving Loans and Term A Loans, the applicable percentage set forth
in the following table under the column Applicable Eurocurrency Margin for
Revolving Loans and Term A Loans opposite the Most Recent Leverage Ratio on such
date, (ii) with respect to New Term B Loans, 3.75%:


                                       3



- ------------------------------------- ----------------------------------
                                       APPLICABLE EUROCURRENCY MARGIN
            MOST RECENT                    FOR REVOLVING LOANS AND
           LEVERAGE RATIO                       TERM A LOANS
           --------------                       ------------

- ------------------------------------- ----------------------------------
       Less than 1.75 to 1.00                       1.75%
- ------------------------------------- ----------------------------------
  Equal to or greater than 1.75 to                  2.00%
  1.00 but less than 2.00 to 1.00
- ------------------------------------- ----------------------------------
  Equal to or greater than 2.00 to                  2.25%
  1.00 but less than 2.25 to 1.00
- ------------------------------------- ----------------------------------
  Equal to or greater than 2.25 to                  2.50%
  1.00 but less than 2.50 to 1.00
- ------------------------------------- ----------------------------------
  Equal to or greater than 2.50 to                  2.75%
  1.00 but less than 3.00 to 1.00
- ------------------------------------- ----------------------------------
  Equal to or greater than 3.00 to                  3.00%
                1.00
- ------------------------------------- ----------------------------------

                  "ASSET DISPOSITION" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) of
all or any part of an interest in shares of Capital Stock of a Subsidiary of the
Borrower (other than directors' qualifying shares and similar arrangements
required by Requirements of Law), Investments, property or other assets (each
referred to for the purposes of this definition as a "disposition") by the
Borrower or any of its Subsidiaries; PROVIDED THAT (i) a disposition permitted
by SECTION 8.3(a) through 8.3(j) (other than a Sale and Leaseback Transaction)
shall not constitute an "Asset Disposition" for purposes of this Agreement and
(ii) a sale, transfer or other disposition of real property by the Borrower or
any of its Subsidiaries as part of its trade or business shall not constitute an
"Asset Disposition" for purposes of this Agreement PROVIDED that such real
estate sales, transfers or other dispositions subject to this clause (ii),
individually or in the aggregate, shall not exceed $25,000,000 in any Fiscal
Year.

                  "ASSIGNED DOLLAR VALUE" shall mean (i) in respect of any
Borrowing denominated in Dollars, the amount thereof, (ii) in respect of a
Borrowing denominated in Euro, the Dollar Equivalent thereof based upon the
applicable Spot Rate as of the last Computation Date. The Assigned Dollar Value
of a Loan included in any Borrowing shall equal the pro rata portion of the
Assigned Dollar Value of such Borrowing represented by such Loan.


                                       4


                  "ASSIGNEE" has the meaning assigned to that term in SECTION
12.8(c).

                  "ASSIGNMENT AND ASSUMPTION AGREEMENT" means an Assignment and
Assumption Agreement substantially in the form of EXHIBIT 12.8(C) annexed hereto
and made a part hereof by any applicable Lender, as assignor, and such Lender's
assignee in accordance with SECTION 12.8.

                  "ATTORNEY COSTS" means all reasonable fees and disbursements
of any law firm or other external counsel and the reasonable allocated cost of
internal legal services, including all reasonable disbursements of internal
counsel.

                  "ATTRIBUTABLE DEBT" means as of the date of determination
thereof with respect to an Operating Financing Lease, the net present value
(discounted according to GAAP at the cost of debt implied in the lease) of the
obligations of the lessee for rental payments during the then remaining term of
such Operating Financing Lease.

                  "AVAILABLE REVOLVING COMMITMENT" means, as to any Revolving
Lender at any time an amount equal to the excess, if any, of (i) such Lender's
Revolving Commitment over (ii) the sum of (x) the aggregate principal amount
then outstanding of the Assigned Dollar Value of Revolving Loans made by such
Lender, and (y) such Lender's Revolver Pro Rata Share of the Assigned Dollar
Value of LC Obligations and the Assigned Dollar Value of Swing Line Loans then
outstanding.

                  "BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy" as from time to time amended, including the rules and
regulations promulgated thereunder, or any successor statute and the rules and
regulations promulgated thereunder.

                  "BASE RATE" means the greater of (i) the rate most recently
announced by DBTCA at its principal office as its "prime rate", which is not
necessarily the lowest rate made available by DBTCA or (ii) the Federal Funds
Rate plus 1/2 of 1% per annum. The "prime rate" announced by DBTCA is evidenced
by the recording thereof after its announcement in such internal publication or
publications as DBTCA may designate. Any change in the interest rate resulting
from a change in such "prime rate" announced by DBTCA shall become effective
without prior notice to the Borrower as of 12:01 a.m. (New York City time) on
the Business Day on which each change in such "prime rate" is announced by
DBTCA. DBTCA may make commercial or other loans to others at rates of interest
at, above or below its "prime rate".

                  "BASE RATE LOAN" means any Loan which bears interest at a rate
determined with reference to the Base Rate.

                  "BENEFITED LENDER" has the meaning assigned to that term in
SECTION 12.6(a).


                                       5


                  "BOARD" means the Board of Governors of the Federal Reserve
System.

                  "BORROWER" has the meaning assigned to that term in the
introduction to this Agreement.

                  "BORROWER PLEDGE AGREEMENT" shall mean a Borrower Pledge
Agreement substantially in the form attached to the Original Credit Agreement,
as amended, amended and restated and modified, and as the same may be amended,
amended and restated, modified or supplemented from time to time.

                  "BORROWER SECURITY AGREEMENT" shall mean a Borrower Security
Agreement substantially in the form attached to the Original Credit Agreement,
as amended, amended and restated and modified, and as the same may be amended,
amended and restated, modified or supplemented from time to time.

                  "BORROWING" means a group of Loans of a single Type made by
the Lenders or the Swing Line Lender, as appropriate, on a single date and in
the case of Eurocurrency Loans, as to which a single Interest Period is in
effect and made in a single currency, PROVIDED that Base Rate Loans or
Eurocurrency Loans incurred pursuant to SECTION 3.6 shall be considered part of
any related Borrowing of Eurocurrency Loans.

                  "BUSINESS DAY" (i) as it relates to any payment,
determination, funding or notice to be made or given in connection with any
Dollar-denominated Loan, or otherwise to be made or given to or from the
Administrative Agent, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to close;
PROVIDED, HOWEVER, that when used in connection with a Eurocurrency 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; and (ii) as it
relates to any payment, determination, funding or notice to be made or given in
connection with the Multicurrency Revolving Loans, any day (x) on which dealings
in deposits in the Euro are carried out in the London interbank market, (y) on
which commercial banks and foreign exchange markets are open for business in
London and New York City and (z) the TARGET payment system is open for the
settlement of payment in Euro.

                  "CAPITALIZED LEASE" means, at the time any determination
thereof is to be made, any lease of property, real or personal, in respect of
which the present value of the minimum rental commitment is capitalized on the
balance sheet of the lessee in accordance with GAAP.

                  "CAPITALIZED LEASE OBLIGATION" means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
Capitalized Lease which would at such time be required to be capitalized on the
balance sheet of the lessee in accordance with GAAP.




                                       6



                  "CAPITAL STOCK" means, with respect to any Person, any and all
shares, interests, participations, rights in or other equivalents (however
designated) of such Person's capital stock (including each class of common and
preferred stock), partnership interests, membership interests or other
equivalent interests and any rights (other than debt securities convertible into
or exchangeable for capital stock), warrants or options exchangeable for or
convertible into such capital stock or other interests.

                  "CASH" means money, currency or the available credit balance
in a Deposit Account.

                  "CASH EQUIVALENTS" means (i) any evidence of indebtedness,
maturing not more than one year after the date of issue, issued by the United
States of America or any instrumentality or agency thereof, the principal,
interest and premium, if any, of which is guaranteed fully by, or backed by the
full faith and credit of, the United States of America, (ii) time deposits,
certificates of deposit and bankers acceptances maturing not more than one year
after the date of purchase, issued by (x) any Lender or (y) a commercial banking
institution having, or which is the principal banking subsidiary of a bank
holding company having, combined capital and surplus and undivided profits of
not less than $200,000,000 and a commercial paper rating of "P-1" (or higher)
according to Moody's, "A-1" (or higher) according to S&P or the equivalent
rating by any other nationally recognized rating agency (any such bank, an
"APPROVED BANK"), or (z) a non-United States commercial banking institution
which is either currently ranked among the 100 largest banks in the world (by
assets, according to the AMERICAN BANKER), has combined capital and surplus and
undivided profits of not less than $500,000,000 or whose commercial paper (or
the commercial paper of such bank's holding company) has a rating of "P-1" (or
higher) according to Moody's, "A-1" (or higher) according to S&P or the
equivalent rating by any other nationally recognized rating agency, (iii)
commercial paper, maturing not more than 270 days after the date of purchase,
issued or guaranteed by a corporation (other than Borrower or any Subsidiary of
Borrower or any of their respective Affiliates) organized and existing under the
laws of any state within the United States of America with a rating, at the time
as of which any determination thereof is to be made, of "P-1" (or higher)
according to Moody's, or "A-1" (or higher) according to S&P, (iv) demand
deposits with any bank or trust company maintained in the ordinary course of
business, (v) repurchase or reverse repurchase agreements covering obligations
of the type specified in clause (i) with any Approved Bank and (vi) shares of
any money market mutual fund rated at least AAA or the equivalent thereof by S&P
or at least AAA or the equivalent thereof by Moody's, including, without
limitation, any such mutual fund managed or advised by any Lender or the
Administrative Agent, or any other mutual fund holding assets consisting of the
type specified in clauses (i) through (v) above.

                  "CHANGE OF CONTROL" means at any time the occurrence of one or
more of the following events: (i) any "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act), is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable


                                       7


immediately or only after the passage of time), directly or indirectly, of 30%
or more of the then outstanding Voting Securities of the Borrower; or (ii) the
replacement of a majority of the Board of Directors of the Borrower over a
two-year period from the directors who constituted the Board of Directors at the
beginning of such period, and such replacement shall not have been approved by a
vote of at least a majority of the Board of Directors of the Borrower then still
in office who either were members of such Board of Directors at the beginning of
such period or whose election as a member of such Board of Directors was
previously so approved.

                  "CODE" means the Internal Revenue Code of 1986, as from time
to time amended, including the regulations proposed or promulgated thereunder,
or any successor statute and the regulations proposed or promulgated thereunder.

                  "COLLATERAL" means all "Collateral" as defined in each of the
Security Documents.

                  "COLLATERAL ACCOUNT" has the meaning assigned to that term in
SECTION 4.4(a).

                  "COLLATERAL AGENT" means the Administrative Agent in its
capacity as collateral agent for the Secured Creditors.

                  "COMMERCIAL LETTER OF CREDIT" means any letter of credit or
similar instrument payable on a sight basis issued pursuant to this Agreement
for the purpose of supporting trade obligations of the Borrower or any of its
Subsidiaries in the ordinary course of business.

                  "COMMITMENT" means, with respect to each Lender, the aggregate
of the Revolving Commitment and the New Term B Commitment of such Lender and
"Commitments" means such commitments of all of the Lenders collectively.

                  "COMMITMENT FEE" has the meaning assigned to that term in
SECTION 3.2(a).

                  "COMMITMENT INCREASE AMOUNT" has the meaning assigned to that
term in SECTION 2.8(a).

                  "COMMITMENT PERIOD" means, the period from and including the
date hereof to but not including the Revolver Termination Date or, in the case
of the Swing Line Commitment, five (5) Business Days prior to the Revolver
Termination Date.

                  "COMPUTATION DATE" has the meaning assigned to that term in
SECTION 3.8(b).

                  "CONSENT PROCEDURE" means the following procedure for
obtaining consent from the Required Lenders in connection with the sale of AFC:
(1) the Borrower shall deliver to the Administrative Agent the following: (A) a
letter from a Responsible Officer to the Administrative Agent requesting that
the Required Lenders consent to the proposed transaction, including a detailed
description of the proposed transaction, (B) copies of all documentation
relating to the


                                       8


proposed transaction, (C) a certificate of a Responsible Financial Officer of
the Borrower certifying that as of the date of such certificate and immediately
after giving effect to the proposed transaction no Event of Default or Unmatured
Event of Default shall occur, exist or be continuing and that all the
representations and warranties set forth in ARTICLE VI and the other Loan
Documents are true and correct in all material respects as of the date of the
certificate and will be true and correct in all material respects immediately
after giving effect to the proposed transaction and (D) to the extent the
calculation of any financial covenants in ARTICLE IX hereof would be affected, a
compliance certificate with respect to such covenant as of the date of the most
recent certificate delivered pursuant to SECTION 7.2 giving pro forma effect to
such proposed transaction; and (2) the Administrative Agent shall forward the
request to the Lenders, using best efforts to forward the documents within three
(3) days of receipt, with the request that each Lender notify the Administrative
Agent within 15 days of such Lender's receipt of the Borrower's request whether
such Lender approves the proposed transaction and each Lender will use best
efforts to respond to the Administrative Agent within such 15-day time period;
and (3) the Administrative Agent shall promptly notify the Borrower whether
Required Lenders' Consent has been received, and any failure of a Lender
affirmatively to approve such request, or of the Administrative Agent so to
notify the Borrower, shall not constitute or be deemed to constitute approval of
such request.

                  "CONSOLIDATED ADJUSTED EBITDA" means, for any applicable
period, the Consolidated Net Income or Consolidated Net Loss of the Borrower and
its Subsidiaries (or of any business or Person to be acquired in any Permitted
Acquisition for purposes of determining Consolidated Adjusted EBITDA on a pro
forma basis pursuant to SECTION 8.7(k)) for such period, PLUS, to the extent
deducted in determining the foregoing, (i) Consolidated Interest Expense for
such period, (ii) the provision for taxes based on income and foreign
withholding taxes for such period, (iii) depreciation expense for such period,
(iv) amortization expense for such period, (v) any non-cash non-operating loss
or expense associated with any unfunded post-retirement health or insurance
benefit plans of the Borrower, but only to the extent Section 420 of the
Internal Revenue Code (or its successor provision) was utilized by the Borrower
in the preceding Fiscal Year, MINUS, to the extent included in Consolidated Net
Income or Consolidated Net Loss for such period, any non-cash non-operating
income or gains related to defined pension plans of the Borrower and, MINUS (or
PLUS), any other non-cash non-operating income (or loss) for such period to the
extent included in Consolidated Net Income or Consolidated Net Loss. For
purposes of computing Consolidated Net Income or Consolidated Net Loss in
determining Consolidated Adjusted EBITDA of the Borrower and its Subsidiaries,
there shall be excluded from the computation thereof, without duplication and to
the extent not otherwise excluded from the computation thereof, (i)
non-recurring fees and expenses incurred in connection with the consummation of
the Transaction, and (ii) non-recurring fees and expenses incurred in connection
with the consummation of any Permitted Acquisition in an aggregate amount not to
exceed five percent (5.0%) of the total consideration for such Permitted
Acquisition. In addition, for any four-quarter period ending on or prior to the
date that is the one-year anniversary date of the Amendment/Restatement
Effective Date but after August 31, 2002, Consolidated Adjusted


                                       9


EBITDA shall be calculated on a pro forma basis assuming the consummation of the
OTS Business Acquisition as of the first day of such four-quarter period. Solely
for purposes of computing the Leverage Ratio and the Most Recent Leverage Ratio
for any applicable period, Consolidated Adjusted EBITDA shall be calculated on a
pro forma basis with respect to (A) any Permitted Acquisition effected during
such period assuming the consummation of such Permitted Acquisition as of the
first day of such period, and taking into account the same pro forma adjustments
used for determining Consolidated Adjusted EBITDA on a pro forma basis pursuant
to SECTION 8.7(k) with respect to such Permitted Acquisition and (B) any Asset
Disposition permitted by the terms of this Agreement effected during such period
assuming the consummation of such permitted Asset Disposition as of the first
day of such period.

                  "CONSOLIDATED CAPITAL EXPENDITURES" means, without
duplication, with respect to the Borrower and its Subsidiaries, any amounts
expended, incurred or obligated to be expended during or in respect of a period
for any purchase or other acquisition for value of any asset that should be
classified on a consolidated balance sheet of such Person prepared in accordance
with GAAP as a fixed or capital asset (including capitalized costs in respect of
Intellectual Property) including, without limitation, the direct or indirect
acquisition of such assets or improvements by way of increased product or
service charges, offset items or otherwise, and shall include Capitalized Lease
Obligations.

                  "CONSOLIDATED CASH INTEREST EXPENSE" means, for any period,
(i) Consolidated Interest Expense, but excluding, however, interest expense not
payable in cash, amortization of discount and deferred financing costs, plus or
minus, as the case may be (ii) net amounts paid or received under Interest Rate
Agreements (with cap payments amortized over the life of the cap) and MINUS
interest income received in Cash or Cash Equivalents in respect of Investments
permitted hereunder; PROVIDED that (a) for the Test Period ending on November
30, 2002, Consolidated Cash Interest Expense shall be the actual Consolidated
Cash Interest Expense for the Fiscal Quarter ending on November 30, 2002 (taken
as one accounting period), multiplied by 4, (b) for the Test Period ending on
February 28, 2003, Consolidated Cash Interest Expense shall be the actual
Consolidated Cash Interest Expense for the two Fiscal Quarter periods ending on
February 28, 2003 (taken as one accounting period), multiplied by 2, and (c) for
the Test Period ending on May 31, 2003, Consolidated Cash Interest Expense shall
be the actual Consolidated Cash Interest Expense for the three Fiscal Quarter
periods ending on May 31, 2003, multiplied by a fraction, the numerator of which
is 4 and the denominator of which is 3.

                  "CONSOLIDATED CURRENT ASSETS" means, at any time, the
consolidated current assets (excluding any current deferred tax assets) of the
Borrower and its Subsidiaries at such time.

                  "CONSOLIDATED CURRENT LIABILITIES" means, at any time, the
consolidated current liabilities of the Borrower and its Subsidiaries at such
time.

                  "CONSOLIDATED DEBT" means, at any time, all Indebtedness for
borrowed money of the Borrower and its Subsidiaries determined on a consolidated
basis in accordance with GAAP


                                       10


and other Indebtedness under Operating Financing Leases, less Cash, Cash
Equivalents and Foreign Cash Equivalents freely available and not subject to any
Lien (other than a Lien in favor of the Administrative Agent and/or the
Collateral Agent) or transfer restriction.

                  "CONSOLIDATED FIXED CHARGES" means, for any applicable period,
the sum of, without duplication, (i) Consolidated Cash Interest Expense, (ii)
the aggregate amount of Scheduled Repayments (after giving effect to any
mandatory repayments under SECTION 4.4(b)-(j)), (iii) Consolidated Capital
Expenditures during such period (other than (x) Consolidated Capital
Expenditures constituting Capitalized Lease Obligations and (y) Consolidated
Capital Expenditures made pursuant to SECTION 9.1(b)(i) through (iv)), (iv) all
dividends and other distributions (other than distributions in the form of
Capital Stock of the Borrower) paid during such period (regardless of when
declared) on any shares of Capital Stock of the Borrower then outstanding, and
(v) income or other taxes currently payable for taxable income related to such
period (but excluding the effect on such taxes payable as a result of any gain
or loss otherwise excluded from Consolidated Adjusted EBITDA), all as determined
on a consolidated basis for the Borrower and its Subsidiaries in accordance with
GAAP.

                  "CONSOLIDATED INTEREST EXPENSE" means, for any period, the sum
of total interest expense (including that attributable to Capitalized Leases in
accordance with GAAP) of the Borrower and its Subsidiaries on a consolidated
basis with respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries, including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, all as determined on a consolidated basis for the Borrower
and its Subsidiaries in accordance with GAAP.

                  "CONSOLIDATED NET INCOME" and "CONSOLIDATED NET LOSS" mean,
respectively, with respect to any period, the aggregate of the net income (loss)
of the Person in question for such period, determined in accordance with GAAP on
a consolidated basis, provided that (i) the net income (loss) of any Person
which is not a consolidated Subsidiary shall be included only to the extent of
the amount of cash dividends or distributions paid to the Person in question or
to a consolidated Subsidiary of such Person and (ii) except for determinations
of net income (loss) to be made on a pro forma basis in connection with a
Permitted Acquisition pursuant to SECTION 8.7(k), the net income (loss) of any
Person accrued prior to the date it becomes a Subsidiary of any Borrower or is
merged into or consolidated with any Borrower or any of its Subsidiaries or that
Person's assets are acquired by any Borrower or any of its Subsidiaries shall be
excluded. There shall be excluded in computing Consolidated Net Income the
excess (but not the deficit), if any, of (i) any gain which must be treated as
an extraordinary item under GAAP or any gain realized upon the sale or other
disposition of any real property or equipment that is not sold in the ordinary
course of business or of any Capital Stock of the Person or a Subsidiary of the
Person over (ii) any loss which must be treated as an extraordinary item under
GAAP or any loss realized upon the sale or other disposition of any real
property or equipment that is not sold in the ordinary course of business or of
any Capital Stock of the Person or a Subsidiary of the Person.




                                       11



                  "CONSOLIDATED NET WORTH" of a Person means total
equityholders' equity (including, without limitation, preferred stock and other
preferred equity interests) of such Person and its Subsidiaries minus (without
duplication of deductions in respect of items already deducted in arriving at
surplus and retained earnings) all reserves (other than contingency reserves not
allocated to any particular purpose), including without limitation reserves for
depreciation, depletion, amortization, obsolescence, environmental liabilities,
deferred income taxes, insurance and inventory valuation all as determined on a
consolidated basis in accordance with GAAP.

                  "CONSOLIDATED TOTAL ASSETS" means, with respect to any Person,
the book value, determined on a consolidated basis in accordance with GAAP, of
all assets of such Persons and its Subsidiaries.

                  "CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any Securities issued by such Person or of any indenture or credit
agreement or any agreement, instrument or other undertaking to which such Person
is a party or by which it or any of its property is bound or to which such
property may be subject.

                  "CREDIT EVENT" means the making of any Loan or the issuance of
any Letter of Credit.

                  "CREDIT EXPOSURE" has the meaning assigned to that term in
SECTION 12.8(b).

                  "CREDIT PARTY" means each of (i) the Borrower, (ii) each
Subsidiary Guarantor and any guarantor which may hereafter enter into a
guarantee agreement with respect to the Obligations and (iii) each Subsidiary
which is a party to a Subsidiary Pledge Agreement and any pledgor which may
hereafter enter into a pledge agreement with respect to the Obligations.

                  "CUSTOMARY PERMITTED LIENS" means:

                        (i) Liens for taxes not yet due and payable or which are
being contested in good faith by appropriate proceedings diligently pursued,
PROVIDED that (x) any proceedings commenced for the enforcement of such Liens
shall have been stayed or suspended within 30 days of the commencement thereof
and (y) provision for the payment of all such taxes known to such Person has
been made on the books of such Person to the extent required by GAAP;

                        (ii) mechanic's, processor's, materialman's, carrier's,
warehousemen's, landlord's and similar Liens (including statutory and common law
landlord's liens under leases to which any Credit Party or any Subsidiary is a
party) arising by operation of law and arising in the ordinary course of
business and securing obligations of such Person that are not overdue for a
period of more than 90 days or are being contested in good faith by appropriate
proceedings diligently pursued, PROVIDED that (x) any proceedings commenced for
the enforcement of such


                                       12


Liens shall have been stayed or suspended within 30 days of the commencement
thereof and (y) provision for the payment of such Liens has been made on the
books of such Person to the extent required by GAAP;

                        (iii) Liens arising in connection with worker's
compensation, unemployment insurance, old age pensions and social security
benefits which are not overdue or are being contested in good faith by
appropriate proceedings diligently pursued, PROVIDED that (x) any proceedings
commenced for the enforcement of such Liens shall have been stayed or suspended
within 30 days of the commencement thereof and (y) provision for the payment of
such Liens has been made on the books of such Person to the extent required by
GAAP;

                        (iv) Liens (x) incurred or deposits made in the ordinary
course of business to secure the performance of bids, tenders, statutory
obligations, fee and expense arrangements with trustees and fiscal agents
(exclusive of obligations incurred in connection with the borrowing of money or
the payment of the deferred purchase price of property) and customary deposits
granted in the ordinary course of business under Operating Leases and (y)
securing surety, indemnity, performance, appeal and release bonds, PROVIDED that
(x) full provision for the payment of all such obligations has been made on the
books of such Person to the extent required by GAAP and (y) the aggregate amount
of all such obligations does not exceed $1,000,000 at any time outstanding;

                        (v) Permitted Real Property Encumbrances;

                        (vi) attachment, judgment or other similar Liens arising
in connection with court or arbitration proceedings involving individually and
in the aggregate liability of $1,000,000 or less at any one time, provided the
same are discharged, or that execution or enforcement thereof is stayed pending
appeal, within 30 days or, in the case of any stay of execution or enforcement
pending appeal, within such lesser time during which such appeal may be taken;

                        (vii) leases or subleases granted to others not
interfering in any material respect with the business of the Borrower or any of
its Subsidiaries and any interest or title of a lessor under any lease permitted
by this Agreement or the Security Documents;

                        (viii) customary rights of set off, revocation, refund
or chargeback under deposit agreements or under the UCC of banks or other
financial institutions where the Borrower or any of its Subsidiaries maintains
deposits in the ordinary course of business permitted by this Agreement; and

                        (ix) Environmental Liens, to the extent that (x) any
proceedings commenced for the enforcement of such Liens shall have been
suspended or are being contested in good faith, (y) provision for all liability
and damages that are the subject of said


                                       13


Environmental Liens has been made on the books of such Person to the extent
required by GAAP and (z) such Liens do not relate to obligations exceeding
$5,000,000 in the aggregate at any one time.

                  "DBTCA" means Deutsche Bank Trust Company Americas (formerly
Bankers Trust Company), a New York banking corporation, and its successors.

                  "DEFAULT RATE" means a variable rate per annum which shall be
two percent (2%) per annum PLUS either (i) the then applicable interest rate
hereunder in respect of the amount on which the Default Rate is being assessed
or (ii) if there is no such applicable interest rate, the Base Rate plus the
Applicable Base Rate Margin, but in no event in excess of that permitted by
applicable law.

                  "DEFAULTING LENDER" means any Lender with respect to which a
Lender Default is in effect.

                  "DEPOSIT ACCOUNT" means a demand, time, savings, passbook or
like account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.

                  "DOCUMENTS" means the Loan Documents and the Transaction
Documents.

                  "DOLLAR" and "$" means the lawful currency of the United
States of America.

                  "DOLLAR EQUIVALENT" means, at any time, (i) as to any amount
denominated in Dollars, the amount thereof at such time, and (ii) as to any
amount denominated in Euro, the equivalent amount in Dollars as determined by
the Administrative Agent at such time on the basis of the Spot Rate.

                  "DOMESTIC LC OBLIGATIONS" means, at any time, an amount equal
to the sum of (i) the sum of the aggregate Stated Amount of the then outstanding
Letters of Credit denominated in Dollars, and (ii) the sum of the aggregate
amount of drawings under Domestic Letters of Credit which have not then been
reimbursed pursuant to SECTION 2.10(c). The Domestic LC Obligations of any
Revolving Lender at any time shall mean its Revolver Pro Rata Share of the
Domestic LC Obligations outstanding at such time.

                  "DOMESTIC LETTER OF CREDIT" means any Letter of Credit the
Stated Amount of which is denominated in Dollars.

                  "DOMESTIC SUBSIDIARY" means any Subsidiary of the Borrower
that is incorporated under the laws of any State of the U.S., the District of
Columbia or any territory or possession of the U.S.


                                       14


                  "ELIGIBLE ASSIGNEE" means (i) a commercial bank, investment
company, financial institution, financial company, fund (whether a corporation,
partnership, trust or other entity), insurance company or other "accredited
investor" (as defined in Regulation D of the Securities Act), (ii) any Lender
party to this Agreement, and (iii) any other Person approved by the
Administrative Agent and, in the absence of an Unmatured Event of Default or
Event of Default, the Borrower, such approval of the Borrower not to be
unreasonably withheld.

                  "EMPLOYEE BENEFIT PLAN" means an "employee benefit plan" as
defined in Section 3(3) of ERISA, which is or has been established or
maintained, or to which contributions are or have been made, by the Borrower or
any of its ERISA Affiliates, any Subsidiary of the Borrower or ERISA Affiliates
of such Subsidiary.

                  "ENVIRONMENTAL CLAIM" means any written notice of violation,
allegation, action, proceeding, claim, suit, demand, consent decree, injunction,
lien, legally binding order, penalty or fine by any Governmental Authority or
any Person for any damage, personal injury (including sickness, disease or
death), tangible or intangible property damage, contribution, cost recovery, or
any other common law claims, indemnity, indirect or consequential damages,
damage to the environment, nuisance, pollution, contamination or other adverse
effects on the environment, human health or safety, or natural resources,
resulting from or based upon (i) the Release or threatened Release of, or
exposure to, any Hazardous Materials in, into or onto the environment at, in,
by, from or related to any real estate owned, leased or operated at any time by
the Borrower or any of its Subsidiaries (the "PREMISES"), or to any real
property to which Hazardous Materials related to the Premises come to be
located, (ii) the use, handling, generation, transportation, storage,
production, recycling treatment or disposal of Hazardous Materials in connection
with the operation of any Premises, or (iii) the violation, or alleged
violation, of any Environmental Laws.

                  "ENVIRONMENTAL LAWS" means any and all applicable foreign,
federal, state or local laws, statutes, ordinances, codes, rules, regulations,
orders, decrees, judgments, directives, or Environmental Permits, and cleanup or
action standards, levels or objectives imposing liability or standards of
conduct for or relating to the protection of health, safety or the environment,
including, but not limited to, the following statutes as now written and
hereafter amended: the Water Pollution Control Act, as codified in 33 U.S.C.
Sec. 1251 ET SEQ., the Clean Air Act, as codified in 42 U.S.C. Sec. 7401 ET
SEQ., the Toxic Substances Control Act, as codified in 15 U.S.C. Sec. 2601 ET
SEQ., the Solid Waste Disposal Act, as codified in 42 U.S.C. Sec. 6901 ET SEQ.,
the Comprehensive Environmental Response, Compensation and Liability Act, as
codified in 42 U.S.C. Sec. 9601 ET SEQ., the Emergency Planning and Community
Right-to-Know Act of 1986, as codified in 42 U.S.C. Sec. 11001 ET SEQ., and the
Safe Drinking Water Act, as codified in 42 U.S.C. Sec. 300f ET SEQ., and any
related regulations, as well as all state and local equivalents.

                  "ENVIRONMENTAL LIEN" means a Lien in favor of any Governmental
Authority for (i) any liability under Environmental Laws, or any limitations or
restrictions placed upon any real


                                       15


property owned, leased or operated by the Borrower or any of its Subsidiaries by
any Government Authority or court, or (ii) damages relating to, or costs
incurred by such Governmental Authority in response to, a Release or threatened
Release of Hazardous Materials into the environment.

                  "ENVIRONMENTAL PERMITS" means any and all permits, licenses,
certificates, authorizations or approvals of any Governmental Authority required
by Environmental Laws or necessary or reasonably required for the business of
the Borrower or any Subsidiary of the Borrower.

                  "ERISA" means the Employee Retirement Income Security Act of
1974, as from time to time amended.

                  "ERISA AFFILIATE" means, with respect to any Person, any trade
or business (whether or not incorporated) which, together with such Person, is
under common control as described in Section 414(c) of the Code, is a member of
a "controlled group", as defined in Section 414(b) of the Code, or is a member
of an "affiliated service group", as defined in Section 414(m) of the Code which
includes such Person. Unless otherwise qualified, all references to an "ERISA
Affiliate" in this Agreement shall refer to an ERISA Affiliate of the Borrower
or any Subsidiary.

                  "EURO" means the single currency of participating member
states of the European Monetary Union.

                  "EUROCURRENCY LOAN" means any Loan bearing interest at a rate
determined by reference to the Eurocurrency Rate.

                  "EUROCURRENCY RATE" means (i) in the case of
Dollar-denominated Loans, the arithmetic average (rounded upwards, if necessary,
to the nearest 1/16 of 1%) of the offered quotation, if any, to first class
banks in the New York interbank market by the Administrative Agent for non-U.S.
deposits in Dollars of amounts in immediately available funds comparable to the
principal amount of the applicable Eurocurrency Loan of the Administrative Agent
for which the Eurocurrency Rate is being determined with maturities comparable
to the Interest Period for which such Eurocurrency Rate will apply as of
approximately 10:00 a.m. (New York City time) on the applicable Interest Rate
Determination Date and (ii) in the case of Euro denominated Loans, the
arithmetic average (rounded upwards, if necessary, to the nearest 1/16 of 1%) of
the offered quotation, if any, to first class banks in the London interbank
market by the Administrative Agent for non-U.S. deposits in Euro of amounts in
immediately available funds comparable to the principal amount of the applicable
Eurocurrency Loan of the Administrative Agent for which the Eurocurrency Rate is
being determined with maturities comparable to the




                                       16



Interest Period for which such Eurocurrency Rate will apply as of approximately
11:00 a.m. London time) on the applicable Interest Rate Determination Date.

                  "EUROCURRENCY RESERVE RATE" means, with respect to each day
during each Interest Period pertaining to a Eurocurrency Loan, a rate per annum
determined for such day in accordance with the following formula (rounded
upwards, if necessary, to the nearest 1/100th of 1%):

                                  EUROCURRENCY RATE
                  -------------------------------------------------------
                      1.00 - Eurocurrency Reserve Requirements

                  "EUROCURRENCY RESERVE REQUIREMENTS" means, for any day as
applied to a Eurocurrency Loan, the aggregate (without duplication) of the
maximum rates (expressed as a decimal fraction) of reserve requirements in
effect on such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto) dealing with reserve
requirements prescribed for Eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the Board).

                  "EVENT OF DEFAULT" has the meaning assigned to that term in
SECTION 10.1.

                  "EXCESS CASH FLOW" means for any period, the sum of (i) the
sum (without duplication) of (A) Consolidated Net Income for such period, PLUS
(B) the amount of all non-cash charges (including, without limitation or
duplication, depreciation, amortization and non-cash (including without
limitation any original issue discount or pay-in-kind interest expense) interest
expense) included in determining Consolidated Net Income for such period, PLUS
(C) the decrease, if any, in Adjusted Working Capital from the first day to the
last day of such period, PLUS (D) provisions for taxes appearing on an income
statement of the Borrower and its Subsidiaries for such period, PLUS (E) losses
from sales of assets, MINUS (ii) the sum (without duplication) of (A) any
non-cash credits (including from sales of assets) included in determining
Consolidated Net Income for such period, PLUS (B) gains from sales of assets
included in determining Consolidated Net Income for such period, PLUS (C) the
aggregate amount of Capital Expenditures (excluding Capital Expenditures made
pursuant to SECTION 9.1(b)(iii)) made by the Borrower and its Subsidiaries
during such period to the extent not financed by any Indebtedness (other than
the Revolving Loans) specified in clause (i), (iii) or (vi) of the definition of
"INDEBTEDNESS", PLUS (D) the aggregate principal amount of permanent principal
payments of Indebtedness for borrowed money of the Borrower and its Subsidiaries
(other than (1) repayment of Indebtedness with proceeds of issuance of other
Indebtedness or equity or equity contributions or with Net Sale Proceeds or
proceeds of Recovery Events and (2) repayment of Loans, PROVIDED that repayments
of Loans shall be deducted in determining Excess Cash Flow if such repayments
were (x) required as a result of a Scheduled Repayments under SECTION 4.4(b) OR
(C) or (y) made as a voluntary prepayment with internally generated funds (but
in the case of a voluntary prepayment of Revolving Loans or Swing Line Loans,
only to the extent accompanied by a


                                       17


voluntary permanent reduction to the Total Revolving Commitment)) during such
period, PLUS (E) non-cash charges added back in a previous period pursuant to
clause (i)(B) above to the extent any such charge has become a cash item in the
current period, PLUS (F) the increase, if any, in Adjusted Working Capital from
the first day to the last day of such period, PLUS (G) taxes paid by the
Borrower and its Subsidiaries during such period, PLUS (H) the principal portion
of Capitalized Lease Obligations paid by the Borrower and its Subsidiaries
during such period.

                  "EXCESS CASH FLOW PERIOD" means, with respect to the repayment
required on each Excess Cash Payment Date, the immediately proceeding Fiscal
Year of the Borrower.

                  "EXCESS CASH PAYMENT DATE" means the date occurring 95 days
after the last day of a Fiscal Year of the Borrower (beginning with its Fiscal
Year ending on November 30, 2001).

                  "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended and as codified in 15 U.S.C.ss.78a ET SEQ. and as hereafter amended.

                  "EXCHANGE RATE DETERMINATION DATE" means (i) for purposes of
the determination of the Spot Rate of any stated amount on any Business Day in
relation to any Borrowing of Revolving Loans in Euro, the date which is three
(3) Business Days prior to such Borrowing, (ii) for purposes of the
determination of the Spot Rate of any Stated Amount in relation to any issuance
of any Letter of Credit, on the date of such issuance and (iii) for the purpose
of determining the Spot Rate to make determinations pursuant to SECTION 4.4(a),
the first Business Day of each calendar month.

                  "FACILITY" means any of the credit facilities established
under this Agreement, I.E., the Term A Facility, the New Term B Facility or the
Revolving Facility.

                  "FACING AGENT" means each of DBTCA and its affiliates
(including but not limited to Deutsche Bank AG) and any other Lender agreed to
by such Lender, the Borrower and the Administrative Agent. Notwithstanding the
aforementioned, DBTCA and its affiliates will not issue Commercial Letters of
Credit until further notice by DBTCA.

                  "FEDERAL FUNDS RATE" means on any one day, the rate per annum
equal to the weighted average (rounded upwards, if necessary, to the nearest
1/100th of 1%) of the rate on overnight federal funds transactions with members
of the Federal Reserve System only arranged by federal funds brokers, as
published as of such day by the Federal Reserve Bank of New York, or, if such
rate is not so published, the average of the quotations for such day on such
transactions received by DBTCA from three federal funds brokers of recognized
standing selected by DBTCA.




                                       18



                  "FISCAL QUARTER" has the meaning assigned to that term in
SECTION 7.13.

                  "FISCAL YEAR" has the meaning assigned to that term in SECTION
7.13.

                  "FIXED CHARGE COVERAGE RATIO" means, for any period, the ratio
of (i) Consolidated Adjusted EBITDA for such period to (ii) Consolidated Fixed
Charges, in each case made by the Borrower and its Subsidiaries during such
period.

                  "FOREIGN CASH EQUIVALENTS" means (i) debt securities with a
maturity of 365 days or less issued by any member nation of the European Union,
Switzerland or any other country whose debt securities are rated by S&P and
Moody's A-1 or P-1, or the equivalent thereof (if a short-term debt rating is
provided by either) or at least AA or Aa2, or the equivalent thereof (if a
long-term unsecured debt rating is provided by either) (each such jurisdiction,
an "APPROVED JURISDICTION"), or any agency or instrumentality of an Approved
Jurisdiction, provided that the full faith and credit of the Approved
Jurisdiction is pledged in support of such debt securities or such debt
securities constitute a general obligation of the Approved Jurisdiction and (ii)
debt securities in an aggregate principal amount not to exceed the Dollar
Equivalent of $20,000,000 with a maturity of 365 days or less issued by any
nation in which the Borrower or its Subsidiaries has cash which is the subject
of restrictions on export or any agency or instrumentality of such nation,
provided that the full faith and credit of such nation is pledged in support of
such debt securities or such debt securities constitute a general obligation of
such nation.

                  "FOREIGN PENSION PLAN" means any plan, fund (including,
without limitation, any super-annuation fund) or other similar program
established or maintained outside of the United States of America by the
Borrower or one or more of its Subsidiaries or its Affiliates primarily for the
benefit of employees of the Borrower or such Subsidiaries or its Affiliates
residing outside the United States of America, which plan, fund, or similar
program provides or results in, retirement income, a deferral of income in
contemplation of retirement or payments to be made upon termination of
employment, and which is not subject to ERISA or the Code.

                  "FOREIGN SUBSIDIARY" means any Subsidiary of the Borrower that
is not a Domestic Subsidiary.

                  "GAAP" means generally accepted accounting principles in the
U.S. as in effect from time to time.

                  "GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
government.

                  "GUARANTEE OBLIGATIONS" means, as to any Person, without
duplication, any direct or indirect obligation of such Person guaranteeing or
intended to guarantee any Indebtedness,


                                       19


Capitalized Lease or Operating Financing Lease, dividend or other obligation
("primary obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent: (i) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor; (ii) to advance or supply funds (x) for the purchase or payment of any
such primary obligation, or (y) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor; (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation; or
(iv) otherwise to assure or hold harmless the owner of such primary obligation
against loss in respect thereof; PROVIDED, HOWEVER, that the term Guarantee
Obligations shall not include any endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guarantee
Obligation at any time shall be deemed to be an amount equal to the lesser at
such time of (x) the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made or (y) the maximum amount for
which such Person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation; or, if not stated or determinable, the
maximum reasonably anticipated liability (assuming full performance) in respect
thereof.

                  "GUARANTEED CREDITORS" means and includes (i) the
Administrative Agent and the Lenders and (ii) each Person (other than any Credit
Party) which is a party to an Interest Rate Agreement or Other Hedging
Agreement, in each case to the extent such Person constitutes a Secured Creditor
under the Security Documents.

                  "GUARANTEED OBLIGATIONS" means (i) the full and prompt payment
when due (whether at the stated maturity, by acceleration or otherwise) of the
principal and interest (whether such interest is allowed as a claim in a
bankruptcy proceeding with respect to the Borrower or otherwise) on each Note
issued by the Borrower to each Lender, and Loans made under this Agreement and
all reimbursement obligations and Unpaid Drawings with respect to Letters of
Credit, together with all other obligations (including obligations which, but
for the automatic stay under Section 362(a) of the Bankruptcy Code, would become
due) and liabilities (including, without limitation, indemnities, fees and
interest thereon) of the Borrower to such Lender now existing or hereafter
incurred under, arising out of or in connection with this Agreement or any other
Loan Documents and the due performance and compliance with all terms, conditions
and agreements contained in the Loan Documents by the Borrower and (ii) the full
and prompt payment when due (whether by acceleration or otherwise) of all
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) of the Borrower owing
under any Interest Rate Agreement or Other Hedging Agreement entered into by the
Borrower with any Lender or any Affiliate thereof (even if such Lender
subsequently ceases to be a Lender under this Agreement for any reason) so long
as such Lender or Affiliate participates in such Interest Rate Agreement or
Other Hedging Agreement, as the case may be, and their subsequent assigns, if
any, whether or not in existence


                                       20


or hereafter arising, and the due performance and compliance with all terms,
conditions and agreements contained therein.

                  "HAZARDOUS MATERIALS" means (i) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is friable, urea
formaldehyde foam insulation, polychlorinated biphenyls and radon gas; (ii) any
chemicals, materials or substances defined as or included in the definition of
"hazardous substances," "hazardous wastes," "hazardous materials," "restricted
hazardous materials," "extremely hazardous wastes," "restrictive hazardous
wastes," "toxic substances," "toxic pollutants," "contaminants" or "pollutants,"
or words of similar meaning and regulatory effect pursuant to any Environmental
Law; or (iii) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated pursuant to any Environmental Law.

                  "INCREMENTAL TERM C FACILITY" has the meaning assigned to that
term in SECTION 2.8.

                  "INDEBTEDNESS" means, as applied to any Person (without
duplication):

                        (i) all obligations (including principal, interest, fees
and charges) of such Person for borrowed money;

                        (ii) the deferred and unpaid balance of the purchase
price of assets or services (other than trade payables and other accrued
liabilities incurred in the ordinary course of business that are not overdue by
more than 90 days unless being contested in good faith);

                        (iii) all Capitalized Lease Obligations;

                        (iv) all indebtedness secured by any Lien (other than
Customary Permitted Liens) on any property owned by such Person, whether or not
such indebtedness has been assumed by such Person or is nonrecourse to such
Person;

                        (v) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money;

                        (vi) indebtedness or obligations of such Person, in each
case, evidenced by bonds, notes or similar written instruments;

                        (vii) the face amount of all letters of credit and
bankers' acceptances issued for the account of such Person, and without
duplication, all unpaid drawings in respect thereof and drafts drawn thereunder;




                                       21



                        (viii) all obligations of such Person under Interest
Rate Agreements or Other Hedging Agreements;

                        (ix) Guarantee Obligations of such Person; and

                        (x) the Attributable Debt of any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-balance sheet
financing product to which such Person is a party, where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP.

                  "INDEBTEDNESS TO REMAIN OUTSTANDING" shall have the meaning
assigned to that term in SECTION 6.5(d).

                  "INDEMNIFIED PARTY" has the meaning assigned to that term in
SECTION 12.4(a).

                  "INITIAL BORROWING DATE" means December 28, 2000.

                  "INTELLECTUAL PROPERTY" has the meaning assigned to that term
in SECTION 6.19.

                  "INTERCOMPANY LOANS" has the meaning assigned to that term in
SECTION 8.7(g).

                  "INTERCOMPANY NOTE" means a demand promissory note (or a
promissory note payable on a date reasonably satisfactory to the Administrative
Agent) issued by a Subsidiary directly to the Borrower substantially in the form
of EXHIBIT 1.1(A) or such other form or payee that is satisfactory to the
Administrative Agent.

                  "INTEREST COVERAGE RATIO" means, for any period, the ratio of
Consolidated Adjusted EBITDA to Consolidated Cash Interest Expense for such
period.

                  "INTEREST PAYMENT DATE" means (i) as to any Base Rate Loan,
each Quarterly Payment Date to occur while such Loan is outstanding, (ii) as to
any Eurocurrency Loan, the last day of the Interest Period applicable thereto
and (iii) as to any Eurocurrency Loan having an Interest Period longer than
three months, each three (3) month anniversary of the first day of the Interest
Period applicable thereto and the last day of the Interest Period applicable
thereto; PROVIDED, HOWEVER, that, in addition to the foregoing, each of (A) the
date upon which both the Revolving Commitments have been terminated and the
Revolving Loans have been paid in full and (B) the Term A Loan Maturity Date and
the New Term B Loan Maturity Date shall be deemed to be an "Interest Payment
Date" with respect to any interest which is then accrued hereunder for such
Loan.




                                       22



                  "INTEREST PERIOD" has the meaning assigned to that term in
SECTION 3.4.

                  "INTEREST RATE AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate futures contract, interest rate option contract or other similar agreement
or arrangement to which the Borrower is a party.

                  "INTEREST RATE DETERMINATION DATE" means the date for
calculating the Eurocurrency Rate for an Interest Period, which date shall be
(i) in the case of any Eurocurrency Loan in Dollars, the second Business Day
prior to the first day of the related Interest Period for such Loan or (ii) in
the case of any Eurocurrency Loan in Euro, the date on which quotations would
ordinarily be given by prime banks in the London interbank market for deposits
in Euro for value on the first day of the related Interest Period for such
Eurocurrency Loan.

                  "INTERIM MATURITY DATE" means the last day of any Interest
Period.

                  "INVENTORY" means, inclusively, all inventory as defined in
the Uniform Commercial Code in effect in the State of New York from time to time
and all goods, merchandise and other personal property wherever located, now
owned or hereafter acquired by the Borrower or any of its Subsidiaries of every
kind or description which are held for sale or lease or are furnished or to be
furnished under a contract of service or are raw materials, work-in-process or
materials used or consumed or to be used or consumed in the Borrower's or any of
its Subsidiaries' business.

                  "INVESTMENT" means, as applied to any Person, (i) any direct
or indirect purchase or other acquisition by that Person of, or a beneficial
interest in, Securities of any other Person, or a capital contribution by that
Person to any other Person, (ii) any direct or indirect loan or advance to any
other Person (other than (x) prepaid expenses or accounts receivable created or
acquired in the ordinary course of business or (y) any transaction evidenced by
an Intercompany Note), including all Indebtedness to such Person arising from a
sale of property by such person other than in the ordinary course of its
business or (iii) any purchase by that Person of all or a significant part of
the assets of a business conducted by another Person. The amount of any
Investment by any Person on any date of determination shall be the sum of the
acquisition price of the gross assets acquired by such Person (including the
amount of any liability assumed in connection with the acquisition by such
Person to the extent such liability would be reflected on a balance sheet
prepared in accordance with GAAP) PLUS all additional capital contributions or
purchase price paid in respect thereof, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to such
Investment MINUS the amount of all cash returns of principal or capital thereon,
cash dividends thereon and other cash returns on investment thereon or
liabilities expressly assumed by another Person (other than the Borrower or
another Subsidiary of the Borrower) in connection with the sale of such
Investment.




                                       23



Whenever the term "outstanding" is used in this Agreement with reference to an
Investment, it shall take into account the matters referred to in the preceding
sentence.

                  "IRS" means the United States Internal Revenue Service, or any
successor or analogous organization.

                  "JOINT VENTURE" means any corporation, partnership, limited
liability company, joint venture or other similar legal arrangement (whether
created by contract or conducted through a separate legal entity) now or
hereafter formed by the Borrower or any of its Subsidiaries with another Person
in order to conduct a common venture or enterprise with such Person.

                  "LC COMMISSION" has the meaning assigned to that term in
SECTION 2.10(e)(ii).

                  "LC OBLIGATIONS" means, collectively, the Domestic LC
Obligations and the Multicurrency LC Obligations. The LC Obligation of any
Lender at any time shall mean its Revolver Pro Rata Share of the Dollar
Equivalent of the aggregate LC Obligations outstanding at such time.

                  "LENDER" and "LENDERS" have the respective meanings assigned
to those terms in the introduction to this Agreement and shall include any
Person that becomes a "Lender" as contemplated by SECTION 12.8.

                  "LENDER DEFAULT" means (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing when the
conditions precedent thereto, in the determination of the Administrative Agent,
have been met or to fund its portion of any unreimbursed payment under SECTION
2.10(d) or (ii) a Lender having notified in writing the Borrower and/or the
Administrative Agent that it does not intend to comply with its obligations
under SECTION 2.1 or SECTION 2.10(d).

                  "LETTER OF CREDIT PAYMENT" means, as applicable (i) all
payments made by a Facing Agent pursuant to either a draft or demand for payment
under a Letter of Credit or (ii) all payments by Revolving Lenders to a Facing
Agent in respect thereof (whether or not in accordance with their Revolver Pro
Rata Share).

                  "LETTER OF CREDIT REQUEST" has the meaning assigned to that
term in SECTION 2.10(b).

                  "LETTERS OF CREDIT" means, collectively, all Commercial
Letters of Credit or Standby Letters of Credit issued pursuant to this
Agreement, and "LETTER OF CREDIT" means any one of such Letters of Credit.


                                       24


                  "LEVERAGE RATIO" means, for any Test Period, the ratio of
Consolidated Debt as of the last day of such Test Period to Consolidated
Adjusted EBITDA for such Test Period.

                  "LIEN" means (i) any judgment lien or execution, attachment,
levy, distraint or similar legal process and (ii) any mortgages, pledge,
hypothecation, collateral assignment, security interest, encumbrance, lien,
charge or deposit arrangement (other than a deposit to a Deposit Account in the
ordinary course of business and not intended as security) of any kind
(including, without limitation, any conditional sale or other title retention
agreement or lease in the nature thereof, any agreement to give any of the
foregoing, any filing or agreement to file a financing statement as debtor under
the UCC or any similar statute other than to reflect ownership by a third party
of property leased or consigned to the Borrower or any of its Subsidiaries under
a lease or consignment agreement which is not in the nature of a conditional
sale or title retention agreement, any subordination arrangement in favor of
another Person or any sale of receivables with recourse against the seller or
any Affiliate of the seller).

                  "LOAN" means any Term A Loan, New Term B Loan, Revolving Loan
or Swing Line Loan and "LOANS" means all such Loans collectively.

                  "LOAN DOCUMENTS" means, collectively, this Agreement, the
Agreement to Amend, the Notes, each Letter of Credit, each Security Document,
each Interest Rate Agreement to which any Lender or any Affiliate of a Lender is
a party, and all other agreements, instruments and documents executed in
connection therewith, in each case as the same may at any time be amended,
supplemented, restated or otherwise modified and in effect.

                  "MAJORITY LENDERS" of any Facility means those Non-Defaulting
Lenders which would constitute the Required Lenders under, and as defined in,
this Agreement if all outstanding Obligations of other Facilities under this
Agreement were repaid in full and all Commitments with respect thereto were
terminated.

                  "MATERIAL ADVERSE EFFECT" means a material adverse effect on
(i) the business, condition (financial or otherwise), assets, liabilities,
property or operations of the Borrower and its Subsidiaries taken as a whole,
(ii) the ability of the Borrower or any Material Subsidiary of the Borrower to
perform its respective obligations under any Loan Document to which it is a
party, or (iii) the validity or enforceability of this Agreement or any of the
Security Documents or the rights or remedies of the Administrative Agent and the
Lenders hereunder or thereunder.

                  "MATERIAL SUBSIDIARY" means any Subsidiary of the Borrower,
the Consolidated Total Assets of which were more than 7.5% of the Borrower's
Consolidated Total Assets as of the end of the most recently completed Fiscal
Year of the Borrower for which audited financial statements are available;
PROVIDED that, in the event the aggregate of the Consolidated Total Assets of
all Subsidiaries that do not constitute Material Subsidiaries exceeds 7.5% of
the Borrower's Consolidated Total Assets as of such date, the Borrower (or the
Administrative Agent,


                                       25


in the event the Borrower has failed to do so within 10 days of request therefor
by the Administrative Agent) shall, to the extent necessary, designate
sufficient Subsidiaries to be deemed to be "Material Subsidiaries" to eliminate
such excess, and such designated Subsidiaries shall thereafter constitute
Material Subsidiaries. Assets of Foreign Subsidiaries shall be converted into
Dollars at the rates used for purposes of preparing the consolidated balance
sheet of the Borrower included in such audited financial statements.

                  "MAXIMUM COMMITMENT" means, when used with reference to any
Lender, the aggregate of such Lender's New Term B Commitment and its Revolving
Commitment in the amounts not to exceed those set forth opposite the name of
such Lender on SCHEDULE 1.1(a) hereto, subject to reduction from time to time in
accordance with the terms of this Agreement.

                  "MINIMUM BORROWING AMOUNT" means, with respect to (i) Base
Rate Loans, $3,000,000, (ii) with respect to Eurocurrency Loans, $5,000,000, in
the case of a Borrowing in Dollars, and 3,000,000 Euro, in the case of a
Borrowing in Euro and (iii) with respect to Swing Line Loans, $500,000 (or such
other amount as the Swing Line Lender may agree.)

                  "MOODY'S" means Moody's Investors Service, Inc. or any
successor to the rating agency business thereof.

                  "MORTGAGE" has the meaning assigned to that term in the
Original Credit Agreement and shall also include any mortgage or similar
documents executed pursuant to SECTION 7.12.

                  "MORTGAGED CALIFORNIA REAL ESTATE" has the meaning assigned to
that term in SECTION 7.17.

                  "MORTGAGED PROPERTY" means each owned or leased real property
subject to a Mortgage pursuant to the Original Credit Agreement, as indicated on
SCHEDULE 6.21(c), and shall also include any owned or leased real property
subject to a Mortgage pursuant to SECTION 7.12.

                  "MORTGAGE POLICIES" has the meaning assigned to that term in
the Original Credit Agreement.

                  "MOST RECENT LEVERAGE RATIO" means, at any date, the Leverage
Ratio for the Test Period ending as of the most recently ended Fiscal Quarter
for which financial statements have been delivered to the Lenders pursuant to
SECTION 7.1; PROVIDED, HOWEVEr, that if the Borrower fails to deliver such
financial statements as required by SECTION 7.1 and further fails to remedy such
default within five days of notice thereof from the Administrative Agent, then,
without prejudice to any other rights of any Lender hereunder, the Most Recent
Leverage Ratio shall be deemed to be 3.00 to 1.00 as of the date such financial
statements were required to be delivered under SECTION 7.1. Notwithstanding the
foregoing or the provisions of the last sentence of


                                       26


SECTION 3.3, from the Amendment/Restatement Effective Date to and including the
date upon which the financial statements with respect to the Fiscal Year of the
Borrower ended November 30, 2002 are (or should have been) delivered under
SECTION 7.1, the Most Recent Leverage Ratio shall be deemed to be 2.75 to 1.00.

                  "MULTICURRENCY COMMITMENT" means, with respect to each
Revolving Lender, the commitment of such Revolving Lender to make Revolving
Loans denominated in Euro and to acquire participations in Multicurrency Letters
of Credit, as such commitment may be adjusted from time to time pursuant to this
Agreement. The initial amount of each Revolving Lender's Multicurrency
Commitment is set forth on SCHEDULE 1.1(a) hereto, or in the Assignment and
Acceptance pursuant to which such Revolving Lender shall have assumed its
Multicurrency Commitment, as applicable. The initial aggregate amount of the
Revolving Lenders' Multicurrency Commitments is the Dollar Equivalent of
$68,333,333.33 and is part of, and not in addition to, the aggregate Revolving
Commitments.

                  "MULTICURRENCY LC OBLIGATIONS" means, at any time, an amount
equal to the sum of (i) the Dollar Equivalent of the aggregate Stated Amount of
the then outstanding Multicurrency Letters of Credit and (ii) the Dollar
Equivalent of the aggregate amount of drawings under Multicurrency Letters of
Credit which have not then been reimbursed pursuant to SECTION 2.10(c). The
Multicurrency LC Obligation of any Revolving Lender at any time shall mean its
Revolver Pro Rata Share of the Dollar Equivalent of the Multicurrency LC
Obligations outstanding at such time.

                  "MULTICURRENCY LETTER OF CREDIT" means any Letter of Credit
denominated in Euro.

                  "MULTICURRENCY REVOLVING LOANS" means, at any time, all
Revolving Loans then denominated in Euro.

                  "MULTICURRENCY OUTSTANDINGS" means, at any time, the sum,
without duplication, of the Assigned Dollar Value of (a) the aggregate then
outstanding principal amount of Multicurrency Revolving Loans and (b) the
aggregate then outstanding amount of Multicurrency LC Obligations.

                  "MULTIEMPLOYER PLAN" means any plan described in Section
4001(a)(3) of ERISA to which contributions are or have, within the preceding six
years, been made, or are or were, within the preceding six years, required to be
made, by the Borrower or any of its ERISA Affiliates or any Subsidiary of the
Borrower or ERISA Affiliates of such Subsidiary.

                  "NET OFFERING PROCEEDS" means the cash proceeds received by
the Borrower or any of its Subsidiaries (including cash received by way of
referred payment pursuant to a note receivable, conversion of non-cash
consideration or otherwise, but only as and when such cash is received) from (i)
the issuance of any Capital Stock or (ii) the incurrence of any Indebtedness, in



                                       27


each case net of the actual liabilities for reasonably anticipated cash taxes in
connection with such issuance or incurrence, if any, any underwriting, brokerage
and other customary selling commissions incurred in connection with such
issuance or incurrence, and reasonable legal, advisory and other out-of-pocket
fees and expenses, including title and recording tax expenses, if any, incurred
in connection with such issuance or incurrence.

                  "NET SALE PROCEEDS" means, with respect to any Asset
Disposition, the sum of the aggregate cash payments received by the Borrower or
any Subsidiary of the Borrower from such Asset Disposition (including, without
limitation, cash received by way of deferred payment pursuant to a note
receivable, conversion of non-cash consideration, cash payments in respect of
purchase price adjustments or otherwise, but only as and when such cash is
received) MINUS the direct costs and expenses incurred in connection therewith
(including in the case of any Asset Disposition, the payment of the outstanding
principal amount of, premium, if any, and interest on any Indebtedness (other
than hereunder) required to be repaid as a result of such Asset Disposition) and
MINUS any provision for taxes in respect thereof made in accordance with GAAP.
Any proceeds received in a currency other than Dollars shall, for purposes of
the calculation of the amount of Net Sale Proceeds, be in an amount equal to the
Dollar Equivalent thereof as of the date of receipt thereof by the Borrower or
any Subsidiary of the Borrower.

                  "NEW TERM B COMMITMENT" means, with respect to any Lender, the
principal amount set forth opposite such Lender's name on SCHEDULE 1.1(a) hereto
or in any Assignment and Assumption Agreement under the caption "Amount of New
Term B Commitment", as such commitment may be adjusted from time to time
pursuant to this Agreement, and "NEW TERM B COMMITMENTS" means such commitments
collectively, which commitments equal $115,000,000 in the aggregate as of the
Amendment/Restatement Effective Date.

                  "NEW TERM B FACILITY" means the credit facility under this
Agreement evidenced by the New Term B Commitments and the New Term B Loans.

                  "NEW TERM B LENDER" means any Lender which has a New Term B
Commitment or is owed a New Term B Loan (or a portion thereof).

                  "NEW TERM B LENDERS" means, collectively, all of the New Term
B Lenders.

                  "NEW TERM B LOAN" and "NEW TERM B LOANS" have the meanings
assigned to those terms in SECTION 2.1(b).

                  "NEW TERM B LOAN MATURITY DATE" means March 28, 2007, PROVIDED
that in the event that the New Term B Loan Maturity Date is extended by the
Borrower in accordance with SECTION 2.1(b)(ii), the New Term B Loan Maturity
Date shall be June 28, 2009.




                                       28



                  "NEW TERM B NOTE" and "NEW TERM B NOTES" have the meanings
assigned to those terms in SECTION 2.2(a).

                  "NEW TERM B PERCENTAGE" means, at any time, a fraction
(expressed as a percentage) the numerator of which is equal to the aggregate
principal amount of all New Term B Loans outstanding at such time and the
denominator of which is equal to the aggregate principal amount of all Term
Loans outstanding at such time.

                  "NEW TERM B PRO RATA SHARE" means, when used with reference to
any New Term B Lender and any described aggregate or total amount, an amount
equal to the result obtained by multiplying such described aggregate or total
amount by a fraction the numerator of which shall be such New Term B Lender's
then outstanding New Term B Loan and the denominator of which shall be all then
outstanding New Term B Loans.

                  "NON-DEFAULTING LENDER" means each Lender which is not a
Defaulting Lender.

                  "NOTE" means any of the Revolving Notes, the Swing Line Note
or the Term Notes and "NOTES" means all of such Notes collectively.

                  "NOTICE OF BORROWING" has the meaning assigned to that term in
SECTION 2.5.

                  "NOTICE OF CONVERSION OR CONTINUATION" has the meaning
assigned to that term in SECTION 2.6.

                  "NOTICE OFFICE" means the office of the Administrative Agent
located at 31 West 52nd Street, New York, New York 10019, Attention: Deal
Administrator, or such other office as the Administrative Agent may designate to
the Borrower and the Lenders from time to time.

                  "OBLIGATIONS" means all liabilities and obligations of the
Borrower and its Subsidiaries now or hereafter arising under this Agreement and
all of the other Loan Documents, whether for principal, interest, fees,
expenses, indemnities or otherwise, and whether primary, secondary, direct,
indirect, contingent, fixed or otherwise (including obligations of performance).

                  "OPERATING FINANCING LEASE" means a lease of the type
described in clause (x) of the definition of "INDEBTEDNESS".

                  "OPERATING LEASE" of any Person, means any lease (including,
without limitation, leases which may be terminated by the lessee at any time) of
any property (whether real, personal or mixed) by such Person, as lessee, which
is not a Capitalized Lease.

                  "ORGANIZATIONAL DOCUMENTS" means, with respect to any Person,
such Person's memorandum, articles or certificate of incorporation, bylaws,
partnership agreement, limited liability company agreement, joint venture
agreement or other similar governing documents and


                                       29


any document setting forth the designation, amount and/or relative rights,
limitations and preferences of any class or series of such Person's Capital
Stock.

                  "ORIGINAL CREDIT AGREEMENT" means the Credit Agreement, dated
as of December 28, 2000, among, inter alia, the Borrower, various lending
institutions, ABN AMRO Bank N.V., as Documentation Agent, Bank One, NA, as
Syndication Agent and DBTCA, as Administrative Agent, as the same has been
amended, modified and/or supplemented on or prior to the Amendment/Restatement
Effective Date.

                  "OTHER HEDGING AGREEMENT" means any foreign exchange contract,
currency swap agreement, futures contract, commodity agreements, option
contract, synthetic cap or other similar agreement other than an Interest Rate
Agreement to which the Borrower or any Subsidiary is a party.

                  "OTS BUSINESS ACQUISITION" means the purchase by the Borrower
from the OTS Seller of substantially all of the OTS Seller's space systems
business relating directly to (i) the design, manufacture, sale, distribution
and service of (a) thrusters, electronic systems and fuel systems for propulsion
of spacecraft, launch vehicles for spacecraft, and anti-missile mid-flight
diversion and (b) tow reels for aircraft and turbo products used to generate
power on aircraft; and (ii) the manufacture and assembly of equipment used for
extinguishing and/or suppression of fires, pursuant to the OTS Business
Acquisition Agreement.

                  "OTS ACQUISITION AGREEMENT" means the Asset Purchase
Agreement, dated as of August 26, 2002 among the OTS Seller and the Borrower, as
the same may be amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof and thereof.

                  "OTS ACQUISITION DOCUMENTS" means the OTS Acquisition
Agreement, the Ancillary Documents (as defined in the OTS Acquisition
Agreement), the Disclosure Schedules (as defined in the OTS Acquisition
Agreement) and any material agreement, document, instrument and certificate
executed and/or delivered on or after the Amendment/Restatement Effective Date
pursuant to the terms thereof.

                  "OTS SELLER" means General Dynamics OTS (Aerospace), Inc.

                  "PARTICIPANTS" has the meaning assigned to that term in
SECTION 12.8(b).

                  "PAYMENT OFFICE" means (i) with respect to the Administrative
Agent or Swing Line Lender, for payments with respect to Dollar-denominated
Loans, 31 West 52nd Street, New York, New York, 10019, or such other address as
the Administrative Agent or Swing Line Lender, as the case may be, may from time
to time specify in accordance with SECTION 12.3 or (ii) with respect to the
Administrative Agent or Swing Line Lender, for payments in Euro, such account at



                                       30


such bank or office in London (or such other location) as the Administrative
Agent or Swing Line Lender, as the case may be, shall designate by notice to the
Person required to make the relevant payment.

                  "PBGC" means the Pension Benefit Guaranty Corporation created
by Section 4002(a) of ERISA.

                  "PERFECTION CERTIFICATE" shall mean a Perfection Certificate
substantially in the form attached to the Original Credit Agreement, as amended
and modified, and as the same may be amended, modified or supplemented from time
to time.

                  "PERMITTED ACQUISITION" has the meaning assigned to that term
in SECTION 8.7(k).

                  "PERMITTED LIENS" has the meaning assigned to that term in
SECTION 8.1.

                  "PERMITTED REAL PROPERTY ENCUMBRANCES" means (i) those liens,
encumbrances and other matters affecting title to any Mortgaged Property listed
in the applicable title policy in respect thereof (or any update thereto) and
found, on the date of delivery of such title policy to the Administrative Agent
in accordance with the terms hereof, reasonably acceptable by the Administrative
Agent, (ii) as to any particular real property at any time, such easements,
encroachments, covenants, restrictions, rights of way, minor defects,
irregularities or encumbrances on title which do not, in the reasonable opinion
of the Administrative Agent, materially impair such real property for the
purpose for which it is held by the mortgagor or owner, as the case may be,
thereof, or the Lien held by the Administrative Agent, (iii) municipal and
zoning laws, regulations, codes and ordinances, which are not violated in any
material respect by the existing improvements and the present use made by the
mortgagor or owner, as the case may be, of such real property, (iv) general real
estate taxes and assessments not yet delinquent, and (v) such other items to
which the Administrative Agent may consent.

                  "PERMITTED TECHNOLOGY LICENSES" has the meaning assigned to
that term in SECTION 8.3(g).

                  "PERSON" means an individual or a corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.

                  "PLAN" means any plan described in Section 4021(a) of ERISA
and not excluded pursuant to Section 4021(b) thereof, which is or has, within
the preceding six years, been established or maintained, or to which
contributions are or have, within the preceding six years, been made, by the
Borrower or any of its ERISA Affiliates or any Subsidiary of the Borrower or any
ERISA Affiliates of such Subsidiary, but not including any Multiemployer Plan.



                                       31


                  "PLAN ADMINISTRATOR" has the meaning assigned to the term
"administrator" in Section 3(16)(A) of ERISA.

                  "PLAN SPONSOR" has the meaning assigned to the term "plan
sponsor" in Section 3(16)(B) of ERISA.

                  "PLEDGE AGREEMENTS" means, collectively, the Borrower Pledge
Agreement and the Subsidiary Pledge Agreement.

                  "PLEDGED SECURITIES" means, collectively, the "Securities" as
defined in the Pledge Agreements or any other pledged securities under any
Security Document.

                  "PREMISES" has the meaning assigned to such term in clause (i)
of the definition "ENVIRONMENTAL CLAIM".

                  "PRO FORMA BALANCE SHEET" has the meaning assigned to that
term in SECTION 6.5(a)(ii).

                  "PROJECTIONS" has the meaning assigned to that term in SECTION
6.5(e).

                  "PRO RATA SHARE" means, when used with reference to any Lender
and any described aggregate or total amount, an amount equal to the result
obtained by multiplying such described aggregate or total amount by a fraction
the numerator of which shall be such Lender's maximum Commitment and the
denominator of which shall be the Total Commitment or, if no Commitments are
then outstanding, such Lender's aggregate outstanding principal amount of Loans
to the total outstanding principal balance of all Loans hereunder.

                  "QUARTERLY PAYMENT DATE" means each March 28, June 28,
September 28 and December 28 of each year.

                  "REAL PROPERTY" means all of the right, title and interest of
any Person in and to land, improvements and fixtures, including any such
interest as lessee or licensee in, to and under leases or licenses.

                  "RECOVERY EVENT" means the receipt by the Borrower or any of
its Subsidiaries of any insurance or condemnation proceeds payable (i) by reason
of any theft, physical destruction or damage or any other similar event with
respect to any properties or assets of the Borrower or any of its Subsidiaries,
(ii) by reason of any condemnation, taking, seizing or similar event with
respect to any properties or assets of the Borrower or any of its Subsidiaries
and (iii) under any policy of insurance required to be maintained under SECTION
7.8.




                                       32



                  "REFUNDED SWING LINE LOANS" has the meaning assigned to that
term in SECTION 2.1(d)(ii).

                  "REGISTER" has the meaning assigned to that term in SECTION
12.17.

                  "REGULATION D" means Regulation D of the Board as from time to
time in effect and any successor to all or a portion thereof establishing
reserve requirements.

                  "RELATED FUND" means, with respect to any investment fund or
trust that invests in commercial loans, any other investment fund or trust that
invests in commercial loans and that is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.

                  "RELEASE" means any spilling, leaking, pumping, pouring,
emitting, emptying, dumping, injection, deposit, disposal, discharge, dispersal,
escape, leaching or migration (including the abandonment or discarding of
barrels, containers, and other closed receptacles containing any Hazardous
Materials) into the indoor or outdoor environment or into or out of any
Premises, or at any other location, including any location to which the Borrower
or any Subsidiary has transported or disposed or arranged for the transportation
or disposal of any Hazardous Materials, including the movement of Hazardous
Materials through or in the air, soil, surface water, groundwater or property of
the Borrower or its Subsidiaries or at any other location.

                  "REMEDIAL ACTION" means any action required to (i) study,
investigate, sample, monitor, clean up, remove, treat or in any other way
address Hazardous Materials in the indoor or outdoor environment; or (ii)
prevent, minimize or otherwise address the Release or threat of a Release of
Hazardous Materials.

                  "REPLACED LENDER" has the meaning assigned to that term in
SECTION 3.7.

                  "REPLACEMENT LENDER" has the meaning assigned to that term in
SECTION 3.7.

                  "REPORTABLE EVENT" means a "reportable event" described in
Section 4043(c) of ERISA or in the regulations thereunder with respect to a Plan
other than a reportable event for which the 30 day notice requirement to the
PBGC has been waived, any event requiring disclosure under Section 4063(a) or
4062(e) of ERISA, receipt of a notice of withdrawal liability with respect to a
Multiemployer Plan pursuant to Section 4202 of ERISA or receipt of a notice of
reorganization or insolvency with respect to a Multiemployer Plan pursuant to
Section 4242 or 4245 of ERISA.

                  "REQUIRED LENDERS" means Non-Defaulting Lenders the sum of
whose outstanding Term Loans and Revolving Commitments (or, after the Total
Revolving Commitment has been


                                       33


terminated, outstanding Revolving Loans and Revolver Pro Rata Share of the
Assigned Dollar Value of outstanding Swing Line Loans and the Assigned Dollar
Value of LC Obligations) constitute greater than 50% of the sum of (i) the total
outstanding amount of Term Loans of Non-Defaulting Lenders, and (ii) the Total
Revolving Commitment less the aggregate Revolving Commitments of Defaulting
Lenders (or, after the Total Revolving Commitment has been terminated, the total
outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate Revolver
Pro Rata Share of all Non-Defaulting Lenders of the total Assigned Dollar Value
of outstanding Swing Line Loans and the Assigned Dollar Value of LC Obligations
at such time); PROVIDED, HOWEVER, that for so long as DBTCA and/or Bank One, NA
hold more than 40% of the aggregate sum of the Total Revolving Commitment and
the outstanding Term Loans, the percentage of Lenders required to constitute
Required Lenders shall be 66?% and not 50% as provided above.

                  "REQUIRED LENDERS' CONSENT" means the receipt by the
Administrative Agent, following completion of the Consent Procedure for any
proposed transaction, of the written consent to the proposed transaction from
the Required Lenders or, to the extent otherwise required by SECTION 12.1 of
this Agreement, from all Lenders, in each case including and subject to any
qualification or conditions that may be included in or referred to by the
approving Lenders.

                  "REQUIREMENT OF LAW" means, as to any Person, any law
(including common law), treaty, rule or regulation or judgment, decree,
determination or award of an arbitrator or a court or other Governmental
Authority, including without limitation, any Environmental Law, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.

                  "RESPONSIBLE FINANCIAL OFFICER" means, as to any Person, the
chief financial officer, principal accounting officer, a financial vice
president, controller, treasury manager, manager (in the case of a limited
liability company) having responsibility for financial matters, treasurer or
assistant treasurer of such Person.

                  "RESPONSIBLE OFFICER" means (i) as to the Borrower, any of the
officers of the Borrower identified on the Notice of Appointment (or Revocation)
of Responsible Officers, substantially in the form of EXHIBIT 2.5-2, delivered
to the Administrative Agent and as amended, modified and supplemented thereafter
and (ii) as to any other Person, any of the chairman or the vice chairman of the
board of directors, the president, any executive vice president, the vice
president-controller, any vice president, manager (in the case of a limited
liability company) or any Responsible Financial Officer of such Person.




                                       34



                  "RESTRICTED PAYMENTS" has the meaning assigned to that term in
SECTION 8.4.

                  "RETURNS" has the meaning assigned to that term in SECTION
6.9.

                  "REVOLVER PRO RATA SHARE" means, (i) when used with reference
to any Revolving Lender and any described aggregate or total amount, an amount
equal to the result obtained by multiplying such described aggregate or total
amount by a fraction the numerator of which shall be such Lender's Revolving
Commitment and the denominator of which shall be the Total Revolving Commitment
or (ii) if the Revolver Termination Date has occurred, the Assigned Dollar Value
of such Revolving Lender's then outstanding Revolving Loans and its pro rata
share of the Assigned Dollar Value of outstanding Swing Line Loans and the
Assigned Dollar Value of LC Obligations to the aggregate Assigned Dollar Value
of outstanding Revolving Loans, Assigned Dollar Value of outstanding Swing Line
Loans and Assigned Dollar Value of LC Obligations.

                  "REVOLVER TERMINATION DATE" means December 28, 2005 or such
earlier date as the Revolving Commitments shall have been terminated or
otherwise reduced to $0 pursuant to this Agreement.

                  "REVOLVING COMMITMENT" means, with respect to any Revolving
Lender, the obligation of such Revolving Lender to make Revolving Loans and to
participate in Letters of Credit and Swing Line Loans, as such commitment may be
adjusted from time to time pursuant to this Agreement, which commitment as of
the Amendment/Restatement Effective Date is the amount set forth opposite such
lender's name on SCHEDULE 1.1(a) hereto under the caption "Amount of Revolving
Commitment" as the same may be adjusted from time to time pursuant to the terms
hereof and "REVOLVING COMMITMENTS" means such commitments collectively, which
commitments equal $136,666,666.66 in the aggregate as of the
Amendment/Restatement Effective Date. The Revolving Commitment of each Revolving
Lender includes as a subfacility thereunder such Lender's Multicurrency
Commitment.

                  "REVOLVING FACILITY" means the credit facility under this
Agreement evidenced by the Revolving Commitments and the Revolving Loans.

                  "REVOLVING LENDER" means any Lender which has a Revolving
Commitment or is owed a Revolving Loan (or a portion thereof).

                  "REVOLVING LOAN" and "REVOLVING LOANS" have the meanings given
in SECTION 2.1(c).

                  "REVOLVING NOTE" shall have the meaning assigned to that term
in the Original Credit Agreement.


                                       35


                  "ROLLOVER AMOUNT" has the meaning assigned to that term in
SECTION 9.1(b).

                  "SALE AND LEASEBACK TRANSACTION" means any arrangement,
directly or indirectly, whereby a seller or transferor shall sell or otherwise
transfer any real or personal property and then or thereafter lease, or
repurchase under an extended purchase contract, conditional sales or other title
retention agreement, the same or similar property.

                  "S&P" means Standard & Poor's Ratings Service, a division of
The McGraw-Hill Companies, Inc., or any successor to the rating agency business
thereof.

                  "SCHEDULED REPAYMENTS" means a Scheduled Term A Repayment or a
Scheduled New Term B Repayment.

                  "SCHEDULED NEW TERM B REPAYMENTS" means, with respect to the
principal payments on the New Term B Loans for each date set forth below, the
Dollar amount set forth opposite thereto, as reduced from time to time pursuant
to SECTIONS 4.3 AND 4.4:

          ----------------------------------------- ---------------------
          NEW TERM B LOAN SCHEDULED                   REPAYMENT
          REPAYMENT DATE                              AMOUNT
          --------------                              ------

          ----------------------------------------- ---------------------
          December 28, 2002                           $287,500.00
          ----------------------------------------- ---------------------
          March 28, 2003                              $287,500.00
          ----------------------------------------- ---------------------
          June 28, 2003                               $287,500.00
          ----------------------------------------- ---------------------
          September 28, 2003                          $287,500.00
          ----------------------------------------- ---------------------
          December 28, 2003                           $287,500.00
          ----------------------------------------- ---------------------
          March 28, 2004                              $287,500.00
          ----------------------------------------- ---------------------
          June 28, 2004                               $287,500.00
          ----------------------------------------- ---------------------
          September 28, 2004                          $287,500.00
          ----------------------------------------- ---------------------
          December 28, 2004                           $287,500.00
          ----------------------------------------- ---------------------
          March 28, 2005                              $287,500.00
          ----------------------------------------- ---------------------
          June 28, 2005                               $287,500.00
          ----------------------------------------- ---------------------
          September 28, 2005                          $287,500.00
          ----------------------------------------- ---------------------
          December 28, 2005                           $287,500.00
          ----------------------------------------- ---------------------
          March 28, 2006                              $7,947,321.43
          ----------------------------------------- ---------------------
          June 28, 2006                               $7,947,321.43
          ----------------------------------------- ---------------------
          September 28, 2006                          $7,947,321.43
          ----------------------------------------- ---------------------
          December 28, 2006                           $7,947,321.43
          ----------------------------------------- ---------------------
          March 28, 2007                              $79,473,214.28
          ----------------------------------------- ---------------------


                  Notwithstanding the foregoing, in the event that the New Term
B Loan Maturity Date is extended to June 28, 2009 by the Borrower in accordance
with SECTION 2.1(b)(ii), the


                                       36


Scheduled New Term B Repayments schedule set forth above shall automatically be
amended to (i) delete the dollar value of $79,473,214.28 set forth next to March
28, 2007 and to substitute $7,947,321.43 therefore and (ii) add the following
dates and repayment amounts immediately following March 28, 2007:




               -------------------------------------- -------------------
               NEW TERM B LOAN
               SCHEDULED                              REPAYMENT
               REPAYMENT DATE                         AMOUNT
               --------------                         ------

               -------------------------------------- -------------------
               June 28, 2007                          $7,947,321.43
               -------------------------------------- -------------------
               September 28, 2007                     $7,947,321.43
               -------------------------------------- -------------------
               December 28, 2007                      $7,947,321.43
               -------------------------------------- -------------------
               March 28, 2007                         $7,947,321.43
               -------------------------------------- -------------------
               June 28, 2007                          $7,947,321.43
               -------------------------------------- -------------------
               September 28, 2007                     $7,947,321.43
               -------------------------------------- -------------------
               December 28, 2007                      $7,947,321.43
               -------------------------------------- -------------------
               March 28, 2008                         $7,947,321.43
               -------------------------------------- -------------------
               June 28, 2009                          $7,947,321.41
               -------------------------------------- -------------------



                  "SCHEDULED TERM A REPAYMENTS" means, with respect to the
principal payments on the Term A Loans for each date set forth below, the Dollar
amount set forth opposite thereto, as reduced from time to time pursuant to
SECTIONS 4.3 AND 4.4:

               ---------------------------------------- ------------------
               TERM A LOAN SCHEDULED                    REPAYMENT
               REPAYMENT DATE                           AMOUNT
               --------------                           ------

               ---------------------------------------- ------------------
               December 28, 2002                        $4,747,807.02
               ---------------------------------------- ------------------
               March  28, 2003                          $4,747,807.02
               ---------------------------------------- ------------------
               June 28, 2003                            $4,747,807.02
               ---------------------------------------- ------------------
               September 28, 2003                       $4,747,807.02
               ---------------------------------------- ------------------
               December 28, 2003                        $4,747,807.02
               ---------------------------------------- ------------------
               March 28, 2004                           $4,747,807.02
               ---------------------------------------- ------------------
               June 28, 2004                            $4,747,807.02
               ---------------------------------------- ------------------
               September 28, 2004                       $4,747,807.02
               ---------------------------------------- ------------------
               December 28, 2004                        $4,747,807.02
               ---------------------------------------- ------------------
               March 28, 2005                           $7,121,710.52
               ---------------------------------------- ------------------
               June 28, 2005                            $7,121,710.52
               ---------------------------------------- ------------------
               September 28, 2005                       $7,121,710.52
               ---------------------------------------- ------------------
               December 28, 2005                        $7,121,710.49
               ---------------------------------------- ------------------

                  "SEC" means the Securities and Exchange Commission or any
successor thereto.


                                       37


                  "SECURED CREDITORS" has the meaning provided in the respective
Security Documents to the extent defined therein and shall include any Person
who is granted a security interest pursuant to any Loan Document.

                  "SECURITIES" means any stock, shares, voting trust
certificates, bonds, debentures, options, warrants, notes, or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities" or any certificates of
interest, shares or participations in temporary or interim certificates for the
purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.

                  "SECURITIES ACT" means the Securities Act of 1933, as amended.

                  "SECURITY AGREEMENTS" means, collectively, the Borrower
Security Agreement and the Subsidiary Security Agreement.

                  "SECURITY DOCUMENTS" means, collectively the Security
Agreements, the Subsidiary Guaranty, the Pledge Agreements, the Mortgages, the
Perfection Certificates, and all other agreements, assignments, security
agreements, pledge agreements, instruments and documents executed in connection
therewith and herewith, including, without limitation, all Additional Security
Documents, in each case as the same may at any time be amended, supplemented,
restated or otherwise modified and in effect. For purposes of this Agreement,
"Security Documents" shall also include all guaranties, security agreements,
mortgagees, pledge agreements, collateral assignments, subordination agreements
and other collateral documents in the nature of any thereof entered into by any
Credit Party or any Subsidiary of any Credit Party after the date of this
Agreement in favor of the Administrative Agent or Collateral Agent for the
benefit of the Lenders in satisfaction of the requirements of this Agreement.

                  "SOLVENT" means, when used with respect to (i) any Person
(other than subject to clause (ii)), that (x) the fair saleable value of its
assets is in excess of the total amount of its liabilities (including for
purposes of this definition all liabilities, whether or not reflected on a
balance sheet prepared in accordance with GAAP, and whether direct or indirect,
fixed or contingent, disputed or undisputed), (y) it is able to pay its debts or
obligations in the ordinary course as they mature and (z) it has capital
sufficient to carry on its business and all business in which it is about to
engage and (ii) for any Person other than a Domestic Subsidiary, such Person has
the ability to pay its debts as and when they fall due and could not be deemed
to be insolvent for the purposes of the law of such Person's jurisdiction of
formation. For purposes of SECTION 6.5(b), "debt" means any liability on a
claim, and "claim" means (A) any right to payment, whether or not such a right
is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or unsecured
(including all obligations, if any, under any Plan or the equivalent for
unfunded past service liability, and any other unfunded medical and death
benefits) or (B) any right to an equitable


                                       38


remedy for breach of performance if such breach gives rise to a payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or unsecured. In
computing the amount of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.

                  "SPECIFIED CURRENCY" means the currency in which a sum is
denominated in accordance with the applicable provisions of this Agreement.

                  "SPOT RATE" means, for any currency at any date, the rate
quoted by DBTCA as the spot rate for the purchase by DBTCA of such currency with
another currency through its foreign exchange trading office or such other rate
which the Administrative Agent may select based on reasonable commercial
practices; PROVIDED that if at the time of any such determination, no such Spot
Rate can reasonably be quoted, the Administrative Agent may use any reasonable
method as it deems appropriate to determine such rate and such determination
shall be conclusive absent manifest error. The Administrative Agent shall
provide the Borrower with the then current Spot Rate from time to time upon the
Borrower's request therefor.

                  "STANDBY LETTERS OF CREDIT" means any of the irrevocable
standby letters of credit issued for the account of the Borrower or any of its
Subsidiaries pursuant to this Agreement, in form acceptable to the Facing Bank,
together with any increases or decreases in the Stated Amount thereof and any
renewals, amendments and/or extensions thereof.

                  "STATED AMOUNT" or "STATED AMOUNTS" means, (i) with respect to
any Letter of Credit issued in Dollars, the stated or face amount of such Letter
of Credit to the extent available at the time for drawing (subject to
presentment of all requisite documents), and (ii) with respect to any Letter of
Credit issued in Euro, the Assigned Dollar Value of the stated or face amount of
such Letter of Credit to the extent available at the time for drawing (subject
to presentment of all requisite documents), in either case, as the same may be
increased or decreased from time to time in accordance with the terms of such
Letter of Credit. For purposes of calculating the Stated Amount of any Letter of
Credit at any time:

                        (A) any increase in the Stated Amount of any Letter of
Credit by reason of any amendment to any Letter of Credit shall be deemed
effective under this Agreement as of the date Facing Agent actually issues an
amendment purporting to increase the Stated Amount of such Letter of Credit,
whether or not Facing Agent receives the consent of the Letter of Credit
beneficiary or beneficiaries to the amendment, except that if the Borrower has
required that the increase in Stated Amount be given effect as of an earlier
date and Facing Agent issues an amendment to that effect, then such increase in
Stated Amount shall be deemed effective under this Agreement as of such earlier
date requested by the Borrower; and



                                       39



                        (B) any reduction in the Stated Amount of any Letter of
Credit by reason of any amendment to any Letter of Credit shall be deemed
effective under this Agreement as of the later of (x) the date Facing Agent
actually issues an amendment purporting to reduce the Stated Amount of such
Letter of Credit, whether or not the amendment provides that the reduction be
given effect as of an earlier date, or (y) the date Facing Agent receives the
written consent (including by authenticated telex, cable, SWIFT messages or
facsimile transmission (with, in the case of a facsimile transmission, a
follow-up original hard copy)) of the Letter of Credit beneficiary or
beneficiaries to such reduction, whether written consent must be dated on or
after the date of the amendment issued by Facing Agent purporting to effect such
reduction.

                  "SUBORDINATED NOTES" means, collectively, those certain
unsecured convertible subordinated notes due 2007 issued by the Borrower and in
a maximum principal amount which shall not exceed $150,000,000 at any one time
outstanding, as the same may be amended, restated, supplemented or otherwise
modified from time to time as permitted hereunder.

                  "SUBSIDIARY" means, with respect to any Person (the "PARENT")
at any date, any corporation, limited liability company, partnership,
association or other 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 corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership 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, by the parent or one or more Subsidiaries of the parent or by the
parent and one or more Subsidiaries of the parent.

                  "SUBSIDIARY GUARANTOR" means each Material Domestic Subsidiary
of the Borrower, any Domestic Subsidiary of the Borrower that is a party to the
Subsidiary Guaranty and any Subsidiary of the Borrower that becomes a party to
the Subsidiary Guaranty or delivers a guaranty pursuant to SECTION 7.12 or 7.14.

                  "SUBSIDIARY GUARANTY" shall mean a Subsidiary Guaranty
substantially in the form attached to the Original Credit Agreement, as amended,
restated, and modified, and as the same may be amended, restated, modified or
supplemented from time to time.

                  "SUBSIDIARY PLEDGE AGREEMENT" shall mean a Subsidiary Pledge
Agreement substantially in the form attached to the Original Credit Agreement,
as amended, restated and modified, and as the same may be amended, restated,
modified or supplemented from time to time.

                  "SUBSIDIARY SECURITY AGREEMENT" shall mean a Subsidiary
Security Agreement substantially in the form attached to the Original Credit
Agreement, as amended, restated and


                                       40


modified, and as the same may be amended, restated, modified or supplemented
from time to time.

                  "SWING LINE COMMITMENT" means, with respect to the Swing Line
Lender at any date, the obligation of the Swing Line Lender to make Swing Line
Loans pursuant to SECTION 2.1(d) in the amount referred to therein.

                  "SWING LINE LENDER" means DBTCA in such capacity.

                  "SWING LINE LOAN PARTICIPATION CERTIFICATE" means a
certificate, substantially in the form of EXHIBIT 2.1(d).

                  "SWING LINE LOANS" has the meaning assigned to that term in
SECTION 2.1(d).

                  "SWING LINE NOTE" has the meaning assigned to that term in the
Original Credit Agreement.

                  "SYNDICATED DATE" means the earlier of (i) the 90th day
following the Amendment/Restatement Effective Date and (ii) the date upon which
the Agents determine (and notify the Borrower) that the primary syndication (and
the resultant addition of Persons as Lenders pursuant to SECTION 12.8) of the
New Term B Facility has been completed.

                  "TAXES" has the meaning assigned to that term in SECTION
4.7(a).

                  "TERM A FACILITY" means the credit facility under this
Agreement evidenced by the Term A Loans.

                  "TERM A LENDER" means any Lender which is owed a Term A Loan
(or a portion thereof).

                  "TERM A LENDERS" means, collectively, all of the Term A
Lenders.

                  "TERM A LOAN" and "TERM A LOANS" have the meanings assigned to
those terms in SECTION 2.1(a).

                  "TERM A LOAN MATURITY DATE" means December 28, 2005.

                  "TERM A NOTE" and "TERM A NOTES" have the meanings assigned to
those terms in the Original Credit Agreement.




                                       41



                  "TERM A PERCENTAGE" means, at any time, a fraction (expressed
as a percentage) the numerator of which is equal to the aggregate principal
amount of all Term A Loans outstanding at such time and the denominator of which
is equal to the aggregate principal amount of all Term Loans outstanding at such
time.

                  "TERM A PRO RATA SHARE" means, when used with reference to any
Term A Lender and any described aggregate or total amount, an amount equal to
the result obtained by multiplying such described aggregate or total amount by a
fraction the numerator of which shall be such Term A Lender's then outstanding
Term A Loan and the denominator of which shall be all then outstanding Term A
Loans.

                  "TERM LOANS" means the Term A Loans and the New Term B Loans
collectively.

                  "TERM NOTES" means the Term A Notes and the New Term B Notes.

                  "TEST PERIOD" means, at any time the four consecutive Fiscal
Quarters of the Borrower then last ended, in each case taken as one accounting
period.

                  "TOTAL AVAILABLE REVOLVING COMMITMENT" means, at the time of
any determination thereof is made, the sum of the respective Available Revolving
Commitments of the Lenders at such time.

                  "TOTAL COMMITMENT" means, at the time any determination
thereof is made, the sum of the New Term B Commitments and the Revolving
Commitments at such time.

                  "TOTAL CONSOLIDATED INDEBTEDNESS" means the total of all
Indebtedness of the Borrower and its Subsidiaries.

                  "TOTAL REVOLVING COMMITMENT" means, at any time, the sum of
the Revolving Commitments of each of the Lenders at such time.

                  "TRANSACTION" means and includes (i) each of the Credit Events
occurring on the Amendment/Restatement Effective Date, (ii) the consummation of
the OTS Business Acquisition, (iii) such other transactions as are contemplated
by and in accordance with the Transaction Documents and (iv) the payment of fees
and expenses in connection with the foregoing.

                  "TRANSACTION DOCUMENTS" means, collectively, the Loan
Documents, the OTS Acquisition Documents and any other agreement, document,
instrument and certificate executed and/or delivered pursuant to the terms of,
or in connection with, any of the foregoing.

                  "TRANSFEREE" has the meaning assigned to that term in SECTION
12.8(d).


                                       42


                  "TYPE" means any type of Loan, namely, a Base Rate Loan or a
Eurocurrency Loan.

                  "UCC" means the Uniform Commercial Code as in effect from time
to time in the relevant jurisdiction.

                  "UNMATURED EVENT OF DEFAULT" means an event, act or occurrence
which with the giving of notice or the lapse of time (or both) would become an
Event of Default.

                  "UNPAID DRAWING" means the aggregate amount of drawings under
all Letters of Credit which have not been reimbursed pursuant to SECTION
2.10(c).

                  "VOTING SECURITIES" means any class of Capital Stock of a
Person pursuant to which the holders thereof have, at the time of determination,
the general voting power under ordinary circumstances to vote for the election
of directors, managers, trustees or general partners of such Person
(irrespective of whether or not at the time any other class or classes will have
or might have voting power by reason of the happening of any contingency).

                  "WAIVABLE PREPAYMENT" has the meaning assigned to that term in
SECTION 4.5(c).

                  "WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the then
outstanding principal amount of such Indebtedness into (ii) the total of the
product obtained by multiplying (x) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof by (y) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment.

                  "WHOLLY-OWNED SUBSIDIARY" means, with respect to any Person,
any Subsidiary of such Person, all of the outstanding shares of capital stock of
which (other than qualifying shares required to be owned by directors, or
similar de minimis issuances of capital stock to comply with Requirements of
Law) are at the time owned directly or indirectly by such Person and/or one or
more Wholly-Owned Subsidiaries of such Person.

                  "WRITTEN" OR "IN WRITING" means any form of written
communication or a communication by means of telecopier device or authenticated
telex, telegraph or cable.

                  The foregoing definitions shall be equally applicable to both
the singular and plural forms of the defined terms. The words "herein," "hereof"
and words of similar import as used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision in this Agreement.
References to "Articles", "Sections", "paragraphs", "Exhibits" and "Schedules"
in this Agreement shall refer to Articles, Sections, paragraphs, Exhibits and
Schedules of this Agreement unless otherwise expressly provided; references to
Persons include


                                       43


their respective permitted successors and assigns or, in the case of
governmental Persons, Persons succeeding to the relevant functions of such
persons; and all references to statutes and related regulations shall include
any amendments of same and any successor statutes and regulations.

Section 1.2.      ACCOUNTING TERMS; FINANCIAL STATEMENTS.

All accounting terms used herein but not expressly defined in this Agreement
shall have respective meanings given to them in accordance with GAAP in effect
on the date hereof in the United States of America. Except as otherwise
expressly provided herein (including without limitation, any modification to the
terms hereof pursuant to SECTION 8.12), all computations and determinations for
purposes of determining compliance with the financial requirements of this
Agreement shall be made in accordance with GAAP in effect in the United States
of America on the date hereof and on a basis consistent with the presentation of
the financial statements and projections delivered pursuant to, or otherwise
referred to in, SECTIONS 6.5(a) and 6.5(e). Notwithstanding the foregoing
sentence, the financial statements required to be delivered pursuant to SECTION
7.1 shall be prepared in accordance with GAAP in the United States of America as
in effect on the respective dates of their preparation. Unless otherwise
provided for herein (including, without limitation, the definition of
Wholly-Owned Subsidiary), wherever any computation is to be made with respect to
any Person and its Subsidiaries, such computation shall be made so as to exclude
all items of income, assets and liabilities attributable to any Person which is
not a Subsidiary of such Person.

                                   ARTICLE II

                           AMOUNT AND TERMS OF CREDIT

Section 2.1.      THE COMMITMENTS.

                  (a) TERM A LOANS. Loans designated on the Initial Borrowing
Date "Term A Loans" were made by each Lender with a Term A Commitment under and
as defined in the Original Credit Agreement in the amount of such Term A
Commitment with the principal amount of each such Term A Loan outstanding
hereunder as a Term A Loan on the Amendment/Restatement Effective Date (as set
forth on SCHEDULE 1.1(a) hereto) to continue to remain outstanding hereunder as
Term A Loans (collectively, the "TERM A LOANS"). No amount of a Term A Loan
which is repaid or prepaid by the Borrower may be reborrowed hereunder.

                  (b) NEW TERM B LOANS. (i) On the Amendment/Restatement
Effective Date, each New Term B Lender, severally and for itself alone, hereby
agrees, on the terms and subject to the conditions hereinafter set forth and in
reliance upon the representations and warranties set forth herein and in the
other Loan Documents, to make a loan (each such loan, a "NEW TERM B LOAN" and
collectively, the "NEW TERM B LOANS") to the Borrower on the



                                       44


Amendment/Restatement Effective Date in an aggregate principal amount equal to
the New Term B Commitment of such New Term B Lender. The New Term B Loans (1)
shall be incurred by the Borrower pursuant to a single drawing, which shall be
on the Amendment/Restatement Effective Date, (2) shall be denominated in
Dollars, (3) shall be made as Base Rate Loans and, except as hereinafter
provided, may, at the option of the Borrower, be maintained as and/or converted
into Base Rate Loans or Eurocurrency Loans, PROVIDED, that all New Term B Loans
made by the New Term B Lenders pursuant to the same Borrowing shall, unless
otherwise specifically provided herein, consist entirely of New Term B Loans of
the same Type and (4) shall not exceed for any Lender at the time of incurrence
thereof on the Amendment/Restatement Effective Date the New Term B Commitment,
if any, of such Lender at such time. Each New Term B Lender's New Term B
Commitment shall expire immediately and without further action on the
Amendment/Restatement Effective Date if the New Term B Loans are not made on the
Amendment/Restatement Effective Date. No amount of a New Term B Loan which is
repaid or prepaid by the Borrower may be reborrowed hereunder.

                        (ii) With respect to the New Term B Facility, the New
Term B Lenders hereby agree and acknowledge that the New Term B Loan Maturity
Date may be extended to June 28, 2009, at the option of the Borrower, upon the
conversion, repayment or other disposition in full, all on terms and conditions
satisfactory to the Administrative Agent and the Majority Lenders of the New
Term B Facility, of the Subordinated Notes. The Borrower shall provide not less
than 30 days' prior written notice to the Administrative Agent and the New Term
B Lenders of such extension and shall provide such documentation to the
Administrative Agent and the New Term B Lenders as such parties may request
regarding the conversion, repayment or other disposition in full of the
Subordinated Notes. Any extension notice, is subject to the conditions precedent
that: (i) the representations and warranties of the Borrower contained in
ARTICLE VI shall be true and correct, and such extension shall be deemed to
constitute a representation and warranty that on such date such representations
and warranties were true and correct; and (ii) no Event of Default or Unmatured
Event of Default has occurred and is then continuing. Upon the satisfaction of
all conditions described in this SECTION 2.1(b)(ii) (which satisfaction shall be
evidenced in writing to the Borrower by the Administrative Agent and the
Majority Lenders of the New Term B Facility), the New Term B Loan Maturity Date
shall be extended as described herein without any further action of the New Term
B Lenders and the Administrative Agent. The Borrower shall deliver or cause to
be delivered any documentation, including amended New Term B Notes, as may
reasonably be requested by a New Term B Lender in connection with such
extension. In the event that the conditions described herein are not satisfied
by the Borrower prior to March 28, 2007, the New Term B Loan Maturity Date shall
not be extended and the New Term B Loans (to the extent not previously paid)
shall be due and payable on the then New Term B Loan Maturity Date (which for
the avoidance of doubt is acknowledged to be March 28, 2007).

                  (c) REVOLVING LOANS. Each Revolving Lender, severally and for
itself alone, hereby agrees, on the terms and subject to the conditions
hereinafter set forth and in reliance upon the representations and warranties
set forth herein and in the other Loan Documents, to


                                       45


make loans to the Borrower denominated in Dollars and in Euro (subject to the
limitations set forth in this Agreement), on a revolving basis from time to time
during the Commitment Period, so long as after giving effect thereto (and the
use of the proceeds thereof) (A) the Assigned Dollar Value of such Revolving
Lender's Outstanding Revolving Loans would not exceed its Revolver Pro Rata
Share of the Total Available Revolving Commitment or (B) the Assigned Dollar
Value of its Revolver Pro Rata Share of the Multicurrency Outstandings would not
exceed its Multicurrency Commitment (each such loan by any Lender, including
each such loan that is outstanding on the Amendment/Restatement Effective Date
which shall continue to remain outstanding hereunder as a Revolving Loan subject
to the same Interest Period as was applicable to it immediately prior to the
Amendment/Restatement Effective Date, a "REVOLVING LOAN" and collectively, the
"REVOLVING LOANS"). All Revolving Loans comprising the same Borrowing hereunder
shall be made by the Revolving Lenders simultaneously and in proportion to their
respective Revolving Commitments. Prior to the Revolver Termination Date,
Revolving Loans may be repaid and reborrowed by the Borrower in accordance with
the provisions hereof and, except as otherwise specifically provided in SECTION
3.6, all Revolving Loans comprising the same Borrowing shall at all times be of
the same Type.

                  (d) SWING LINE LOANS.

                      (i) SWING LINE COMMITMENT. Subject to the terms and
conditions hereof, the Swing Line Lender in its individual capacity agrees to
make swing line loans in Dollars ("SWING LINE LOANS") to the Borrower on any
Business Day from time to time during the Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed $15,000,000;
PROVIDED, HOWEVER, that in no event may the amount of any Borrowing of Swing
Line Loans (A) exceed the Total Available Revolving Commitment immediately prior
to such Borrowing (after giving effect to the use of proceeds thereof) or (B)
cause the Assigned Dollar Value of the Outstanding Revolving Loans of any
Lender, when added to such Lender's Revolver Pro Rata Share of then outstanding
Swing Line Loans and Revolver Pro Rata Share of the aggregate Assigned Dollar
Value of the LC Obligations (exclusive of Unpaid Drawings relating to LC
Obligations which are repaid with the proceeds of, and simultaneously with the
incurrence of, Revolving Loans or Swing Line Loans) to exceed such Lender's
Revolving Commitment. Amounts borrowed by the Borrower under this SECTION
2.1(d)(i) may be repaid and, to but excluding the fifth (5) Business Day prior
to the Revolver Termination Date, reborrowed. Swing Line Loans shall be
maintained as Base Rate Loans and, notwithstanding SECTION 2.6, shall not be
entitled to be converted into any other Type of Loan. Any Swing Line Loans that
are outstanding on the Amendment/Restatement Effective Date shall continue to
remain outstanding hereunder and are deemed to be "Swing Line Loans."

                      (ii) REFUNDING OF SWING LINE LOANS. The Swing Line Lender,
at any time in its sole and absolute discretion, may on behalf of the Borrower
(which hereby irrevocably directs the Swing Line Lender to so act on its behalf)
notify each Revolving Lender (including the Swing Line Lender) to make a
Revolving Loan in an amount equal to such Lender's Revolver


                                       46


Pro Rata Share of the principal amount of the Swing Line Loans (the "REFUNDED
SWING LINE LOANS") outstanding on the date such notice is given, PROVIDED,
HOWEVER, that such notice shall be deemed to have automatically been given upon
the occurrence of an Event of Default under SECTIONS 10.1(e) or 10.1(f) or upon
the occurrence of a Change of Control. Unless any of the events described in
SECTIONS 10.1(e) or 10.1(f) shall have occurred (in which event the procedures
of SECTION 2.1(d)(iii) shall apply) and regardless of whether the conditions
precedent set forth in this Agreement to the making of a Revolving Loan are then
satisfied, each Lender shall make the proceeds of its Revolving Loan available
to the Swing Line Lender at the Payment Office prior to 11:00 a.m., New York
City time, in funds immediately available on the Business Day next succeeding
the date such notice is given. The proceeds of such Revolving Loans shall be
immediately applied to repay the Refunded Swing Line Loans.

                      (iii) PARTICIPATION IN SWING LINE LOANS. If, prior to
refunding a Swing Line Loan with a Revolving Loan pursuant to SECTION
2.1(d)(ii), one of the events described in SECTIONS 10.1(e) or 10.1(f) shall
have occurred, or if for any other reason a Revolving Loan cannot be made
pursuant to SECTION 2.1(d)(ii), then, subject to the provisions of SECTION
2.1(d)(iv) below, each Lender will, on the date such Revolving Loan was to have
been made, purchase (without recourse or warranty) from the Swing Line Lender an
undivided participation interest in the Swing Line Loan in an amount equal to
its Revolver Pro Rata Share of such Swing Line Loan. Upon request, each Lender
will immediately transfer to the Swing Line Lender, in immediately available
funds, the amount of its participation and upon receipt thereof the Swing Line
Lender will deliver to such Lender a Swing Line Loan Participation Certificate,
substantially in the form of EXHIBIT 2.1(D) hereto, dated the date of receipt of
such funds and in such amount.

                      (iv) LENDERS' OBLIGATIONS UNCONDITIONAL. Each Lender's
obligation to make Revolving Loans in accordance with SECTION 2.1(d)(ii) and to
purchase participating interests in accordance with SECTION 2.1(d)(iii) above
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the Swing
Line Lender, the Borrower or any other Person for any reason whatsoever; (B) the
occurrence or continuance of any Event of Default or Unmatured Event of Default;
(C) any adverse change in the condition (financial or otherwise) of the Borrower
or any other Person; (D) any breach of this Agreement by the Borrower or any
other Person; (E) any inability of the Borrower to satisfy the conditions
precedent to borrowing set forth in this Agreement on the date upon which such
participating interest is to be purchased or (F) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
If any Lender does not make available to the Swing Line Lender the amount
required pursuant to SECTION 2.1(d)(ii) or (iii) above, as the case may be, the
Swing Line Lender shall be entitled to recover such amount on demand from such
Lender, together with interest thereon for each day from the date of non-payment
until such amount is paid in full at the Federal Funds Rate for the first two
(2) Business Days and at the Base Rate thereafter. Notwithstanding the foregoing
provisions of this SECTION


                                       47


2.1(d)(iv), no Lender shall be required to make a Revolving Loan to the Borrower
for the purpose of refunding a Swing Line Loan pursuant to SECTION 2.1(d)(ii)
above or to purchase a participating interest in a Swing Line Loan pursuant to
SECTION 2.1(d)(iii) if an Event of Default or Unmatured Event of Default has
occurred and is continuing and, prior to the making by the Swing Line Lender of
such Swing Line Loan, the Swing Line Lender has received written notice from
such Lender specifying that such Event of Default or Unmatured Event of Default
has occurred and is continuing, describing the nature thereof and stating that,
as a result thereof, such Lender shall cease to make such Refunded Swing Line
Loans and purchase such participating interests, as the case may be; PROVIDED,
HOWEVER, that the obligation of such Lender to make such Refunded Swing Line
Loans and to purchase such participating interests shall be reinstated upon the
earlier to occur of (y) the date upon which such Lender notifies the Swing Line
Lender that its prior notice has been withdrawn and (z) the date upon which the
Event of Default or Unmatured Event of Default specified in such notice no
longer is continuing.

Section 2.2.      NOTES.

                  (a) EVIDENCE OF INDEBTEDNESS. On the Initial Borrowing Date,
the Borrower issued (i) to each Lender that made a Term A Loan on such date a
Term A Note, (ii) to each Lender with a Revolving Commitment on such date a
Revolving Note, and (iii) to the Swingline Lender a Swingline Note. The Borrower
has from time to time thereafter, in connection with assignments made pursuant
to SECTION 12.8(c) hereof, issued new Notes as required by such Section to the
respective assignees. As of the Amendment/Restatement Effective Date, the
Borrower's obligation to pay the principal of and interest on the Term Loans
made to it by each New Term B Lender shall, if requested by a Lender, be
evidenced by a promissory note (each, a "NEW TERM B NOTE" and, collectively, the
"NEW TERM B NOTES") duly executed and delivered by the Borrower substantially in
the form of EXHIBIT 2.2(A) hereto, with blanks appropriately completed in
conformity herewith.

                  (b) NOTATION OF PAYMENTS. Each Lender will note on its
internal records the amount of each Loan made by it, and each payment in respect
thereof and will, prior to any transfer of any of its Notes, endorse on the
reverse side thereof the outstanding principal amount (and, with respect to
Revolving Notes, the applicable currency) of Loans evidenced thereby. Failure to
make any such notation, or any error in any such notation, shall not affect the
Borrower's or any guarantor's obligations hereunder or under the other
applicable Loan Documents in respect of such Loans.

Section 2.3.      MINIMUM AMOUNT OF EACH BORROWING; MAXIMUM NUMBER OF
                  BORROWINGS.

The aggregate principal amount of each Borrowing (other than with respect to
Swing Line Loans) by the Borrower hereunder shall be not less than the Minimum
Borrowing Amount and, if greater, shall be in integral multiples of (i) in the
case of a Borrowing in Dollars, $1,000,000, or (ii) in the case of a Borrowing
in Euro, 1,000,000 Euro, above such minimum (or, if less, the then


                                       48


Total Available Revolving Commitment). The aggregate principal amount of each
Swing Line Borrowing shall be not less than the Minimum Borrowing Amount and, if
greater, shall be in integral multiples of $100,000. More than one Borrowing may
be incurred on any date; PROVIDED that at no time shall there be outstanding
more than eight Borrowings of Eurocurrency Loans for any Facility.

Section 2.4.      BORROWING OPTIONS.

The Term Loans and the Revolving Loans shall, at the option of the Borrower
except as otherwise provided in this Agreement, be (i) Base Rate Loans, (ii)
Eurocurrency Loans, or (iii) part Base Rate Loans and part Eurocurrency Loans;
PROVIDED, that Multicurrency Loans may only be made as Eurocurrency Loans. As to
any Eurocurrency Loan, any Lender may, if it so elects, fulfill its commitment
by causing a foreign branch or affiliate to make or continue such Loan, provided
that in such event that Lender's Loan shall, for the purposes of this Agreement,
be considered to have been made by that Lender and the obligation of the
Borrower to repay that Lender's Loan shall nevertheless be to that Lender and
shall be deemed held by that Lender, for the account of such branch or
affiliate.

Section 2.5.      NOTICE OF BORROWING.

Whenever the Borrower desires to make a Borrowing of any Loan hereunder, it
shall give the Administrative Agent at its office located at 31 West 52nd
Street, New York, New York 10019 (or such other address as the Administrative
Agent may hereafter designate in writing to the parties hereto) (the "NOTICE
ADDRESS") at least one Business Day's prior written notice (or telephonic notice
promptly confirmed in writing), given not later than 1:00 p.m. (New York City
time) of each Base Rate Loan, and at least three (3) Business Days' prior
written notice (or telephonic notice promptly confirmed in writing), given not
later than 1:00 p.m. (New York City time), of each Dollar denominated
Eurocurrency Loan to be made hereunder and at least four (4) Business Days prior
written notice (or telephone notice promptly confirmed in writing) given not
later than 1:00 p.m. (New York time), of each Loan denominated in Euro;
PROVIDED, HOWEVER, that a Notice of Borrowing with respect to Borrowings to be
made on the Amendment/Restatement Effective Date may, at the discretion of the
Administrative Agent, be delivered later than the time specified above. Whenever
the Borrower desires that Swing Line Lender make a Swing Line Loan under SECTION
2.1(d), it shall deliver to Swing Line Lender prior to 1:00 p.m. (New York City
time) on the date of Borrowing written notice (or telephonic notice promptly
confirmed in writing). Each such notice (each a "NOTICE OF BORROWING"), which
shall be in the form of EXHIBIT 2.5-1 hereto, shall be irrevocable, shall be
deemed a representation by the Borrower that all conditions precedent to such
Borrowing have been satisfied and shall specify (i) the aggregate principal
amount of the Loans to be made pursuant to such Borrowing, (ii) the date of
Borrowing (which shall be a Business Day), (iii) whether the Loans being made
pursuant to such Borrowing are to be Base Rate Loans or Eurocurrency Loans and,
with respect to Eurocurrency Loans, (x) the Interest Period to be applicable
thereto and (y) the currency in


                                       49


which such Loan is to be made. The Administrative Agent shall as promptly as
practicable give each Lender written or telephonic notice (promptly confirmed in
writing) of each proposed Borrowing, of such Lender's Revolver Pro Rata Share
thereof and of the other matters covered by the Notice of Borrowing. Without in
any way limiting the Borrower's obligation to confirm in writing any telephonic
notice, the Administrative Agent or the Swing Line Lender (in the case of Swing
Line Loans) or the respective Facing Agent (in the case of Letters of Credit)
may act without liability upon the basis of telephonic notice believed by the
Administrative Agent in good faith to be from a Responsible Officer of the
Borrower prior to receipt of written confirmation as evidenced in the Notice of
Appointment (or Revocation) of Responsible Officer, which shall be in the form
of EXHIBIT 2.5-2 hereto. The Administrative Agent's records shall, absent
manifest error, be final, conclusive and binding on the Borrower with respect to
evidence of the terms of such telephonic Notice of Borrowing.

Section 2.6.      CONVERSION OR CONTINUATION.

With respect to Dollar denominated Loans, the Borrower may elect (i) on any
Business Day at any time after the seventh Business Day following the
Amendment/Restatement Effective Date to convert Base Rate Loans or any portion
thereof to Eurocurrency Loans and (ii) at the end of any Interest Period with
respect thereto, to convert Eurocurrency Loans or any portion thereof into Base
Rate Loans or to continue such Eurocurrency Loans or any portion thereof for an
additional Interest Period; PROVIDED, HOWEVER, that the aggregate principal
amount of the Eurocurrency Loans for each Interest Period therefor must be in an
aggregate principal amount equal to the Minimum Borrowing Amount for
Eurocurrency Loans or an integral multiple of (i) in the case of a Borrowing in
Dollars, $1,000,000, or (ii) in the case of a Borrowing in Euro, 1,000,000 Euro,
in each case in excess thereof. With respect to Euro denominated Loans, the
Borrower may elect to continue such Eurocurrency Loans or any portion thereof
for an additional Interest Period. Each conversion or continuation of Term A
Loans shall be allocated among the Term A Loans of the Term A Lenders in
accordance with their respective Term A Pro Rata Shares. Each conversion or
continuation of New Term B Loans shall be allocated among the New Term B Loans
of the New Term B Lenders in accordance with their respective New Term B Pro
Rata Shares. Each conversion or continuation of Revolving Loans shall be
allocated among the Revolving Loans of the Lenders in accordance with their
respective Revolver Pro Rata Shares. Each such election shall be in
substantially the form of EXHIBIT 2.6 hereto (a "NOTICE OF CONVERSION OR
CONTINUATION") and shall be made by giving the Administrative Agent at least
three (3) Business Days' (or one Business Day in the case of a conversion into
Base Rate Loans or four (4) Business Days' in the case of continuation of a
Multicurrency Revolving Loan) prior written notice thereof to the Notice Address
given not later than 1:00 p.m. (New York City time) specifying (i) the amount
and type of conversion or continuation, (ii) in the case of a conversion to or a
continuation of Eurocurrency Loans, the Interest Period therefor, and (iii) in
the case of a conversion, the date of conversion (which date shall be a Business
Day and, if a conversion from Eurocurrency Loans, shall also be the last day of
the Interest Period therefor). Notwithstanding the foregoing, no conversion in
whole or in part of Base Rate Loans to Eurocurrency Loans, and


                                       50


no continuation in whole or in part of Dollar denominated Eurocurrency Loans
upon the expiration of any Interest Period therefor, shall be permitted at any
time at which an Unmatured Event of Default or an Event of Default shall have
occurred and be continuing. The Borrower shall not be entitled to specify an
Interest Period in excess of 30 days for any Multicurrency Revolving Loan if an
Unmatured Event of Default or an Event of Default has occurred and is
continuing. If, within the time period required under the terms of this SECTION
2.6, the Administrative Agent does not receive a Notice of Conversion or
Continuation from the Borrower containing a permitted election to continue any
Eurocurrency Loans for an additional Interest Period or to convert any such
Loans, then, upon the expiration of the Interest Period therefor, such Loans
will be automatically converted to Base Rate Loans or, in the case of
Multicurrency Revolving Loans, Eurocurrency Loans with an Interest Period of one
month. Each Notice of Conversion or Continuation shall be irrevocable.

Section 2.7.      DISBURSEMENT OF FUNDS.

No later than 1:00 p.m. (local time at the place of funding) on the date
specified in each Notice of Borrowing, each Lender will make available its New
Term B Pro Rata Share of New Term B Loans and Revolver Pro Rata Share of
Revolving Loans, as the case may be, of the Borrowing requested to be made on
such date in Dollars or Euro, as the case may be, and in immediately available
funds, at the Payment Office (for the account of such non-U.S. office of the
Administrative Agent as the Administrative Agent may direct in the case of
Eurocurrency Loans) and the Administrative Agent will make available to the
Borrower at its Payment Office the aggregate of the amounts so made available by
the Lenders not later than 2:00 p.m. (local time in the place of payment).
Unless the Administrative Agent shall have been notified by any Lender at least
one Business Day prior to the date of Borrowing that such Lender does not intend
to make available to the Administrative Agent such Lender's portion of the
Borrowing to be made on such date, the Administrative Agent may assume that such
Lender has made such amount available to the Administrative Agent on such date
of Borrowing and the Administrative Agent may, but shall not be required to, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the
Administrative Agent by such Lender on the date of Borrowing, the Administrative
Agent shall be entitled to recover such corresponding amount on demand from such
Lender. If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the Borrower and, if so notified, the Borrower shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent shall
also be entitled to recover from the Borrower interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower to the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to the rate for Base Rate Loans or Eurocurrency Loans, as the case
may be, applicable during the period in question, PROVIDED, however, that any
interest paid to the Administrative Agent in respect of such corresponding
amount shall be credited against interest payable by the Borrower to such Lender
under


                                       51


SECTION 3.1 in respect of such corresponding amount. Any amount due hereunder to
the Administrative Agent from any Lender which is not paid when due shall bear
interest payable by such Lender, from the date due until the date paid, at the
Federal Funds Rate for amounts in Dollars (and at the Administrative Agent's
cost of funds for amounts in Euro) for the first three days after the date such
amount is due and thereafter at the Federal Funds Rate (or such cost of funds
rate) plus 1%, together with the Administrative Agent's standard interbank
processing fee. Further, such Lender shall be deemed to have assigned any and
all payments made of principal and interest on its Loans, amounts due with
respect to its Letters of Credit (or its participations therein) and any other
amounts due to it hereunder first to the Administrative Agent to fund any
outstanding Loans made available on behalf of such Lender by the Administrative
Agent pursuant to this SECTION 2.7 until such Loans have been funded (as a
result of such assignment or otherwise) and then to fund Loans of all Lenders
other than such Lender until each Lender has outstanding Loans equal to its New
Term B Pro Rata Share of all New Term B Loans and its Revolver Pro Rata Share of
all Revolving Loans (as a result of such assignment or otherwise). Such Lender
shall not have recourse against the Borrower with respect to any amounts paid to
the Administrative Agent or any Lender with respect to the preceding sentence;
PROVIDED, that such Lender shall have full recourse against the Borrower to the
extent of the amount of such loans it has so been deemed to have made. Nothing
herein shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment hereunder or to prejudice any rights which the Borrower may have
against the Lender as a result of any default by such Lender hereunder.

Section 2.8.      ADDITIONAL LOAN COMMITMENTS.

                  (a) So long as no Event of Default or Unmatured Event of
Default has occurred and is continuing, the Borrower may, upon 30 days' prior
written notice to the Administrative Agent, request on one or more occasions
that (i) the Revolving Commitment, the commitment available for Term A Loans or
both be increased (PROVIDED such increase shall be in a minimum aggregate amount
for all Lenders (including Eligible Assignees who will become Lenders) of at
least $5,000,000), or (ii) that the Lenders participate in a new credit facility
hereunder (the "      TERM C FACILITY"); PROVIDED that no Lender shall be
under any obligation to increase such Commitment or participate in such
Incremental Term C Facility. The aggregate amount of (y) any increase in the
Revolving Commitment, the commitment available for Term A Loans or both (the
"COMMITMENT INCREASE AMOUNT"), and (z) the amount of the Incremental Term C
Facility, shall not exceed $100,000,000. Such notice shall (A) specify the
requested Commitment Increase Amount or the requested amount of the Incremental
Term C Facility, as the case may be; (B) specify the applicable Facility or
Facilities to which such Commitment Increase Amount is to apply, and if more
than one Facility, the Commitment Increase Amount in respect of each such
Facility; (C) specify the effective date of such Commitment increase or
Incremental Term C Facility, which date shall not be less than 60 nor more than
90 days following the date of such written notice; and (D) include financial
projections satisfactory to the Administrative Agent (a copy of which shall be
provided to the Lenders) which evidence that, after giving effect to the
Commitment Increase Amount or the Incremental Term C


                                       52


Facility, as the case may be, including, without limitation, the amortization
terms thereof, on a pro forma basis through the Term A Loan Maturity Date, the
Borrower shall be in compliance with the covenants set forth in ARTICLE IX of
this Agreement. The terms and conditions of the Incremental Term C Facility
shall be as follows: (1) the amount of the Incremental Term C Facility shall be
the amount in respect of which the Lenders and any other financial institutions
which becomes a Incremental Term C Lender pursuant to SECTION 2.8(d) have agreed
to participate in accordance with this SECTION 2.8(a); (2) the Borrower shall
use the proceeds of any loans under the Incremental Term C Facility solely for
the purpose or purposes agreed to by the Lenders who agree to participate in the
Incremental Term C Facility and the other financial institutions which become
Incremental Term C Lenders pursuant to SECTION 2.8(d); (3) the Incremental Term
C Facility shall be made in Dollars, shall not revolve and any amount repaid or
prepaid under the Incremental Term C Facility cannot be reborrowed and shall
reduce the Incremental Term C Commitment by the amount repaid or prepaid, as the
case may be; (4) the Loans outstanding under the Incremental Term C Facility
shall have a weighted average life to maturity not less than the weighted
average life to maturity of the Term A Facility and shall mature no earlier than
the Term A Loan Maturity Date in respect of the Term A Facility; and (5) such
other terms and conditions agreed to by the Borrower and the Lenders who have
agreed to participate in accordance with this SECTION 2.8 and the other
financial institutions who have become Lenders pursuant to SECTION 2.8(d), which
terms and conditions (other than provisions relating to interest and fees) shall
not, taken as a whole, in any event, be more onerous or more extensive than the
terms and conditions set out in this Agreement. Upon receipt of such request the
Administrative Agent shall, as soon as reasonably practicable, notify the
applicable Lenders of such request.

                  (b) Each applicable Lender shall advise the Administrative
Agent in writing as to whether it consents to such requested increase or
participation, as the case may be, within 30 days of receipt by the
Administrative Agent from the Borrower of the notice requesting such increase or
participation, as the case may be. If any Lender does not provide such notice
within such time, such Lender shall be deemed to have refused the applicable
request. Not more than two (2) Business Days following (i) the last day for
receipt by the Administrative Agent of such notices or (ii) if all such relevant
Lenders shall have provided such notice, the day on which the last of such
notices shall have been received by the Administrative Agent, the Administrative
Agent shall advise the Borrower and each such Lender, with respect to each such
Lender, whether such Lender has consented to the requested Commitment Increase
Amount or request to participate in the Incremental Term C Facility, as the case
may be, or has refused, or is deemed to have refused, such requested Commitment
Increase Amount or request to participate in the Incremental Term C Facility, as
the case may be, and of the aggregate amount by which those Lenders consenting
to such Commitment Increase Amount have agreed to increase their respective
Commitments or participate in the Incremental Term C Facility.

                  (c) Subject to SECTION 2.8(e), in the event that the Borrower
has requested an increase of the Revolving Commitment or commitment available
for Term A Loans pursuant to


                                       53


SECTION 2.8(a) and (i) such Commitment Increase Amount has been agreed to by all
of the then existing Lenders, then the applicable Commitment in respect of each
such Lender shall be increased by an amount equal to the amount consented to by
such consenting Lender; or (ii) such increase has been consented to by some, but
not all, of the applicable Lenders, then (y) with respect to the consenting
Lenders, the relevant Commitment of each such Lender shall be increased by an
amount equal to the amount consented to by such consenting Lender; and (z) with
respect to the non-consenting Lenders, the relevant Commitment shall not be
increased.

                  (d) If consenting Lenders have not offered to advance all of
the Commitment Increase Amount or to participate in the Incremental Term C
Facility, as the case may be, then the Borrower (in coordination with the
Administrative Agent) may arrange for one or more other financial institutions
which qualify as Eligible Assignees hereunder and which are consented to by the
Administrative Agent and, with respect to an increase in the Revolving
Commitment, the Facing Agent (it being understood and agreed that such consent
shall not be unreasonably withheld or delayed) to offer to advance the balance
of such Commitment Increase Amount or the balance of the requested amount of the
Incremental Term C Facility, as the case may be (subject to the Lenders and such
other financial institution or institutions, as the case may be, executing and
delivering any documentation required by the Administrative Agent to evidence
the agreement of such other financial institution or institutions to advance all
or a part of the balance of such Commitment Increase Amount or the balance of
the requested amount of the Incremental Term C Facility, as the case may be);
PROVIDED, that any additional Commitment provided by any such Eligible Assignee
which is not already a Lender shall be in a minimum amount (for such Eligible
Assignee) of at least $2,500,000. In the case of a Commitment Increase Amount,
the Borrower shall, in coordination with the Administrative Agent, (x) repay all
outstanding Revolving Loans of the Revolving Lenders in each case so that the
Revolving Lenders participate in each Borrowing of Revolving Loans pro rata on
the basis of their respective Revolving Loan Commitments (after giving effect to
any increase in the Total Revolving Loan Commitment pursuant to this SECTION
2.8) and with the Borrower being obligated to pay the respective Revolving
Lenders the costs of the type referred to in SECTION 3.5 in connection with any
such repayment and/or Borrowing and (y) on such date with respect to an increase
in the Revolving Commitment, all outstanding Letters of Credit and LC
Obligations, shall be automatically adjusted to the participations by the
Lenders in such Letters of Credit and LC Obligations to reflect the new
Revolving Percentages of the Revolving Lenders.

                  (e) Any increase in the Revolving Commitment or the commitment
available for Term A Loans hereunder, or the participation of any Lender in the
Incremental Term C Facility, is subject to the conditions precedent that the
Borrower, the Lenders and such other financial institution or institutions shall
have executed and delivered any documentation reasonably required by the
Administrative Agent to evidence such increase of the Revolving Facility or the
commitment available for Term A Loans hereunder or to establish the Incremental
Term C Facility and that: (i) the representations and warranties of the Borrower
contained in ARTICLE VI shall be true and correct, and such increase or
participation, as the case may be, shall


                                       54


be deemed to constitute a representation and warranty that on such date such
representations and warranties were true and correct; and (ii) no Event of
Default or Unmatured Event of Default has occurred and is then continuing. On
the date that any of the events described in this SECTION 2.8 become effective,
SCHEDULE 1.1(a) shall be deemed modified to reflect the revised Revolving
Commitment or revised commitment available for Term A Loans or the additional
Incremental Term C Facility, as the case may be.

Section 2.9.      PRO RATA BORROWINGS.

All Borrowings of New Term B Loans and Revolving Loans under this Agreement
shall be loaned by the Lenders pro rata on the basis of their New Term B
Commitments and Revolving Commitments, as the case may be. No Lender shall be
responsible for any default by any other Lender in its obligation to make Loans
hereunder and each Lender shall be obligated to make the Loans provided to be
made by it hereunder, regardless of the failure of any other Lender to fulfill
its Commitments hereunder.

Section 2.10.     AMOUNT AND TERMS OF LETTERS OF CREDIT.

                  (a) LETTERS OF CREDIT; TERMS OF LETTERS OF CREDIT.

                      (i) Each Letter of Credit issued pursuant to SECTION
2.10(a) of the Original Credit Agreement and outstanding on the
Amendment/Restatement Effective Date, as listed on SCHEDULE 2.10(a) hereto,
shall continue to remain outstanding as a Letter of Credit hereunder on and
after such Amendment/Restatement Effective Date on the same terms as applicable
to it immediately prior to such Amendment/Restatement Effective Date. Subject to
and upon the terms and conditions herein set forth, at any time and from time to
time on or after the Amendment/Restatement Effective Date and to but not
including a date which is thirty (30) days prior to the Revolver Termination
Date, each Facing Agent agrees, severally not jointly, to issue each in its own
name, but for the ratable account of all Revolving Lenders (including the
applicable Facing Agent), one or more Letters of Credit, each having a Stated
Amount denominated in Dollars or Euro, for the account of the Borrower or any of
its Subsidiaries; PROVIDED, HOWEVER, that a Facing Agent shall not issue or
extend the expiration of any Letter of Credit if, immediately after giving
effect to such issuance or extension, (A) the aggregate LC Obligations at such
time would exceed the Dollar Equivalent of Sixty Million Dollars ($60,000,000),
or (B) the sum of the Assigned Dollar Value of Revolving Loans, the Assigned
Dollar Value of Swing Line Loans and the Assigned Dollar Value of LC Obligations
would exceed the Total Revolving Commitment or (C) the Multicurrency
Outstandings would exceed the Multicurrency Commitment. Each Revolving Lender,
severally, but not jointly, agrees to participate in each such Letter of Credit
issued by the applicable Facing Agent in an amount equal to its Revolver Pro
Rata Share, and to make available to the applicable Facing Agent such Lender's
Revolver Pro Rata Share of any payment made to the beneficiary of such Letter of
Credit to the extent not reimbursed by the Borrower; PROVIDED, HOWEVER, that no
Revolving


                                       55


Lender shall be required to participate in any Letter of Credit to the extent
that such participation therein would exceed such Revolving Lender's Available
Revolving Commitment then in effect. No Revolving Lender's obligation to
participate in any Letter of Credit or to make available to the applicable
Facing Agent such Revolving Lender's Revolver Pro Rata Share of any Letter of
Credit Payment made by the applicable Facing Agent shall be affected by any
other Revolving Lender's failure to participate in the same or any other
Revolving Letter of Credit or by any other Lender's failure to make available to
the applicable Facing Agent such other Revolving Lender's Revolver Pro Rata
Share of any Letter of Credit Payment. Notwithstanding the foregoing, in the
event a Lender Default exists, the Facing Agent shall not be required to issue
any Letter of Credit unless the Facing Agent has entered into arrangements
satisfactory to it and the Borrower to eliminate such Facing Agent's risk with
respect to the participation in Letters of Credit of the Defaulting Lender or
Lenders, including by cash collateralizing such Defaulting Lender's Revolver Pro
Rata Share of the LC Obligations.

                      (ii) Each Letter of Credit issued or to be issued
hereunder shall be issued on a sight basis, and shall have an expiration date of
one (1) year or less from the issuance date thereof; PROVIDED, HOWEVER, that
each Standby Letter of Credit may provide by its terms that it will be
automatically extended for additional successive periods of up to one (1) year
as to each successive period unless the applicable Facing Agent shall have given
notice to the applicable beneficiary (with a copy to the Borrower) of the
election by the applicable Facing Agent (such election to be in the sole and
absolute discretion of the applicable Facing Agent) not to extend such Letter of
Credit, such notice to be given prior to the then current expiration date of
such Letter of Credit; PROVIDED, FURTHER, that no Standby Letter of Credit or
extension thereof shall be stated to expire later than the day five (5) Business
Days prior to the Revolver Termination Date and no Commercial Letter of Credit
or extension thereof shall be stated to expire later than the day thirty (30)
days prior to the Revolver Termination Date.

                  (b) PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. Whenever the
Borrower desires the issuance of a Letter of Credit hereunder, it shall give the
Administrative Agent and the applicable Facing Agent at least four (4) Business
Days' prior written notice (or such shorter period as may be agreed to by the
Borrower, the Administrative Agent and the applicable Facing Agent) specifying
the day of issuance thereof (which day shall be a Business Day), such notice to
be given prior to 1:00 p.m. (New York City time) on the date specified for the
giving of such notice. Each such notice (each, a "LETTER OF CREDIT REQUEST")
shall be in the form of EXHIBIT 2.10(B) hereto and shall specify (A) the
proposed issuance date and expiration date, (B) the name(s) of each obligor with
respect to such Letter of Credit, (C) the Borrower or any of its Subsidiaries as
the account party, (D) the name and address of the beneficiary, (E) the Stated
Amount of such proposed Letter of Credit, (F) the currency in which such
proposed Letter of Credit is to be issued and (G) such other information as
Facing Agent may reasonably request. In addition, each Letter of Credit Request
shall contain a description of the terms and conditions to be included in such
proposed Letter of Credit (all of which terms and conditions shall be acceptable
in form to the applicable Facing Agent). Promptly after the issuance, amendment,



                                       56


extension or modification of a Standby Letter of Credit, the Facing Agent shall
notify the Borrower and the Administrative Agent, in writing of such activity
and such notice shall be accompanied by a copy of such issuance, amendment,
extension or modification. Upon receipt of such notice, the Administrative Agent
shall notify the Revolving Lenders of such issuance, amendment, extension or
modification and, if any Revolving Lender so requests, the Administrative Agent
shall provide such Revolving Lender with copies of such issuance, amendment,
modification or extension. With regard to Commercial Letters of Credit, the
Facing Agent shall, on the first Business Day of each week, provide the
Administrative Agent, by facsimile, with a report of the daily aggregate
outstandings for the previous week. Unless otherwise specified, all Letters of
Credit will be governed by the "Uniform Customs and Practice for Documentary
Credits" as in effect on the date of issuance of such Letter of Credit. On the
Business Day specified by the Borrower and upon confirmation from the
Administrative Agent that the applicable conditions set forth in ARTICLE V have
been fulfilled or waived, the applicable Facing Agent will issue the requested
Letter of Credit to the applicable beneficiary.

                  (c) DRAWS UPON LETTERS OF CREDIT; REIMBURSEMENT OBLIGATION. In
the event of any drawing under any Letter of Credit by the beneficiary thereof,
the applicable Facing Agent shall give telephonic notice to the Borrower and the
Administrative Agent (x) confirming such drawing and (y) of the date on or
before which such Facing Agent intends to honor such drawing, and the Borrower
shall reimburse the applicable Facing Agent on the day on which such drawing is
honored in an amount in same day funds equal to the amount of such drawing;
PROVIDED, HOWEVER, that, anything contained in this Agreement to the contrary
notwithstanding, (i) unless the Borrower shall have notified the Administrative
Agent and the applicable Facing Agent prior to 10:00 a.m. (New York City time)
on the Business Day the applicable Facing Agent intends to honor such drawing
that the Borrower intends to reimburse the applicable Facing Agent for the
amount of such drawing with funds other than the proceeds of Revolving Loans,
the Borrower shall be deemed to have timely given a Notice of Borrowing to the
Administrative Agent requesting each Revolving Lender to make (A) as to Domestic
Letters of Credit, Revolving Loans which are Base Rate Loans, and (B) as to
Multicurrency Letters of Credit, Revolving Loans which are Eurocurrency Loans
denominated in Euro with an Interest Period of 30 days, on the date on which
such drawing is honored in an amount equal to the Dollar Equivalent of the
amount of such drawing and the Administrative Agent shall, if such Notice of
Borrowing is deemed given, promptly notify the Lenders thereof and (ii) unless
any of the events described in SECTION 10.1(e) or 10.1(f) shall have occurred or
in the event that such unreimbursed drawing is in an amount that is less than
the Minimum Borrowing Amount for a Revolving Loan (in which events the
procedures of SECTION 2.10(d) shall apply), each such Lender shall, on the date
such drawing is honored, make (A) as to Domestic Letters of Credit, Revolving
Loans which are Base Rate Loans, and (B) as to Multicurrency Letters of Credit,
Revolving Loans which are Eurocurrency Loans denominated in Euro with an
Interest Period of 30 days, in each case, in the amount of its Revolver Pro Rata
Share of the Dollar Equivalent of such drawing, the proceeds of which shall be
applied directly by the Administrative Agent to reimburse the applicable Facing
Agent for the amount of such drawing; and PROVIDED, FURTHER, that, if for any
reason, proceeds of


                                       57


Revolving Loans are not received by the applicable Facing Agent on such date in
an amount equal to the amount of the Dollar Equivalent of such drawing, the
Borrower shall reimburse the applicable Facing Agent, on the Business Day
immediately following the date such drawing is honored, in an amount in same day
funds equal to the excess of the amount of the Dollar Equivalent of such drawing
over the Dollar Equivalent of the amount of such Revolving Loans, if any, which
are so received, plus accrued interest on such amount at the rate set forth in
SECTION 3.1(a).

                  (d) LENDERS' PARTICIPATION IN LETTERS OF CREDIT. In the event
that the Borrower shall fail to reimburse the applicable Facing Agent as
provided in SECTION 2.10(c) in an amount equal to the amount of any drawing
honored by the applicable Facing Agent under a Letter of Credit issued by it in
accordance with the terms hereof, the applicable Facing Agent shall promptly
notify the Administrative Agent and the Administrative Agent shall promptly
notify each Revolving Lender of the unreimbursed amount of such drawing and of
such Lender's respective participation therein. Each such Revolving Lender shall
purchase (x) a participation interest in such Domestic LC Obligation and shall
make available to the applicable Facing Agent in Dollars, an amount equal to its
Revolver Pro Rata Share of such drawing in same day funds, at the office of the
applicable Facing Agent specified in such notice, and (y) a participation
interest in such Multicurrency LC Obligation and shall make available to the
applicable Facing Agent, in Euro, an amount equal to its Revolver Pro Rata Share
of such drawing in same day funds, at the office of the applicable Facing Agent
specified in such notice, in each case not later than 1:00 p.m. (New York City
time) on the Business Day after the date such Lender is notified by the
Administrative Agent. In the event that any such Lender fails to make available
to the applicable Facing Agent the amount of such Lender's participation in such
Letter of Credit as provided in this SECTION 2.10(d), the applicable Facing
Agent shall be entitled to recover such amount on demand from such Lender
together with interest (x) at the Federal Funds Rate for two (2) Business Days
and thereafter at the Base Rate for such payment obligations denominated in
Dollars and (y) at the rate customary in Euro for settlement of similar
interbank obligations, as quoted by the Facing Agent for two (2) Business Days
and thereafter at the rate per annum applicable to Eurocurrency Loans having an
Interest Period of seven days for such payment obligations denominated in Euro.
Nothing in this SECTION 2.10(d) shall be deemed to prejudice the right of any
Lender to recover from the applicable Facing Agent any amounts made available by
such Lender to the applicable Facing Agent pursuant to this SECTION 2.10(d) in
the event that it is determined by a court of competent jurisdiction that the
payment with respect to a Letter of Credit by the applicable Facing Agent in
respect of which payment was made by such Lender constituted gross negligence or
willful misconduct on the part of the applicable Facing Agent. The applicable
Facing Agent shall distribute to each other Lender which has paid all amounts
payable by it under this SECTION 2.10(d) with respect to any Letter of Credit
issued by the applicable Facing Agent such other Revolving Lender's Revolver Pro
Rata Share of all payments received by the applicable Facing Agent from the
Borrower in reimbursement of drawings honored by the applicable Facing Agent
under such Letter of Credit when such payments are received. Each Lender's
obligation to make Revolving Loans pursuant to SECTION 2.10(c) or to


                                       58


purchase participations pursuant to this SECTION 2.10(d) as a result of a
drawing under a Letter of Credit shall be absolute and unconditional and without
recourse to the applicable Facing Agent and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment, defense or
other right which such Lender may have against the Facing Agent, the Borrower or
any other Person for any reason whatsoever; (ii) the occurrence or continuance
of an Event of Default or a Material Adverse Effect; or (iii) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.

                  (e) FEES FOR LETTERS OF CREDIT.

                      (i) FACING AGENT FEES. The Borrower agrees to pay the
following amount to the applicable Facing Agent with respect to the Letters of
Credit issued by it for the account of the Borrower:

                          (A) with respect to drawings made under any Letter of
Credit, interest, payable on demand, on the amount paid by Facing Agent in
respect of each such drawing from the date a drawing is honored up to (but not
including) the date such amount is reimbursed by the Borrower (including any
such reimbursement out of the proceeds of Revolving Loans or pursuant to SECTION
2.10(c)) at a rate which is at all times equal to 2% per annum in excess of the
Base Rate;

                          (B) with respect to the issuance or amendment of each
Letter of Credit and each payment made thereunder, documentary and processing
charges in accordance with the applicable Facing Agent's standard schedule for
such charges in effect at the time of such issuance, amendment, transfer or
payment, as the case may be; and

                          (C) a facing fee payable to the applicable Facing
Agent for the applicable Letters of Credit equal to 0.25% per annum of
outstanding LC Obligations payable with respect to the maximum Stated Amount
under such outstanding Letters of Credit payable in arrears on each Quarterly
Payment Date, on the Revolver Termination Date and thereafter, on demand
together with customary issuance and payment charges payable pursuant to clause
(B) above; PROVIDED, HOWEVER, if that calculation of the facing fee in the
manner set forth above would result in a facing fee of less than $500 per year
per Letter of Credit, the Borrower shall be obligated to pay such additional
amount to such Facing Agent so as to provide for a minimum facing fee of $500
per year per Letter of Credit. The facing fee shall be computed from the first
day of issuance of each Letter of Credit and on the basis of the actual number
of days elapsed over a year of 360 days.

                      (ii) PARTICIPATING LENDER FEES. The Borrower agrees to pay
to the Administrative Agent for distribution to each participating Revolving
Lender in respect of all Letters of Credit outstanding such Revolving Lender's
Revolver Pro Rata Share of a commission equal to the then Applicable
Eurocurrency Margin for Revolving Loans per annum with respect


                                       59


to the maximum Stated Amount under such outstanding Letters of Credit (the "LC
COMMISSION"), payable in arrears on each Quarterly Payment Date, on the Revolver
Termination Date and thereafter, on demand. The LC Commission shall be computed
from the first day of issuance of each Letter of Credit and on the basis of the
actual number of days elapsed over a year of 360 days.

                  Promptly upon receipt by a Facing Agent or the Administrative
Agent of any amount described in clause (i)(A) or (ii) of this SECTION 2.10(e),
the applicable Facing Agent or the Administrative Agent shall distribute to each
Revolving Lender its Revolver Pro Rata Share of such amount as long as, in the
case of amounts described in clause (i)(A), such Lender has reimbursed the
applicable Facing Agent in accordance with SECTION 2.10(c) or (d). Amounts
payable under clause (i)(B) and (C) of this SECTION 2.10(e) shall be paid
directly to the applicable Facing Agent. Amounts payable under clause (i) or
(ii) of this SECTION 2.10(e) shall be paid in Dollars in the Dollar Equivalent
of the amount of such fee calculated in the currency in which such Letter of
Credit is denominated.

                  (f) LC OBLIGATIONS UNCONDITIONAL. The obligation of the
Borrower to reimburse a Facing Agent (or any Lender that has purchased a
participation from or made a Loan to enable the Borrower to reimburse the
applicable Facing Agent) for drawings made under any Letter of Credit issued by
it and the obligations of each Lender under SECTION 2.10(d) with respect thereto
shall be unconditional and irrevocable and shall be paid strictly in accordance
with the terms of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:

                      (i) any lack of validity or enforceability of such Letter
of Credit;

                      (ii) the existence of any claim, setoff, defense or other
right which the Borrower or any of its Affiliates may have at any time against a
beneficiary or any transferee of such Letter of Credit (or any persons or
entities for which any such beneficiary or transferee may be acting), the
applicable Facing Agent, any Lender or any other Person, whether in connection
with this Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between the Borrower or one of
its Subsidiaries and the beneficiary of such Letter of Credit);

                      (iii) any draft, demand, certificate or any other document
presented under such Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;

                      (iv) payment by the applicable Facing Agent under such
Letter of Credit against presentation of a demand, draft or certificate or other
document which does not comply with the terms of such Letter of Credit;


                                       60


                      (v) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing; or

                      (vi) the fact that an Event of Default or an Unmatured
Event of Default shall have occurred and be continuing.

Notwithstanding the foregoing, neither the Borrower nor the Lenders (other than
the applicable Facing Agent in its capacity as such) shall be liable for any
obligation resulting from the gross negligence or willful misconduct of the
applicable Facing Agent, as determined by a court of competent jurisdiction,
with respect to any Letter of Credit.

                  (g) INDEMNIFICATION. In addition to amounts payable as
elsewhere provided in this Agreement, the Borrower hereby agrees to protect,
indemnify, pay and save the applicable Facing Agent and the Lenders harmless
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including Attorney Costs) (other than for Taxes,
which shall be covered by SECTION 4.7) which the applicable Facing Agent and the
Lenders may incur or be subject to as a consequence, direct or indirect, of (i)
the issuance of the Letters of Credit, other than as a result of the gross
negligence or willful misconduct of the applicable Facing Agent, as determined
by a court of competent jurisdiction, or (ii) the failure of the applicable
Facing Agent to honor a drawing under any Letter of Credit as a result of any
act or omissions, whether rightful or wrongful, of any present or future de jure
or de facto Governmental Authority (all such acts or omissions herein called
"GOVERNMENT ACTS") other than arising out of the gross negligence or willful
misconduct, as determined by a court of competent jurisdiction, of the
applicable Facing Agent. As between the Borrower on the one hand, and the
applicable Facing Agent and the Lenders, on the other hand, the Borrower assumes
all risks of the acts and omissions of, or misuse of the Letters of Credit
issued by the applicable Facing Agent by, the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the foregoing,
neither the applicable Facing Agent nor any of the Lenders shall be responsible:
(i) for the form, validity, sufficiency, accuracy, genuineness or legal effect
of any document submitted by any party in connection with the application for
and issuance of or any drawing under such Letters of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) for
failure of the beneficiary of any such Letter of Credit to comply fully with
conditions required in order to draw upon such Letter of Credit; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex, or otherwise, whether or not they be
in cipher; (v) for errors in interpretation of technical terms; (vi) for any
loss or delay in the transmission or otherwise of any document required in order
to make a drawing under any such Letter of Credit or of the proceeds thereof;
(vii) for the misapplication by the beneficiary of any such Letter of Credit of
the proceeds of any drawing under such Letter of Credit; and (viii) for any
consequences arising from


                                       61


causes beyond the control of the applicable Facing Agent, including, without
limitation, any Government Acts. None of the above shall effect, impair, or
prevent the vesting of any of the applicable Facing Agent's or any Lender's
rights or powers hereunder.

                  In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by the
applicable Facing Agent under or in connection with the Letters of Credit issued
by it or the related certificates, if taken or omitted in good faith, shall not
put the applicable Facing Agent under any resulting liability to the Borrower.
Notwithstanding anything to the contrary contained in this Agreement, the
Borrower shall have no obligation to indemnify or hold harmless the applicable
Facing Agent in respect of any claims, demands, liabilities, damages, losses,
costs, charges or expenses (including Attorney Costs) incurred by the applicable
Facing Agent to the extent arising out of the gross negligence or willful
misconduct of the applicable Facing Agent, as determined by a court of competent
jurisdiction. The right of indemnification in the first paragraph of this
SECTION 2.10(g) shall not prejudice any rights that the Borrower may otherwise
have against the applicable Facing Agent with respect to a Letter of Credit
issued hereunder.

                  (h) STATED AMOUNT. The Stated Amount of each Letter of Credit
shall not be less than the Dollar Equivalent of One Hundred Thousand Dollars
($100,000) or such lesser amount as the applicable Facing Agent has agreed to.

                  (i) INCREASED COSTS. If at any time after Initial Borrowing
Date, any Facing Agent or any Lender determines that the introduction of or any
change in any applicable law, rule, regulation, order, guideline or request or
in the interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof, or compliance by the
applicable Facing Agent or such Lender with any request or directive by any such
authority (whether or not having the force of law), shall either (i) impose,
modify or make applicable any reserve, deposit, capital adequacy or similar
requirement against letters of credit issued by the applicable Facing Agent or
participated in by any Lender, or (ii) impose on the applicable Facing Agent or
any Lender any other conditions relating, directly or indirectly, to the
provisions of this Agreement relating to Letters of Credit or any Letter of
Credit; and the result of any of the foregoing is to increase the cost to the
applicable Facing Agent or any Lender of issuing, maintaining or participating
in any Letter of Credit, or reduce the amount of any sum received or receivable
by the applicable Facing Agent or any Lender hereunder or reduce the rate of
return on its capital with respect to Letters of Credit, then, upon demand to
the Borrower by the applicable Facing Agent or any Lender (a copy of which
demand shall be sent by the applicable Facing Agent or such Lender to the
Administrative Agent), the Borrower shall pay to the applicable Facing Agent or
such Lender, as the case may be, such additional amount or amounts as will
compensate the applicable Facing Agent or such Lender for such increased cost or
reduction in the amount receivable or reduction on the rate of return on its
capital. In determining such additional amounts pursuant to the preceding
sentence, the applicable Facing Agent or such Lender will act reasonably and in
good faith and will, to the extent the increased


                                       62


costs or reductions in amounts receivable or reductions in rates of return
relate to Facing Agent's or such Lender's letters of credit in general and are
not specifically attributable to the Letters of Credit hereunder, use averaging
and attribution methods which are reasonable and which cover all letters of
credit similar to the Letters of Credit issued by or participated in by the
applicable Facing Agent or such Lender whether or not the documentation for such
other Letters of Credit permit the applicable Facing Agent or such Lender to
receive amounts of the type described in this SECTION 2.10(i). The applicable
Facing Agent or any Lender, upon determining that any additional amounts will be
payable pursuant to this SECTION 2.10(i), will give prompt written notice
thereof to the Borrower, which notice shall include a certificate submitted to
the Borrower by the applicable Facing Agent or such Lender (a copy of which
certificate shall be sent by the applicable Facing Agent or such Lender to the
Administrative Agent), setting forth in reasonable detail the basis for the
calculation of such additional amount or amounts necessary to compensate the
applicable Facing Agent or such Lender, although failure to give any such notice
shall not release or diminish the Borrower's obligations to pay additional
amounts pursuant to this SECTION 2.10(i); PROVIDED, HOWEVER, if the applicable
Facing Agent or such Lender, as applicable, has intentionally withheld or
delayed such notice, the applicable Facing Agent or such Lender, as the case may
be, shall not be entitled to receive additional amounts pursuant to this SECTION
2.10(i) for periods occurring prior to the 180th day before the giving of such
notice. The certificate required to be delivered pursuant to this SECTION
2.10(i) shall, absent manifest error, be final, conclusive and binding on the
Borrower.

                  (j) CASH COLLATERALIZATION OF LETTERS OF CREDIT. To the extent
that (i) the expiration date of any Letter of Credit extends beyond the Revolver
Termination Date and (ii) the Borrower, two Business Days prior to the Revolver
Termination Date, has notified in writing the Facing Agent which issued such
Letter of Credit that the Borrower desires to keep such Letter of Credit
outstanding after the Revolver Termination Date, then, the Borrower shall, by no
later than the Revolver Termination Date, deposit in an account with the
applicable Facing Agent as cash collateral an amount equal to 110% of the LC
Obligations of each such Letter of Credit to remain outstanding in Dollars and
in cash, as of the Revolver Termination Date, plus any accrued and unpaid
interest thereon. Each such deposit pursuant to this SECTION 2.10(j) shall be
held by the applicable Facing Agent as collateral for the payment and
performance of the obligations of the Borrower, with respect to such Letter of
Credit. The applicable Facing 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
made at the option and discretion of the applicable Facing Agent and at the
Borrower's 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 applicable Facing Agent to reimburse itself
for drawings on such Letter of Credit for which it has not been reimbursed and,
to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Obligations related
thereto. At such time as a Letter of Credit shall expire by its terms or
otherwise be cancelled and returned to the applicable Facing Agent by the
beneficiary thereof, the Facing Agent shall, to the extent amounts


                                       63


held in the cash collateral account relating to such Letter of Credit have not
been applied against the Obligations of the Borrower as provided herein,
promptly return to the Borrower any amounts remaining in such account.
Notwithstanding the foregoing, each Facing Agent, the Administrative Agent, the
Borrower and the Lenders hereby agree and acknowledge that at such time as the
Revolver Termination Date shall have occurred and a Facing Agent has received
cash collateral pursuant to this SECTION 2.10(j), no Revolving Lender shall be
required to participate in any Letter of Credit or drawing thereunder or to
provide Revolving Loans to reimburse the applicable Facing Agent for the amount
of any drawing made under any Letter of Credit outstanding after the Revolver
Termination Date.

                                  ARTICLE III

                                INTEREST AND FEES

Section 3.1.      INTEREST.

                  (a) BASE RATE LOANS. The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan at a rate per
annum equal to the Base Rate PLUS the Applicable Base Rate Margin from the date
the proceeds thereof are made available to the Borrower (or, if such Base Rate
Loan was converted from a Eurocurrency Loan, the date of such conversion) until
the earlier of (i) the maturity (whether by acceleration or otherwise) of such
Base Rate Loan or (ii) the conversion of such Base Rate Loan to a Eurocurrency
Loan pursuant to SECTION 2.6.

                  (b) EUROCURRENCY LOANS. The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Eurocurrency Loan from the date
the proceeds thereof are made available to the Borrower (or, if such
Eurocurrency Loan was converted from a Base Rate Loan, the date of such
conversion) until the earlier of (i) the maturity (whether by acceleration or
otherwise) of such Eurocurrency Loan or (ii) the conversion of such Eurocurrency
Loan to a Base Rate Loan pursuant to SECTION 2.6, at a rate per annum equal to
the relevant Eurocurrency Rate PLUS the Applicable Eurocurrency Margin.

                  (c) PAYMENT OF INTEREST. Interest on each Loan shall be
payable in arrears on each Interest Payment Date; PROVIDED, HOWEVER, that
interest accruing pursuant to SECTION 3.1(e) and as otherwise set forth in the
second to last sentence of this SECTION 3.1(c) shall be payable from time to
time on demand. Interest shall also be payable on all then outstanding Revolving
Loans on the Revolver Termination Date and on all Loans and Revolving Loans on
the date of repayment (including prepayment) thereof (except that voluntary
prepayments of Swing Line Loans and Revolving Loans that are Base Rate Loans
made pursuant to SECTION 4.3 on any day other than a Quarterly Payment Date or
the Revolver Termination Date need not be made with accrued interest from the
most recent Quarterly Payment Date, PROVIDED such accrued interest is paid on
the next Quarterly Payment Date) and on the date of maturity (by acceleration or



                                       64


otherwise) of such Loans. During the existence of any Event of Default, interest
on any Loan shall be payable on demand. Interest to be paid with respect to
Loans denominated in (x) Dollars shall be paid in Dollars and (y) in Euro shall
be in Euro.

                  (d) NOTIFICATION OF RATE. The Administrative Agent, upon
determining the interest rate for any Borrowing of Eurocurrency Loans for any
Interest Period, shall promptly notify the Borrower (by no later than one
Business Day following the date of such determination) and the Lenders thereof.
Such determination shall, absent manifest error and subject to SECTION 3.6, be
final, conclusive and binding upon all parties hereto.

                  (e) DEFAULT INTEREST. Notwithstanding the rates of interest
specified herein, effective on the date of the occurrence of any Event of
Default and for so long thereafter as any such Event of Default shall be
continuing, and effective immediately upon any failure to pay any Obligations or
any other amounts due under any of the Loan Documents when due, whether by
acceleration or otherwise, the principal balance of each Loan then outstanding
and, to the extent permitted by applicable law, any interest payment on each
Loan not paid when due or other amounts then due and payable shall bear interest
payable on demand, after as well as before judgment, at a rate per annum equal
to the Default Rate.

                  (f) MAXIMUM INTEREST. If any interest payment or other charge
or fee payable hereunder exceeds the maximum amount then permitted by applicable
law, the Borrower shall be obligated to pay the maximum amount then permitted by
applicable law and the Borrower shall continue to pay the maximum amount from
time to time permitted by applicable law until all such interest payments and
other charges and fees otherwise due hereunder (in the absence of such restraint
imposed by applicable law) have been paid in full.

Section 3.2.      FEES.

                  (a) COMMITMENT FEES. The Borrower shall pay to the
Administrative Agent for pro rata distribution to each Non-Defaulting Lender
having a Revolving Commitment a commitment fee (the "COMMITMENT FEE"), payable
in Dollars, for the period commencing on the Initial Borrowing Date to and
including the Revolver Termination Date or the earlier termination of the
Revolving Commitments (and repayment in full of the Revolving Loans and payment
in full, or cash collateralization by the deposit of cash into the Collateral
Account in amounts and pursuant to arrangements reasonably satisfactory to the
Administrative Agent, of the LC Obligations), computed at a rate equal to the
Applicable Commitment Fee Percentage per annum on the average daily Total
Available Revolving Commitment (with the Available Revolving Commitment of each
Lender determined without reduction for such Lender's Revolver Pro Rata Share of
the Assigned Dollar Value of Swing Line Loans outstanding). Unless otherwise
specified, accrued Commitment Fees shall be due and payable (i) on each
Quarterly Payment Date occurring after the Initial Borrowing Date, (ii) on the
Revolver Termination Date and (iii)




                                       65



upon any reduction or termination in whole or in part of the Revolving
Commitments (but only, in the case of a reduction, on the portion of the
Revolving Commitments then being reduced).

                  (b) AGENCY FEES. The Borrower shall pay to the Administrative
Agent for its own account and for the account of the Agents, such other fees in
the amount and at the times set forth in any letter agreement between the
Borrower and the Agents.

Section 3.3.      COMPUTATION OF INTEREST AND FEES.

Interest on all Loans and fees payable hereunder shall be computed on the basis
of the actual number of days elapsed over a year of 360 days; PROVIDED that
interest on all Base Rate Loans shall be computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be. Each
determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error. The Administrative Agent shall, at
any time and from time to time upon request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate applicable to Domestic Revolving Loans pursuant to
this Agreement. Each change in the Applicable Base Rate Margin or Applicable
Eurodollar Margin or the Applicable Commitment Fee Percentage or any change in
the LC Commission as a result of a change in the Borrower's Most Recent Leverage
Ratio shall become effective on the date upon which such change in such ratio
occurs.

Section 3.4.      INTEREST PERIODS.

At the time it gives any Notice of Borrowing or a Notice of Conversion or
Continuation with respect to Eurocurrency Loans, the Borrower shall elect, by
giving the Administrative Agent written notice, the Interest Period (each an
"INTEREST PERIOD") which Interest Period shall, at the option of the Borrower,
be one, two, three or six months or, if available or otherwise satisfactory to
each of the applicable Lenders (as determined by each such applicable Lender in
its sole discretion) a nine or twelve month period, PROVIDED that:

                      (i) all Eurocurrency Loans comprising a Borrowing shall at
all times have the same Interest Period;

                      (ii) the initial Interest Period for any Eurocurrency Loan
shall commence on the date of such Borrowing of such Eurocurrency Loan
(including the date of any conversion thereto from a Loan of a different Type)
and each Interest Period occurring thereafter in respect of such Eurocurrency
Loan shall commence on the last day of the immediately preceding Interest
Period;

                      (iii) if any Interest Period relating to a Eurocurrency
Loan begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such


                                       66


Interest Period, such Interest Period shall end on the last Business Day of such
calendar month;

                      (iv) if any Interest Period would otherwise expire on a
day which is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; PROVIDED, HOWEVER, that if any Interest Period for a
Eurocurrency Loan would otherwise expire on a day which is not a Business Day
but is a day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business Day;

                      (v) no Interest Period (a) with respect to any Loan (other
than a Multicurrency Revolving Loans) may be selected at any time when an
Unmatured Event of Default or Event of Default is then in existence and (b) with
respect to any Multicurrency Revolving Loan in excess of one month may be
selected at any time when an Unmatured Event of Default or Event of Default is
then in existence;

                      (vi) no Interest Period shall extend beyond the Term A
Loan Maturity Date for any Term A Loan, the New Term B Loan Maturity Date for
any New Term B Loan or the Revolver Termination Date for any Revolving Loan; and

                      (vii) no Interest Period in respect to any Borrowing of
Term A Loans or New Term B Loans, as the case may be, shall be selected which
extends beyond any date upon which a mandatory repayment of such Term Loans will
be required to be made under SECTION 4.4(b) or (c), as the case may be, if the
aggregate principal amount of Term A Loans or New Term B Loans, as the case may
be, which have Interest Periods which will expire after such date will be in
excess of the aggregate principal amount of Term A Loans or New Term B Loans, as
the case may be, then outstanding less the aggregate amount of such required
prepayment.

Notwithstanding anything to the contrary herein, with respect to the New Term B
Facility, the Borrower may only have Base Rate Loans and Eurocurrency Loans with
a one month Interest Period prior to the Syndicated Date.

Section 3.5.      COMPENSATION FOR FUNDING LOSSES.

The Borrower shall compensate each Lender, upon its written request (which
request shall set forth the basis for requesting such amounts, showing the
calculation thereof in reasonable detail), for all losses, expenses and
liabilities (including, without limitation, any interest paid by such Lender to
lenders of funds borrowed by it to make or carry its Eurocurrency Loans to the
extent not recovered by the Lender in connection with the liquidation or
re-employment of such funds and including the compensation payable by such
Lender to a Participant) and any loss sustained by such Lender in connection
with the liquidation or re-employment of such funds (including, without
limitation, a return on such liquidation or re-employment that would result in
such Lender receiving less than it would have received had such Eurocurrency
Loan remained outstanding until the last day of the Interest Period applicable
to such Eurocurrency Loans) which


                                       67


such Lender may sustain as a result of: (i) for any reason (other than a default
by such Lender or the Administrative Agent) a continuation or Borrowing of, or
conversion from or into, Eurocurrency Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion or Continuation
(whether or not withdrawn); (ii) any payment, prepayment or conversion or
continuation of any of its Eurocurrency Loans occurring for any reason
whatsoever on a date which is not the last day of an Interest Period applicable
thereto; (iii) any repayment of any of its Eurocurrency Loans not being made on
the date specified in a notice of payment given by the Borrower; or (iv) (A) any
other failure by the Borrower to repay its Eurocurrency Loans when required by
the terms of this Agreement or (B) an election made by the Borrower pursuant to
SECTION 3.7. A written notice as to additional amounts owed such Lender under
this SECTION 3.5 and delivered to the Borrower and the Administrative Agent by
such Lender shall be delivered within 30 days of such event and shall, absent
manifest error, be final, conclusive and binding for all purposes. Calculation
of all amounts payable to a Lender under this SECTION 3.5 shall be made as
though that Lender had actually funded its relevant Eurocurrency Loan through
the purchase of a Eurocurrency deposit bearing interest at the Eurocurrency Rate
in an amount equal to the amount of that Loan, having a maturity comparable to
the relevant Interest Period and through the transfer of such Eurocurrency
deposit from an offshore office of that Lender to a domestic office of that
Lender in the United States of America; PROVIDED, HOWEVER, that each Lender may
fund each of its Eurocurrency Loans in any manner it sees fit and the foregoing
assumption shall be utilized only for the calculation of amounts payable under
this SECTION 3.5.

Section 3.6.      INCREASED COSTS, ILLEGALITY, ETC.

                  (a) GENERALLY. In the event that any Lender shall have
determined (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto but, with respect to clause (i)
below, may be made only by the Administrative Agent):

                      (i) on any Interest Rate Determination Date that, by
reason of any changes arising after the Initial Borrowing Date affecting the
interbank Eurocurrency market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the
definition of Eurocurrency Rate; or

                      (ii) at any time that any Lender shall incur increased
costs or reduction in the amounts received or receivable hereunder with respect
to any Eurocurrency Loan because of (x) any change since the Initial Borrowing
Date in any applicable law or governmental rule, regulation, order or guideline
(whether or not having the force of law) or in the interpretation or
administration thereof and including the introduction of any new law or
governmental rule, regulation, order or guideline, such as, for example, but not
limited to: (A) a change in the basis of taxation of payments to any Lender of
the principal of or interest on the Notes or any other amounts payable hereunder
(except for taxes described in SECTIONS 4.7(a)(i) through (IV)) or (B) a change
in official reserve requirements (but, in all events, excluding reserves
required under


                                       68


Regulation D to the extent included in the computation of the Eurocurrency Rate)
and/or (y) other circumstances since the Initial Borrowing Date affecting such
Lender or the interbank Eurocurrency market or the position of such Lender in
such market (excluding, however, differences in a Lender's cost of funds from
those of the Administrative Agent which are solely the result of credit
differences between such Lender and the Administrative Agent); or

                      (iii) at any time that the making or continuance of any
Eurocurrency Loan has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by any Lender in good faith
with any governmental guideline (whether or not having force of law) or (z)
impracticable as a result of a contingency occurring after the Initial Borrowing
Date which materially and adversely affects the interbank Eurocurrency market;

then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in
the case of clause (i) above, Eurocurrency Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of Conversion or
Continuation given by the Borrower with respect to Eurocurrency Loans (other
than with respect to conversions to Base Rate Loans) which have not yet been
incurred (including by way of conversion) shall be deemed rescinded by the
Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to such
Lender, upon written demand therefor, such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its sole discretion shall determine) as shall be required to
compensate such Lender for such increased costs or reductions in amounts
received or receivable hereunder (a written notice as to the additional amounts
owed to such Lender, showing the basis for the calculation thereof, submitted to
the Borrower by such Lender shall, absent manifest error, be final and
conclusive and binding on all the parties hereto; however the failure to give
any such notice shall not release or diminish the Borrower's obligations to pay
additional amounts pursuant to this SECTION 3.6(a) provided that the Borrower
shall not be required to compensate such Lender pursuant to this section for any
increased costs or reductions incurred more than 180 days prior to the date that
such Lender notifies the Borrower of the increased costs or reductions and of
such Lender's intention to claim compensation therefor; PROVIDED FURTHER that,
if the change in law giving rise to such increased costs or reductions is
retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof and (z) in the case of clause
(iii) above, the Borrower shall take one of the actions specified in SECTION
3.6(b) as promptly as possible and, in any event, within the time period
required by law. In determining such additional amounts pursuant to clause (y)
of the immediately preceding sentence, each Lender shall act reasonably and in
good faith and will, to the extent the increased costs or reductions in amounts
receivable relate to such Lender's loans in


                                       69


general and are not specifically attributable to a Loan hereunder, use averaging
and attribution methods which are reasonable and which cover all loans similar
to the Loans made by such Lender whether or not the loan documentation for such
other loans permits the Lender to receive increased costs of the type described
in this SECTION 3.6(a).

                  (b) EUROCURRENCY LOANS. At any time that any Eurocurrency Loan
is affected by the circumstances described in SECTION 3.6(a)(ii) or (iii), the
Borrower may (and, in the case of a Eurocurrency Loan affected by the
circumstances described in SECTION 3.6(a)(iii), shall) either (i) if the
affected Eurocurrency Loan is then being made initially or pursuant to a
conversion, by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Borrower was notified by the affected Lender
or the Administrative Agent pursuant to SECTION 3.6(a)(ii) or (iii), cancel the
respective Borrowing, or (ii) if the affected Eurocurrency Loan is then
outstanding, upon at least three (3) Business Days' written notice to
Administrative Agent, require the affected Lender to (A) if denominated in
Dollars, convert such Eurocurrency Loan into a Base Rate Loan, and (B) if
denominated in Euro, either (x) repay such Loan or (y) convert such Loan to a
Base Rate Loan denominated in Dollars, PROVIDED, that if more than one Lender is
affected at any time, then all affected Lenders must be treated the same
pursuant to this SECTION 3.6(b).

                  (c) CAPITAL REQUIREMENTS. If any Lender determines that, after
the Initial Borrowing Date, the introduction of or any change in any applicable
law or governmental rule, regulation, order, guideline or request (whether or
not having the force of law) concerning capital adequacy, or any change in
(after the Initial Borrowing Date) interpretation or administration thereof by
any Governmental Authority, central bank or comparable agency, will have the
effect of increasing the amount of capital required or expected to be maintained
by such Lender or any corporation controlling such Lender based on the existence
of such Lender's Commitments hereunder or its obligations hereunder, then the
Borrower shall pay to such Lender, upon its written notice as hereafter
described, such additional amounts as shall be required to compensate such
Lender or such other corporation for the increased cost to such Lender or such
other corporation or the reduction in the rate of return to such Lender or such
other corporation as a result of such increase of capital. In determining such
additional amounts, each Lender will act reasonably and in good faith and will
use averaging and attribution methods which are reasonable and which will, to
the extent the increased costs or reduction in the rate of return relates to
such Lender's commitments or obligations in general and are not specifically
attributable to the Commitments and obligations hereunder, cover all commitments
and obligations similar to the Commitments and obligations of such Lender
hereunder whether or not the loan documentation for such other commitments or
obligations permits the Lender to make the determination specified in this
SECTION 3.6(c), and such Lender's determination of compensation owing under this
SECTION 3.6(c) shall, absent manifest error, be final and conclusive and binding
on all the parties hereto. Each Lender, upon determining that any additional
amounts will be payable pursuant to this SECTION 3.6(c), will give prompt
written notice thereof to the Borrower, which notice shall show the basis for
calculation of such additional amounts, although the failure to


                                       70


give any such notice shall not release or diminish any of the Borrower's
obligations to pay additional amounts pursuant to this SECTION 3.6(c) PROVIDED
that the Borrower shall not be required to compensate such Lender pursuant to
this Section for any increased costs or reductions incurred more than 180 days
prior to the date that such Lender notifies the Borrower of the increased costs
or reductions and of such Lender's intention to claim compensation thereof;
PROVIDED FURTHER that, if the change in law giving rise to such increased costs
or reductions is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.

                  (d) CHANGE OF LENDING OFFICE. Each Lender which is or will be
owed compensation pursuant to SECTION 3.6(a) or (c) or SECTION 4.7 will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to cause a different branch or Affiliate to make
or continue a Loan or Letter of Credit if such designation will avoid the need
for, or materially reduce the amount of, such compensation to such Lender and
will not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender as determined by such Lender in its sole discretion. Nothing in this
SECTION 3.6(d) shall affect or postpone any of the obligations of the Borrower
or the right of any Lender provided for herein.

Section 3.7.      REPLACEMENT OF AFFECTED LENDERS.

                  (a) If any Revolving Lender becomes a Defaulting Lender or
otherwise defaults in its Obligations to make Loans or fund Unpaid Drawings, (y)
if any Lender (or in the case of SECTION 2.10(i), any Facing Agent) is owed
increased costs under SECTION 2.10(i), SECTION 3.6(a)(ii) or (iii), or SECTION
3.6(c), or the Borrower is required to make any payments under SECTION 4.7(c) to
any Lender materially in excess of those to the other Lenders or (z) as provided
in SECTION 12.1(b) in the case of certain refusals by a Lender to consent to
certain proposed amendments, changes, supplements, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Lenders, the Borrower shall have the right, if no Event of Default or
Unmatured Event of Default then exists, to replace such Lender (the "REPLACED
LENDER") with one or more other Eligible Assignees, none of whom shall
constitute a Defaulting Lender at the time of such replacement (collectively,
the "REPLACEMENT LENDER") acceptable to the Administrative Agent, PROVIDED that
(i) at the time of any replacement pursuant to this SECTION 3.7, the Replaced
Lender and Replacement Lender shall enter into one or more assignment
agreements, in form and substance satisfactory to such parties and the
Administrative Agent, pursuant to which the Replacement Lender shall acquire all
of the Commitments and outstanding Loans of, and participation in Letters of
Credit and Swing Line Loans by, the Replaced Lender and (ii) all obligations of
the Borrower owing to the Replaced Lender (including, without limitation, such
increased costs and excluding those specifically described in clause (i) above
in respect of which the assignment purchase price has been, or is concurrently
being paid) shall be paid in full to such Replaced Lender concurrently with such
replacement. Upon the execution of the respective assignment documentation, the
payment of amounts referred to in clauses (i) and (ii) above and, if so
requested by the Replacement Lender,


                                       71


delivery to the Replacement Lender of the appropriate Note or Notes executed by
the Borrower, the Replacement Lender shall become a Lender hereunder and, unless
the Replaced Lender continues to have outstanding Loans hereunder, the Replaced
Lender shall cease to constitute a Lender hereunder, except with respect to
indemnification provisions under this Agreement, which shall survive as to such
Replaced Lender. Notwithstanding anything to the contrary contained above, no
Lender that acts as a Facing Agent may be replaced hereunder at any time during
which it has Letters of Credit outstanding hereunder unless arrangements
satisfactory to, such Facing Agent (including the furnishing of a standby letter
of credit in form and substance, and issued by an issuer satisfactory to such
Facing Agent or the depositing of cash collateral into the Collateral Account in
amounts and pursuant to arrangements satisfactory to such Facing Agent) have
been made with respect to such outstanding Letters of Credit.

Section 3.8.      BORROWER CONTROLS ON NON-DOLLAR LOANS; PREPAYMENTS.

                  (a) The Borrower will implement and maintain internal
accounting controls to monitor the borrowings and repayments of Multicurrency
Revolving Loans and the issuance of and drawings under Multicurrency Letters of
Credit with the object of preventing any request for an extension of credit that
would result in the Borrower failing to comply with this Agreement, and of
promptly identifying and remedying any circumstance in accordance with clause
(c) below where, by reason of changes in exchange rates, the Borrower fails to
be in compliance with such subsection.

                  (b) The Administrative Agent will calculate the Multicurrency
Outstandings (i) three (3) Business Days prior to the date of a proposed
Borrowing or, if applicable, date of conversion/continuation of a Loan, (ii) on
and as of the first Business Day of each calendar month, and (iii) any other
Business Day elected by the Administrative Agent in its discretion or upon
instruction of the Required Lenders. Each day upon or as of which the
Administrative Agent determines the Multicurrency Outstandings described in the
preceding clauses (i), (ii) and (iii) is herein described as a "COMPUTATION
DATE" with respect to each Loan or LC Obligation for which a Dollar Equivalent
amount is determined on or as of such day.

                  (c) In the event that the Borrower (in accordance with
paragraph (a) above) or the Administrative Agent (in accordance with (b) above)
determines that the Multicurrency Outstandings exceed the Multicurrency
Commitment by more than 5%, the Borrower will, within four (4) Business Days of
making such determination or of the Computation Date, as applicable, make or
cause to be made such repayments or prepayments of Multicurrency Revolving Loans
or cash collateralize Multicurrency LC Obligations on terms and conditions
satisfactory to the Administrative Agent, pursuant to SECTION 4.4(a), as shall
be necessary to reduce the Multicurrency Outstandings to less than or equal to
the Multicurrency Commitment.


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                  (d) Any prepayment pursuant to subsection (c) above shall be
accompanied by payment of amounts payable, if any, pursuant to SECTION 3.5.

                                   ARTICLE IV

               REDUCTION OF COMMITMENTS; PAYMENTS AND PREPAYMENTS

Section 4.1.      VOLUNTARY REDUCTION OF COMMITMENTS.

                  (a) Upon at least three (3) Business Days' prior written
notice (or telephonic notice confirmed in writing) to the Administrative Agent
at the Notice Office (which notice the Administrative Agent shall promptly
transmit to each Lender), the Borrower shall have the right, without premium or
penalty, to terminate the unutilized portion of the Revolving Commitments
and/or, the Swing Line Commitment, as the case may be, in part or in whole;
PROVIDED that (w) any such voluntary termination of the Revolving Commitments
shall apply to proportionately and permanently reduce the Revolving Commitment
of each Revolving Lender, (x) any partial voluntary reduction pursuant to this
SECTION 4.1 shall be in the amount of at least $1,000,000 and integral multiples
of $500,000 in excess of that amount, and (y) any such voluntary termination of
the Revolving Commitments shall occur simultaneously with a voluntary prepayment
pursuant to SECTION 4.3, such that the total of the Revolving Commitments shall
not be reduced below the aggregate Assigned Dollar Value of outstanding
Revolving Loans plus the Assigned Dollar Value of the aggregate LC Obligations
and the Assigned Dollar Value of the Swing Line Loans.

                  (b) In the event of certain refusals by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Lenders as provided in
SECTION 12.1(b), the Borrower shall have the right, upon five (5) Business Days'
prior written notice to the Administrative Agent (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), to
terminate the entire Revolving Commitment of such Lender, so long as all Loans,
together with accrued and unpaid interest, fees and all other amounts, due and
owing to such Lender are repaid concurrently with the effectiveness of such
termination at which time SCHEDULE 1.1(a) shall be deemed modified to reflect
such changed amounts pursuant to SECTION 4.3(b) and the Borrower cash
collateralizes such Lender's Revolver Pro Rata Share of the Assigned Dollar
Value of the LC Obligations (in the manner set forth in SECTION 4.4(a)) then
outstanding. At such time, such Lender shall no longer constitute a "Lender" for
purposes of this Agreement, except with respect to indemnifications in favor of
such Lender under this Agreement which shall survive as to such repaid Lender.



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Section 4.2.      Mandatory Reductions of Commitments.

                  (a) REDUCTION OF REVOLVING COMMITMENT. The Revolving
Commitments shall be reduced at the time and in the amounts required to be
reduced pursuant to SECTION 4.4(d) and (j), subject to the provisions of this
Agreement.

                  (b) REDUCTION OF NEW TERM B COMMITMENTS. The New Term B
Commitments shall terminate on the Amendment/Restatement Effective Date, after
giving effect to the Borrowing of the New Term B Loans on such date.

                  (c) PROPORTIONATE REDUCTIONS. Each reduction or adjustment to
the Term Commitments or the Revolving Commitments pursuant to this SECTION 4.2
shall apply proportionately to the New Term B Commitment or the Revolving
Commitment, as the case may be, of each Lender.

Section 4.3.      VOLUNTARY PREPAYMENTS.

                  (a) The Borrower shall have the right to prepay the Loans in
whole or in part, from time to time, without premium or penalty, on the
following terms and conditions: (i) the Borrower shall give the Administrative
Agent irrevocable written notice at its Notice Office (or telephonic notice
promptly confirmed in writing) of its intent to prepay the Loans, whether such
Loans are Term Loans, Revolving Loans or Swing Line Loans, the amount and
currency, if applicable, of such prepayment and the specific Borrowings to which
such prepayment is to be applied, which notice shall be given by the Borrower to
the Administrative Agent by 1:00 p.m. (New York City time) at least three (3)
Business Days prior in the case of Eurocurrency Loans and at least one Business
Day prior in the case of Base Rate Loans to the date of such prepayment and
which notice shall (except in the case of Swing Line Loans) promptly be
transmitted by the Administrative Agent to each of the applicable Lenders; (ii)
each partial prepayment of any Borrowing (other than a Borrowing of Swing Line
Loans) shall be in an aggregate Dollar Equivalent principal amount of at least
$1,000,000 and each partial prepayment of a Swing Line Loan shall be in an
aggregate principal amount of at least $100,000; PROVIDED, that no partial
prepayment of Eurocurrency Loans made pursuant to a single Borrowing shall
reduce the aggregate principal amount of the outstanding Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto; (iii) Eurocurrency Loans may only be prepaid pursuant to this SECTION
4.3 on the last day of an Interest Period applicable thereto or on any other day
subject to SECTION 3.5; (iv) each prepayment in respect of any Borrowing shall
be applied pro rata among the Loans comprising such Borrowing; PROVIDED, that
such prepayment shall not be applied to any Revolving Loans of a Defaulting
Lender at any time when the aggregate amount of Revolving Loans of any
Non-Defaulting Lender exceeds such Non-Defaulting Lender's Revolver Pro Rata
Share of all Revolving Loans then outstanding; (v) each voluntary prepayment of
Term Loans shall be applied to the Scheduled Term A Repayments and Scheduled New
Term B Repayments due


                                       74


within the 12 month period following the date of such prepayment in direct order
of maturity and, thereafter, subject to SECTION 4.5(0) shall be applied in
proportional amounts equal to the Term A Percentage and the New Term B
Percentage (in each case, after giving effect to the prepayments made to the
Scheduled Term A Repayments and the Scheduled New Term B Repayments due within
such twelve month period as specified above), as the case may be, of such
remaining prepayment, if any, and within each Term Loan, shall be applied to
reduce the remaining Scheduled Term A Repayments and Scheduled New Term B
Repayments on a pro rata basis (based upon the then remaining principal amount
of such Scheduled Term A Repayments and Scheduled New Term B Repayments,
respectively). Unless otherwise specified by the Borrower, such prepayment shall
be applied first to the payment of Base Rate Loans and second to the payment of
such Eurocurrency Loans as the Borrower shall request (and in the absence of
such request, as the Administrative Agent shall determine). In the event that
any New Term B Lender waives all or part of its right to receive its portion of
a voluntary prepayment pursuant to SECTION 4.5(c), the Administrative Agent
shall apply one hundred percent (100%) of the amount so waived, if any, by such
New Term B Lender pro-rata to the Term A Loans in accordance with this SECTION
4.3(a). The notice provisions, the provisions with respect to the minimum amount
of any prepayment, and the provisions requiring prepayments in integral
multiples above such minimum amount of this SECTION 4.3 are for the benefit of
the Administrative Agent and may be waived unilaterally by the Administrative
Agent.

                  (b) In the event of certain refusals by a Lender to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Lenders as provided in
SECTION 12.1(b), the Borrower shall have the right, upon five (5) Business Days'
prior written notice to the Administrative Agent (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), to repay
all Loans, together with accrued and unpaid interest, fees and all other amounts
due and owing to such Lender in accordance with said SECTION 12.1(b), so long as
(A) in the case of the repayment of Revolving Loans of any Revolving Lender
pursuant to this CLAUSE (B), the Revolving Commitment of such Revolving Lender
is terminated concurrently with such repayment pursuant to SECTION 4.1(b), and
(b) in the case of the repayment of Loans of any Lender, the consents required
by SECTION 12.1(b) in connection with the repayment pursuant to this CLAUSE (B)
shall have been obtained.

Section 4.4.      MANDATORY PREPAYMENTS.

                  (a) PREPAYMENT UPON OVERADVANCE. The Borrower shall prepay the
outstanding principal amount of the Revolving Loans and Swing Line Loans on any
date on which (x) the aggregate outstanding Assigned Dollar Value of such
Revolving Loans and such Swing Line Loans together with the Assigned Dollar
Value of the aggregate LC Obligations (after giving effect to any other
repayments or prepayments on such day) exceeds the Total Revolving Commitments
or (y) the aggregate outstanding Multicurrency Outstandings (after giving effect
to any other repayments or prepayments on such day) exceeds the total
Multicurrency Commitment


                                       75


in the amount equal to the greater of either such excess. If, after giving
effect to the prepayment of all outstanding Revolving Loans and Swing Line
Loans, (A) the Assigned Dollar Value of the aggregate LC Obligations exceeds the
Total Revolving Commitment then in effect, or (B) the Assigned Dollar Value of
the aggregate Multicurrency Obligations exceeds the Multicurrency Commitment
then in effect, then, in either case, the Borrower shall cash collateralize LC
Obligations by depositing, pursuant to a cash collateral agreement to be entered
into in form and substance reasonably satisfactory to the Administrative Agent,
cash with Administrative Agent in an amount equal to the difference between the
Assigned Dollar Value of such LC Obligations and the Total Revolving Commitment
then in effect (or the Multicurrency LC Obligation and the Multicurrency
Commitment, as the case may be). The Administrative Agent shall establish in its
name for the benefit of the Revolving Lenders a cash collateral account (the
"COLLATERAL ACCOUNT") into which it shall deposit such cash to hold as
collateral security for the LC Obligations.

                  (b) SCHEDULED TERM A REPAYMENTS. The Borrower shall cause to
be paid Scheduled Term A Repayments on the Term A Loans until the Term A Loans
are paid in full in the amounts and at the times specified in the definition of
Scheduled Term A Repayments to the extent that prepayments have not previously
been applied to such Scheduled Term A Repayments (and such Scheduled Term A
Repayments have not otherwise been reduced) pursuant to the terms hereof. To the
extent not previously paid, all Term A Loans shall be due and payable on the
Term A Maturity Date.

                  (c) SCHEDULED NEW TERM B REPAYMENTS. The Borrower shall cause
to be paid Scheduled New Term B Repayments on the New Term B Loans until the New
Term B Loans are paid in full in the amounts and at the times specified in the
definition of Scheduled New Term B Repayments to the extent that prepayments
have not previously been applied to such Scheduled New Term B Repayments (and
such Scheduled New Term B Repayments have not otherwise been reduced) pursuant
to the terms hereof. To the extent not previously paid, all New Term B Loans
shall be due and payable on the New Term B Loan Maturity Date.

                  (d) MANDATORY PREPAYMENT UPON ASSET DISPOSITION. On the first
Business Day or, in the case of an Asset Disposition by a Foreign Subsidiary of
the Borrower, such later date (but in any event not later than the 365th day)
after the date of receipt thereof by the Borrower and/or any of its Subsidiaries
of Net Sale Proceeds from any Asset Disposition, an amount equal to 100% of the
Net Sale Proceeds from such Asset Disposition shall be applied as a mandatory
repayment of principal of the Term Loans pursuant to the terms of SECTION 4.5(a)
(in each case subject to modification of such application as set forth in
SECTION 4.5(c)), PROVIDED, that with respect to no more than the Dollar
Equivalent of $25,000,000 in the aggregate of such Net Sale Proceeds in any
Fiscal Year of the Borrower, the Net Sale Proceeds therefrom shall not be
required to be so applied on such date to the extent that no Event of Default or
Unmatured Event of Default then exists and the Borrower delivers a certificate
to the Administrative Agent on or prior to such date stating that such Net Sale
Proceeds are expected to be used to purchase assets


                                       76


used or to be used in the businesses referred to in SECTION 8.9 within 365 days
following the date of such Asset Disposition (which certificate shall set forth
the estimates of the proceeds to be so expended), PROVIDED, FURTHER, that (1) if
all or any portion of such Net Sale Proceeds not so applied to the repayment of
Term Loans are not so used (or contractually committed to be used) within such
365 day period as provided above, such remaining portion shall be applied on the
last day of the period as a mandatory repayment of principal of outstanding Term
Loans as provided above in this SECTION 4.4(d) and (2) if all or any portion of
such Net Sale Proceeds are a result of an Asset Disposition involving the sale
of Collateral owned by the Borrower or a Subsidiary (other than the Capital
Stock of a Foreign Subsidiary), then such Net Sale Proceeds shall be required to
be reinvested in assets constituting Collateral. After the prepayment in full of
all Term Loans, the Borrower shall repay Revolving Loans, pro rata, and
thereafter, cash collateralize LC Obligations on the date of receipt of such
proceeds by an amount equal to the lesser of (y) the Assigned Dollar Value of
Revolving Loans and LC Obligations then outstanding or (z) the remaining portion
of such Net Sale Proceeds not used to repay Term Loans, and the Revolving
Commitments shall be permanently reduced, pro rata, by that portion of Net Sale
Proceeds not used to repay Term Loans. Notwithstanding the foregoing or the
terms of SECTION 4.5(a), if, as of the date of any prepayment from Net Sale
Proceeds required pursuant to this SECTION 4.4(d), the Leverage Ratio of the
Borrower, calculated for the Test Period ending on the last day of the most
recently ended Fiscal Quarter, is less than 2.50 to 1.00, the Borrower may
elect, in its sole discretion, to apply 100% of such Net Sale Proceeds (x) to
purchase assets used or to be used in the businesses referred to in SECTION 8.9,
(y) to repay, pro rata, Term A Loans and New Term B Loans or (z) to repay, pro
rata, Revolving Loans (without a permanent reduction of the Revolving
Commitments).

                  (e) MANDATORY PREPAYMENT WITH EXCESS CASH FLOW. On each Excess
Cash Payment Date, an amount equal to 50% of Excess Cash Flow of the Borrower
and its Subsidiaries for the relevant Excess Cash Flow Period shall be applied
as a mandatory repayment of principal of the Term Loans pursuant to the terms of
SECTION 4.5(a) (in each case subject to modification of such application as set
forth in SECTION 4.5(c)); PROVIDED, HOWEVER, that if as of the last day of the
relevant Excess Cash Flow Period, the Leverage Ratio is less than 2.50 to 1.00,
the amount required to be paid pursuant to this SECTION 4.4(e) shall be 0%.

                  (f) MANDATORY PAYMENT WITH PROCEEDS OF CAPITAL STOCK. On the
first Business Day after receipt thereof by the Borrower and/or any of their
Subsidiaries, an amount equal to 100% of the Net Offering Proceeds of the sale
or issuance of Capital Stock of (or cash capital contributions to) the Borrower
or any of their Subsidiaries shall be applied as a mandatory repayment of
principal of the Term Loans pursuant to the terms of SECTION 4.5(a) (in each
case subject to modification of such application as set forth in SECTION
4.5(c)). Notwithstanding the foregoing or the terms of SECTION 4.5(a), if, as of
the date of any prepayment from Net Offering Proceeds required pursuant to this
SECTION 4.4(f), the Leverage Ratio of the Borrower, calculated for the Test
Period ending on the last day of the most recently ended Fiscal Quarter, is less
than 2.50 to 1.00, the Borrower may elect, in its sole discretion, to apply 100%
of such Net Offering


                                       77


Proceeds (x) to purchase assets used or to be used in the businesses referred to
in SECTION 8.9, (y) to repay, pro rata, Term A Loans and New Term B Loans or (z)
to repay, pro rata, Revolving Loans (without a permanent reduction of the
Revolving Commitments).

                  (g) MANDATORY PAYMENT WITH PROCEEDS OF SALE AND LEASEBACK
TRANSACTION. On the Business Day of receipt thereof by the Borrower and/or any
of its Subsidiaries, an amount equal to 100% of net cash proceeds from a Sale
and Leaseback Transaction by the Borrower or any of its Subsidiaries shall be
applied as a mandatory repayment of principal of the Term Loans pursuant to the
terms of SECTION 4.5(a) (in each case subject to modification of such
application as set forth in SECTION 4.5(c)). Notwithstanding the foregoing or
the terms of SECTION 4.5(a), if, as of the date of any prepayment from net cash
proceeds of a Sale and Leaseback Transaction required pursuant to this SECTION
4.4(g), the Leverage Ratio of the Borrower, calculated for the Test Period
ending on the last day of the most recently ended Fiscal Quarter, is less than
2.50 to 1.00, the Borrower may elect, in its sole discretion, to apply 100% of
such net cash proceeds (x) to purchase assets used or to be used in the
businesses referred to in SECTION 8.9, (y) to repay, pro rata, Term A Loans and
New Term B Loans or (z) to repay, pro rata, Revolving Loans (without a permanent
reduction of the Revolving Commitments).

                  (h) MANDATORY PREPAYMENT UPON INCURRENCE OF INDEBTEDNESS. On
the Business Day of receipt thereof by the Borrower, an amount equal to 100% of
the Net Offering Proceeds of any Indebtedness (other than Indebtedness permitted
by SECTION 8.2) hereof shall be applied as a mandatory repayment of principal of
the Term Loans pursuant to the terms of SECTION 4.5(a), subject to modification
of such application as set forth in SECTION 4.5(c). Notwithstanding the
foregoing or the terms of SECTION 4.5(a), if, as of the date of any prepayment
from Net Offering Proceeds required pursuant to this SECTION 4.4(h), the
Leverage Ratio of the Borrower, calculated for the Test Period ending on the
last day of the most recently ended Fiscal Quarter, is less than 2.50 to 1.00,
the Borrower may elect, in its sole discretion, to apply 100% of such Net
Offering Proceeds (x) to purchase assets used or to be used in the businesses
referred to in SECTION 8.9, (y) to repay, pro rata, Term A Loans and New Term B
Loans or (z) to repay, pro rata, Revolving Loans (without a permanent reduction
of the Revolving Commitments).

                  (i) MANDATORY PREPAYMENT UPON PURCHASE PRICE ADJUSTMENT. On
the Business Day following receipt of the net cash proceeds of any payment by
the OTS Seller to the Borrower pursuant to any adjustment to the Purchase Price
(as such term is defined in the OTS Business Acquisition Agreement) an amount
equal to 100% of such payment shall be applied as a mandatory repayment of
principal of the Term Loans pursuant to the terms of SECTION 4.5(a), subject to
modification of such application as set forth in SECTION 4.5(c)); PROVIDED that
no such payment shall be required to be so applied if the proceeds of such
adjustment do not equal or exceed $5,000,000.00.

                  (j) MANDATORY PAYMENT UPON RECOVERY EVENT. Within ten (10)
days following each date on which the Borrower or any of its Subsidiaries
receives any proceeds from


                                       78



any Recovery Event, an amount equal to 100% of the proceeds of such Recovery
Event (net of reasonable costs and taxes incurred in connection with such
Recovery Event and amounts due to the federal government of the United States in
satisfaction of any contractual obligation of the Borrower thereto) shall be
applied as a mandatory repayment of principal of the Term Loans as provided in
SECTION 4.5 in each case subject to modification of such application as set
forth in SECTION 4.5(d), PROVIDED that (1) so long as no Event of Default or
Unmatured Event of Default then exists, if the net proceeds from any Recovery
Event are less than the Dollar Equivalent of $10,000,000, then no prepayment
shall be required pursuant to this SECTION 4.4(j), and (2) so long as no Event
of Default or Unmatured Event of Default then exists, with respect to any single
or series of related Recovery Events the net proceeds therefrom which are equal
to or greater than the Dollar Equivalent of $10,000,000 but less than the Dollar
Equivalent of $25,000,000, such proceeds shall not be required to be so applied
on such date to the extent that (x) Borrower has delivered a certificate to the
Administrative Agent on or prior to such date stating that such proceeds shall
be used to replace or restore any properties or assets in respect of which such
proceeds were paid within 365 days following the date of the receipt of such
proceeds (which certificate shall set forth the estimates of the proceeds to be
so expended) and (y) such proceeds are deposited in an escrow account with
Administrative Agent for the benefit of the Secured Creditors (the "RECOVERY
EVENT ESCROW ACCOUNT") (PROVIDED, HOWEVER, that if the Borrower has satisfied
the last sentence of this SECTION 4.4(j), no such escrow account shall be
established with the Administrative Agent and the Borrower shall retain control
of such proceeds), from which interest-bearing escrow account amounts may be
withdrawn only to repay the Term Loans or to be used for the purposes described
in clause (x) above, PROVIDED, FURTHER, that (i) if the amount of such proceeds
from any single or series of related Recovery Events exceeds the Dollar
Equivalent of $25,000,000, then the entire amount and not just the portion in
excess of the Dollar Equivalent of $25,000,000 shall be applied as a mandatory
repayment of Term Loans as provided above in this SECTION 4.4(j), (ii) if all or
any portion of such proceeds not required to be applied to the repayment of Term
Loans pursuant to the first proviso of this SECTION 4.4(j) are not so used (or
contractually committed to be used) within 365 days after the day of the receipt
of such proceeds, such remaining portion shall be applied on the last day of
such period as a mandatory repayment of principal of the Term Loans as provided
in this SECTION 4.4(j) and (iii) if all or any portion of such proceeds are not
required to be applied on the 365th day referred to in clause (ii) above because
such amount is contractually committed to be used and subsequent to such date
such contract is terminated or expires without such portion being so used, then
such remaining portion shall be applied on the date of such termination or
expiration as a mandatory repayment of principal of outstanding Term Loans as
provided in this SECTION 4.4(j). After the prepayment in full of all Term Loans,
the Borrower shall repay Revolving Loans pro rata, and thereafter, cash
collateralize LC Obligations on the date of receipt of such proceeds by an
amount equal to the lesser of (y) the Assigned Dollar Value of Revolving Loans
and LC Obligations then outstanding or (z) the remaining portion of such net
proceeds not used to repay Term Loans, and the Revolving Commitments shall be
permanently reduced, pro rata, by that portion of net proceeds not used to repay
Term Loans. Notwithstanding the foregoing or the terms of SECTION 4.5(a), if, as
of the date of any prepayment from net proceeds of any Recovery Event required
pursuant to


                                       79



this SECTION 4.4(j), the Leverage Ratio of the Borrower, calculated for the Test
Period ending on the last day of the most recently ended Fiscal Quarter, is less
than 2.50 to 1.00, the Borrower may elect, in its sole discretion, to apply 100%
of such net proceeds (x) to purchase assets used or to be used in the businesses
referred to in SECTION 8.9, (y) to repay, pro rata, Term A Loans and New Term B
Loans or (z) to repay, pro rata, Revolving Loans (without a permanent reduction
of the Revolving Commitments).

Section 4.5.      APPLICATION OF PREPAYMENTS; WAIVER OF CERTAIN PREPAYMENTS.

                  (a) PREPAYMENTS. Subject in all events to the final proviso
set forth in SECTION 4.4(d), (f), (g), (h) and (j) and except as otherwise
expressly provided in SECTION 4.4(d) and (j), all prepayments of principal made
by the Borrower pursuant to SECTION 4.4 (other than with respect to 4.4(A), (B)
and (C) shall be applied to repay the Term A Loans and the New Term B Loans
(with the Term A Percentage of such repayment to be applied as a repayment of
Term A Loans and the New Term B Percentage of such repayment to be applied as a
repayment of New Term B Loans). Any prepayment of Loans pursuant to SECTION
4.4(d) and (j) shall be applied (i) FIRST, to the payment of the unpaid
principal amount of the Term A Loans and the New Term B Loans (with the Term A
Percentage of such repayment to be applied as a repayment of Term A Loans and
the New Term B Percentage of such repayment to be applied as a repayment of New
Term B Loans), SECOND, to the prepayment of the then outstanding balance of
Swing Line Loans, THIRD, to the payment, pro rata, of the then outstanding
balance of the Revolving Loans, and FOURTH, to the cash collateralization of LC
Obligations; (ii) within each of the foregoing Loans, first to the payment of
Base Rate Loans and second to the payment of Eurocurrency Loans; and (iii) with
respect to Eurocurrency Loans, in such order as the Borrower shall request (and
in the absence of such request, as the Administrative Agent shall determine).
Each prepayment of Term Loans made pursuant to SECTION 4.4(d), (e), (f), (g),
(h) and (j) shall be allocated FIRST to the Term A Loans and the New Term B
Loans based on the aggregate principal amount of the Scheduled Term A Repayments
and the Scheduled New Term B Repayments due within the twelve month period
following the date of such prepayment in direct order of maturity, and,
thereafter, shall be allocated SECOND to the Term A Loans and the New Term B
Loans in proportional amounts equal to the Term A Percentage and the New Term B
Percentage (in each case, after giving effect to the prepayments made to the
Scheduled Term A Repayments and Scheduled New Term B Repayments due within such
twelve month period as specified above), as the case may be, of such remaining
prepayment, if any, and, within each Term A Loan or New Term B Loan, shall be
applied to reduce the remaining Scheduled Term A Repayments and Scheduled New
Term B Repayments on a pro rata basis (based upon the then remaining principal
amount of such Scheduled Term A Repayments and Scheduled New Term B Repayments,
respectively). Any prepayment of Term Loans pursuant to SECTION 4.4(i) shall be
applied pro rata to each of the Scheduled Term A Repayments and Scheduled New
Term B Repayments. If any prepayment of Eurocurrency Loans made pursuant to a
single Borrowing shall reduce the outstanding Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount, such Borrowing
shall immediately be converted into Base Rate Loans, in the case of Loans


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denominated in Dollars, or into Loans with a one month Interest Period, in the
case of Loans denominated in Euro. All prepayments shall include payment of
accrued interest on the principal amount so prepaid, shall be applied to the
payment of interest before application to principal and shall include amounts
payable, if any, under SECTION 3.5.

                  (b) PAYMENTS. All Scheduled Repayments shall be applied (i)
first to the payment of Base Rate Loans, if any, and second to the payment of
Eurocurrency Loans and (ii) with respect to Eurocurrency Loans, in such order as
the Borrower shall request (and in the absence of such request, as the
Administrative Agent shall determine). All payments shall include payment of
accrued interest on the principal amount so paid, shall be applied to the
payment of interest before application to principal and shall include amounts
payable, if any, under SECTION 3.5.

                  (c) WAIVER OF CERTAIN PREPAYMENTS BY NEW TERM B LENDERS.
Notwithstanding anything to the contrary contained in this SECTION 4.5 with
respect to any voluntary prepayment or mandatory prepayment of New Term B Loans
otherwise required pursuant to SECTIONS 4.3, 4.4(d), (e), (f), (g), (h), (i) AND
(j), if the Borrower has given the Administrative Agent written notification
that the Borrower has elected, in its sole discretion, to give each Lender with
a New Term B Loan the right to waive such Lender's rights to receive its PRO
RATA percentage of such prepayment (any such repayment, a "WAIVABLE
PREPAYMENT"), the Administrative Agent shall notify such Lenders thereof and the
amount required to be applied to each such Lender's New Term B Loans pursuant to
the Waivable Prepayment. In the event any such Lender desires to waive its right
to receive any or all of its percentage of the Waivable Prepayment, such Lender
shall so advise the Administrative Agent in writing no later than 5:00 P.M. (New
York time) two (2) Business Days after the date of such notice from the
Administrative Agent, which reply shall also include the amount, if any, of its
portion of the Waivable Prepayment that such Lender still desires to receive. If
any such Lender does not reply to the Administrative Agent within the two (2)
Business Day period or responds but does not specify the amount of the Waivable
Prepayment that such Lender wishes to receive, if any, such Lender will be
deemed to have elected to receive 100% of the Waivable Prepayment. In the event
that any such New Term B Lender waives its right to any such Waivable
Prepayment, the Administrative Agent shall apply 100% of the amount so waived by
such New Term B Lenders to prepay the Term A Loans as otherwise provided in this
SECTION 4.5. All payments of the New Term B Loans shall be made PRO RATA,
reduced for any New Term B Lender who has waived any of its portion of a
Waivable Prepayment by the amount so waived.

                  (d) CONVERSION OF CURRENCY. If any payment made under this
Agreement or any other Loan Document is made in a currency other than the
Specified Currency expressed to be payable herein, the Administrative Agent is
authorized to, and at its sole election may, convert such currency to the
Specified Currency prior to distribution to the Lenders. All such conversions of
currency shall be subject to SECTION 3.5.



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Section 4.6.      METHOD AND PLACE OF PAYMENT.

                  (a) Except as otherwise specifically provided herein, all
payments under this Agreement shall be made to the Administrative Agent, for the
ratable account of the Lenders entitled thereto, not later than 1:00 p.m. (New
York City time) on the date when due and shall be made in immediately available
funds and in each case to the account specified therefor for the Administrative
Agent or if no account has been so specified at the Payment Office. The
Administrative Agent will thereafter cause to be distributed on the same day (if
payment was actually received by the Administrative Agent prior to 1:00 p.m.
(New York City time) on such day) like funds relating to the payment of
principal or interest or fees ratably to the Lenders entitled to receive any
such payment in accordance with the terms of this Agreement. If and to the
extent that any such distribution shall not be so made by the Administrative
Agent in full on the same day (if payment was actually received by the
Administrative Agent prior to 1:00 p.m. (New York City time) on such day), the
Administrative Agent shall pay to each Lender its ratable amount thereof and
each such Lender shall be entitled to receive from the Administrative Agent,
upon demand, interest on such amount at the overnight Federal Funds Rate (or the
applicable cost of funds with respect to amounts denominated in Euro) for each
day from the date such amount is paid to the Administrative Agent until the date
the Administrative Agent pays such amount to such Lender.

                  (b) Any payments under this Agreement which are made by the
Borrower later than 1:00 p.m. (New York City time) shall, for the purpose of
calculation of interest, be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect
immediately prior to such extension, except that with respect to Eurocurrency
Loans, if such next succeeding applicable Business Day is not in the same month
as the date on which such payment would otherwise be due hereunder or under any
Note, the due date with respect thereto shall be the next preceding Business
Day.

Section 4.7.      NET PAYMENTS.

                  (a) All payments made by the Borrower hereunder or under any
Loan Document will be made without setoff, counterclaim or other defense. Except
as provided in SECTION 4.7(d), all payments hereunder and under any of the Loan
Documents (including, without limitation, payments on account of principal and
interest and fees) shall be made by the Borrower free and clear of and without
deduction or withholding for or on account of any present or future tax, duty,
levy, impost, assessment or other charge of whatever nature now or hereafter
imposed by any Governmental Authority, but excluding therefrom (i) a tax imposed
on or measured by the overall net income (including a franchise tax based on net
income) of the lending office of the Lender in respect of which the payment is
made by the jurisdiction in which the Lender is


                                       82


incorporated or the jurisdiction (or political subdivision or taxing authority
thereof) in which its lending office is located, (ii) in the case of any Lender
organized under the laws of any jurisdiction other than the United States or any
state thereof (including the District of Columbia), any taxes imposed by the
United States by means of withholding at the source unless such withholding
results from a change in applicable law, treaty or regulations or the
interpretation or administration thereof (including, without limitation, any
guideline or policy not having the force of law) by any authority charged with
the administration thereof subsequent to the date such Lender becomes a Lender
with respect to the Loan or portion thereof affected by such change, (iii) any
taxes to which the Lender is subject (to the extent of the tax rate then in
effect) on the date this Agreement is executed or to which such Lender would be
subject on such date if a payment hereunder had been received by the Lender on
such date and with respect to any Lender that becomes a party hereto after the
Initial Borrowing Date, any taxes to which such Lender is subject on the date it
becomes a party hereto (other than taxes which each of the other Lenders is
entitled to reimbursements for pursuant to the terms of this Agreement) and (iv)
taxes to which the Lender becomes subject subsequent to the date referred to in
clause (iii) above as a result of a change in the residence, place of
incorporation, or principal place of business of the Lender, a change in the
branch or lending office of the Lender participating in the transactions set
forth herein or other similar circumstances or as a result of the recognition by
the Lender of gain on the sale, assignment or participation by the Lender of the
participating interests in its creditor positions hereunder (such tax or taxes,
other than excluded tax or taxes being herein referred to as "TAX" or "TAXES").
If the Borrower is required by law to make any deduction or withholding of any
Taxes from any payment due hereunder or under any of the Loan Documents, then
the amount payable will be increased to such amount which, after deduction from
such increased amount of all such Taxes required to be withheld or deducted
therefrom, will not be less than the amount due and payable hereunder had no
such deduction or withholding been required. A certificate as to any additional
amounts payable to a Lender under this SECTION 4.7 submitted to the Borrower by
such Lender shall show in reasonable detail the amount payable and the
calculations used to determine in good faith such amount and shall, absent
manifest error, be final, conclusive and binding upon all parties hereto.

                  (b) If the Borrower makes any payment hereunder or under any
of the Loan Documents in respect of which it is required by law to make any
deduction or withholding of any Taxes, it shall pay the full amount to be
deducted or withheld to the relevant taxation or other authority within the time
allowed for such payment under applicable law and shall deliver to the Lenders
within 60 days after it has made such payment to the applicable authority a
receipt issued by such authority evidencing the payment to such authority of all
amounts so required to be deducted or withheld from such payment.

                  (c) Without prejudice to the other provisions of SECTION 4.7,
if any Lender, or the Administrative Agent on its behalf, is required by law to
make any payment on account of Taxes on or in relation to any amount received or
receivable hereunder or under any of the Loan Documents by such Lender, or the
Administrative Agent on its behalf, or any liability for Tax in


                                       83


respect of any such payment is imposed, levied or assessed against any Lender or
the Administrative Agent on its behalf, the Borrower will promptly, following
receipt of the certificate described in the immediately following sentence,
indemnify such person against such Tax payment or liability, together with any
interest, penalties and expenses (including reasonable counsel fees and
expenses) payable or incurred in connection therewith, including any tax of any
Lender arising by virtue of payments under this SECTION 4.7(c), computed in a
manner consistent with this SECTION 4.7(c). A certificate as to the amount of
such payment by such Lender, or the Administrative Agent on its behalf, showing
calculations thereof in reasonable detail, absent manifest error, shall be
final, conclusive and binding upon all parties hereto for all purposes.

                  (d) Each Lender that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) agrees to deliver to
Borrower and the Administrative Agent on or prior to the Initial Borrowing Date
or the Amendment/Restatement Effective Date, as applicable, or in the case of a
Lender that is an Assignee of an interest under this Agreement pursuant to
SECTION 3.7 or 12.8 (unless the respective Lender was already a Lender hereunder
immediately prior to such assignment), on the date of such assignment to such
Lender, together with any other certificate or statement of exemption required
under the Code to establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to any payments to
such Lender, (i) two accurate and complete original signed copies of Internal
Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption
under an income tax treaty) (or successor forms) certifying to such Lender's
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made under this Agreement and under any Note, or (ii)
if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and does not comply with the requirements of clause (i) above, (x) a
certificate substantially in the form of EXHIBIT 4.7(D) (any such certificate, a
"SECTION 4.7(d)(ii) CERTIFICATE") and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8BEN (Certificate of Foreign
Status of Beneficial Owner for United States Tax Withholding) or Form W-8ECI
(Certificate of Foreign Person's Claim for Exemption From Withholding On Income
Effectively Connected with the Conduct of a Trade or Business in the United
States). In addition, each Lender agrees that from time to time after the
delivery of any certificates or forms required pursuant to this SECTION 4.7(d),
when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will deliver to
the Borrower and the Administrative Agent two new accurate and complete original
signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN and a
Section 4.7(d)(ii) Certificate, as the case may be, and such other forms as may
be required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding Tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the Borrower and the Administrative Agent of its inability to deliver any
such form or certificate. Notwithstanding anything to the contrary contained in
SECTION 4.7(a), but subject to SECTION 12.8(c) and the immediately succeeding
sentence, (x) the Borrower shall be entitled, to the extent it is required to do
so by law, to deduct or withhold income or similar Taxes imposed by the United
States (or any political subdivision or


                                       84


taxing authority thereof or therein) from interest, fees or other amounts
payable hereunder for the account of any Lender which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for United
States Federal income tax purposes to the extent that such Lender has not
provided to the Borrower IRS Forms that establish a complete exemption from such
deduction or withholding and (y) the Borrower shall be obligated pursuant to
SECTION 4.7(a) hereof to gross-up payments to be made to a Lender in respect of
income or similar Taxes imposed by the United States unless (i) upon timely
notice from the Borrower, such Lender has not provided to the Borrower the IRS
Forms required to be provided to Borrowers pursuant to this SECTION 4.7(d), or
(ii) in the case of a payment, other than interest, to a Lender described in
clause (ii) above, to the extent that such IRS Forms do not establish a complete
exemption from withholding of such Taxes. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this SECTION 4.7
and except as set forth in SECTION 12.8(c), the Borrower agrees to pay
additional amounts and to indemnify each Lender in the manner set forth in
SECTION 4.7(a) (without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any amounts deducted or withheld by it
as described in the immediately preceding sentence as a result of any changes
after the Initial Borrowing Date in any applicable law, treaty, governmental
rule, regulation, guideline or order, or in the interpretation thereof, relating
to the deducting or withholding of income or similar Taxes.

                  (e) If the Borrower pays any additional amount under this
SECTION 4.7 to a Lender and such Lender determines in its sole discretion that
it has actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid (a "TAX BENEFIT"), such
Lender shall pay the Borrower an amount that the Lender shall, in its sole
discretion, determine is equal to the net benefit, after tax, which was obtained
by such Lender in such year as a consequence of such Tax Benefit; provided,
however, that (i) any Lender may determine in its sole discretion consistent
with the policies of such Lender whether to seek a Tax Benefit; (ii) any Taxes
that are imposed on a Lender as a result of a disallowance or reduction
(including through the expiration of any tax carryover or carryback of such
Lender that otherwise would not have expired) of any Tax Benefit with respect to
which such Lender has made a payment to the Borrower pursuant to this SECTION
4.7 shall be treated as a Tax for which the Borrower is obligated to indemnify
such Lender pursuant to this SECTION 4.7 without any exclusions or defenses; and
(iii) nothing in this SECTION 4.7(e) shall require a Lender to disclose any
confidential information to the Borrower (including, without limitation, its tax
returns).

                                   ARTICLE V

                              CONDITIONS OF CREDIT

Section 5.1.      CONDITIONS PRECEDENT TO ALL CREDIT EVENTS.

The obligation of each Lender to make Loans (including Loans made on the
Amendment/Restatement Effective Date) and the obligation of any Facing Agent to
issue or any


                                       85


Lender to participate in any Letter of Credit hereunder in each
case shall be subject to the fulfillment at or prior to the time of each such
Credit Event of each of the following conditions:

                  (a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in this Agreement and the other Loan Documents shall each
be true and correct in all material respects at and as of such time, as though
made on and as of such time, except to the extent such representations and
warranties are expressly made as of a specified date in which event such
representation and warranties shall be true and correct as of such specified
date;

                  (b) NO DEFAULT. No Event of Default or Unmatured Event of
Default shall have occurred and shall then be continuing on such date or will
occur after giving effect to such Credit Event;

                  (c) NOTICE OF BORROWING; LETTER OF CREDIT REQUEST.

                      (i) Prior to the making of each Loan, the Administrative
Agent shall have received a Notice of Borrowing meeting the requirements of
SECTION 2.5; and

                      (ii) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Facing Agent shall have received a
Letter of Credit Request meeting the requirements of SECTION 2.10(b);

                  (d) ADVERSE CHANGE. At the time of each such Credit Event and
after giving effect thereto, since the Amendment/Restatement Effective Date,
nothing shall have occurred (and the Lenders shall not have become aware of any
facts or conditions previously unknown) which has, or is reasonably likely to
have, a Material Adverse Effect;

                  (e) OTHER INFORMATION. The Administrative Agent shall have
received such other instruments, documents and opinions as it may reasonably
request in connection with such Credit Event, and all such instruments and
documents shall be reasonably satisfactory in form and substance to the
Administrative Agent.

                  The acceptance of the benefits of each such Credit Event by
the Borrower shall be deemed to constitute a representation and warranty by it
to the effect of paragraphs (a), (b), (c) and (d) of this SECTION 5.1 (except
that no opinion need be expressed as to any Agent's or Required Lenders'
satisfaction with any document, instrument or other matter).



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                                   ARTICLE VI
                         REPRESENTATIONS AND WARRANTIES

In order to induce the Lenders to enter into this Agreement and to make the
Loans, and issue (or participate in) the Letters of Credit as provided herein,
the Borrower makes the following representations and warranties as of the
Amendment/Restatement Effective Date and as of the date of each subsequent
Credit Event, all of which shall survive the execution and delivery of this
Agreement and the Notes and the making of the Loans and issuance of the Letters
of Credit:

Section 6.1.      CORPORATE STATUS.

The Borrower and each of its Subsidiaries (i) is a duly organized and validly
existing corporation, partnership or limited liability company or other entity
in good standing under the laws of the jurisdiction of its organization, (ii)
has the requisite power and authority to own its property and assets and to
transact the business in which it is engaged and presently proposed to engage in
and (iii) is duly qualified and is authorized to do business and is in good
standing (where relevant) in (y) its jurisdiction of organization and (z) in
each other jurisdiction where the ownership, leasing or operation of property or
the conduct of its business requires such qualification, except for such failure
to be so qualified which, in the aggregate, would not have a Material Adverse
Effect.

Section 6.2.      CORPORATE POWER AND AUTHORITY.

The Borrower and each of its Subsidiaries has the applicable power and authority
to execute, deliver and perform the terms and provisions of each of the
Documents to which it is a party and has taken all necessary corporate action to
authorize the execution, delivery and performance by it of each of such
Documents. The Borrower and each of its Subsidiaries has duly executed and
delivered each of the Documents to which it is a party, and each of such
Documents constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).

Section 6.3.      NO VIOLATION.

Neither the execution, delivery or performance by the Borrower and each of its
Subsidiaries of the Documents to which it is a party (including, without
limitation, the granting of Liens pursuant to the Security Documents), nor
compliance by it with the terms and provisions thereof, nor the consummation of
the transactions contemplated therein (i) will contravene any provision of any
Requirement of Law applicable to the Borrower and each of its Subsidiaries,
except for such contravention which, individually or in the aggregate, would not
have a Material Adverse Effect, (ii) will conflict with or result in any breach
of or constitute a tortious interference with any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the



                                       87


creation or imposition of (or the obligation to create or impose) any Lien
(except pursuant to the Security Documents) upon any of the property or assets
of the Borrower and each of its Subsidiaries pursuant to the terms of any
Contractual Obligation to which the Borrower and each of its Subsidiaries is a
party or by which it or any of its property or assets is bound or to which it
may be subject, except for such conflict or interference which, individually or
in the aggregate, would not have a Material Adverse Effect, (iii) will violate
any provision of any Organizational Document of the Borrower and each of its
Subsidiaries or (iv) require any approval of stockholders or any approval or
consent of any Person (other than a Governmental Authority) except as have been
obtained on or prior to the Amendment/Restatement Effective Date or as set forth
on SCHEDULE 6.3.

Section 6.4.      GOVERNMENTAL AND OTHER APPROVALS.

Except as set forth on SCHEDULE 6.4 hereto and except for the recording of the
Mortgages and filings in respect of certain Security Documents and actions with
appropriate Governmental Authorities which have been recorded and filed prior to
the Amendment/Restatement Effective Date, no order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made on or prior to the Amendment/Restatement
Effective Date), or exemption by, any Governmental Authority, is required to
authorize, or is required in connection with, (i) the execution, delivery and
performance of any Document or (ii) the legality, validity, binding effect or
enforceability of any such Document.

Section  6.5.     FINANCIAL STATEMENTS; FINANCIAL CONDITION; UNDISCLOSED
                  LIABILITIES; PROJECTIONS ETC.

                  (a) FINANCIAL STATEMENTS.

                      (i) The consolidated balance sheets of the Borrower dated
November 30, 2001, November 30, 2000 and November 30, 1999 and the related
consolidated statements of operations, cash flows and shareholders' equity of
the Borrower for the Fiscal Year ended on such dates, and copies of which have
hereto been furnished to the Lenders prior to the Amendment/Restatement
Effective Date which have been examined by Ernst & Young LLP, independent
certified public accountants, who delivered an unqualified opinion in respect
thereto, present fairly, in accordance with GAAP, the financial condition and
results of operations of the Borrower and its Subsidiaries for the periods
referred to therein;

                      (ii) The pro forma (after giving effect to the
Transactions, the related financing thereof and the other transactions
contemplated hereby and thereby) consolidated balance sheet of the Borrower
attached hereto as SCHEDULE 6.5(a) (the "PRO FORMA BALANCE SHEET") presents
fairly the consolidated financial condition of the Borrower and its Subsidiaries
at the date of such balance sheet and presents a good faith estimate of the pro
forma consolidated


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financial condition of the Borrower and the Subsidiaries (after giving effect to
the Transactions, the related financing thereof and the other transactions
contemplated hereby and thereby) at the date thereof. The Pro Forma Balance
Sheet has been prepared in accordance with GAAP consistently applied (except as
may be indicated in the notes thereto) subject to normal year-end adjustments.

                  (b) SOLVENCY. On and as of the Amendment/Restatement Effective
Date, after giving effect to the Transaction and to all Indebtedness (including
the Loans) being incurred, and to be incurred (and the use of proceeds thereof),
and Liens created, and to be created, by the Borrower and its Subsidiaries in
connection with the transactions contemplated hereby, the Borrower and each of
its Material Subsidiaries are Solvent.

                  (c) NO UNDISCLOSED LIABILITIES. Except as fully reflected in
the financial statements and the notes related thereto delivered pursuant to
SECTION 6.5(a) and set forth on SCHEDULE 6.5(c) there were as of the
Amendment/Restatement Effective Date (and after giving effect to the Transaction
and the other transactions contemplated hereby) no liabilities or obligations
other than in the ordinary course of business consistent with past practices
(with respect to the Borrower and its Subsidiaries of any nature whatsoever
(whether absolute, accrued, contingent or otherwise and whether or not due)
which, either individually or in aggregate, would be material to the Borrower
and its Subsidiaries, taken as a whole. As of the Amendment/Restatement
Effective Date (and after giving effect to the Transaction and the other
transactions contemplated hereby), the Borrower knows of no basis for the
assertion against the Borrower or any of its Subsidiaries of any such liability
or obligation of any nature whatsoever that is not fully reflected in the
financial statements or the notes related thereto delivered pursuant to SECTION
6.5(a) or set forth on SCHEDULE 6.5(c) which, either individually or in the
aggregate, could be material to the Borrower and its Subsidiaries, taken as a
whole.

                  (d) INDEBTEDNESS. SCHEDULE 8.2(b) sets forth a true and
complete list of all Indebtedness (other than the Loans and the Letters of
Credit) of the Borrower and its Subsidiaries as of the Amendment/Restatement
Effective Date and which is to remain outstanding after giving effect to the
Transaction (the "INDEBTEDNESS TO REMAIN OUTSTANDING"), in each case showing the
aggregate principal amount thereof (and the aggregate amount of any undrawn
commitments with respect thereto) and the name of the respective obligor and any
other entity which directly or indirectly guaranteed such debt. No Indebtedness
to Remain Outstanding has been incurred in connection with, or in contemplation
of, the Transaction or the other transactions contemplated hereby. The Borrower
has delivered or caused to be delivered to the Administrative Agent a true and
complete copy of the form of each instrument evidencing Indebtedness for money
borrowed listed on SCHEDULE 8.2(b) and of each instrument pursuant to which such
Indebtedness for money borrowed was issued, in each case, other than
Indebtedness of the type described in SECTION 8.2(o).



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                  (e) PROJECTIONS. On and as of the Amendment/Restatement
Effective Date, the financial projections, attached hereto as SCHEDULE 6.5(e)
(the "PROJECTIONS") and each of the Projections delivered after the
Amendment/Restatement Effective Date pursuant to SECTION 7.2(e) are, or will be
at the time made, based on good faith estimates and assumptions made by the
management of the Borrower, and there are no statements or conclusions in any of
the Projections which, at the time made, are based upon or include information
known to the Borrower to be misleading or which fail to take into account
material information regarding the matters reported therein. On and as of the
Amendment/Restatement Effective Date, the Borrower believes that the Projections
are reasonable and attainable, it being understood that uncertainty is inherent
in any forecasts or projections and that no assurance can be given that the
results set forth in the Projections will actually be obtained.

                  (f) NO MATERIAL ADVERSE CHANGE. (i) Since November 30, 2001
there has been no material adverse change in the business, operations, property,
assets, liabilities or condition (financial or otherwise) of the Borrower and
its Subsidiaries taken as a whole.

                      (ii) As of the Amendment/Restatement Effective Date and at
any time thereafter, there has been no material adverse change in the business,
condition (financial or otherwise), assets, liabilities, property, operations or
prospects of the Borrower and its Subsidiaries (taken as a whole) since November
30, 2001 based on the financial statements delivered pursuant to SECTION
6.5(a)(i).

                      (iii) To the knowledge of the Borrower, as of the
Amendment/Restatement Effective Date, there has been no material adverse change
in the business, condition (financial or otherwise), assets, liabilities,
property, operations or prospects of those businesses being purchased by the
Borrower pursuant to the OTS Acquisition Documents (taken as a whole) since
December 31, 2001.

Section 6.6.      LITIGATION.

Except as set forth in SCHEDULE 6.6, there are no actions, suits or proceedings
pending or, to the knowledge of the Borrower or any of its Subsidiaries,
threatened in writing against the Borrower or any of its Subsidiaries (i) with
respect to any Loan Document or (ii) that are reasonably likely to have a
Material Adverse Effect.

Section 6.7.      DISCLOSURE.

All factual information (taken as a whole) heretofore or contemporaneously
furnished by or on behalf of the Borrower or any of its Subsidiaries in writing
to any Lender (including, without limitation, all information contained in the
Documents) (other than the Projections as to which SECTION 6.5(e) applies which
fairly discloses the matters therein in good faith in accordance with applicable
law)) for purposes of or in connection with this Agreement or any transaction



                                       90


contemplated herein is, and all other such factual information (taken as a
whole) hereafter furnished by or on behalf of the Borrower or any of its
Subsidiaries in writing to any Lender for purposes of or in connection with this
Agreement or any transaction contemplated herein are and will be true and
accurate in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any fact necessary to
make such information (taken as a whole) not misleading in any material respect
at such time in light of the circumstances under which such information was
provided. The financial projections and other pro forma financial information
contained therein are based on good faith estimates and assumptions believed by
such Persons to be reasonable at the time made, it being recognized by the
Administrative Agent and the Lenders that projections as to future events are
not to be viewed as facts or factual information and that actual results during
the period or periods covered thereby may differ from the projected results. As
of the Amendment/Restatement Effective Date, the Borrower has disclosed to the
Lenders on or before the Amendment/Restatement Effective Date, all agreements,
instruments and corporate or other restrictions to which the Borrower or any of
its Subsidiaries is or will be subject to as of the Amendment/Restatement
Effective Date, and all other matters known to any of them, that, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect.

Section 6.8.      USE OF PROCEEDS; MARGIN REGULATIONS.

                  (a) TERM LOAN PROCEEDS. The Borrower shall have utilized the
proceeds of the Term A Loans made under the Original Credit Agreement as
required under SECTION 6.8 of the Original Credit Agreement. All proceeds of the
New Term B Loans incurred on the Amendment/Restatement Effective Date shall be
used by the Borrower (x) to finance, in part, the OTS Business Acquisition, (y)
to refinance certain Revolving Loans and (z) to pay related fees and expenses in
connection herewith and therewith.

                  (b) REVOLVING LOAN PROCEEDS. All proceeds of the Revolving
Loans incurred hereunder shall be used by the Borrower (x) to finance, in part,
the Transaction and (y) for ongoing working capital needs and general corporate
purposes (other than to voluntarily prepay any Term Loan).

                  (c) SWING LINE LOANS. All proceeds of the Swing Line Loans
incurred hereunder shall be used by the Borrower for ongoing working capital
needs and general corporate purposes (other than to voluntarily prepay any Term
Loan); PROVIDED, HOWEVER, that no Swing Line Loans may be requested by the
Borrower on the Amendment/Restatement Effective Date.

                  (d) MARGIN REGULATIONS. No part of the proceeds of any Loan
will be used to purchase or carry any margin stock (as defined in Regulation U
of the Board), directly or indirectly, or to extend credit for the purpose of
purchasing or carrying any such margin stock for the purpose of reducing or
retiring any indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which might cause any of the loans or



                                       91


extensions of credit under this Agreement to be considered a "purpose credit"
within the meaning of Regulation T, U or X of the Board.

Section 6.9.      TAX RETURNS AND PAYMENTS.

The Borrower and each of its Subsidiaries have timely filed or caused to be
filed all tax returns (the "RETURNS") which are required to be filed, except
where failure to file any of the Returns would not reasonably be expected to
have a Material Adverse Effect, and have paid or caused to be paid all taxes
shown to be due and payable on the Returns or on any assessments made against
them or any of their respective material properties and all other material
taxes, fees or other charges imposed on them or any of their respective
properties by any Governmental Authority (other than those the amount or
validity of which is contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or any such Subsidiary, as the case may be), except where
failure to take any such action could not reasonably be expected to have a
Material Adverse Effect; and no tax liens have been filed and no claims are
being asserted with respect to any such taxes, fees or other charges (other than
such liens or claims, the amount or validity of which is currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP (or prior to the Amendment/Restatement
Effective Date, applicable accounting practice) have been provided) which could
be reasonably expected to have a Material Adverse Effect.

Section 6.10.     COMPLIANCE WITH ERISA.

                  (a) SCHEDULE 6.10 sets forth each Plan as of the
Amendment/Restatement Effective Date, after giving effect to the Transaction.
Each Plan has been operated and administered in a manner so as not to result in
any material liability of the Borrower or any of its Subsidiaries for failure to
comply with the applicable provisions of ERISA and the Code; no Reportable Event
which could reasonably be expected to result in the termination of any Plan has
occurred with respect to a Plan; to the knowledge of the Borrower, no
Multiemployer Plan is insolvent or in reorganization; the aggregate fair market
value of the assets of each Plan equals or exceeds the aggregate present value
of the accrued benefits under such Plan (using the actuarial funding assumptions
then in effect for such Plan); no Plan has an accumulated or waived funding
deficiency, has permitted decreases in its funding standard account or has
applied for an extension of any amortization period within the meaning of
Section 412 of the Code; neither the Borrower nor any of its Subsidiaries nor
any ERISA Affiliate has incurred any material liability to or on account of a
Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201
or 4204 of ERISA or Section 4971 or 4975 of the Code; no proceedings have been
instituted to terminate any Plan; using actuarial assumptions and computation
methods consistent with subpart 1 of Subtitle E of Title IV of ERISA, and its
Subsidiaries and its ERISA Affiliates would not have any material liability to
all Plans which are Multiemployer Plans in the event of a complete withdrawal
therefrom, as of the close of the most recent Fiscal Year of each such Plan


                                       92


ending prior to the date of any Credit Event; no Lien imposed under the Code or
ERISA on the assets of the Borrower or any of its Subsidiaries or any ERISA
Affiliate exists or is likely to arise on account of any Plan; and, except as
disclosed in the annual audited financial statements delivered pursuant to
SECTION 7.1(b) herein, the Borrower and its Subsidiaries do not maintain or
contribute to any employee welfare benefit plan (as defined in Section 3(1) of
ERISA) which provides benefits to retired employees (other than as required by
Section 601 of ERISA) or any employee pension benefit plan (as defined in
Section 3(2) of ERISA), the ongoing annual obligations with respect to either of
which could reasonably be expected to have a Material Adverse Effect.

                  (b) To the knowledge of the Borrower, (i) each Foreign Pension
Plan has been maintained in substantial compliance with its terms and with the
requirements of any and all applicable laws, statutes, rules, regulations and
orders and has been maintained, where required, in good standing with applicable
regulatory authorities; (ii) all contributions required to be made with respect
to a Foreign Pension Plan have been timely made; (iii) neither the Borrower nor
any of its Subsidiaries has incurred any obligation in connection with the
termination of, or withdrawal from, any Foreign Pension Plan; and (iv) the
present value of the accrued benefit liabilities (whether or not vested) under
each Foreign Pension Plan, determined as of the end of the Borrower's most
recently ended fiscal year on the basis of the actuarial assumptions set forth
in the most recent actuarial report for such plan, did not exceed the aggregate
of (a) the current value of the assets of such Foreign Pension Plan allocable to
such benefit liabilities, and (b) the amount then reserved on the Borrower's
consolidated balance sheet in respect of such liabilities (and such amount
reserved on Borrower's consolidated balance sheet is not likely to have a
Material Adverse Effect).

Section 6.11.     OWNERSHIP OF PROPERTY.

The Borrower and each of its Subsidiaries has good and marketable title or, with
respect to real property, valid fee simple title (or in each case, the relevant
foreign equivalent, if any) to, or a subsisting leasehold interest in, or a
valid contractual agreement or other valid right to use, all such Person's
material real property, and good title (or relevant foreign equivalent) to, a
valid leasehold interest in, or valid contractual rights or other valid right to
(or an agreement for the acquisition of same) use all of such Person's other
material property (but excluding Intellectual Property), and, in each case, none
of such property is subject to any Lien except for Permitted Liens. The items of
real and personal property (but excluding Intellectual Property) owned by,
leased to or used by the Borrower and each of its Subsidiaries constitute all of
the assets used in the conduct of such Person's business as presently conducted,
and neither this Agreement nor any other Documents, nor any transaction
contemplated under any such agreement, will affect any right, title or interest
of the Borrower or any of its Subsidiaries in and to any of such assets in a
manner that would have or is reasonably likely to have a Material Adverse
Effect.



                                       93


Section 6.12.     CAPITALIZATION OF THE BORROWER.

On the Amendment/Restatement Effective Date after giving effect to the
Transaction, the capitalization of the Borrower will be as set forth on SCHEDULE
6.12 hereto. The outstanding Capital Stock of the Borrower shall have been duly
authorized and validly issued. Except as set forth on SCHEDULE 6.12, no
authorized but unissued or treasury shares of Capital Stock of the Borrower are
subject to any option, warrant, right to call or commitment of any kind or
character. A complete and correct copy of each of the agreements in effect with
respect to such options, warrants, right to call or otherwise relating to the
Borrower's Capital Stock to which the Borrower is a party on the
Amendment/Restatement Effective Date has been delivered to the Administrative
Agent. Except as set forth on SCHEDULE 6.12 or pursuant to the Transaction
Documents or with respect to stock option plans and restricted stock option
plans relating to the Borrower's or its Subsidiaries' compensation plans,
neither the Borrower nor any of its Subsidiaries has any outstanding stock or
securities convertible into or exchangeable for any shares of its Capital Stock,
or any rights issued to any Person (either preemptive or other) to subscribe for
or to purchase, or any options for the purchase of, or any agreements providing
for the issuance (contingent or otherwise) of, or any calls, commitments or
claims or any character relating to any of its Capital Stock or any stock or
securities convertible into or exchangeable for any of its Capital Stock (other
than as set forth in the certificate of incorporation of the Borrower). Neither
the Borrower nor any of its Subsidiaries is subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any
shares of its Capital Stock or any convertible securities, rights or options of
the type described in the preceding sentence.

Section 6.13.     SUBSIDIARIES.

                  (a) ORGANIZATION. SCHEDULE 6.13 sets forth as of the
Amendment/Restatement Effective Date a true, complete and correct list of each
direct and indirect Subsidiary of the Borrower (after giving effect to the
Transaction) and indicates for each such Subsidiary (i) its jurisdiction of
organization and (ii) its ownership (by holder and percentage interest). The
Borrower has no Subsidiaries except for Subsidiaries permitted to be created
pursuant to this Agreement and those Subsidiaries listed as on SCHEDULE 6.13.

                  (b) CAPITALIZATION. All of the issued and outstanding Capital
Stock of each direct or indirect Subsidiary of the Borrower is owned as set
forth on SCHEDULE 6.13. All of the Capital Stock of each Subsidiary of the
Borrower has been duly authorized and validly issued, is fully paid and
non-assessable and is owned as set forth on SCHEDULE 6.13, free and clear of all
Liens except for Permitted Liens. No authorized but unissued or treasury shares
of Capital Stock of any Subsidiary of the Borrower are subject to any option,
warrant, right to call or commitment of any kind or character except pursuant to
the Transaction Documents or with respect to stock




                                       94



option plans and restricted stock option plans relating to the Borrower's or its
Subsidiaries' compensation plans.

                  (c) RESTRICTIONS ON OR RELATING TO SUBSIDIARIES. There does
not exist any consensual encumbrance or restriction on the ability of (i) any
Subsidiary of the Borrower to pay dividends or make any other distributions on
its capital stock or any other interest or participation in its profits owned by
the Borrower or any Subsidiary of the Borrower, or to pay any Indebtedness owed
to the Borrower or a Subsidiary of the Borrower, (ii) any Subsidiary of the
Borrower to make loans or advances to the Borrower or any of the Borrower's
Subsidiaries or (iii) the Borrower or any of its Subsidiaries to transfer any of
its properties or assets to the Borrower or any of its Subsidiaries, except, in
each case, for such encumbrances or restrictions permitted under SECTION 8.5.

Section 6.14.     COMPLIANCE WITH LAW, ETC.

Neither the Borrower nor any of its Subsidiaries is in default under or in
violation of any Requirement of Law or Contractual Obligation or under its
Organizational Documents, as the case may be, in each case the consequences of
which default or violation, either in any one case or in the aggregate, would
have a Material Adverse Effect.

Section 6.15.     INVESTMENT COMPANY ACT.

Neither the Borrower nor any of its Subsidiaries is an "investment company" or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.

Section 6.16.     PUBLIC UTILITY HOLDING COMPANY ACT.

Neither the Borrower nor any of its Subsidiaries is a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.

Section 6.17.     ENVIRONMENTAL MATTERS.

                  (i) Except as set forth in SCHEDULE 6.17, the operations of
and the real property owned or operated by the Borrower and each of its
Subsidiaries are, and to the knowledge of the Borrower, the past operations of
and the real property formerly owned or operated by the Borrower and each of its
Subsidiaries are, in compliance with all applicable Environmental Laws except
where the failure to be in compliance, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect; (ii) the Borrower
and each of its Subsidiaries has obtained and will continue to maintain all such
Environmental Permits, and all such Environmental


                                       95


Permits are in good standing and the Borrower and its Subsidiaries are in
compliance with all terms and conditions of such Environmental Permits, except
where failure to so obtain, maintain or comply, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect;
(iii) neither the Borrower nor any of its Subsidiaries nor any of their present
or past properties or operations (whether owned or leased) is subject to: (A)
any Environmental Claim or other written claim, request for information, or
agreement from or with any Governmental Authority or Person related to any
violation of, non-compliance with or liability arising under Environmental Laws
or Environmental Permits to the extent any of the foregoing could reasonably be
expected to have a Material Adverse Effect, (B) any pending or, to the knowledge
of the Borrower, threatened judicial or administrative proceeding, action, suit
or investigation related to any Environmental Laws or Environmental Permits
which could reasonably be expected to have a Material Adverse Effect, (C) any
Remedial Action which if not taken could reasonably be expected to have a
Material Adverse Effect or (D) any liabilities, obligations or costs arising
from the Release or threat of a Release of Hazardous Materials into the
environment regardless of whether the Release or threat of a Release is
occurring on the Borrower's or any of its Subsidiaries' present or past
properties (whether owned or leased) or at any other location, in each case
where such Release or threat of a Release could reasonably be expected to have a
Material Adverse Effect; (iv) neither the Borrower nor any of its Subsidiaries
has received any written notice or claim to the effect that the Borrower or any
of its Subsidiaries is or may be liable to any Person as a result of the Release
or threat of a Release of Hazardous Materials into the environment, which notice
or claim could reasonably be expected to result in a Material Adverse Effect,
and (v) no Environmental Lien has attached to any property (whether owned or
leased) of the Borrower or of any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect, nor are there any facts or
circumstances currently known to the Borrower or any of its Subsidiaries that
may reasonably be expected to give rise to such an Environmental Lien.

Section 6.18.     LABOR RELATIONS.

Neither the Borrower nor any of its Subsidiaries is engaged in any unfair labor
practice that could reasonably be expected to have a Material Adverse Effect.
Except as disclosed on SCHEDULE 6.6, there is (i) no significant unfair labor
practice complaint pending against the Borrower or any of its Subsidiaries or,
to the knowledge of the Borrower, threatened against any of them before the
National Labor Relations Board or appropriate national court or other forum, and
no significant grievance or significant arbitration proceeding arising out of or
under any collective bargaining agreement is so pending against the Borrower or
any of its Subsidiaries or, to the knowledge of the Borrower, threatened against
any of them, (ii) no significant strike, labor dispute, slowdown or stoppage is
pending against the Borrower or any of its Subsidiaries or, to the knowledge of
the Borrower, threatened against the Borrower or any of its Subsidiaries and
(iii) to the knowledge of the Borrower, no question concerning union
representation exists with respect to the employees of the Borrower or any of
its Subsidiaries except (with respect to any matter specified in clause




                                       96



(i), (ii) or (iii) above, either individually or in the aggregate) such as could
reasonably be expected to have a Material Adverse Effect.

Section 6.19.     INTELLECTUAL PROPERTY, LICENSES, FRANCHISES AND FORMULAS.

The Borrower and its Subsidiaries owns or holds licenses or other rights to or
under all of the patents, patent applications, trademarks, service marks,
trademark and service mark registrations and applications therefor, trade names,
copyrights, copyright registrations and applications therefor, trade secrets,
proprietary information, computer programs or data bases (collectively,
"INTELLECTUAL PROPERTY") except where the failure to own or hold such
Intellectual Property could not reasonably be expected to result in a Material
Adverse Effect, and has obtained assignments of all franchises, licenses and
other rights of whatever nature, regarding Intellectual Property necessary for
the present conduct of its business, without any known conflict with the rights
of others, except such conflicts which could not reasonably be expected to have
a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries has
knowledge of any existing or threatened claim by any Person contesting the
validity, enforceability, use or ownership of the Intellectual Property which
could reasonably be expected to have a Material Adverse Effect, or of any
existing state of facts that would support a claim that use by the Borrower or
any of its Subsidiaries of any such Intellectual Property has infringed or
otherwise violated any proprietary rights of any other Person which could
reasonably be expected to have a Material Adverse Effect. To the knowledge of
the Borrower or its Subsidiaries, no litigation, action, suit, investigation or
other arbitral, administrative or judicial proceeding is pending or has been
threatened by any Person against the Borrower or any Subsidiary (or any licensor
of any patent or other intellectual property or property right) with respect to
any patent or other intellectual property or property right that could adversely
affect the Borrower's or any of its Subsidiaries' right to utilize any material
technology in its production operations.

Section 6.20.     CERTAIN FEES.

Except as disclosed to the Agents prior to the Amendment/Restatement Effective
Date, no broker's or finder's fees or commissions or any similar fees or
commissions will be payable by the Borrower or any of its Subsidiaries with
respect to the incurrence and maintenance of the Obligations, any other
transaction contemplated by the Documents or any services rendered in connection
with such transactions.

Section 6.21.     SECURITY DOCUMENTS.

                  (a) SECURITY AGREEMENT COLLATERAL. The provisions of the
Security Agreements upon execution and delivery thereof are effective to create
in favor of the Collateral Agent for the benefit of the Secured Creditors a
legal, valid and enforceable security interest in all right, title and interest
of the applicable Credit Party in the Collateral (other than the Collateral
described in the Mortgages) owned by such Credit Party, and the Security
Agreements, together with the


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filings of Form UCC-1 (or other similar filing, if any) in all relevant
jurisdictions and delivery of all possessory collateral create a first lien on,
and security interest in (or similar interest in respect of), all right, title
and interest of the Borrower and such Credit Parties in all of the Collateral
described therein, subject to no other Liens other than Permitted Liens. All
such Liens are fully perfected Liens (or similar legal status). The recordation
in the United States Patent and Trademark Office and in the United States
Copyright Office of assignments for security made pursuant to the Security
Agreements will be effective, under Federal law, to perfect the security
interest granted to the Collateral Agent for the benefit of the Secured
Creditors in the trademarks, patents and copyrights covered by such the Security
Agreements. Each Credit Party has good and marketable title to, or rights in,
all Security Agreement Collateral, free and clear of all Liens except Permitted
Liens.

                  (b) PLEDGED SECURITIES. The security interests created in
favor of the Collateral Agent, as pledgee for the benefit of the Secured
Creditors under the Pledge Agreements, constitute perfected security interests
in the Pledged Securities, if any, subject to no security interests of any other
Person. No filings or recordings are required in order to perfect the security
interests created in the Pledged Securities under the Pledge Agreement other
than with respect to filings required by applicable foreign law and UCC
financing statements with respect to uncertificated Pledged Securities.

                  (c) REAL ESTATE COLLATERAL. The Mortgages create, as security
for the obligations purported to be secured thereby, a valid and enforceable
(and upon the due recording thereof under applicable law) perfected security
interest in and Lien on all of the Mortgaged Property (including, without
limitation, all fixtures and improvements relating to such Mortgaged Property
and affixed or added thereto on or after the Initial Borrowing Date) in favor of
the Collateral Agent (or such other agent or trustee as may be named therein)
for the benefit of the Secured Creditors, superior to and prior to the rights of
all third Persons (except that the security interest created in the Mortgaged
Property may be subject to the Permitted Liens related thereto). SCHEDULE
6.21(c) contains a true and complete list of the street address (or such other
identifying information as is acceptable to the Administrative Agent) for each
parcel of real property owned or leased by the Borrower and its Subsidiaries in
the United States, other jurisdiction in which a material plant is located and
the type of interest therein held by the Borrower or such Subsidiary. The
Borrower or a Subsidiary of the Borrower has good and marketable title to all
Mortgaged Property free and clear of all Liens except those described in the
first sentence of this SECTION 6.21(c) or as otherwise may be acceptable to the
Administrative Agent.


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Section 6.22.     DOCUMENTS.

                  (a) The Borrower has on or prior to the Amendment/Restatement
Effective Date delivered to the Administrative Agent true, correct and complete
copies of the Transaction Documents entered into by the Borrower or any
Subsidiary on or before the Amendment/Restatement Effective Date in connection
with the Transaction and, with respect to any such Transaction Document entered
into after the Amendment/Restatement Effective Date, the terms thereof shall be
reasonably satisfactory to the Administrative Agent. The Borrower and each of
its Subsidiaries have, concurrently with the execution and delivery of this
Agreement or will have by the Amendment/Restatement Effective Date, consummated
the transactions contemplated by the Documents pursuant thereto, and the
Documents set forth the entire agreement among the parties thereto with respect
to the subject matter thereof. No party to the Transaction Documents has waived
the fulfillment of any material condition precedent set forth therein to the
consummation of the transactions contemplated thereby, no party is in default or
has failed to perform any of its material obligations thereunder or under any
material instrument or document executed and delivered in connection therewith.

                  (b) All representations and warranties of the Borrower set
forth in the Documents were true and correct in all material respects (taken as
a whole) at the time as of which such representations and warranties were made
or deemed made and as of the Initial Borrowing Date.

Section 6.23.     INTERCOMPANY NOTES.

Upon execution and delivery thereof, the Intercompany Notes constitute legal,
valid and binding obligations of the Persons party thereto (except to the extent
that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether enforcement
is sought in equity or at law)) and are in full force and effect.

Section 6.24.     AEROJET SETTLEMENT AGREEMENT.

The Aerojet Settlement Agreement is in full force and effect on the
Amendment/Restatement Effective Date, no party thereto has opted out of the
Aerojet Settlement Agreement, no Governmental Authority party thereto has any
defense to its obligations thereunder or to the terms thereof, and there are no
facts and circumstances known to the Borrower or any of its Subsidiaries that
would reasonably be expected to void or otherwise render invalid the Aerojet
Settlement Agreement or that would allow any Governmental Authority party to
avoid its obligations thereunder.



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                                  ARTICLE VII

                              AFFIRMATIVE COVENANTS

                  The Borrower hereby agrees that, so long as any of the
Commitments remain in effect, or any Loan or LC Obligation remains outstanding
and unpaid or any other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall:

Section  7.1.     FINANCIAL STATEMENTS. Furnish, or cause to be furnished, to
each Lender:

                  (a) QUARTERLY FINANCIAL STATEMENTS. Within the earlier of (i)
five (5) days after the time period specified by the SEC under the Exchange Act
or (ii) forty-five (45) days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of the Borrower, unaudited financial statements
consisting of a consolidated and consolidating balance sheet and statement of
stockholders' equity of the Borrower and its Subsidiaries as at the end of such
quarter and consolidated and consolidating statements of income and cash flows
of the Borrower and its Subsidiaries for such quarter and for the Fiscal Year
through such quarter, all in reasonable detail and certified on behalf of the
Borrower by a Responsible Officer of the Borrower as having been prepared in
accordance with generally accepted accounting principles consistently applied
(other than for normal year-end adjustments and, unless then required by the
Borrower's reporting obligations to the Securities and Exchange Commission or by
generally accepted accounting principles, footnote disclosure).

                  (b) ANNUAL FINANCIAL STATEMENTS. Within the earlier of (i)
five (5) days after the time period specified by the SEC under the Exchange Act
or (ii) ninety (90) days after the end of each Fiscal Year of the Borrower,
financial statements consisting of a consolidated and consolidating balance
sheet and statement of stockholder's equity of the Borrower and its Subsidiaries
as at the end of such Fiscal Year and consolidated and consolidating statements
of income and cash flows of the Borrower and its Subsidiaries for such Fiscal
Year, certified (without adverse opinions, scope limitations or qualifications
with respect to departures from generally accepted, accounting principles other
than departures (x) which are not material, (y) which will not cause the
financial statements to fail to meet the requirements of the Securities and
Exchange Commission for financial information to be contained or incorporated by
reference in registration statements, and (z) which do not cause the financial
statements to fail to accurately reflect the financial condition of the Borrower
without qualification as to scope of examination by independent public
accountants of recognized national standing and reputation selected by the
Borrower).

                  (c) ANNUAL SCHEDULE OF INTERCOMPANY NOTES. As soon as
available, but in any event within 90 days after the end of each Fiscal Year of
the Borrower an unaudited schedule of Intercompany Notes as at the end of such
year, separately presenting the Foreign Intercompany Notes, all indebtedness
permitted under SECTION 8.2 (including overdraft facilities) and cash


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balances, for each consolidated Subsidiary with total assets in excess of
$20,000,000 as at the end of such period.

Section 7.2.      CERTIFICATES; OTHER INFORMATION.

                  Furnish to each Lender (or, if specified below, to the
Administrative Agent):

                  (a) ACCOUNTANT'S CERTIFICATES. Concurrently with the delivery
of the financial statements referred to in SECTION 7.1(b), (i) a certificate
from Ernst & Young LLP or other independent certified public accountants of
nationally recognized standing, stating that, in the course of their annual
audit of the books and records of the Borrower and its Subsidiaries, no Event of
Default or Unmatured Event of Default has come to their attention which was
continuing at the end of such Fiscal Year or on the date of their certificate,
or if such an Event of Default or Unmatured Event of Default has come to their
attention, the certificate shall indicate the nature of such Event of Default or
Unmatured Event of Default; and (ii) a letter, in form satisfactory to the
Administrative Agent from such accountants with respect to reliance on such
accountant's certificate and report on the annual consolidated financial
statements referred to in this SECTION 7.2(a).

                  (b) OFFICER'S CERTIFICATES. Concurrently with the delivery of
the financial statements referred to in SECTIONS 7.1(a) and 7.1(b), a
certificate of a Responsible Financial Officer substantially in the form of
EXHIBIT 7.2(B) stating that, to the best of such officer's knowledge, (i) such
financial statements present fairly, in accordance with GAAP, the financial
condition and results of operations of the Borrower and its Subsidiaries for the
period referred to therein (subject, in the case of interim statements, to
normal recurring adjustments), (ii) no Event of Default or Unmatured Event of
Default has occurred, except as specified in such certificate and, if so
specified, the action which the Borrower proposes to take with respect thereto,
which certificate shall set forth detailed computations to the extent necessary
to establish the Borrower's compliance with the covenants set forth in ARTICLE
IX of this Agreement and (iii) setting forth the then current outstanding amount
of each Intercompany Loan;

                  (c) AUDIT REPORTS AND STATEMENTS. Promptly following the
Borrower's receipt thereof, copies of all consolidated financial or other
consolidated reports or statements, if any, submitted to the Borrower or any of
its Subsidiaries by independent public accountants relating to any annual or
interim audit of the books of the Borrower or any of its Subsidiaries;

                  (d) MANAGEMENT LETTERS. Promptly after receipt thereof, a copy
of any "management letter" received by the Borrower or any of its Subsidiaries
from its certified public accountants;

                  (e) PROJECTIONS. As soon as available and in any event within
sixty (60) days following the first day of each Fiscal Year of the Borrower,
projections (prepared on a business


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segment basis) in form satisfactory to the Administrative Agent and the Required
Lenders covering the period from such Fiscal Year through the next two Fiscal
Years prepared in reasonable detail, with appropriate presentation and
discussion of the principal assumptions upon which such projections are based,
which shall be accompanied by the statement of the chief executive officer or
Responsible Financial Officer of the Borrower to the effect that, to the best of
his knowledge, such projections are a reasonable estimate for the periods
respectively covered thereby;

                  (f) PUBLIC FILINGS. Within 20 days after the same become
public, copies of all financial statements and reports which the Borrower may
make to, or file with the SEC or any successor or analogous Governmental
Authority;

                  (g) INSURANCE. Prior to the Amendment/Restatement Effective
Date, the Borrower shall have delivered to the Administrative Agent evidence of
insurance complying with the requirements of SECTION 7.8 for the business and
properties of the Borrower and its Subsidiaries, in form reasonably satisfactory
to the Administrative Agent and the Required Lenders, and naming the
Administrative Agent as an additional insured, mortgagee and/or loss payee, and
stating that such insurance shall not be cancelled or revised without 30 days'
prior written notice by the insurer to the Administrative Agent;

                  (h) INSURANCE INFORMATION. The Borrower shall deliver to the
Administrative Agent information concerning insurance at the times and in the
manner specified in SECTION 7.8;

                  (i) ENVIRONMENTAL REPORT. Concurrently with the delivery of
the financial statements referred to in SECTIONS 7.1(a) and 7.l(b), a report of
the Borrower (i) with respect to the environmental matters affecting the
Borrower and the Subsidiaries in the form set forth in the 10-K or Form 10-Q, as
applicable, of the Borrower relating to such fiscal period as to which the
financial statements being concurrently delivered therewith pertain; PROVIDED,
HOWEVER, that to the extent the Borrower becomes aware of any potential
Environmental Claim or threat of judicial or administrative action regarding an
Environmental Claim, the Borrower shall include in such report such information
as the Borrower may have regarding such matter even if all facts regarding such
matter are not known or the potential liability is not quantifiable and (ii) as
to the progress of the Borrower and applicable Subsidiaries in connection with
obtaining the environmental permits and making the declarations detailed in the
post-closing agreement dated as of the Initial Borrowing Date, as amended,
between the Borrower and the Administrative Agent, and the Borrower shall
further provide to the Administrative Agent copies of any environmental audit
reports to be prepared by or on behalf of the Borrower or any Subsidiary and
shall, as part of such report, provide a status report to the Administrative
Agent as to any material environmental issues, liabilities or compliance costs
identified in such audit reports; and

                  (j) OTHER REQUESTED INFORMATION. Such other information
respecting the respective properties, business affairs, financial condition
and/or operations of the Borrower or


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any of its Subsidiaries as the Administrative Agent or any Lender (through the
Administrative Agent) may from time to time reasonably request.

Section 7.3.      NOTICES.

Promptly and in any event within three (3) Business Days in the case of CLAUSES
(A), (D), (E) and (F) below, 15 days in the case of CLAUSES (B) and (C) below,
or one Business Day in the case of CLAUSE (G) below after an officer of the
Borrower or of any of its Subsidiaries obtains knowledge thereof, give written
notice to the Administrative Agent (which shall promptly provide a copy of such
notice to each Lender) of:

                  (a) EVENT OF DEFAULT OR UNMATURED EVENT OF DEFAULT. The
occurrence of any Event of Default or Unmatured Event of Default, accompanied by
a statement of a Responsible Financial Officer setting forth details of the
occurrence referred to therein and stating what action the Borrower proposes to
take with respect thereto.

                  (b) LITIGATION AND RELATED MATTERS. The commencement of, or
any material development in, any action, suit, proceeding or investigation
affecting the Borrower or any of its Subsidiaries or any of their respective
properties before any arbitrator or Governmental Authority, (i) in which the
amount involved that the Borrower reasonably determines is not covered by
insurance or other indemnity arrangement is $10,000,000 or more, (ii) with
respect to any Document or any material Indebtedness of the Borrower or any of
its Subsidiaries or (iii) which, if determined adversely to the Borrower or any
of its Subsidiaries, could reasonably be expected to have a Material Adverse
Effect.

                  (c) ENVIRONMENTAL.

                      (i) The occurrence of one or more of the following, to the
extent that any of the following, if adversely determined, could reasonably be
expected to have a Material Adverse Effect: (A) written notice of an
Environmental Claim or written notice or request for information to the effect
that the Borrower or any of its Subsidiaries is or may be liable to any Person
as a result of the presence of or the Release or threat of a Release of any
Hazardous Materials into the environment; (B) written notice that the Borrower
or any of its Subsidiaries is subject to investigation by any Governmental
Authority evaluating whether any Remedial Action is needed to respond to the
presence or to the Release or threat of a Release of any Hazardous Materials
into the environment; (C) written notice that any property, whether presently
owned or leased by, or operated on behalf of, the Borrower or its Subsidiaries
is subject to an Environmental Lien; (D) written notice of violation to the
Borrower or any of its Subsidiaries of any Environmental Laws or Environmental
Permits by the Borrower or any of its Subsidiaries, or (E) commencement or
written threat of any judicial or administrative proceeding alleging a violation
of or liability under any Environmental Laws or Environmental Permits.


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                      (ii) Upon written request by the Administrative Agent, the
Borrower shall promptly submit to the Administrative Agent and the Lenders a
report providing an update of the status of each environmental, health or safety
compliance, hazard or liability issue identified in any notice or report
required pursuant to clause (i) above and any other environmental, health and
safety compliance obligation, remedial obligation or liability that could
reasonably be expected to have a Material Adverse Effect. All such notices shall
describe in reasonable detail the nature of the Environmental Claim, notice,
request for information, proceeding investigation, condition, occurrence or
removal or Remedial Action and the Borrower's or such Subsidiary's response
thereto.

                  (d) NOTICE OF CHANGE OF CONTROL. Each occasion that any Change
of Control shall occur and such notice shall set forth in reasonable detail the
particulars of each such occasion.

                  (e) NOTICES UNDER TRANSACTION DOCUMENTS. Promptly following
the receipt or delivery thereof, copies of any material demands, notices or
documents received or delivered by the Borrower or any Subsidiary of the
Borrower outside of the ordinary course of business under or pursuant to the
Transaction Documents, any material joint venture agreement and any other
material agreement from time to time identified by the Administrative Agent.

                  (f) AEROJET SETTLEMENT AGREEMENT. Any notice or any other
communication received with respect to or pursuant to the Aerojet Settlement
Agreement concerning any party's election to opt out of or otherwise not to
comply with the terms thereof or to propose any material modifications thereof.

                  (g) INSOLVENCY PROCEEDINGS. A meaningful threat of or notice
in respect of any insolvency proceeding involving any Foreign Subsidiary.

Section 7.4.      CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.

Continue to engage in business of the same general type as now conducted by it
and preserve, renew and keep in full force and effect its and each Subsidiary's
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises material to its and those of each of its Subsidiaries'
businesses except to the extent that failure to take any such action could not
in the aggregate reasonably be expected to have a Material Adverse Effect or as
otherwise permitted pursuant to SECTIONS 8.3 and comply and cause each of its
Subsidiaries to comply with all Requirements of Law (excluding Environmental
Laws which are governed by SECTION 7.9) except to the extent that failure to
comply therewith would not in the aggregate reasonably be expected to have a
Material Adverse Effect.



                                      104


Section 7.5.      PAYMENT OF OBLIGATIONS.

Pay or discharge or otherwise satisfy at maturity or, to the extent permitted
hereby, prior to maturity or before they become delinquent, as the case may be,
and cause each of its Subsidiaries to pay or discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be:

                      (i) all material taxes, assessments and governmental
charges or levies imposed upon any of them or upon any of their income or
profits or any of their respective properties or assets prior to the date on
which penalties attach thereto; and

                      (ii) all lawful claims prior to the time they become a
Lien (other than Permitted Liens) upon any of their respective properties or
assets; PROVIDED, HOWEVER, that neither the Borrower nor any of its Subsidiaries
shall be required to pay or discharge any such material tax, assessment, charge,
levy or claim while the same is being contested by it in good faith and by
appropriate proceedings diligently pursued so long as the Borrower or such
Subsidiary, as the case may be, shall have set aside on its books adequate
reserves in accordance with GAAP (segregated to the extent required by GAAP)
with respect thereto and title to any material properties or assets is not
jeopardized in any material respect.

Section 7.6.      INSPECTION OF PROPERTY, BOOKS AND RECORDS.

Keep, or cause to be kept, and cause each of its Subsidiaries to keep or cause
to be kept, adequate records and books of account, in which complete entries are
to be made reflecting its and their business and financial transactions, such
entries to be made in accordance with sound accounting principles consistently
applied and permit, and cause each of its Subsidiaries to permit, any Lender or
its respective representatives, at any reasonable time, and from time to time at
the reasonable request of such Lender made to the Borrower and upon reasonable
notice, to visit and inspect its and their respective properties, to examine and
make copies of and take abstracts from its and their respective records and
books of account, and to discuss its and their respective affairs, finances and
accounts with its and their respective principal officers, directors and
independent public accountants (and by this provision the Borrower authorizes
such accountants to discuss with the Lenders and such representatives the
affairs, finances and accounts of the Borrower and its Subsidiaries).

Section 7.7.      ERISA.

                      (i) As soon as practicable and in any event within ten
(10) days after the Borrower or any of its Subsidiaries or ERISA Affiliates
knows or has reason to know that a Reportable Event has occurred with respect to
any Plan, deliver, or cause such Subsidiary or ERISA Affiliate to deliver, to
the Administrative Agent a certificate of a Responsible Officer of the Borrower
or such Subsidiary or ERISA Affiliate, as the case may be, setting forth the
details


                                      105


of such Reportable Event and the action, if any, which the Borrower or such
Subsidiary or ERISA Affiliate is required or proposes to take, together with any
notices required or proposed to be given; (ii) upon the request of any Lender
made from time to time, deliver, or cause each Subsidiary or ERISA Affiliate to
deliver, to each Lender a copy of the most recent actuarial report and annual
report completed with respect to any Plan; (iii) as soon as possible and in any
event within ten (10) days after the Borrower or any of its Subsidiaries or
ERISA Affiliates knows or has reason to know that any of the following have
occurred or is reasonably likely to occur with respect to any Plan: (A) such
Plan has been terminated, reorganized, petitioned or declared insolvent under
Title IV of ERISA, (B) the Plan Sponsor intends to terminate such Plan, (C) the
PBGC has instituted or will institute proceedings under Section 515 of ERISA to
collect a delinquent contribution to such Plan or under Section 4042 of ERISA to
terminate such Plan, (D) that an accumulated funding deficiency has been
incurred or that an application has been made to the Secretary of the Treasury
for a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period under
Section 412 of the Code, or (E) that the Borrower, or any Subsidiary of the
Borrower or any ERISA Affiliate will incur any material liability (including,
but not limited to, contingent or secondary liability) to or on account of the
termination of or withdrawal from a Plan under Section 401(a)(29), 4971 or 4975
of the Code or Section 409 or 502(1) of ERISA, deliver, or cause such Subsidiary
or ERISA Affiliate to deliver, to the Administrative Agent a written notice
thereof; and (iv) as soon as possible and in any event within thirty (30) days
after the Borrower or any of its Subsidiaries or ERISA Affiliates knows or has
reason to know that any of them has caused a complete withdrawal or partial
withdrawal (within the meaning of Sections 4203 and 4205, respectively, of
ERISA) from any Multiemployer Plan, deliver, or cause such Subsidiary or ERISA
Affiliate to deliver, to the Administrative Agent a written notice thereof. For
purposes of this SECTION 7.7, the Borrower shall be deemed to have knowledge of
all facts known by the Plan Administrator of any Plan of which the Borrower is
the Plan Sponsor, and each Subsidiary and ERISA Affiliate of the Borrower shall
be deemed to have knowledge of all facts known by the Plan Administrator of any
Plan of which such Subsidiary or ERISA Affiliate, respectively, is a Plan
Sponsor. In addition to its other obligations set forth in this ARTICLE VII, the
Borrower shall, and shall cause each of its Subsidiaries and ERISA Affiliates
to:

                          (A) provide the Administrative Agent with prompt
written notice, with respect to any Plan, of any failure to satisfy the minimum
funding standard requirements of Section 412 of the Code,

                          (B) furnish to the Administrative Agent, promptly
after delivery of the same to the PBGC, a copy of any delinquency notice
pursuant to Section 412(n)(4) of the Code,

                          (C) correct any such failure to satisfy funding
requirements or delinquency referred to in the foregoing clauses (A) and (B)
within ninety (90) days after the




                                      106



occurrence thereof, except where the failure to so satisfy would not reasonably
be expected to have a Material Adverse Effect;

                          (D) comply in good faith in all material respects with
the requirements set forth in Section 4980B of the Code and with Sections 601(a)
and 606 of ERISA;

                          (E) at the request of any Lender, deliver to such
Lender (and a copy to the Administrative Agent) a complete copy of the most
recent annual report (Form 5500) of each Plan required to be filed with the
Internal Revenue Service; and

                          (F) at the request of any Lender, deliver to such
Lender (and a copy to the Administrative Agent) copies of the most recent annual
reports received by the Borrower or any Subsidiary of the Borrower or any ERISA
Affiliate with respect to any Plan or Foreign Pension Plan no later than ten
(10) days after the date of such request.

Section 7.8.      MAINTENANCE OF PROPERTY; INSURANCE.

                      (i) Keep, and cause each of its Subsidiaries to keep, all
property (including, but not limited to, equipment) useful and necessary for its
business in good working order and condition, normal wear and tear and damage by
casualty excepted, subject to SECTION 8.3(b), (ii) maintain, and shall cause
each of its Subsidiaries to maintain insurance with respect to its material
properties and business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such types and in
such amounts as are customarily carried under similar circumstances by such
other Persons. Such insurance shall be maintained with financially sound and
reputable insurers, except that a portion of such insurance program (not to
exceed that which is customary in the case of companies engaged in the same or
similar business or having similar properties similarly situated) may be
effected through self-insurance, provided adequate reserves therefor, in
accordance with GAAP, are maintained. All insurance policies or certificates (or
certified copies thereof) with respect to such insurance (A) shall be endorsed
to the Administrative Agent's reasonable satisfaction for the benefit of the
Lenders (including, without limitation, by naming the Administrative Agent as
loss payee or additional insured, as appropriate); and (B) shall state that such
insurance policy shall not be canceled or revised without thirty days' prior
written notice thereof by the insurer to the Administrative Agent and (iii)
furnish to the Administrative Agent, on the Amendment/Restatement Date and on
the date of delivery of each annual financial statement, full information as to
the insurance carried. At any time that insurance at levels described in
SCHEDULE 7.8 is not being maintained by or on behalf of the Borrower or any of
its Subsidiaries, the Borrower will notify the Lenders in writing within ten
(10) Business Days thereof and, if thereafter notified by the Administrative
Agent or the Required Lenders to do so, the Borrower or any such Subsidiary, as
the case may be, shall obtain insurance at such levels at least equal to those
set forth on SCHEDULE 7.8.


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Section 7.9.      ENVIRONMENTAL LAWS.

                  (a) Materially comply with and will cause each of its
Subsidiaries, tenants and subtenants to materially comply with, all
Environmental Laws and obtain and comply in all material respects with and
maintain, and take reasonable steps to ensure that all tenants and subtenants
obtain and comply in all material respects with and maintain, any and all
Environmental Permits.

                  (b) Take and shall cause each of its Subsidiaries to take,
prompt and appropriate action as required by Environmental Laws to fully respond
to any material non-compliance with all Environmental Laws or Environmental
Permits or to any material Release or threat of a material Release of Hazardous
Materials, in each case, in compliance with Environmental Laws, and upon request
from the Administrative Agent, shall regularly report to the Administrative
Agent on such response. Without limiting the generality of the foregoing,
whenever the Administrative Agent or any Lender has a reasonable basis to
believe that the Borrower is not in material compliance with applicable
Environmental Laws or Environmental Permits or that any property of the Borrower
or its Subsidiaries (whether owned or leased), or any property to which
Hazardous Materials generated by the Borrower or its Subsidiaries have come to
be located ("OFFSITE PROPERTY") has or may become contaminated or subject to an
order or decree such that any non-compliance, contamination or order or decree
could reasonably be expected to have a Material Adverse Effect, then, to the
extent the Borrower has the legal right to do so, the Borrower agrees to, at the
Administrative Agent's request and the Borrower's sole expense: (i) cause an
independent environmental engineer reasonably acceptable to the Administrative
Agent to conduct such studies, evaluations, investigations, or tests of the site
where the alleged or actual non-compliance or contamination has occurred and
prepare and deliver to the Administrative Agent, the Lenders and the Borrower a
report(s) reasonably acceptable to the Administrative Agent setting forth the
results of such studies, evaluations, investigations, or tests, the Borrower's
proposed plan and schedule for responding to any environmental problems
described therein, and the Borrower's estimate of the costs thereof, and (ii)
provide the Administrative Agent, the Lenders and the Borrower a supplemental
report(s) of such engineer whenever the scope of the environmental problems or
the Borrower's response thereto or the estimated costs thereof, shall materially
change. Notwithstanding the above, the Borrower shall not be obligated (other
than as required by applicable law) to undertake any tests or remediation at any
Offsite Property that (x) is not owned or operated by the Borrower or any of its
Subsidiaries and (y) where Hazardous Materials generated by persons other than
the Borrower or any of its Subsidiaries have also come to be located.

                  (c) Defend, indemnify and hold harmless the Administrative
Agent and the Lenders, and their respective employees, the Administrative
Agents, officers and directors, from and against any and all Environmental
Claims or any demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance


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with or liability under, any Environmental Law applicable to the operations of
the Borrower, any of its Subsidiaries or their respective properties (whether
currently or formerly owned, leased or operated), or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, attorneys' and consultants' fees, investigation and laboratory fees,
costs arising from any Remedial Actions, court costs and litigation expenses,
except to the extent that any of the foregoing arise out of the gross negligence
or willful misconduct of the party seeking indemnification therefor. The
agreements in this SECTION 7.9(c) shall survive repayment of the Notes and all
other Obligations.

Section 7.10.     USE OF PROCEEDS.

Use all proceeds of the Loans as provided in SECTION 6.8.

Section 7.11.     INTEREST RATE PROTECTION.

No later than 90 days (the "HEDGE DATE") following the Amendment/Restatement
Effective Date, enter into and maintain arrangements acceptable to the
Administrative Agent which have the effect of establishing a fixed or maximum
interest rate reasonably acceptable to the Administrative Agent for an aggregate
notional principal amount of Indebtedness equal to at least $100,000,000 (the
"NOTIONAL AMOUNT") with an initial average life of not less than two (2) years;
PROVIDED, HOWEVER, that the Notional Amount may be reduced on a
dollar-for-dollar basis simultaneously with the reduction of the principal
amount outstanding of the Term Loans.

Section 7.12.     ADDITIONAL SECURITY; FURTHER ASSURANCES.

                  (a) AGREEMENT TO GRANT ADDITIONAL SECURITY. Promptly, and in
any event within 30 days after the acquisition by the Borrower or any Material
Subsidiary of assets or real or personal property or leasehold interests of the
type that would have constituted Collateral on the Amendment/Restatement
Effective Date, in each case in which the Collateral Agent or the Administrative
Agent does not have a perfected security interest under the Security Documents
and within 30 days after request by the Administrative Agent with respect to any
other after acquired collateral deemed material by the Administrative Agent or
Required Lenders (the "ADDITIONAL COLLATERAL"), the Borrower will, and will
cause each of its respective Material Subsidiaries to, take all necessary
action, including (i) the filing of appropriate financing statements under the
provisions of the UCC, applicable foreign, domestic or local laws, rules or
regulations in each of the offices where such filing is necessary or appropriate
to grant the Collateral Agent or the Administrative Agent for the benefit of the
Secured Creditors pursuant to the Security Agreement a perfected Lien (subject
only to Permitted Liens) in such Collateral pursuant to and to the full extent
required by the Security Documents and this Agreement and (ii) with respect to
real estate, the execution of a Mortgage, the obtaining of title insurance
policies or indemnification agreements satisfactory to the Administrative Agent,
title surveys, Mortgage Policies and real estate appraisals satisfying the
Requirements of Law. In the event the Lien


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against the Mortgaged California Real Estate is released pursuant to SECTION
12.15(b) but thereafter, the Leverage Ratio of the Borrower is equal to or
greater than 2.00 to 1.00, the Administrative Agent shall have the right to
require the Borrower to execute a Mortgage, or cause any of its Subsidiaries to
execute a Mortgage, with respect to the Mortgaged California Real Estate and
take all other necessary action on behalf of the Collateral Agent or the
Administrative Agent for the benefit of the Secured Creditors, all in accordance
with SECTION 7.12(e). In furtherance of the foregoing, except as otherwise
permitted by SECTION 8.14, the Borrower hereby agrees that in no event shall it,
in any manner or at any time, transfer, modify or otherwise affect, or permit
any Subsidiary of the Borrower to transfer, modify or otherwise affect, the
legal title of the Mortgaged California Property such that the Borrower or any
such Subsidiary shall no longer be the legal titleholder in the Mortgaged
California Real Estate or shall in any other manner be restricted from granting
such Mortgage in favor of the Collateral Agent or the Administrative Agent for
the benefit of the Secured Creditors.

                  (b) ADDITIONAL SUBSIDIARY GUARANTORS. The Borrower agrees to
cause each new Material Domestic Subsidiary established or created in accordance
with this Agreement to execute and deliver the Subsidiary Guaranty (or a
supplement thereto) promptly, and in any event, within 30 days of such Person's
having become a Material Domestic Subsidiary.

                  (c) PLEDGE OF NEW SUBSIDIARY STOCK. The Borrower agrees to
pledge (or cause its Subsidiaries to pledge) (i) all of the Capital Stock of
each new Material Domestic Subsidiary and any Subsidiary owning the Stock of a
Material Domestic Subsidiary, and (ii) 65% of the Capital Stock of each new
Material Foreign Subsidiary and 65% of the Capital Stock of any Subsidiary
owning the Stock of Material Foreign Subsidiary established, acquired or created
after the Amendment/Restatement Effective Date to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Pledge Agreements promptly, and
in any event, within 30 days of the creation or acquisition of such new
Subsidiary.

                  (d) GRANT OF SECURITY BY NEW SUBSIDIARIES. Subject to the
provisions of SECTIONS 7.12(a) and 7.12(c), the Borrower will promptly and, in
any event, within 30 days of the establishment, acquisition or creation of a
Material Subsidiary, cause each Material Domestic Subsidiary and each Material
Foreign Subsidiary (but only to the extent reasonably requested by the
Administrative Agent) established or created in accordance with SECTION 8.7 to
grant to the Collateral Agent for the benefit of the Secured Creditors a first
priority Lien (subject to Permitted Liens) on all property (tangible and
intangible) of such Material Subsidiary upon terms satisfactory in form and
substance to the Administrative Agent. The Borrower shall cause each Material
Subsidiary, at its own expense, to execute, acknowledge and deliver, or cause
the execution, acknowledgment and delivery of, and thereafter register, file or
record in any appropriate governmental office, any document or instrument
reasonably deemed by the Administrative Agent to be necessary or desirable for
the creation and perfection of the foregoing Liens. The Borrower will cause each
of its Material Subsidiaries to take all action requested by



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the Administrative Agent or the Required Lenders (including, without limitation,
the filing of UCC-1's) in connection with the granting of such security
interests.

                  (e) DOCUMENTATION FOR ADDITIONAL SECURITY. The security
interests required to be granted pursuant to this SECTION 7.12 shall be granted
pursuant to such security documentation satisfactory in form and substance to
the Administrative Agent and the Required Lenders and shall constitute valid and
enforceable perfected security interests prior to the rights of all third
Persons and subject to no other Liens except Permitted Liens or, in the case of
Mortgages, Permitted Real Property Encumbrances. The Additional Security
Documents and other instruments related thereto shall be duly recorded or filed
in such manner and in such places and at such times as are required by law to
establish, perfect, preserve and protect the Liens, in favor of the
Administrative Agent for the benefit of the Secured Creditors, required to be
granted pursuant to the Additional Security Document and, all taxes, fees and
other charges payable in connection therewith shall be paid in full by the
Borrower or its Subsidiaries. At the time of the execution and delivery of the
Additional Security Documents, the Borrower shall cause to be delivered to the
Administrative Agent such agreements, opinions of counsel, title surveys, real
estate appraisals satisfying any Requirements of Law, and other related
documents as may be reasonably requested by the Administrative Agent or the
Required Lenders to assure themselves that this SECTION 7.12 has been complied
with.

Section 7.13.     END OF FISCAL YEARS; FISCAL QUARTERS.

Cause the Borrower's and each of its Subsidiaries' annual accounting periods to
end on November 30 of each year (each a "FISCAL YEAR"), with quarterly
accounting periods ending on February 28 (or 29, if applicable), May 31, August
31 and November 30 of each Fiscal Year (each a "FISCAL QUARTER"), unless
otherwise required by applicable law.

Section 7.14.     FOREIGN SUBSIDIARIES SECURITY.

If, following a change in the relevant sections of the Code, the regulations and
rules promulgated thereunder and any rulings issued thereunder and at the
request of the Administrative Agent or the Required Lenders, counsel for the
Borrower acceptable to the Administrative Agent and the Required Lenders does
not within 30 days after such request deliver evidence reasonably satisfactory
to the Administrative Agent with respect to any Foreign Subsidiary that is a
Wholly-Owned Subsidiary of the Borrower that any of (i) a pledge of 662/3% or
more of the total combined voting power of all classes of Capital Stock of such
Foreign Subsidiary entitled to vote, (ii) the entering into by such Foreign
Subsidiary of a guaranty in substantially the form of the Subsidiary Guaranty or
(iii) the entering into by such Foreign Subsidiary of a security agreement in
substantially the form of the Security Agreement, in any case could cause all or
a portion of the earnings of such Foreign Subsidiary to be treated as a deemed
dividend to such Foreign Subsidiary's United States parent or would otherwise
violate applicable law or result in adverse tax consequences to the Borrower or
its Subsidiaries, then in the case of a failure to


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deliver the evidence described in clause (i) above, that portion of such Foreign
Subsidiary's outstanding Capital Stock not theretofore pledged pursuant to the
Security Documents shall be pledged to the Administrative Agent for the benefit
of the Lenders pursuant to the Security Documents (or another pledge agreement
in substantially similar form, if needed), (ii) in the case of a failure to
deliver the evidence described in clause (ii) above, such Foreign Subsidiary
shall execute and deliver a guaranty of the Obligations of the Borrower under
the Loan Documents (subject to compliance with financial assistance laws or
similar laws applicable to such Foreign Subsidiary), and (iii) in the case of a
failure to deliver the evidence described in clause (iii) above, such Foreign
Subsidiary (subject to compliance with financial assistance laws or similar laws
applicable to such Foreign Subsidiary) shall execute and deliver a security
agreement granting the Administrative Agent for the benefit of the Lenders a
security interest in all of such Foreign Subsidiary's assets, in each case with
all documents delivered pursuant to this SECTION 7.14 to be in form and
substance reasonably satisfactory to the Administrative Agent and the Required
Lenders, but in each case, only to the extent permitted without violating
applicable law or resulting in adverse tax consequences.

Section 7.15.     CERTAIN FEES INDEMNITY.

The Borrower covenants that it will indemnify the Administrative Agent and each
Lender against and hold the Administrative Agent and each Lender harmless from
any claim, demand or liability for broker's or finder's fees or similar fees or
commissions alleged to have been incurred by third parties other than the
Lenders in connection with any of the transactions contemplated hereby.

Section 7.16.     OTS ACQUISITION DOCUMENTS.

The Borrower will, and will cause its Subsidiaries to promptly provide to the
Administrative Agent (i) drafts of any proposed amendment, modification or
supplement to the OTS Acquisition Agreement or schedules thereto, (ii) drafts of
any document to be executed pursuant to, or in connection with, the OTS
Acquisition Agreement, the form of which is not attached to, or deviates in any
material respect from the form attached to, the OTS Acquisition Agreement and
(iii) any change in the structure of the transactions contemplated by the OTS
Acquisition Documents (including, without limitation, corporate and
organizational structure, Intercompany debt and equity structure, asset and
operations structure, and the process to achieve such structures) to be effected
on or prior to the Amendment/Restatement Effective Date. The rights of the
Administrative Agent to approve any of the foregoing matters shall be governed
by the express terms of this Agreement, including, without limitation, SECTION
8.11.

Section 7.17.     ADDITION OF COLLATERAL.

The Borrower hereby agrees to grant a mortgage (or cause its applicable
Subsidiary to grant a mortgage) to the Administrative Agent, all in accordance
with the terms of SECTION 7.12 of this Agreement, as soon as possible but in no
event later than November 30, 2002, on the real


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property of the Borrower or any of its Subsidiaries holding such title located
in or near Sacramento, California and as further identified to the
Administrative Agent (the "MORTGAGED CALIFORNIA REAL ESTATE"), in favor of the
Administrative Agent on behalf of the Lenders to secure payment of their
respective Loans, a continuing security interest of first priority in all the
right, title and interest of the Borrower and such applicable Subsidiaries, as
the case may be, in the Mortgaged California Real Estate.

                                  ARTICLE VIII

                               NEGATIVE COVENANTS

                  The Borrower hereby covenants and agrees that, so long as any
of the Commitments remain in effect or any Loan or LC Obligation remains
outstanding and unpaid or any other amount is owing to any Lender or the
Administrative Agent hereunder:

Section 8.1.      LIENS.

The Borrower will not, and will not permit any of its Subsidiaries to create,
incur, assume or suffer to exist or agree to create, incur or assume any Lien
in, upon or with respect to any of its properties or assets (including, without
limitation, any securities or debt instruments of any of its Subsidiaries),
whether now owned or hereafter acquired, or assign or otherwise convey any right
to receive income to secure any obligation, except for the following Liens
(herein referred to as "PERMITTED LIENS"):

                  (a) Liens created under the Security Documents;

                  (b) Customary Permitted Liens;


                  (c) Liens on any property securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the acquisition,
construction, repair or improvement cost of such property (or financing of the
purchase price within 120 days after the respective purchase of assets), and any
Lien arising out of the refinancing, extension, renewal or refunding of any
Indebtedness secured by any Lien permitted by this clause (c); PROVIDED, that
(A) any such Lien does not extend to any other property (other than accessions
and additions to the property covered thereby), (B) such Lien either exists on
the Amendment/Restatement Effective Date or is created in connection with the
refinancing, acquisition, construction, repair or improvement of such property
as permitted by this Agreement, (C) the indebtedness secured by any such Lien
(or the Capitalized Lease Obligation with respect to any Capitalized Lease) when
incurred, (x) does not exceed 100% of the fair market value of such assets and
(y) is not less than 70% of the fair market value of such assets (unless the
Administrative Agent has a perfected second lien on such sset); and (D) the
Indebtedness secured thereby is permitted to be incurred pursuant to SECTION




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8.2(d), PROVIDED that such Indebtedness is not increased and is not secured by
any additional assets;

                  (d) additional Liens incurred by the Borrower and its
Subsidiaries which do not secure Indebtedness for money borrowed so long as the
value of the property subject to such Liens, and the obligations secured
thereby, do not exceed $5,000,000 in the aggregate at any one time outstanding;

                  (e) Liens securing Indebtedness of Foreign Subsidiaries;
PROVIDED, that the amount of such Indebtedness shall not exceed $5,000,000 (or
the Dollar Equivalent thereof) in the aggregate at any one time outstanding;

                  (f) Liens existing on the Amendment/Restatement Effective Date
listed on SCHEDULE 8.1(f) hereto and any extension, renewal or replacement
thereof but only if the principal amount of the Indebtedness (including, for
purposes of this SECTION 8.1(f), any additional Indebtedness incurred pursuant
to revolving commitments in an amount not in excess of the available commitment
as set forth on SCHEDULE 8.2(b) secured thereby) is not increased and such Liens
do not extend to or cover any other property or assets;

                  (g) Liens securing Indebtedness permitted pursuant to SECTION
8.2(j), PROVIDED, that any such Lien does not extend to any other property
(other than accessions and additions to the property secured thereby); and

                  (h) Liens on any property of Foreign Subsidiaries of the
Borrower securing Indebtedness permitted pursuant to SECTION 8.2(o), PROVIDED
that the aggregate fair market value of the assets of such Foreign Subsidiaries
subject to such Liens shall not exceed 200% of the aggregate outstanding
Indebtedness permitted pursuant to SECTION 8.2(o).

                  In connection with the granting of Liens of the type described
in clause (c) of this SECTION 8.1 by the Borrower or any of its Subsidiaries, at
the reasonable request of the Borrower, and at the Borrower's expense, the
Administrative Agent or the Collateral Agent shall take (and is hereby
authorized to take) any actions reasonably requested by the Borrower in
connection therewith (including, without limitation, by executing appropriate
lien releases in favor of the holder or holders of such Liens, in either case
solely with respect to the item or items of equipment or other assets subject to
such Liens).

                  Notwithstanding the foregoing clauses (a) through (h) of this
SECTION 8.1, the Borrower agrees that it will not, nor will it permit any of its
Subsidiaries to pledge, encumber or otherwise suffer to exist thereon any Lien
(other than Customary Permitted Liens or Liens pursuant to the Loan Documents)
on any real property owned by the Borrower or any of its Subsidiaries which is
located in the State of California or the State of Nevada. In addition, except
as otherwise permitted by SECTION 8.14, the Borrower agrees that it will not,
nor will it


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permit any of its Subsidiaries to, create or otherwise cause or permit to exist
or become effective any consensual encumbrance or restriction (other than
pursuant to the Loan Documents) on the ability of the Borrower or any Subsidiary
of the Borrower to grant a Lien or other encumbrance on the Mortgaged California
Real Estate.

Section 8.2.      INDEBTEDNESS.

The Borrower will not, and will not permit any of its Subsidiaries to, incur,
create, assume directly or indirectly, or suffer to exist any Indebtedness
except:

                  (a) Indebtedness incurred pursuant to this Agreement and the
other Loan Documents;

                  (b) Indebtedness to Remain Outstanding on the
Amendment/Restatement Effective Date (which, to the extent required by SECTION
6.5(d), is to be listed on SCHEDULE 8.2(b)), without giving effect to any
subsequent extension, renewal or refinancing thereof;

                  (c) Indebtedness of the Borrower under Interest Rate
Agreements entered into to protect the Borrower or any of its Subsidiaries
against fluctuations in interest rates;

                  (d) Indebtedness of the Borrower and its Subsidiaries secured
by purchase money Liens permitted under SECTION 8.1(c); PROVIDED that the
aggregate amount of such Indebtedness at any time shall not exceed $15,000,000;

                  (e) Indebtedness of the Borrower under Other Hedging
Agreements providing protection against fluctuations in currency or commodity
values (in the case of commodity values, for a period not to exceed 36 months)
in connection with the Borrower's or any of its Subsidiaries' operations so long
as management of the Borrower or such Subsidiary, as the case may be, has
determined that the entering into of such Other Hedging Agreements are BONA FIDE
hedging activities;

                  (f) Indebtedness of the Borrower and its Subsidiaries
resulting from the refinancing of Indebtedness permitted by CLAUSES (B) and (D)
above and CLAUSE (I) below; PROVIDED, HOWEVER, that (i) the principal amount of
any such refinancing Indebtedness (as determined as of the date of the
incurrence of such refinancing Indebtedness in accordance with GAAP), does not
exceed the principal amount of the Indebtedness refinanced thereby on such date
(ii) the Weighted Average Life to Maturity of such Indebtedness is not decreased
and (iii) in the case of any such refinancing Indebtedness which is in excess of
$5,000,000 (or the Dollar Equivalent thereof), such refinancing Indebtedness is
upon terms and subject to documentation which is in form and substance
reasonably satisfactory to the Administrative Agent;



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                  (g) unsecured Indebtedness of the Borrower and its
Subsidiaries to the Borrower or any of its Subsidiaries; PROVIDED, HOWEVER, that
(x) in the case of such intercompany Indebtedness consisting of a loan or
advance by a Credit Party, each such loan or advance made on or after the
Amendment/Restatement Effective Date shall be evidenced by an Intercompany Note
payable to the Credit Party, in form and substance satisfactory to
Administrative Agent, which Intercompany Notes shall be delivered and pledged to
the Collateral Agent as part of the Collateral, and (y) in the case of such
intercompany Indebtedness consisting of a loan or advance to a Subsidiary of the
Borrower which is not a Credit Party, each such loan or advance, together with
all other outstanding Indebtedness permitted by this CLAUSE (G)(Y), PLUS the
amount of all outstanding Indebtedness referred to in CLAUSE (H)(Y) below that
is incurred by Subsidiaries that are not Credit Parties, plus the amount of all
outstanding Indebtedness permitted under SECTION 8.2(o), shall not exceed in the
aggregate at any time the Dollar Equivalent of $60,000,000;

                  (h) Indebtedness incurred by a Foreign Subsidiary to the
Borrower or any of its Subsidiaries; PROVIDED, HOWEVER, that (x) in the case of
such Indebtedness consisting of a loan or advance by a Credit Party, each such
loan or advance made on or after the Amendment/Restatement Effective Date shall
be evidenced by an Intercompany Note payable to the Credit Party, in form and
substance satisfactory to Administrative Agent, which Intercompany Notes shall
be delivered and pledged to the Collateral Agent as part of the Collateral and
(y) in the case of such Indebtedness consisting of a loan or advance to a
Foreign Subsidiary of the Borrower which is not a Credit Party, each such loan
or advance, together with all other outstanding Indebtedness permitted by this
CLAUSE (h)(y), PLUS the amount of all outstanding Indebtedness referred to in
CLAUSE (G)(Y) above that is incurred by Foreign Subsidiaries that are not Credit
Parties, plus the amount of all outstanding Indebtedness permitted under SECTION
8.2(o), shall not exceed in the aggregate at any time the Dollar Equivalent of
$60,000,000;

                  (i) Indebtedness consisting of (a) Guarantee Obligations of
any Subsidiary of the Borrower of the Obligations under any Loan Document, and
(b) a guarantee by the Borrower of obligations of a Subsidiary or by any Foreign
Subsidiary of obligations of its Subsidiary under any lease or other agreement
otherwise permitted hereunder or entered into in the ordinary course of business
and not constituting Indebtedness;

                  (j) Indebtedness of a Subsidiary of the Borrower issued and
outstanding on or prior to the date on which such Subsidiary was acquired by the
Borrower or a Subsidiary of the Borrower in a transaction constituting an
Acquisition (other than Indebtedness issued as consideration in, or to provide
all or any portion of the funds utilized to consummate such Acquisition) and any
extension, renewal or replacement thereof; PROVIDED, that the aggregate amount
of such Indebtedness outstanding at any time, together with Indebtedness
outstanding and




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permitted by SECTION 8.2(d) (without double counting and without giving effect
to SECTION 8.1(c)(c)(x)) does not exceed the Dollar Equivalent of $10,000,000;

                  (k) Indebtedness of the Borrower consisting of unsecured
Guarantee Obligations incurred to (x) satisfy bonding obligations not in excess
of the Dollar Equivalent of $5,000,000 at any one time which arise in the
ordinary course of business or (y) to support obligations of Subsidiaries in
connection with a transaction otherwise permitted pursuant to this Agreement;
PROVIDED, that such Guarantee Obligations under this clause (y) shall not at any
time exceed the Dollar Equivalent of $5,000,000, and (ii) obligations (whether
in respect of letters of credit, bank guarantees, Guarantee Obligations or
otherwise) of Foreign Subsidiaries (including, without duplication, unsecured
Guarantee Obligations of Foreign Subsidiaries and of the Borrower in respect
thereof) in an aggregate amount not to exceed the Dollar Equivalent of
$5,000,000 at any time outstanding in respect of customs bonding, regulatory
(including, without limitation, environmental agency) requirements or
arrangements and other operational obligations or bonding arrangements arising
in the ordinary course of business other than in respect of borrowed money;

                  (l) unsecured Indebtedness of the Borrower on terms and
conditions not more restrictive to the Borrower and its Subsidiaries than those
set forth in this Agreement (and at or below a market interest rate for
comparable instruments) which Indebtedness is subordinated to the Obligations on
terms and conditions reasonably satisfactory to the Administrative Agent, but in
no event shall the aggregate principal amount of such Indebtedness exceed 7.5%
of Consolidated Total Assets on any date of incurrence thereof, so long as at
the time of the incurrence thereof no Unmatured Event of Default or Event of
Default exists;

                  (m) Indebtedness of the Borrower and of its Subsidiaries and
unsecured Guarantee Obligations with respect thereto by the Borrower and/or its
Subsidiaries pursuant to over-draft or similar lines of credit such that the
aggregate amount of such Indebtedness outstanding under this clause (m) at any
one time does not exceed (without duplication) $25,000,000 (or the Dollar
Equivalent thereof) at any time;

                  (n) additional unsecured Indebtedness for money borrowed not
otherwise covered by clauses (a) through (m) above or clauses (o) or (p) below,
provided that the aggregate outstanding principal amount of all such other
Indebtedness permitted under this clause (n) shall in no event exceed
$20,000,000 ( or the Dollar Equivalent thereof) at any time;

                  (o) Indebtedness incurred by any Foreign Subsidiary of the
Borrower under any foreign currency working capital facility, provided that the
aggregate amount of such foreign working capital facilities shall not exceed
$25,000,000 (or the Dollar Equivalent thereof) at any



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                  (p) time; and Indebtedness of the Borrower consisting of
unsecured Guaranteed Obligations in favor of the United States Environmental
Protection Agency which are incurred on behalf of Aerojet in connection with the
sale by the Borrower of all or substantially all of the electronics and
information systems operations of Aerojet or in connection with future
carve-outs of restricted real property; PROVIDED, that such Guaranteed
Obligations permitted under this clause (p) shall not at any time exceed
$100,000,000 (or the Dollar Equivalent thereof).

Section 8.3.      CONSOLIDATION, MERGER, PURCHASE OR SALE OF ASSETS, ETC.

The Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve any of its affairs or enter into any transaction of merger
or consolidation, or convey, sell, lease or otherwise dispose of any of its
properties or assets (or, with respect to a transaction involving all or
substantially all of the assets of the Borrower, agree to do any of the
foregoing at any future time without the Administrative Agent's prior written
consent unless the effectiveness of such agreement is conditional upon the
consent of the Administrative Agent) or convey, sell or otherwise dispose of any
part of its property or assets, or enter into any Sale and Leaseback
Transaction, except that:

                  (a) the Borrower and its Subsidiaries may consummate the
Transaction;

                  (b) each of the Borrower and its Subsidiaries may (x) in the
ordinary course of business, sell, lease or otherwise dispose of any assets
which, in the reasonable judgment of such Person, are obsolete, worn out or
otherwise no longer useful in the conduct of such Person's business and (y)
sell, lease or otherwise dispose of any other assets, provided that the
aggregate Net Sale Proceeds of all assets subject to sales or other dispositions
pursuant to this clause (y) which are not reinvested to acquire assets to be
used in such Person's business in the manner described in SECTION 4.4(d) shall
not exceed $20,000,000 (or the Dollar Equivalent thereof) in any Fiscal Year of
the Borrower;

                  (c) Investments may be made to the extent permitted by SECTION
8.7;

                  (d) each of the Borrower and its Subsidiaries may lease (as
lessee) real or personal property in the ordinary course of business;

                  (e) each of the Borrower and its Subsidiaries may make sales
or transfers of inventory, Cash Equivalents and Foreign Cash Equivalents in the
ordinary course of business;

                  (f) the Borrower and its Subsidiaries may sell or discount, in
each case without recourse and in the ordinary course of business, accounts
receivable arising in the ordinary course of business (x) which are overdue, or
(y) which the Borrower or such Subsidiary may reasonably determine are difficult
to collect but only in connection with the compromise or


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collection thereof consistent with customary industry practice (and not as part
of any bulk sale or financing of receivables);

                  (g) the Borrower and its Subsidiaries may license its patents,
trade secrets, know-how and other intellectual property (the "TECHNOLOGY")
provided that such license shall be assignable to the Administrative Agent or
any assignee of the Administrative Agent without the consent of the licensee and
no such license shall (i) transfer ownership of such Technology to any other
Person or (ii) require the Borrower to pay any fees for any such use (such
licenses permitted by this SECTION 8.3(g), hereafter "PERMITTED TECHNOLOGY
LICENSES");

                  (h) any Subsidiary of the Borrower may be merged or
consolidated (x) with or into the Borrower so long as the Borrower is the
surviving entity, (y) with or into any one or more Wholly-Owned Subsidiaries of
the Borrower; PROVIDED, HOWEVER, that the Wholly-Owned Subsidiary or
Subsidiaries shall be the surviving entity or (z) with or into any Person in
connection with the consummation of an Acquisition; PROVIDED, HOWEVER, that
after giving effect to such merger or consolidation the surviving Subsidiary
shall be a Wholly-Owned Subsidiary;

                  (i) the Borrower and its Subsidiaries may sell, transfer or
otherwise dispose of any asset in connection with any Sale and Leaseback
Transaction involving Indebtedness, Capitalized Lease Obligations or an
Operating Financing Lease to the extent the fair market value of all real or
personal property subject to any such arrangement or arrangements (measured at
the time of the transfer giving rise to such arrangement), in the aggregate does
not exceed $20,000,000 (or the Dollar Equivalent thereof) at any time;

                  (j) any Subsidiary of the Borrower may sell, lease, transfer
or otherwise dispose of any or all of its assets to the Borrower or any other
Wholly-Owned Subsidiary of the Borrower (other than from (x) a Domestic
Subsidiary party to the Subsidiary Security Agreement to a Domestic Subsidiary
which is not a party to the Subsidiary Security Agreement or (y) a Domestic
Subsidiary party to the Subsidiary Security Agreement to a Foreign Subsidiary at
any time that the assets subject to such sales, leases or transfers in the
aggregate for all dispositions under this clause (y) exceed the Dollar
Equivalent of $20,000,000 during the existence of this Agreement or (z) from a
Foreign Subsidiary party to a pledge agreement or security agreement in favor of
the Collateral Agent to a Foreign Subsidiary which is not a party to a pledge
agreement or security agreement in favor of the Collateral Agent);

                  (k) [intentionally omitted];

                  (l) the sale, lease or transfer of real property of the
Borrower or any Subsidiary, so long as such real property is not, in the
reasonable business judgment of the Borrower, necessary for the conduct of the
business of the Borrower or any of its Subsidiaries. In the event that any real
property of the Borrower or any Subsidiary is sold or transferred pursuant


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to this SECTION 8.3(l), the Borrower shall apply the Net Sale Proceeds received
in connection with such disposition in accordance with SECTION 4.4(d);

                  (m) the transfer, sale or other dispositions of assets in
connection with the sale of AFC, so long as (A) the proceeds of such transaction
are in cash or converted into cash, and (B) such proceeds (net of payments, if
any, required to be made by the Borrower to NextPharma Technologies, S.A.
pursuant to that certain Contribution and Purchase Agreement dated as of
November 21, 2001 with the Borrower) are used to prepay Loans in accordance with
SECTION 4.4(d); PROVIDED that the Borrower or applicable Subsidiary has
satisfied the Consent Procedure and received the Required Lenders' Consent prior
to transfer, sale or other dispositions of such assets; and

                  (n) the Borrower may sell, transfer, lease or otherwise
dispose of any or all of the assets of a Subsidiary (including Capital Stock),
or may transfer, sell or dispose of assets or Capital Stock of the Borrower, in
exchange for the assets or Capital Stock of a Person in connection with an
Acquisition; PROVIDED, HOWEVER, that (x) the fair market value of the assets or
Capital Stock subject to such arrangement or arrangements shall not exceed
$50,000,000 (or the Dollar Equivalent thereof) at any time and (y) the Borrower
shall comply with SECTION 7.12 with respect to the assets or Capital Stock
received pursuant to the transactions contemplated by this SECTION 8.3(n).

Section 8.4.      DIVIDENDS OR OTHER DISTRIBUTIONS.

Neither the Borrower nor any of its Subsidiaries will: (i) declare or pay any
dividend or make any distribution on or in respect of its Capital Stock or to
the direct or indirect holders of its Capital Stock (other than (x) dividends or
distributions payable solely in such Capital Stock or in options, warrants or
other rights to purchase such Capital Stock, (y) dividends and distributions
payable to the Borrower or a Wholly-Owned Subsidiary of the Borrower or payable
to holders of minority interests in any Subsidiary so long as the Borrower or
any other Subsidiary having an interest in such Subsidiary shall receive its
proportionate share of such dividend or distribution; and (z) distributions to
effect the Transactions on the Amendment/Restatement Effective Date), (ii)
purchase, redeem or otherwise acquire or retire for value any Capital Stock of
the Borrower, (iii) make any interest or principal payment on or purchase,
defease, redeem, prepay, or otherwise acquire or retire for value, prior to any
scheduled final maturity or applicable redemption date any Indebtedness that is
subordinate or junior in right of payment to the Obligations (collectively,
"RESTRICTED PAYMENTS"); PROVIDED, HOWEVER, that, during such time as no Event of
Default or Unmatured Event of Default has occurred or is continuing or would
result therefrom, the Borrower may make the following Restricted Payments in any
Fiscal Year: (a) dividends as determined by the Board of Directors of the
Borrower in its reasonable discretion and (b) such other Restricted Payments not
to exceed $15,000,000 (or the Dollar Equivalent thereof) in the aggregate;
PROVIDED that the following conditions shall be satisfied in connection
therewith: (i) no Event of Default or Unmatured Event of Default shall have
occurred and be continuing either


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immediately prior to or immediately after giving effect to such payments, (ii)
the Borrower shall have furnished to the Administrative Agent (A) pro forma
historical financial statements as of the end of the most recently completed
Fiscal Year of the Borrower and most recent interim fiscal quarter, if
applicable, giving effect to such payments and (B) a certificate, which is
satisfactory to the Administrative Agent, prepared on a historical pro forma
basis as of the most recent date for which financial statements have been
furnished pursuant to SECTION 6.5(a) or SECTION 7.1(a) or (B) giving effect to
such payments, which certificate shall demonstrate that no Event of Default or
Unmatured Event of Default would exist immediately after giving effect to such
payments, and (iii) if the Leverage Ratio of the Borrower and its Subsidiaries
after giving pro forma effect to such transaction shall be greater than 1.00 to
1.00, then the payments made with respect to such transaction shall not exceed
$50,000,000 (or the Dollar Equivalent thereof).

Section 8.5.      LIMITATION ON CERTAIN RESTRICTIONS ON SUBSIDIARIES.

The Borrower will not, and will not permit any of its Subsidiaries to create or
otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction (other than pursuant to the Loan Documents) on the
ability of any Subsidiary of the Borrower to (i) pay dividends or make any other
distributions on its Capital Stock or pay any Indebtedness or other obligation
owed to the Borrower or any of its other Subsidiaries, (ii) make any loans or
advances to the Borrower or any of its other Subsidiaries, or (iii) transfer any
of its property or assets to the Borrower or any of its other Subsidiaries,
except:

                  (a) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Effective Date and reflected on SCHEDULE 8.5(a)
hereto or any extension, replacement or refinancing thereof not prohibited
herein;

                  (b) any such encumbrance or restriction consisting of
customary non-assignment provisions in leases or licenses restricting leasehold
interests or licenses, as applicable, entered into in the ordinary course of
business;

                  (c) in the case of clause (iii) above, Permitted Liens or
other restrictions contained in security agreements securing Indebtedness
permitted hereby to the extent such restrictions restrict the transfer of the
property subject to such security agreements; and

                  (d) any restrictions on transfer of an asset pursuant to an
agreement to sell such asset to the extent such sale would be permitted hereby.

Section 8.6.      ISSUANCE OF STOCK.

                  (a) The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, issue, sell, assign, pledge or
otherwise encumber or dispose of any shares of Capital Stock of any Subsidiary
of the Borrower, except (i) to the Borrower, (ii) to another


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Wholly-Owned Subsidiary of the Borrower, (iii) to qualifying directors or to
satisfy other similar requirements, in each case, pursuant to Requirements of
Law, or (iv) pursuant to the Loan Documents, including, without limitation,
SECTION 8.3(n), or (v) to directors, management or employees of the Borrower and
its Subsidiaries pursuant to stock option plans or other benefit plans.

                  (b) The Borrower shall not issue any Capital Stock, except as
permitted by SECTION 8.4(i) and except for such issuances of Capital Stock
(including private placements) (x) where after giving effect to such issuance,
no Event of Default will exist under SECTIONS 10.1(l) and (y) where the
Administrative Agent and the Required Lenders have consented (such consent not
to be unreasonably withheld) to the terms and conditions of such offering. In
the event any Capital Stock of the Borrower is issued pursuant to this SECTION
8.6(b), the Borrower shall apply the Net Offering Proceeds received in
connection with such disposition in accordance with SECTION 4.4(f).

Section 8.7.      LOANS AND INVESTMENTS.

The Borrower will not, and will not permit any Subsidiary to make or own any
Investments except:

                  (a) the Borrower and its Domestic Subsidiaries may acquire and
hold Cash and Cash Equivalents;

                  (b) the Borrower and its Subsidiaries may hold the Investments
identified on SCHEDULE 8.7(b) which shall not exceed the amount thereof on the
Amendment/Restatement Effective Date (after giving effect to the Transaction) in
each case as such Investments may be adjusted due to appreciation, repayment of
principal, payment of interest, return of capital or similar circumstances;

                  (c) the Borrower and its Subsidiaries may make or maintain
advances (i) for relocation and related expenses and other advances to their
employees in the ordinary course of business and (ii) for any other advances to
their employees in the ordinary course of business in an aggregate principal
amount not exceeding $2,000,000 (or the Dollar Equivalent thereof) at any one
time outstanding;

                  (d) the Borrower and its Subsidiaries may acquire and hold
Investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and other Persons and in
settlement of delinquent obligations of, and other disputes with, customers and
suppliers and other Persons arising in the ordinary course of business;





                                      122


                  (e) the Borrower and its Subsidiaries may make deposits in a
customary fashion in the ordinary course of business;

                  (f) the Borrower and its Subsidiaries may acquire and hold
debt securities as partial consideration for a sale of assets pursuant to
SECTION 8.3 or 4.4(d) to the extent permitted by any such Section;

                  (g) the Borrower may make intercompany loans and advances to
any of its Wholly-Owned Subsidiaries, any Subsidiary of the Borrower may make
intercompany loans and advances to the Borrower, and any Subsidiary of the
Borrower may make intercompany loans and advances to any other Wholly-Owned
Subsidiary of the Borrower (collectively, "INTERCOMPANY LOANS"), in accordance
with and to the extent permitted by SECTION 8.2(g) and (h);

                  (h) the Borrower and its Subsidiaries may make capital
contributions to existing Foreign Subsidiaries of the Borrower, and may
capitalize or forgive any Indebtedness owed to them by a Foreign Subsidiary of
the Borrower, PROVIDED, that the aggregate amount of such contributions,
capitalizations and forgiveness, without duplication as to amounts contributed
from one Subsidiary to its Subsidiary (determined without regard to any
write-downs or write-offs thereof), shall not exceed an amount equal to
$5,000,000 (or the Dollar Equivalent thereof);

                  (i) Foreign Subsidiaries of the Borrower may invest in cash,
Cash Equivalents and Foreign Cash Equivalents;

                  (j) in addition to Investments permitted by clauses (a)
through (i) above and clause (k) below, the Borrower may make additional
Investments, so long as the aggregate outstanding amount of such Investments
does not exceed $15,000,000 (or the Dollar Equivalent thereof); PROVIDED
FURTHER, that the Borrower may not make or own any investment in Margin Stock;
and

                  (k) the Borrower or any Domestic Subsidiary may purchase all
or a significant part of the assets of a business conducted by another Person,
make any Investment in any Person which, after the Amendment/Restatement
Effective Date as a result of such Investment becomes a Wholly-Owned Domestic
Subsidiary of the Borrower or, to the extent permitted under SECTION 8.3, enter
into any merger, consolidation or amalgamation with any other Person (any such
purchase, Investment or merger, a "PERMITTED ACQUISITION"); PROVIDED, HOWEVER,
that such Acquisition shall not be permitted unless (i) after giving effect
thereto on a pro forma basis for the period (the "PRO FORMA PERIOD") of four
Fiscal Quarters ending with the Fiscal Quarter for which financial statements
have most recently been delivered (or were required to be delivered) under
SECTION 7.1 (on the basis that (A) any Indebtedness incurred or assumed in
connection with such Acquisition was incurred or assumed at the beginning of the
Pro Forma Period, (B) such Indebtedness was repaid from operating cash flow over
the Pro Forma Period at the intervals and


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in the amounts reasonably projected to be paid in respect of such Indebtedness
over the 12-month period immediately following the Acquisition, (C) if such
Indebtedness bears a floating interest rate, such interest shall be paid over
the Pro Forma Period at the rate in effect on the date of such Acquisition, and
(D) all income and expense associated with the assets or entity acquired in
connection with such Acquisition for the most recently ended four Fiscal Quarter
period for which such income and expense amounts are available (with good faith
estimates thereof being permitted if financial statements indicating such
amounts are not available) shall be treated as being earned or incurred by the
Borrower over the Pro Forma Period on a pro forma basis), no Event of Default or
Unmatured Event of Default would exist hereunder; (ii) if the Leverage Ratio for
the Pro Forma Period is (A) equal to or greater than 2.50 to 1.00, the total
consideration given and Indebtedness assumed in connection with such Permitted
Acquisition shall not exceed $50,000,000 (or the Dollar Equivalent thereof),
individually or in the aggregate, or (B) less than 2.50 to 1.00, after giving
effect to such Acquisition, the Borrower's Total Available Revolving Commitment,
shall equal or exceed $25,000,000 (or the Dollar Equivalent thereof), (iii) the
Borrower and its Subsidiaries have complied with the requirements of SECTION
7.12 hereof with respect to any required additional Security Documents, and (iv)
such acquisition has been approved by the board of directors of the Person to be
acquired.

Section 8.8.      TRANSACTIONS WITH AFFILIATES.

Other than transactions contemplated by the Transaction Documents, the Borrower
will not, and the Borrower will not cause or permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction or series
of related transactions (including, without limitation, the purchase, sale,
lease or exchange of any property or the rendering of any service) with or for
the benefit of any of the Borrower's Affiliates or any Affiliate of a Subsidiary
of the Borrower (an "AFFILIATE TRANSACTION"), other than (x) transactions that
are on terms that are fair and reasonable to the Borrower or to any such
Subsidiary and that are on terms that are no less favorable to the Borrower or
to such Subsidiary than those that might reasonably have been obtained in a
comparable transaction on an arm's-length basis from a Person that is not an
Affiliate, and (y) any transaction arising in the ordinary course of business of
the Borrower or of such Subsidiary; provided, HOWEVER, that with respect to
transactions between the Borrower or any of its Subsidiaries and any of their
respective Affiliates arising in the ordinary course of business, a Responsible
Officer of the Borrower shall, not later than the date of delivery of the annual
Financial Statements, have reviewed the aggregate of such transactions and
determined that, in the aggregate, such transactions are on terms that are fair
and reasonable to the Borrower or to such Subsidiary and are no less favorable
to the Borrower or to such Subsidiary than those that might reasonably have been
obtained in a comparable transactions on an arm's-length basis from a Person
that is not an Affiliate. The foregoing restrictions will not apply to (1)
reasonable and customary directors' fees, indemnification and similar
arrangements and payments thereunder; (2) any transaction between the Borrower
and any Wholly-Owned Subsidiary of the Borrower or between Wholly-Owned
Subsidiaries to the extent that any such transaction is otherwise in compliance
with the terms of this Agreement and (3) loans or advances to officers of the



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Borrower and of its Subsidiaries for BONA FIDE business purposes of the Borrower
or of such Subsidiary not to exceed $2,000,000 (or the Dollar Equivalent
thereof) in the aggregate at any one time outstanding for the Borrower and its
Subsidiaries.

Section 8.9.      LINES OF BUSINESS.

The Borrower will not, and will not permit any Subsidiary to enter into or
acquire any line of business which is not reasonably related to the vehicle
sealing, fine chemicals, real estate, aerospace or defense business, or any
business similar, ancillary or related thereto or which constitutes a reasonable
extension or expansion thereof.

Section 8.10.     FISCAL YEAR.

The Borrower will not change its Fiscal Year; PROVIDED that the Foreign
Subsidiaries of the Borrower shall be permitted to change their respective
fiscal years.

Section 8.11.     LIMITATION ON VOLUNTARY PAYMENTS AND MODIFICATIONS OF
                  INDEBTEDNESS; MODIFICATIONS OF CERTIFICATE OF INCORPORATION,
                  BY-LAWS AND CERTAIN OTHER AGREEMENTS; ETC.

The Borrower will not, and will not permit any of its Subsidiaries to:

                      (i) amend, modify or permit the amendment, termination or
modification in any way adverse to the interests of the Lenders (as reasonably
determined by the Administrative Agent in its reasonable discretion after
reasonable advance notice of such proposed change) any provision of the OTS
Acquisition Documents;

                      (ii) amend, modify or change in any way adverse to the
interests of the Lenders (as reasonably determined by the Administrative Agent
in its reasonable discretion after reasonable advance notice of such proposed
change), its Organizational Documents (including, without limitation, by filing
or modification of any certificate of designation) or by-laws, or any agreement
entered into by it, with respect to its Capital Stock, or enter into any new
agreement with respect to its Capital Stock or any new tax sharing agreement
which in any way could reasonably be expected to be adverse to the interests of
the Lenders; or

                      (iii) issue any class of its Capital Stock other than (y)
in the case of the Subsidiaries, non-redeemable Capital Stock (including by
private placements) and (z) in the case of the Borrower, issuances of Capital
Stock (including by private placements) where, after giving effect to such
issuance, no Event of Default will exist under SECTION 10.1(l) and to the extent
the proceeds thereof are applied in accordance with this Agreement.




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The Administrative Agent agrees that, with respect to any matters required to be
reasonably satisfactory or acceptable to it, it shall exercise its reasonable
judgment in making, and shall not unreasonably withhold or delay, such
determination.

Section 8.12.     ACCOUNTING CHANGES.

The Borrower shall not, nor shall it permit any of its Subsidiaries to make or
permit to be made any change in accounting policies affecting the presentation
of financial statements or reporting practices from those employed by it on the
date hereof, unless (i) such change is required by GAAP, (ii) such change is
disclosed to the Lenders through the Administrative Agent or otherwise and (iii)
relevant prior financial statements that are affected by such change are
restated (in form and detail satisfactory to the Administrative Agent) as may be
required by GAAP to show comparative results. If any changes in GAAP or the
application thereof from that used in the preparation of the financial
statements referred to in SECTION 6.5(a) hereof occur after the date hereof and
such changes result in, in the sole judgment of the Administrative Agent, a
meaningful change in the calculation of any financial covenants or restrictions
set forth in this Agreement, then the parties hereto agree to enter into and
diligently pursue negotiations in order to amend such financial covenants and
restrictions so as to equitably reflect such changes, with the desired result
that the criteria for evaluating the financial condition and results of
operations of the Borrower and its Subsidiaries shall be the same after such
changes as if such changes had not been made.

Section 8.13.     AEROJET GOVERNMENT CONTRACTING AUTHORITY.

The Borrower shall not, nor shall it permit any of its Subsidiaries to become
suspended or debarred from contracting or otherwise engaging in business with
any Governmental Authority or from exporting products in any material amount for
any material amount of time, which such suspension or debarment has not been
stayed or removed within sixty (60) days of its imposition.

Section 8.14.     SALE OF MORTGAGED PROPERTY OR MORTGAGED CALIFORNIA REAL
                  ESTATE.

Notwithstanding any other provision in this Agreement to the contrary,
including, without limitation, SECTION 8.3(l), the Borrower will not, nor will
it permit any of its Subsidiaries to, sell or contribute all or any portion of
the Mortgaged Property or the Mortgaged California Real Estate on or after the
Amendment/Restatement Effective Date to the extent that the sum of the estimated
fair market value (as determined by the Borrower in good faith and as agreed to
by the Administrative Agent) of the remaining Mortgaged Property and the
Mortgaged California Real Estate (assuming the consummation of such sale) shall
be less than an amount equal to (x) the sum of the total Revolving Commitments
and Term A Loans then outstanding, as adjusted to reflect any mandatory
repayments required from the net proceeds from such sale of Mortgaged Property
or Mortgaged California Real Estate, multiplied by (y) the number 2.0; PROVIDED,
HOWEVER, that this SECTION 8.14 shall not apply to (A) sales of Mortgaged
Property or Mortgaged


                                      126


California Real Estate which in the aggregate do not exceed $25,000,000 in any
Fiscal Year and (B) contributions to any Joint Venture of Mortgaged Property or
Mortgaged California Real Estate which in the aggregate do not exceed
$10,000,000 at any time (and the parties hereto agree that such contributed real
property shall be included when calculating (A) above and/or clause (ii) of the
definition of "Asset Disposition"), so long as the Borrower or any of its
Subsidiaries party to such a Joint Venture complies with SECTION 7.12 with
respect to its interest in such Joint Venture; and PROVIDED, FURTHER, HOWEVER,
that if as of any date of sale of all or any portion of the Mortgaged Property
or the Mortgaged California Real Estate, the Most Recent Leverage Ratio of the
Borrower is less than 2.50 to 1.00, this SECTION 8.14 shall not apply to the
Borrower or its Subsidiaries.

                                   ARTICLE IX

                               FINANCIAL COVENANTS

                  The Borrower hereby agrees that, so long as the Commitments
remain in effect or any Loan or LC Obligation remains outstanding and unpaid or
any other amount is owing to any Lender or the Administrative Agent hereunder:

Section 9.1.      CAPITAL EXPENDITURES.

                  (a) The Borrower will not, and will not permit any of its
Subsidiaries to, make any Consolidated Capital Expenditures, except that during
any Fiscal Year the Borrower and its Subsidiaries may make Consolidated Capital
Expenditures so long as the aggregate amount so made by the Borrower and its
Subsidiaries after the Amendment/Restatement Effective Date during any such
Fiscal Year does not exceed the amount set forth opposite such Fiscal Year
below:

                   FISCAL YEAR ENDING                     AMOUNT

                   November 30, 2002                   $50,000,000
                   November 30, 2003                   $55,000,000
                   November 30, 2004                   $60,000,000
                   November 30, 2005                   $65,000,000
                     and thereafter

                  (b) Notwithstanding the foregoing, in the event that the
amount of Consolidated Capital Expenditures permitted to be made by the Borrower
and its Subsidiaries pursuant to CLAUSE (A) above in any Fiscal Year is greater
than the amount of such Consolidated Capital Expenditures made by the Borrower
and it Subsidiaries during such Fiscal Year, such amount equal to the amount of
Consolidated Capital Expenditures permitted pursuant to the preceding CLAUSE (A)
for the immediately preceding Fiscal Year and not utilized during such Fiscal



                                      127


Year (the "ROLLOVER AMOUNT") may be carried forward and utilized to make
Consolidated Capital Expenditures in the next succeeding Fiscal Year, PROVIDED,
that no amount once carried forward to the next Fiscal Year may be carried
forward to a Fiscal Year thereafter, and PROVIDED FURTHER, that Consolidated
Capital Expenditures made during any Fiscal Year shall be first deemed made in
respect of the Rollover Amount and then deemed made in respect of the scheduled
amount permitted for such Fiscal Year. In addition, notwithstanding the
foregoing, the Borrower and its Subsidiaries may make Consolidated Capital
Expenditures on any date with (i) proceeds of Indebtedness incurred pursuant to
SECTION 8.2(i), (ii) Net Offering Proceeds which are not required to be applied
as a mandatory prepayment under SECTION 4.4(f), (iii) the insurance proceeds
received by the Borrower or any of its Subsidiaries from any Recovery Event so
long as such Consolidated Capital Expenditures are to replace or restore any
properties or assets in respect to which such proceeds were paid within 365 days
(or committed to be paid within such 365 days so long as such replacement or
restoration is made within 365 days after the end of such 365 day period)
following the date of such receipt to the extent such proceeds are not required
to repay Term Loans pursuant to SECTION 4.4(j), and (iv) the Net Sale Proceeds
received by the Borrower or any of its Subsidiaries from any Asset Disposition,
so long as such insurance proceeds and/or Net Sale Proceeds are used or
contractually committed to be used within 365 days to make Consolidated Capital
Expenditures in accordance with SECTION 4.4(d).

Section 9.2.      MAINTENANCE OF CONSOLIDATED NET WORTH.

The Borrower will not permit its Consolidated Net Worth on the last day of (i)
the Fiscal Quarter ending August 31, 2002 to be less than $238,500,000 or (ii)
any Fiscal Quarter ending after the Amendment/Restatement Effective Date to be
less than the sum of (a) $300,000,000, PLUS (b) an amount equal to 50% of the
aggregate Consolidated Net Income of the Borrower for all Fiscal Quarters ended
on or after November 30, 2002 and through and including the then ended Fiscal
Quarter, PLUS (c) an amount equal to 100% of the Net Offering Proceeds from
primary issuances of capital stock by the Borrower or any of its Subsidiaries
that have occurred since September 1, 2002; PROVIDED, HOWEVER, that in the event
that the Borrower has Consolidated Net Income of less than zero for any Fiscal
Quarter, Consolidated Net Income for purposes only of this SECTION 9.2 shall be
deemed to be zero for such Fiscal Quarter.

Section 9.3.      INTEREST COVERAGE RATIO.
                  -----------------------

The Borrower will not permit the Interest Coverage Ratio for any Test Period
ending on the last day of each Fiscal Quarter set forth below to be less than
the ratio set forth opposite such date:

          Fiscal Quarter                                Ratio
          --------------                                -----

         August 31, 2002                             3.75 to 1.00
         November 30, 2002                           4.00 to 1.00
         February 28, 2003                           4.00 to 1.00
         May 31, 2003                                4.00 to 1.00




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         August 31, 2003                             4.00 to 1.00
         November 30, 2003                           4.50 to 1.00
         February 28, 2004                           4.50 to 1.00

          Fiscal Quarter                                Ratio
          --------------                                -----

         May 31, 2004                                4.50 to 1.00
         August 31, 2004                             4.50 to 1.00
         November 30, 2004 and thereafter            5.00 to 1.00


Section 9.4.      LEVERAGE RATIO.

The Borrower will not permit the Leverage Ratio for any Test Period ending on
the last day of each Fiscal Quarter set forth below to exceed the ratio set
forth opposite such date:

         Fiscal Quarter                                  Ratio
         --------------                                  -----

        August 31, 2002                              2.75 to 1.00
        November 30, 2002                            3.50 to 1.00
        February 28, 2003                            3.50 to 1.00
        May 31, 2003                                 3.50 to 1.00
        August 31, 2003                              3.25 to 1.00
        November 30, 2003                            3.25 to 1.00
        February 28, 2004                            3.25 to 1.00
        May 31, 2004                                 3.00 to 1.00
        August 31, 2004                              3.00 to 1.00
        November 30, 2004                            2.75 to 1.00
        February 28, 2005                            2.75 to 1.00
        May 31, 2005 and thereafter                  2.50 to 1.00


Section 9.5.      FIXED CHARGE COVERAGE RATIO.

The Borrower will not permit the Fixed Charge Coverage Ratio for any Test Period
ending on the last day of each Fiscal Quarter set forth below to be less than
the ratio set forth opposite such date:

                Fiscal Quarter                          Ratio
                --------------                          -----

         August 31, 2002 and thereafter              1.05 to 1.00



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                                   ARTICLE X

                                EVENTS OF DEFAULT

Section 10.1.     EVENTS OF DEFAULT.

Any of the following events, acts, occurrences or states of facts shall
constitute an "EVENT OF DEFAULT" for purposes of this Agreement:

                  (a) FAILURE TO MAKE PAYMENTS WHEN DUE. The Borrower (i) shall
default in the payment of principal on any of the Loans or any reimbursement
obligation with respect to any Letter of Credit; or (ii) shall default in the
payment of interest on any of the Loans or default in the payment of any fee or
any other amount owing hereunder or under any other Loan Document when due and
such default in payment shall continue for five (5) Business Days; or

                  (b) REPRESENTATIONS AND WARRANTIES. Any representation or
warranty made by or on the part of the Borrower or any Credit Party, as the case
may be, contained in any Loan Document or any document, instrument or
certificate delivered pursuant hereto or thereto shall have been incorrect or
misleading in any material respect when made or deemed made; or

                  (c) COVENANTS. The Borrower shall (i) default in the
performance or observance of any term, covenant, condition or agreement on its
part to be performed or observed under ARTICLE VIII and ARTICLE IX hereof or
SECTIONS 7.3(a) or 7.11 or (ii) default in the due performance or observance by
it of any other term, covenant or agreement contained in this Agreement and such
default shall continue unremedied for a period of thirty (30) days after written
notice to the Borrower by the Administrative Agent or any Lender; or

                  (d) DEFAULT UNDER OTHER LOAN DOCUMENTS. Any Credit Party shall
default in the performance or observance of any term, covenant, condition or
agreement on its part to be performed or observed hereunder or under any Loan
Document (and not constituting an Event of Default under any other clause of
this SECTION 10.1) and such default shall continue unremedied for a period of
thirty (30) days after written or telephonic (immediately confirmed in writing)
notice thereof has been given to the Borrower by the Administrative Agent; or

                  (e) VOLUNTARY INSOLVENCY, ETC. The Borrower or any of its
Subsidiaries shall become insolvent or generally fail to pay, or admit in
writing its inability to pay, its debts as they become due, or shall voluntarily
commence any proceeding or file any petition under any bankruptcy, insolvency or
similar law or seeking dissolution or reorganization or the appointment of a
receiver, trustee, administrator, custodian or liquidator for it or a
substantial portion of its property, assets or business or to effect a plan or
other arrangement with its creditors, or shall file any answer admitting the
jurisdiction of the court and the material allegations of an involuntary
petition filed against it in any bankruptcy, insolvency or similar proceeding,
or shall be


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adjudicated bankrupt, or shall make a general assignment for the benefit of
creditors, or shall consent to, or acquiesce in the appointment of, a receiver,
trustee, custodian, administrator or liquidator for a substantial portion of its
property, assets or business, shall call a meeting of its creditors with a view
to arranging a composition or adjustment of a substantial portion of its debts
or shall take any corporate action authorizing any of the foregoing; or

                  (f) INVOLUNTARY INSOLVENCY, ETC. Involuntary proceedings or an
involuntary petition shall be commenced or filed against the Borrower or any of
its Subsidiaries under any bankruptcy, insolvency or similar law or seeking the
dissolution or reorganization of it or the appointment of a receiver, trustee,
custodian, administrator or liquidator for it or of a substantial part of its
property, assets or business, or any similar writ, judgment, warrant of
attachment, execution or process shall be issued or levied against a substantial
part of its property, assets or business, and (other than a petition for
administration) such proceedings or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded, within sixty (60) days after commencement,
filing or levy, as the case may be, or any order for relief shall be entered in
any such proceeding; or

                  (g) DEFAULT UNDER OTHER AGREEMENTS. (i) The Borrower or any of
its Subsidiaries shall default in the payment when due, whether at stated
maturity or otherwise, of any Indebtedness (other than Indebtedness owed to the
Lenders under the Loan Documents) in excess of $10,000,000 (or the Dollar
Equivalent thereof) in the aggregate beyond the period of grace if any, provided
in the instrument or agreement under which such Indebtedness was created, or
(ii) a default shall occur in the performance or observance of any agreement
under any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause (determined without regard
to whether any notice of acceleration or similar notice is required), any such
Indebtedness to become due or be repaid prior to its stated maturity or (iii)
any such Indebtedness of the Borrower or any of its Subsidiaries shall be
declared to be due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment (other than with proceeds of the event
giving rise to such prepayment), prior to the stated maturity thereof; or

                  (h) JUDGMENTS. One or more judgments or decrees shall be
entered against the Borrower or any of its Subsidiaries involving, individually
or in the aggregate, a liability (to the extent not paid or covered by a
reputable insurance company or indemnitor as to which coverage or
indemnification, as the case may be, has not been disclaimed) of $10,000,000 (or
the Dollar Equivalent thereof) or more and all such judgments or decrees shall
not have been vacated, discharged, satisfied, stayed or bonded pending appeal
within sixty (60) days from the entry thereof; or



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                  (i) SECURITY DOCUMENTS. At any time after the execution and
delivery thereof, any of the Security Documents shall cease to be in full force
and (other than as a result of the actions taken by the Collateral Agent or the
Lenders to release such Security Document) effect or shall cease to give the
Collateral Agent the Liens, rights, powers and privileges purported to be
created thereby (including, without limitation, a first priority perfected
security interest in, and Lien on, all of the Collateral), in favor of the
Collateral Agent, for the benefit of the Secured Creditors in the order of
priority of interest set forth in such Security Document, superior to and prior
to the rights of all third Persons and subject to no other Liens (except to the
extent expressly permitted herein or therein); or

                  (j) GUARANTIES. Any Subsidiary Guaranty or any provision
thereof shall (other than as a result of the actions taken by the Administrative
Agent or the Lenders to release such Guaranty) cease to be in full force and
effect in accordance with its terms, or any Credit Party or any Person acting by
or on behalf of such Subsidiary Guarantor shall deny or disaffirm such Credit
Party's obligations under any Subsidiary Guaranty; or

                  (k) ERISA. Either (i) any Reportable Event which the Required
Lenders determine constitutes reasonable grounds for the termination of any Plan
by the PBGC or of any Multiemployer Plan or for the appointment by the
appropriate United States District Court of a trustee to administer or liquidate
any Plan or Multiemployer Plan shall have occurred, (ii) a trustee shall be
appointed by a United States District Court to administer any Plan or
Multiemployer Plan, (iii) the PBGC shall institute proceedings to terminate any
Plan or Multiemployer Plan or to appoint a trustee to administer any Plan; (iv)
the Borrower or any of its Subsidiaries or any of their ERISA Affiliates shall
become liable to the PBGC or any other party under Section 4062, 4063 or 4064 of
ERISA with respect to any Plan; or (v) the Borrower or any of its Subsidiaries
or any of their ERISA Affiliates shall become liable to make a current payment
with respect to any Multiemployer Plan under Section 4201 ET SEQ. of ERISA; if
as of the date thereof or any subsequent date, the sum of each of the Borrower's
and its Subsidiaries' and their ERISA Affiliates' various liabilities (such
liabilities to include, without limitation, any liability to the PBGC or to any
other party under Section 4062, 4063 or 4064 of ERISA with respect to any Plan,
or to any Multiemployer Plan under Section 4201 ET SEQ. of ERISA) as a result of
such events listed in subclauses (i) through (v) above exceeds $10,000,000 (or
the Dollar Equivalent thereof); or

                  (l) CHANGE OF CONTROL. A Change of Control shall occur; or

                  (m) ENVIRONMENTAL LIABILITY. The Borrower or any of its
Subsidiaries receives notice of any violation, non-compliance, or liability or
potential liability under Environmental Laws, or the Borrower or any of its
Subsidiaries is in violation of or is not in compliance with or has incurred
liability or potential liability under Environmental Laws, which would
reasonably be expected to result in a Material Adverse Effect and which, with
respect to any violation or non-compliance, has not been cured in all material
respects during any applicable cure period, that the


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Required Lenders have given the Borrower notice that the same constitutes an
Event of Default; or

                  (n) AEROJET SETTLEMENT AGREEMENT. The Aerojet Settlement
Agreement shall at any time cease to be in full force and effect pursuant to its
terms as in effect on the Amendment/Restatement Effective Date, or any party
thereto shall opt out of such Aerojet Settlement Agreement, or any Governmental
Authority party thereto shall raise any defense to its obligations thereunder,
except to the extent such occurrence will not, in the opinion of the
Administrative Agent, be reasonably likely to have a Material Adverse Effect.

If any of the foregoing Events of Default shall have occurred and be continuing,
the Administrative Agent, at the written direction of the Required Lenders,
shall take one or more of the following actions: (i) by written or oral or
telephonic notice (in the case of oral or telephonic notice confirmed in writing
immediately thereafter) to the Borrower declare the Total Commitments to be
terminated whereupon the Total Commitments shall forthwith terminate, (ii) by
written or oral or telephonic notice (in the case of oral or telephonic notice
confirmed in writing immediately thereafter) to the Borrower declare all sums
then owing by the Borrower hereunder and under the Loan Documents to be
forthwith due and payable, whereupon all such sums shall become and be
immediately due and payable without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived by the Borrower, (iii)
terminate any Letter of Credit in accordance with its terms, (iv) direct the
Borrower to pay (and the Borrower agrees that upon receipt of such notice, or
upon the occurrence of any Event of Default specified in SECTION 10.1(e) or
SECTION 10.1(f) with respect to the Borrower it will pay) to the Administrative
Agent at the Payment Office such additional amount of cash, to be held as
security by the Administrative Agent, as is equal to the Assigned Dollar Value
of the aggregate Stated Amount of all Letters of Credit issued for the account
of the Borrower and its Subsidiaries and then outstanding, and (v) enforce, as
the Administrative Agent (to the extent permitted under the applicable Security
Documents), or direct the Collateral Agent to enforce pursuant to the Security
Documents, as the case may be, all of the Liens and security interests created
pursuant to the Security Documents. In cases of any occurrence of any Event of
Default described in SECTION 10.1(e) or SECTION 10.1(f) with respect to the
Borrower, the Loans, together with accrued interest thereon, shall become due
and payable forthwith without the requirement of any such acceleration or
request, and without presentment, demand, protest or other notice of any kind,
all of which are expressly waived by the Borrower, any provision of this
Agreement or any other Loan Document to the contrary notwithstanding, and other
amounts payable by the Borrower hereunder shall also become immediately due and
payable all without notice of any kind.

Anything in this SECTION 10.1 to the contrary notwithstanding, the
Administrative Agent shall, at the request of the Required Lenders, rescind and
annul any acceleration of the Loans by written instrument filed with the
Borrower; PROVIDED that at the time such acceleration is so rescinded and
annulled: (A) all past due interest and principal (other than principal due
solely as a result of such acceleration), if any, on the Loans and all other
sums payable under this Agreement and the


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other Loan Documents shall have been duly paid, and (B) no other Event of
Default shall have occurred and be continuing which shall not have been waived
in accordance with the provisions of SECTION 12.1 hereof. Upon any such
rescission and annulment, the Administrative Agent shall return to the Borrower
any cash collateral delivered pursuant to the preceding paragraph.

Section 10.2.     RIGHTS NOT EXCLUSIVE.

The rights provided for in this Agreement and the other Loan Documents are
cumulative and are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity, or under any other instrument, document
or agreement now existing or hereafter arising.

                                   ARTICLE XI

                            THE ADMINISTRATIVE AGENT

                  In this ARTICLE XI, the Lenders agree among themselves as
follows:

Section 11.1.     APPOINTMENT.

The Lenders hereby appoint DBTCA as the Administrative Agent (for purposes of
this ARTICLE XI, the term "Administrative Agent" shall, except for purposes of
SECTION 11.9, include DBTCA in its capacity as the Administrative Agent and the
Collateral Agent pursuant to the Security Documents) to act as specified herein
and in the other Loan Documents and any Affiliate of DBTCA performing any of the
duties or functions of the Administrative Agent hereunder or any other Loan
Documents. Each Lender hereby irrevocably authorizes and each holder of any Note
by the acceptance of such Note shall be deemed to irrevocably authorize the
Administrative Agent to take such action on its behalf under the provisions
hereof, the other Loan Documents (including, without limitation, to give notices
and take such actions on behalf of the Required Lenders as are consented to in
writing by the Required Lenders or all Lenders, as the case may be) and any
other instruments, documents and agreements referred to herein or therein and to
exercise such powers hereunder and thereunder as are specifically delegated to
the Administrative Agent by the terms hereof and thereof and such other powers
as are reasonably incidental thereto. The Administrative Agent may perform any
of its duties hereunder and under the other Loan Documents, by or through its
officers, directors, Administrative Agents employees or affiliates.

Section 11.2.     NATURE OF DUTIES.

The Administrative Agent shall not have any duties or responsibilities except
those expressly set forth in this Agreement. The duties of the Administrative
Agent shall be mechanical and administrative in nature. EACH LENDER HEREBY
ACKNOWLEDGES AND AGREES THAT THE ADMINISTRATIVE AGENT SHALL NOT HAVE, BY REASON
OF THIS


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AGREEMENT OR ANY OTHER LOAN DOCUMENT, A FIDUCIARY RELATIONSHIP TO OR IN RESPECT
OF ANY LENDER. Nothing in any of the Loan Documents, expressed or implied, is
intended to or shall be so construed as to impose upon the Administrative Agent
any obligations in respect of any of the Loan Documents except as expressly set
forth herein or therein. Each Lender shall make its own independent
investigation of the financial condition and affairs of the Borrower in
connection with the making and the continuance of the Loans hereunder and shall
make its own appraisal of the credit worthiness of the Borrower, and the
Administrative Agent shall not have any duty or responsibility, either initially
or on a continuing basis, to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before
making of the Loans or at any time or times thereafter. The Administrative Agent
will promptly notify each Lender at any time that the Required Lenders have
instructed it to act or refrain from acting pursuant to ARTICLE X.

Section 11.3.     EXCULPATION, RIGHTS ETC.

Neither the Administrative Agent nor any of its officers, directors, agents,
employees or affiliates shall be liable to any Lender for any action taken or
omitted by them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, unless caused by its or their gross negligence
or willful misconduct. The Administrative Agent shall not be responsible to any
Lender for any recitals, statements, representations or warranties herein or for
the execution, effectiveness, genuineness, validity, enforceability,
collectibility, or sufficiency of any of the Loan Documents or any other
document or the financial condition of the Borrower. The Administrative Agent
shall not be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement or
any of the Loan Documents or any other document or the financial condition of
the Borrower, or the existence or possible existence of any Unmatured Event of
Default or Event of Default unless requested to do so by the Required Lenders.
The Administrative Agent may at any time request instructions from the Lenders
with respect to any actions or approvals (including the failure to act or
approve) which by the terms of any of the Loan Documents, the Administrative
Agent is permitted or required to take or to grant, and if such instructions are
requested, the Administrative Agent shall be absolutely entitled to refrain from
taking any action or to withhold any approval and shall not be under any
liability whatsoever to any Person for refraining from any action or withholding
any approval under any of the Loan Documents until it shall have received such
instructions from the Required Lenders. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against the Administrative
Agent as a result of the Administrative Agent acting, approving or refraining
from acting or approving under any of the Loan Documents in accordance with the
instructions of the Required Lenders or, to the extent required by SECTION 12.1,
all of the Lenders.


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Section 11.4.     RELIANCE.

The Administrative Agent shall be entitled to rely, and shall be fully protected
in relying, upon any notice, writing, resolution notice, statement, certificate,
order or other document or any telephone, telex, teletype or telecopier message
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person, and, with respect to all matters pertaining herein or to
any of the other Loan Documents and its duties hereunder or thereunder, upon
advice of counsel selected by the Administrative Agent.

Section 11.5.     INDEMNIFICATION.

To the extent the Administrative Agent is not reimbursed and indemnified by the
Borrower, the Lenders will reimburse and indemnify the Administrative Agent for
and against any and all liabilities, obligations, losses, damages, claims,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against the Administrative Agent, acting pursuant hereto in such capacity, in
any way relating to or arising out of this Agreement or any of the other Loan
Documents or any action taken or omitted by the Administrative Agent under this
Agreement or any of the other Loan Documents, in proportion to each Lender's
Aggregate Pro Rata Share of the Total Commitment; PROVIDED, however, that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, claims, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's gross negligence or
willful misconduct. The obligations of the Lenders under this SECTION 11.5 shall
survive the payment in full of the Notes and the termination of this Agreement.

For purposes of this SECTION 11.5, "Aggregate Pro Rata Share" means, when used
with reference to any Lender and any described aggregate or total amount, an
amount equal to the result obtained by multiplying such desired aggregate or
total amount by a fraction the numerator of which shall be the aggregate
principal amount of such Lender's Revolving Loan, Term A Loan and New Term B
Loan and the denominator of which shall be aggregate of all of the Loans
outstanding hereunder.

Section 11.6.     THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.

With respect to its Loans and Commitments (and its Revolver Pro Rata Share, Term
A Pro Rata Share and New Term B Pro Rata Share, as applicable, thereof), the
Administrative Agent shall have and may exercise the same rights and powers
hereunder and is subject to the same obligations and liabilities as and to the
extent set forth herein for any other Lender or holder of Obligations. The terms
"Lenders", "holder of Obligations" or "Required Lenders" or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity as a Lender, one of the Required
Lenders or a holder of Obligations. The Administrative Agent may accept deposits
from, lend money to, and generally engage in any kind


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of banking, trust or other business with the Borrower or any Subsidiary or
affiliate of the Borrower as if it were not acting as the Administrative Agent
hereunder or under any other Loan Document, including, without limitation, the
acceptance of fees or other consideration for services without having to account
for the same to any of the Lenders.

Section 11.7.     NOTICE OF DEFAULT.

The Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Event of Default or Unmatured Event of Default hereunder
unless the Administrative Agent has received written notice from a Lender or the
Borrower referring to this Agreement describing such Event of Default or
Unmatured Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Lenders.

Section 11.8.     HOLDERS OF OBLIGATIONS.

The Administrative Agent may deem and treat the payee of any Obligation as
reflected on the books and records of the Administrative Agent as the owner
thereof for all purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the Administrative
Agent pursuant to SECTION 12.8(c). Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is the holder of any Obligation shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Obligation or of any
Obligation or Obligations granted in exchange therefor.

Section 11.9.     RESIGNATION BY THE ADMINISTRATIVE AGENT.

                  (a) The Administrative Agent may resign from the performance
of all its functions and duties hereunder at any time by giving fifteen (15)
Business Days' prior written notice to the Borrower and the Lenders. Such
resignation shall take effect upon the acceptance by a successor Administrative
Agent of appointment pursuant to clauses (b) and (c) below or as otherwise
provided below.

                  (b) Upon any such notice of resignation, the Required Lenders
shall appoint a successor the Administrative Agent who shall be satisfactory to
the Borrower and shall be an incorporated bank or trust company.

                  (c) If a successor the Administrative Agent shall not have
been so appointed within said fifteen (15) Business Day period, the
Administrative Agent, with the consent of the Borrower, shall then appoint a
successor who shall serve as the Administrative Agent until such time, if any,
as the Required Lenders, with the consent of the Borrower, appoint a successor
the Administrative Agent as provided above.


                                      137


                  (d) If no successor the Administrative Agent has been
appointed pursuant to clause (b) or (c) by the twentieth (20th) Business Day
after the date such notice of resignation was given by the Administrative Agent,
the Administrative Agent's resignation shall become effective and the Required
Lenders shall thereafter perform all the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders, with the consent of
the Borrower, appoint a successor Administrative Agent as provided above.

                                  ARTICLE XII

                                  MISCELLANEOUS

Section 12.1.     NO WAIVER; MODIFICATIONS IN WRITING.

                  (a) No failure or delay on the part of the Administrative
Agent or any Lender in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. The remedies provided for
herein are cumulative and are not exclusive of any remedies that may be
available to the Administrative Agent or any Lender at law or in equity or
otherwise. Neither this Agreement nor any terms hereof may be amended, modified,
supplemented, waived, discharged, terminated or otherwise changed unless such
amendment, modification, supplement, waiver, discharge, termination or other
change is in writing signed by the Borrower and the Required Lenders, PROVIDED
that no such amendment, modification, supplement waiver, discharge, termination
or other change shall, without the consent of each Lender (other than a
Defaulting Lender) with Obligations directly affected thereby: (i) extend the
final scheduled maturity of any Loan or Note, or extend the stated maturity of
any Letter of Credit beyond the Revolver Termination Date, or reduce the rate or
extend the time of payment of interest or fees thereon, or reduce the principal
amount thereof, (ii) release all or substantially all of the Collateral (except
as expressly provided in the Security Documents) or Subsidiary Guarantor except
as expressly provided in the Security Documents or in a transaction permitted by
SECTION 8.3, (iii) amend, modify or waive any provision of this SECTION 12.1,
(iv) reduce the percentage specified in the definition of Required Lenders (it
being understood that, with the consent of the Required Lenders, the definition
of "Required Lenders" shall include lenders with respect to additional revolving
loans or term loans pursuant to this Agreement so long as such additional
revolving loans or term loans are on substantially the same basis as the
extensions of Revolving Loans or Term Loans, as the case may be, are included on
the Amendment/Restatement Effective Date) or (v) consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement; PROVIDED, FURTHER, that no such amendment, modification, supplement,
waiver, discharge, termination or other change shall (1) increase the
Commitments of any Lender over the amount thereof then in effect without the
consent of such Lender, except as otherwise provided in SECTION 2.8 (it being
understood that waivers or modifications of conditions precedent, covenants,
Events of Default or Unmatured Events of Default shall not constitute an
increase of the Commitment of


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any Lender, and that an increase in the available portion of any Commitment of
any Lender shall not constitute an increase in the Commitment of such Lender),
(2) without the consent of each affected Facing Agent, amend, modify or waive
any provision of SECTION 2.10 or alter its rights or obligations with respect to
any Letter of Credit, (3) without the consent of the Administrative Agent,
amend, modify or waive any provision of ARTICLE XI as same applies to the
Administrative Agent or any other provisions as same relates to the rights or
obligations of the Administrative Agent, (4) without the consent of the
Administrative Agent, amend, modify or waive any provisions relating to the
rights or obligations of the Administrative Agent under the other Loan
Documents, (5) without the consent of the Majority Lenders of each Facility
which is being allocated a lesser prepayment, repayment or commitment reduction,
alter the required application of any prepayments or repayments (or commitment
reduction), as between the various Facilities pursuant to the first sentence of
SECTION 4.5(a) and the second and third sentence of SECTION 4.5(a) (although the
Required Lenders may waive in whole or in part, any such prepayment, repayment
or commitment reduction so long as the application, as amongst the various
Facilities, of any such prepayment, repayment or commitment reduction which is
still required to be made is not altered), (6) without the consent of the
Majority Lenders of each Facility, amend the definition of Majority Lenders, (7)
without the consent of the Majority Lenders of the Term A Facility, amend the
definition of Term A Pro Rata Share; without the consent of the Majority Lenders
of the New Term B Facility, amend the definition of New Term B Pro Rata Share;
or without the consent of the Majority Lenders of the Revolving Facility, amend
the definition of Revolver Pro Rata Share, (8) without the consent of the
Majority Lenders of the Term A Facility, amend the definition of Scheduled Term
A Repayments; and without the consent of the Majority Lenders of the New Term B
Facility, amend the definition of Scheduled New Term B Repayments or (9) without
the consent of 66 2/3% of the Lenders (other than Defaulting Lenders) amend,
modify or waive any provision of SECTION 9.4. Notwithstanding the foregoing, (i)
prior to the date specified in clause (ii) of the definition of "SYNDICATED
DATE" set forth in SECTION 1.1, the Borrower and the Administrative Agent may,
without the consent of any Lender, agree to change, modify or alter the terms of
the New Term B Facility (including, without limitation, pricing) and (ii) upon
the execution and delivery of all documentation required by the Administrative
Agent to be delivered pursuant to SECTION 2.8 in connection with a Commitment
Increase Amount or the addition of the Incremental Term C Facility, this
Agreement shall be deemed amended without further action by any Lender to
reflect, as applicable, the new Lenders and their new Commitments and any
increase in the Commitment of any existing Lender and the terms of such
Commitment Increase Amount or Incremental Term C Facility.

                  (b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to the
third sentence of SECTION 12.1(a), the consent of the Required Lenders is
obtained but the consent of one or more of such other Lenders whose consent is
required is not obtained, then the Borrower shall have the right, so long as all
non-consenting Lenders whose individual consent is required are treated as
described in either clause (A) or (B) below, to either (A) replace each such
non-consenting Lender or Lenders (or, at the option of the


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Borrower if the respective Lender's consent is required with respect to less
than all Loans, to replace only the respective Loans of the respective
non-consenting Lender which gave rise to the need to obtain such Lender's
individual consent) with one or more Replacement Lenders pursuant to SECTION 3.7
so long as at the time of such replacement, each such Replacement Lender
consents to the proposed amendment, modification, supplement. waiver, discharge,
termination or other change or (B) terminate such non-consenting Lender's
Revolving Commitment, as the case may be, and repay all outstanding Loans of
such Lender which gave rise to the need to obtain such Lender's consent, in
accordance with SECTION 4.L(b) and/or 4.3; PROVIDED that, unless the Revolving
Commitment, as the case may be, terminated and Loans repaid pursuant to the
preceding clause (B) are immediately replaced in full at such time through the
addition of new Lenders or the increase of the Commitments and/or outstanding
Loans of existing Lenders (who in each case must specifically consent thereto),
then in the case of any action pursuant to preceding clause (B) the Required
Lenders (determined before giving effect to the proposed action) shall
specifically consent thereto, PROVIDED, FURTHER, that in any event the Borrower
shall not have the right to replace a Lender, terminate its Revolving Commitment
or repay its Loans solely as a result of the exercise of such Lender's rights
(and the withholding of any required consent by such Lender) contemplated by the
second proviso to the third sentence of SECTION 12.1(a).

Section 12.2.     FURTHER ASSURANCES.

The Borrower agrees to do such further acts and things and to execute and
deliver to the Administrative Agent such additional assignments, agreements,
powers and instruments, as the Administrative Agent may reasonably require or
deem advisable to carry into effect the purposes of this Agreement or any of the
Loan Documents or to better assure and confirm unto the Administrative Agent its
rights, powers and remedies hereunder.

Section 12.3.     NOTICES, ETC.

Except where oral or telephonic instructions or notices are authorized herein to
be given, all notices, demands, instructions and other communications required
or permitted to be given to or made upon any party hereto or any other Person
shall be in writing and shall be personally delivered or sent by registered or
certified mail, postage prepaid, return receipt requested, or by a reputable
overnight or courier delivery service, or by telecopier, and shall be deemed to
be given for purposes of this Agreement on the third day after deposit in
registered or certified mail, postage prepaid, and otherwise on the date that
such writing is delivered or sent to the intended recipient thereof, or in the
case of notice delivered by telecopy, upon completion of transmission with a
copy of such notice also being delivered under any of the other methods provided
above, all in accordance with the provisions of this SECTION 12.3. Unless
otherwise specified in a notice sent or delivered in accordance with the
foregoing provisions of this SECTION 12.3, notices, demands, instructions and
other communications in writing shall be given to or made upon the respective
parties hereto at their respective addresses (or to their respective telecopier
numbers)


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indicated on SCHEDULE 12.3 or, in the case of any Assignee, in the applicable
Assignment and Assumption Agreement and, in the case of telephonic instructions
or notices, by calling the telephone number or numbers indicated for such party
on its signature page to this Agreement or such Assignment and Assumption
Agreement, as the case may be.

Section 12.4.     COSTS, EXPENSES AND TAXES; INDEMNIFICATION.

                  (a) GENERALLY. The Borrower agrees (without duplication) to
pay all reasonable costs and expenses of the Agents in connection with the
negotiation, preparation, printing, typing, reproduction, execution and delivery
of this Agreement and the other Loan Documents and the documents and instruments
referred to herein and therein and any amendment, waiver, consent relating
hereto or thereto or other modifications of (or supplements to) any of the
foregoing and any and all other documents and instruments furnished pursuant
hereto or thereto or in connection herewith or therewith, including without
limitation, the reasonable fees and out-of-pocket expenses of Winston & Strawn,
special counsel to the Administrative Agent and the Syndication Agent, and any
local counsel retained by the Administrative Agent relative thereto or the
reasonable allocated costs of staff counsel as well as the fees and
out-of-pocket expenses of counsel, independent public accountants and other
outside experts retained by the Administrative Agent in connection with the
administration of this Agreement and the other Loan Documents, and all search
fees, appraisal fees and expenses, title insurance policy fees, costs and
expenses and filing and recording fees and all costs and expenses (including,
without limitation, Attorney Costs), if any, of the Agents and the Lenders in
connection with the enforcement of this Agreement, any of the Loan Documents or
any other agreement furnished pursuant hereto or thereto or in connection
herewith or therewith. In addition, the Borrower shall pay any and all present
and future stamp, transfer, excise and other similar taxes payable or determined
to be payable in connection with the execution and delivery of this Agreement,
any Loan Document, or the making of any Loan (other than taxes based on the net
income of the Lenders), and agrees to save and hold the Administrative Agent and
each Lender harmless from and against any and all liabilities with respect to or
resulting from any delay by the Borrower in paying, or omission by the Borrower
to pay, such taxes. Any portion of the foregoing fees, costs and expenses which
remains unpaid more than thirty (30) days following the Administrative Agent's,
any Agents' or any Lender's statement and request for payment thereof shall bear
interest from the date of such statement and request to the date of payment at
the Default Rate. The Borrower will indemnify and hold harmless the
Administrative Agent, each Agent and each Lender and each director, officer,
employee, partner, agent, attorney, trustee and Affiliate of the Administrative
Agent, each Agent and each Lender (each such Person an "INDEMNIFIED PARTY") from
and against all losses, claims, damages, penalties, obligations (including
removal or remedial actions), expenses or liabilities which arise out of, in any
way relate to, or result from the transactions contemplated by this Agreement or
any of the other Loan Documents and to reimburse each Indemnified Party upon
their demand, for any Attorney Costs incurred in connection with investigating,
preparing to defend or defending any such loss, claim, damage, liability, action
or claim; PROVIDED, HOWEVER, (a) that no Indemnified Party shall have the


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right to be so indemnified hereunder for any loss, claim, damage, penalties,
obligations, expense or liability to the extent it arises or results from the
gross negligence or willful misconduct of such Indemnified Party as finally
determined by a court of competent jurisdiction and (b) that nothing contained
herein shall affect the obligations and liabilities of the Lenders to the
Borrower contained herein. If any action, suit or proceeding arising from any of
the foregoing is brought against the Administrative Agent, any Agent, any Lender
or any other Indemnified Party, the Borrower will, if requested by the
Administrative Agent, any Agent, any Lender or any such Indemnified Party,
resist and defend such action, suit or proceeding or cause the same to be
resisted and defended by counsel reasonably satisfactory to the Person or
Persons indemnified or intended to be indemnified. Each Indemnified Party shall,
unless the Administrative Agent, an Agent, a Lender or other Indemnified Party
has made the request described in the preceding sentence and such request has
been complied with, have the right to employ its own counsel (or (but not as
well as) staff counsel) to investigate and control the defense of any matter
covered by such indemnity and the reasonable fees and expenses of such counsel
shall be at the expense of the indemnifying party. Excluding any liability
arising out of the gross negligence or willful misconduct of any Indemnified
Party, the Borrower further agrees to indemnify and hold each Indemnified Party
harmless from all loss, cost (including Attorney Costs), liability and damage
whatsoever incurred by any Indemnified Party by reason of any violation of any
Environmental Laws or Environmental Permits or for the Release or threatened
Release of any Contaminants into the environment for which the Borrower or any
of its Subsidiaries has any liability or which occurs upon the Mortgaged
Property or which is related to any property currently or formerly owned, leased
or operated by or on behalf of the Borrower or any of its Subsidiaries, or by
reason of the imposition of any Environmental Lien in respect of the Borrower or
its Subsidiaries or which occurs by a breach of any of the representations,
warranties or covenants relating to environmental matters contained herein,
including, without limitation, by reason of any matters disclosed in SCHEDULE
6.17, PROVIDED that, with respect to any liabilities arising from acts or
failure to act for which the Borrower or any of its Subsidiaries is strictly
liable under any Environmental Law or Environmental Permit, the Borrower's
obligation to each Indemnified Party under this indemnity shall likewise be
without regard to fault on the part of the Borrower or any such Subsidiary. If
the Borrower shall fail to do any act or thing which it has covenanted to do
hereunder or any representation or warranty on the part of the Borrower or any
Subsidiary contained herein or in any other Loan Document shall be breached, the
Administrative Agent may (but shall not be obligated to) do the same or cause it
to be done or remedy any such breach, and may expend its funds for such purpose,
and will use its best efforts to give prompt written notice to the Borrower that
it proposes to take such action. Any and all amounts so expended by the
Administrative Agent shall be repaid to it by the Borrower promptly upon the
Administrative Agent's demand therefor, with interest at the Default Rate in
effect from time to time during the period including the date so expended by the
Administrative Agent to the date of repayment. To the extent that the
undertaking to indemnify, pay or hold harmless the Administrative Agent or any
Lender as set forth in this SECTION 12.4 may be unenforceable because it is
violative of any law or public policy, the Borrower shall make the maximum
contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law.


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The obligations of the Borrower under this SECTION 12.4 shall survive the
termination of this Agreement, the assignment by any Lender of all or any part
of its Credit Exposure hereunder and the discharge of the Borrower's other
Obligations hereunder.

                  (b) FOREIGN EXCHANGE INDEMNITY. If any sum due from the
Borrower under this Agreement or any order or judgment given or made in relation
hereto has to be converted from the currency (the "FIRST CURRENCY") in which the
same is payable hereunder or under such order or judgment into another currency
(the "SECOND CURRENCY") for the purpose of (i) making or filing a claim or proof
against the Borrower with any Governmental Authority or in any court or
tribunal, or (ii) enforcing any order or judgment given or made in relation
hereto, the Borrower shall indemnify and hold harmless each of the Persons to
whom such sum is due from and against any loss actually suffered as a result of
any discrepancy between (a) the rate of exchange used to convert the amount in
question from the first currency into the second currency, and (b) the rate or
rates of exchange at which such Person, acting in good faith in a commercially
reasonable manner, purchased the first currency with the second currency after
receipt of a sum paid to it in the second currency in satisfaction, in whole or
in part, of any such order, judgment, claim or proof. The foregoing indemnity
shall constitute a separate obligation of the Borrower distinct from its other
obligations hereunder and shall survive the giving or making of any judgment or
order in relation to all or any of such other obligations. Notwithstanding the
foregoing, payments of principal and interest on Loans denominated in Euro shall
be made in Euro.

Section 12.5.     CONFIRMATIONS.

Each of the Borrower and each holder of any portion of the Obligations agrees
from time to time, upon written request received by it from the other, to
confirm to the other in writing (with a copy of each such confirmation to the
Administrative Agent) the aggregate unpaid principal amount of the Loan or Loans
and other Obligations then outstanding.

Section 12.6.     ADJUSTMENT; SETOFF.
                  ------------------

                  (a) If any Lender (a "BENEFITED LENDER") shall at any time
receive any payment of all or part of its Loans, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
setoff, pursuant to events or proceedings of the nature referred to in SECTION
10.1(e) or SECTION 10.1(f) hereof, or otherwise) in a greater proportion than
any such payment to and collateral received by any other Lender in respect of
such other Lender's Loans or interest thereon, such Benefited Lender shall
purchase for cash from the other Lenders such portion of each such other
Lender's Loans, or shall provide such other Lenders with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each Lender; PROVIDED, HOWEVER, that if all or any portion
of such excess payment or benefits is thereafter recovered from such Benefited
Lender, such purchase shall be rescinded, and the


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purchase price and benefits returned, to the extent of such recovery, but
without interest unless the Benefited Lender from which such excess payment is
recovered is required by court order to pay interest thereon, in which case each
Lender returning funds to such Benefited Lender shall pay its pro rata share of
such interest. The Borrower agrees that each Lender so purchasing a portion of
another Lender's Loans may exercise all rights of payment (including, without
limitation, rights of setoff) with respect to such portion as fully as if such
Lender were the direct holder of such portion.

                  (b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower, upon the
occurrence and during the continuance of an Event of Default, to setoff and
apply against any Obligations, whether matured or unmatured, of the Borrower to
such Lender, any amount owing from such Lender to the Borrower, at or at any
time after, the happening of any of the above-mentioned events, and the
aforesaid right of setoff may be exercised by such Lender against the Borrower
or against any trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receivers, or execution, judgment or attachment creditor
of the Borrower, or against anyone else claiming through or against, the
Borrower or such trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receivers, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of setoff shall not have been exercised
by such Lender prior to the making, filing or issuance, or service upon such
Lender of, or of notice of, any such petition, assignment for the benefit of
creditors, appointment or application for the appointment of a receiver, or
issuance of execution, subpoena, order or warrant. Each Lender agrees promptly
to notify the Borrower and the Administrative Agent after any such setoff and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such setoff and application.

                  (c) The Borrower expressly agrees that to the extent the
Borrower makes a payment or payments and such payment or payments, or any part
thereof, are subsequently invalidated, declared to be fraudulent or
preferential, set aside or are required to be repaid to a trustee, receiver, or
any other party under any bankruptcy act, state or federal law, common law or
equitable cause, then to the extent of such payment or repayment, the
Indebtedness to the Lenders or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if said payment or payments
had not been made.

Section 12.7.     EXECUTION IN COUNTERPARTS.

This Agreement may be executed in any number of counterparts and by different
parties hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same Agreement.



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Section 12.8.     BINDING EFFECT; ASSIGNMENT; ADDITION AND SUBSTITUTION OF
                  LENDERS.

                  (a) This Agreement shall be binding upon, and inure to the
benefit of, the Borrower, the Administrative Agent, the Lenders, all future
holders of the Notes and their respective successors and assigns; PROVIDED,
however, that the Borrower may not assign its rights or obligations hereunder or
in connection herewith or any interest herein (voluntarily, by operation of law
or otherwise) without the prior written consent of the Administrative Agent and
all of the Lenders.

                  (b) Each Lender may at any time sell to one or more banks or
other entities ("PARTICIPANTS") participating interests in all or any portion of
its Commitment and Loans or participation in Letters of Credit or any other
interest of such Lender hereunder (in respect of any Lender, its "CREDIT
EXPOSURE"). In the event of any such sale by a Lender of participating interests
to a Participant, such Lender's obligations under this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Each Lender shall from time to time upon
request of the Borrower notify the Borrower of the identity of any Participants
with respect to its Credit Exposure hereunder, provided, however, that failure
to provide such notice will not affect the validity of such participation. The
Borrower agrees that if amounts outstanding under this Agreement or any of the
Loan Documents are due or unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement or any other Loan
Document, PROVIDED, HOWEVER, that such right of setoff shall be subject to the
obligation of such Participant to share with the Lenders, and the Lenders agree
to share with such Participant, as provided in SECTION 12.6. The Borrower also
agrees that each Participant shall be entitled to the benefits of SECTION 3.5,
3.6 and 4.7 with respect to its participation in the Loans outstanding from time
to time, PROVIDED that such Participant's benefits under SECTIONS 3.5, 3.6 and
4.7 shall be limited to the benefits that the primary Lender would be entitled
to thereunder. Each Lender agrees that any agreement between such Lender and any
such Participant in respect of such participating interest shall not restrict
such Lender's right to approve or agree to any amendment, restatement,
supplement or other modification to, waiver of, or consent under, this Agreement
or any of the Loan Documents except to the extent that any of the foregoing
would (i) extend the final scheduled maturity of any Loan or Note in which such
Participant is participating (it being understood that amending the definitions
of Scheduled Term A Repayments (other than the Term Loan A Maturity Date) and
Scheduled New Term B Repayments (other than the New Term B Loan Maturity Date)
shall not constitute an extension of the final scheduled maturity of any Loan or
Note) or extend the stated maturity of any Letter of Credit in which such
Participant is participating beyond the Revolver Termination Date, or reduce the
rate or extend the time of payment of interest or fees on any such Loan, Note or
Letter


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of Credit (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof,
or increase the amount of the Participant's participation over the amount
thereof then in effect (it being understood that waivers or modifications of
conditions precedent, covenants, Events of Default or Unmatured Events of
Default or of a mandatory reduction in Commitments shall not constitute a change
in the terms of such participation, and that an increase in any Commitment or
Loan shall be permitted without the consent of any Participant if the
Participant's participation is not increased as a result thereof), (ii) consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement or (iii) release all or substantially all of
the Collateral under all of the Security Documents (except as expressly provided
in the Loan Documents) supporting the Loans and/or Letters of Credit hereunder
in which such Participant is participating.

                  (c) Any Lender may at any time assign to one or more Eligible
Assignees, including an Affiliate or Related Fund thereof (each an "ASSIGNEE"),
all or any part of its Credit Exposure pursuant to an Assignment and Assumption
Agreement, PROVIDED that (i) it assigns its Credit Exposure in an amount not
less than (A) the Dollar Equivalent of $5,000,000 (or if less the entire amount
of such Lender's Credit Exposure) of the Revolving Facility and/or Term A
Facility or (B) $1,000,000 (or if less the entire amount of such Lenders' Credit
Exposure) of the New Term B Facility (PROVIDED that in the case of
contemporaneous assignments by a Lender to more than one Related Fund, the
minimum amount of $1,000,000 shall be applicable in the aggregate to all such
contemporaneous assignments) and (ii) any assignment of all or any portion of
any Lender's Credit Exposure to an Assignee other than an Affiliate of such
Lender or another Lender, or in the case of a Lender that is a fund any Related
Fund of such Lender, shall require the prior written consent of the
Administrative Agent and, in the absence of an Unmatured Event of Default or
Event of Default, the Borrower (the consent of the Borrower not to be
unreasonably withheld or delayed), PROVIDED, HOWEVER, that for the first twenty
(20) Business Days following the Amendment/Restatement Effective Date,
assignments by the Agents shall not require the consent of the Borrower) and
PROVIDED FURTHER, that notwithstanding the foregoing limitations, any Lender may
at any time assign all or any part of its Credit Exposure to any Affiliate of
such Lender or to any other Lender (treating any Related Fund of such Lender as
a single Lender). Upon execution of an Assignment and Assumption Agreement and
the payment by the parties thereto of a nonrefundable assignment fee of $3,500
in immediately available funds to the Administrative Agent at its Payment Office
in connection with each such assignment (PROVIDED, that in the case of
contemporaneous assignments by a Lender to more than one Related Fund, only a
single fee of $3,500 shall be payable for all such contemporaneous assignments),
written notice thereof by such transferor Lender to the Administrative Agent and
the recording by the Administrative Agent in the Register of such assignment and
the resulting effect upon the Loans and/or Revolving Commitment of the assigning
Lender and the Assignee, the Assignee shall have, to the extent of such
assignment, the same rights and benefits as it would have if it were a Lender
hereunder and the holder of the Obligations (PROVIDED that the Borrower and the
Administrative Agent shall be entitled to continue to deal solely and directly
with the assignor Lender in connection with the interests so assigned to the
Assignee until written notice of such


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assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to the Borrower
and the Administrative Agent by the assignor Lender and the Assignee) and, if
the Assignee has expressly assumed, for the benefit of the Borrower, some or all
of the transferor Lender's obligations hereunder, such transferor Lender shall
be relieved of its obligations hereunder to the extent of such assignment and
assumption, and except as described above, no further consent or action by the
Borrower, the Lenders or the Administrative Agent shall be required. At the time
of each assignment pursuant to this SECTION 12.8(c) to a Person which is not
already a Lender hereunder and which is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for United States Federal income
tax purposes, the respective Assignee shall provide to the Borrower and the
Administrative Agent the appropriate IRS Forms (and, if applicable a Section
4.7(d)(ii) Certificate) described in SECTION 4.7(d). Each Assignee shall take
such Credit Exposure subject to the provisions of this Agreement and to any
request made, waiver or consent given or other action taken hereunder, prior to
the receipt by the Administrative Agent and the Borrower of written notice of
such transfer, by each previous holder of such Credit Exposure. Such Assignment
and Assumption Agreement shall be deemed to amend this Agreement and SCHEDULE
1.1(a) hereto, to the extent, and only to the extent, necessary to reflect the
addition of such Assignee as a Lender and the resulting adjustment of all or a
portion of the rights and obligations of such transferor Lender under this
Agreement, the Maximum Commitment, the determination of its Term A Pro Rata
Share, New Term B Pro Rata Share, Revolver Pro Rata Share, as the case may be
(in each case, rounded to twelve decimal places), the Loans, any outstanding
Letters of Credit and any new Notes to be issued, at the Borrower's expense, to
such Assignee, and no further consent or action by the Borrower or the Lenders
shall be required to effect such amendments.

                  (d) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (or its investment advisor) (each, a "TRANSFEREE") and
any prospective Transferee any and all financial information in such Lender's
possession concerning the Borrower and any Subsidiary of the Borrower which has
been delivered to such Lender by the Borrower pursuant to this Agreement or
which has been delivered to such Lender by the Borrower in connection with such
Lender's credit evaluation of the Borrower prior to entering into this
Agreement. Any Transferee or any prospective Transferee to whom such financial
information is disclosed shall be required to maintain the confidentiality of
such information pursuant to SECTION 12.14 as if they were parties to this
Agreement.

                  (e) Notwithstanding any other provision set forth in this
Agreement, (i) any Lender may at any time pledge or assign all or any portion of
its rights under this Agreement and the other Loan Documents (including, without
limitation, the Notes held by it) to any Federal Reserve Bank in accordance with
Regulation A of the Federal Reserve Board without notice to, or the consent of,
the Borrower or the Administrative Agent and (ii) any Lender which is a fund may
pledge all or any portion of its Notes or Loans to its trustee in support of its
obligations to its




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trustee without the consent of, or notice to, the Borrower or the Administrative
Agent. No such pledge or assignment shall release the transferor Lender from its
obligations hereunder.

Section 12.9.     CONSENT TO JURISDICTION; MUTUAL WAIVER OF JURY TRIAL.

                  (A) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND,
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. THE BORROWER HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT
CORPORATION SYSTEM WITH OFFICES ON THE DATE HEREOF AT 111 EIGHTH STREET, NEW
YORK, NEW YORK 10011 AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND
ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF
ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN
ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND
AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE BORROWER AGREES TO
DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND
FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO AGENT UNDER THIS AGREEMENT.
THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY, AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS
AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE
AGENT UNDER THIS AGREEMENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION.

                  (B) THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER
HEREBY IRREVOCABLY WAIVE ANY OBJECTION WHICH ANY OF THEM MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT


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BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (A) ABOVE AND HEREBY FURTHER
IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY
SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.

                  (C) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY COURT OR JURISDICTION,
INCLUDING WITHOUT LIMITATION THOSE REFERRED TO IN CLAUSE (A) ABOVE, IN RESPECT
TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

Section 12.10.    GOVERNING LAW.

THIS AGREEMENT AND EACH NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.

Section 12.11.    SEVERABILITY OF PROVISIONS.

Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.

Section 12.12.    HEADINGS.

The Table of Contents and Article and Section headings used in this Agreement
are for convenience of reference only and shall not affect the construction of
this Agreement.

Section 12.13.    TERMINATION OF AGREEMENT.

This Agreement shall terminate when the Commitment of each Lender has terminated
and all outstanding Obligations and Loans have been paid in full and all Letters
of Credit have expired or been terminated; PROVIDED, HOWEVER, that the rights
and remedies of the Administrative Agent and each Lender with respect to any
representation and warranty made by the Borrower pursuant to this Agreement or
any other Loan Document, and the indemnification provisions contained in this
Agreement and any other Loan Document, shall be continuing and shall survive any
termination of this Agreement or any other Loan Document.


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Section 12.14.    CONFIDENTIALITY.

Each of the Lenders severally agrees to keep confidential all non-public
information pertaining to the Borrower and its Subsidiaries and their respective
predecessors in interest which is provided to it by any such parties in
accordance with such Lender's customary procedures for handling confidential
information of this nature and in a prudent fashion, and shall not disclose such
information to any Person except (i) to the extent such information is public
when received by such Lender or becomes public thereafter due to the act or
omission of any party other than a Lender, (ii) to the extent such information
is independently obtained from a source other than the Borrower or its
Subsidiaries and such information from such source is not, to such Lender's
knowledge, subject to an obligation of confidentiality or, if such information
is subject to an obligation of confidentiality, that disclosure of such
information is permitted, (iii) to an Affiliate of such Lender (or its
investment advisor), counsel, auditors, ratings agencies, examiners of any
regulatory authority having or asserting jurisdiction over such Lender,
accountants and other consultants retained by the Administrative Agent or any
Lender, (iv) in connection with any litigation or the enforcement of the rights
of any Lender or the Administrative Agent under this Agreement or any other Loan
Document, (v) to the extent required by any applicable statute, rule or
regulation or court order (including, without limitation, by way of subpoena) or
pursuant to the request of any Governmental Authority having or asserting
jurisdiction over any Lender or the Administrative Agent; provided, however,
that in such event, if the Lender(s) are able to do so, the Lender shall provide
the Borrower with prompt notice of such requested disclosure so that the
Borrower may seek a protective order or other appropriate remedy, and, in any
event, the Lenders will endeavor in good faith to provide only that portion of
such information which, in the reasonable judgment of the Lender(s), is relevant
and legally required to be provided, (vi) to any direct or indirect contractual
counterparty in swap agreements or such contractual counterparty's professional
advisors (so long as such contractual counterparty and its professional advisors
agree to be bound by the provisions of this SECTION 12.14), or (vii) to the
extent disclosure to other entities is appropriate in connection with any
proposed or actual assignment or grant of a participation by any of the Lenders
of interests in this Agreement and/or any of the other Loan Documents to such
other entities (who will in turn be required to maintain confidentiality as if
they were Lenders parties to this Agreement). In no event shall the
Administrative Agent or any Lender be obligated or required to return any such
information or other materials furnished by the Borrower.

Section 12.15.    CONCERNING THE COLLATERAL AND THE LOAN DOCUMENTS.

                  (a) AUTHORITY. Each Lender authorizes and directs DBTCA to act
as Collateral Agent under the Security Documents and to enter into the Loan
Documents relating to the Collateral (including, without limitation, the
Security Agreements) for the benefit of the Lenders and the other Secured
Creditors. Each Lender agrees that any action taken by the Administrative Agent
or the Required Lenders (or, where required by the express terms hereof, a
different proportion of the Lenders) in accordance with the provisions hereof or
of the other Loan


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Documents, and the exercise by the Administrative Agent, the Collateral Agent or
the Required Lenders (or, where so required, such different proportion) of the
powers set forth herein or therein, together with such other powers as are
reasonably incidental thereto, shall be authorized and binding upon all of the
Lenders. Without limiting the generality of the foregoing, the Administrative
Agent or the Collateral Agent, as the case may be, shall have the sole and
exclusive right and authority to (i) act as the disbursing and collecting agent
for the Lenders with respect to all payments and collections arising in
connection herewith and with the Loan Documents relating to the Collateral; (ii)
execute and deliver each Loan Document relating to the Collateral and accept
delivery of each such agreement delivered by the Borrower or any of its
Subsidiaries, (iii) act as Collateral Agent for the Lenders and certain other
Secured Creditors for purposes stated in the Security Documents to the extent
such perfection is required under the Loan Documents, PROVIDED, HOWEVER, the
Collateral Agent hereby appoints, authorizes and directs each Lender to act as
collateral sub-agent for the Collateral Agent and the Lenders for purposes of
the perfection of all security interests and Liens with respect to the
Borrower's and its Subsidiaries' respective deposit accounts maintained with,
and cash and Cash Equivalents held by, such Lender; (iv) manage, supervise and
otherwise deal with the Collateral; (v) take such action as is necessary or
desirable to maintain the perfection and priority of the security interests and
liens created or purported to be created by the Loan Documents, and (vi) except
as may be otherwise specifically restricted by the terms hereof or of any other
Loan Document, exercise all remedies given to the Administrative Agent or the
Lenders with respect to the Collateral under the Loan Documents relating
thereto, applicable law or otherwise.

                  (b) RELEASE OF COLLATERAL.

                      (i) The Administrative Agent and the Lenders hereby direct
the Administrative Agent or the Collateral Agent, as the case may be, to
release, in accordance with the terms hereof, any Lien held by the
Administrative Agent or the Collateral Agent, as the case may be, for the
benefit of the Secured Creditors:

                          (A) against all of the Collateral, upon final and
indefeasible payment in full of the Loans and Obligations and termination
hereof;

                          (B) against any part of the Collateral sold or
disposed of by the Borrower or any of its Subsidiaries to the extent such sale
or disposition is permitted hereby (or permitted pursuant to a waiver or consent
of a transaction otherwise prohibited hereby);

                          (C) against any Collateral acquired by the Borrower or
any of its Subsidiaries after the Amendment/Restatement Effective Date and at
least 70% of the purchase price therefor is within 120 days of the acquisition
thereof financed with Indebtedness secured by a Lien permitted by SECTION
8.1(c);



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                          (D) so long as no Default or Event of Default has
occurred and is continuing, in the sole discretion of the Administrative Agent
upon the request of the Borrower, against any part of the Collateral with a fair
market value of less than $5,000,000 in the aggregate during the term of this
Agreement as such fair market value may be certified to the Administrative Agent
and the Collateral Agent by the Borrower in an officer's certificate acceptable
in form and substance to the Administrative Agent and the Collateral Agent;

                          (E) against a part of the Collateral which release
does not require the consent of all of the Lenders as set forth in SECTION
12.1(a)(ii), if such release is consented to by the Required Lenders; and

                          (F) so long as no Default or Event of Default has
occurred and is continuing, against the Mortgaged California Real Estate upon
the Leverage Ratio, calculated for the Test Period ending on the last day of the
most recently ended Fiscal Quarter, being less than the ratio 2.00 to 1.00.

                     (ii) Each of the Lenders hereby directs the Administrative
Agent to (or to cause the Administrative Agent to) execute and deliver or file
such termination and partial release statements and such other things as are
necessary to release Liens to be released pursuant to this SECTION 12.15
promptly upon the effectiveness of any such release or enter into intercreditor
agreements contemplated or permitted herein.

                 (c) NO OBLIGATION. Neither the Administrative Agent nor the
Collateral Agent shall have any obligation whatsoever to any Lender or to any
other Person to assure that the Collateral exists or is owned by the Borrower or
any of its Subsidiaries or is cared for, protected or insured or has been
encumbered or that the Liens granted to the Administrative Agent or the
Collateral Agent herein or pursuant to the Loan Documents have been properly or
sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority, or to exercise at all or in any particular
manner or under any duty of care, disclosure or fidelity, or to continue
exercising, any of the rights, authorities and powers granted or available to
the Administrative Agent or the Collateral Agent in any of the Loan Documents,
it being understood and agreed that in respect of the Collateral, or any act,
omission or event related thereto, the Administrative Agent and the Collateral
Agent may act in any manner it may deem appropriate, in its sole discretion,
given the Administrative Agent's and the Collateral Agent's own interests in the
Collateral as one of the Lenders and that neither the Administrative Agent nor
the Collateral Agent shall have any duty or liability whatsoever to any Lender,
provided, that, notwithstanding the foregoing, the Administrative Agent and the
Collateral Agent shall be responsible for their respective grossly negligent
actions or actions constituting intentional misconduct.

Section 12.16.    EFFECTIVENESS.

This Agreement shall become effective on the date on which (i) the Borrower and
each of the


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Lenders shall have signed a counterpart of this Agreement (whether the same or
different counterparts) and shall have delivered the same to the Administrative
Agent at the Notice Office (or to the Administrative Agent's counsel as directed
by such counsel) or, in the case of the Lenders, shall have given to the
Administrative Agent telephonic (confirmed in writing), written, telex or
facsimile notice (actually received) at such office or the office of the
Administrative Agent's counsel that the same has been signed and mailed to it
and (ii) all other conditions described in Article V have been satisfied. The
Administrative Agent will give the Borrower and each Lender prompt written
notice of the occurrence of the Amendment/Restatement Effective Date.

Section 12.17.    REGISTRY.

The Borrower hereby designates the Administrative Agent to serve as the
Borrower's agent, solely for purposes of this SECTION 12.17 to maintain a
register (the "REGISTER") on which it will record the Commitments from time to
time of each of the Lenders, the Loans made by each of the Lenders and each
repayment in respect of the principal amount of the Loans of each Lender.
Failure to make any such recordation, or any error in such recordation shall not
affect the Borrower's obligations in respect of such Loans. With respect to any
Lender, the transfer of the Commitments of such Lender and the rights to the
principal of, and interest on, any Loan made pursuant to such Commitments shall
not be effective until such transfer is recorded on the Register maintained by
the Administrative Agent with respect to ownership of such Commitments and Loans
and prior to such recordation all amounts owing to the transferor with respect
to such Commitments and Loans shall remain owing to the transferor. The
registration of assignment or transfer of all or part of any Commitments and
Loans shall be recorded by the Administrative Agent on the Register only upon
the acceptance by the Administrative Agent of a properly executed and delivered
Assignment and Assumption Agreement pursuant to SECTION 12.8(c) and no
Assignment and Assumption Agreement shall be effective until so recorded.
Coincident with the delivery of such an Assignment and Assumption Agreement to
the Administrative Agent for acceptance and registration of assignment or
transfer of all or part of a Loan, or as soon thereafter as practicable, the
assigning or transferor Lender shall surrender the Note evidencing such Loan,
and thereupon one or more new Notes in the same aggregate principal amount then
owing to such assignor or transferor Lender shall be issued to the assigning or
transferor Lender and/or the new Lender. The Borrower agrees to indemnify the
Administrative Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or
incurred by the Administrative Agent in performing its duties under this SECTION
12.17; PROVIDED, HOWEVER that the Administrative Agent shall not have the right
to be so indemnified under this SECTION 12.17 for any loss, claim, damage,
penalties, obligations, expense or liability to the extent it arises from the
gross negligence or willful misconduct of the Administrative Agent as finally
determined by a court of competent jurisdiction.




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Section 12.18.    MATTERS RELATING TO THIS AGREEMENT.

On and after the date hereof each reference in this Agreement to "this
Agreement," "hereunder," "hereof," "herein," or words of like import, and each
reference to the Credit Agreement, as the case may be, in the Loan Documents and
all other documents delivered in connection with this Agreement shall mean and
be a reference to the Original Credit Agreement as amended and restated by this
Agreement.




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                                 SCHEDULE 1.1(a)

                                LOAN/COMMITMENTS



- ------------------------------- --------------------- ----------------------- --------------------- ---------------------
                                                                                                      Multicurrency
                                                                                                    Commitment (as a
                                     Amount of             Amount of               Amount of         subcomponent of
                                      Term A               New Term B              Revolving          the Revolving
              Lender                   Loan              Loan Commitment           Commitment          Commitment)
              ------                   ----              ---------------           ----------          -----------
- ------------------------------- --------------------- ----------------------- --------------------- ---------------------
                                                                                        
Deutsche Bank Trust             $  7,894,737.49         $ 40,000,000.00         $ 25,000,000.00       $12,500,000.00
Company Americas
- ------------------------------- --------------------- ----------------------- --------------------- ---------------------
ABN Amro Bank, N.V.             $  8,552,631.38         $ 40,000,000.00         $ 24,166,666.66       $12,083,333.33
- ------------------------------- --------------------- ----------------------- --------------------- ---------------------
Bank One, NA                    $  7,894,737.45         $        - -            $ 25,000,000.00       $12,500,000.00
                                                        ---------------
- ------------------------------- --------------------- ----------------------- --------------------- ---------------------
The Bank of Nova Scotia         $ 11,249,999.76         $ 20,000,000.00         $ 15,000,000.00       $ 7,500,000.00
- ------------------------------- --------------------- ----------------------- --------------------- ---------------------
ING Capital LLC                 $        - -            $ 15,000,000.00         $        - -          $        - -
                                 --------------                                 ---------------       --------------
- ------------------------------- --------------------- ----------------------- --------------------- ---------------------
The Bank of New York            $  9,374,999.78         $        - -            $ 12,500,000.00       $ 6,250,000.00
                                                        ---------------
- ------------------------------- --------------------- ----------------------- --------------------- ---------------------
Wachovia Bank                   $  9,374,999.78         $        - -            $ 12,500,000.00       $ 6,250,000.00
                                                         --------------
- ------------------------------- --------------------- ----------------------- --------------------- ---------------------
National City Bank              $  5,624,999.87         $        - -            $  7,500,000.00       $ 3,750,000.00
                                                         --------------
- ------------------------------- --------------------- ----------------------- --------------------- ---------------------
The Northern Trust Company      $  5,624,999.87         $        - -            $  7,500,000.00       $ 3,750,000.00
                                                         --------------
- ------------------------------- --------------------- ----------------------- --------------------- ---------------------
Wells Fargo Bank, NA            $  5,624,999.87         $        - -            $  7,500,000.00       $ 3,750,000.00
                                                        ---------------
- ------------------------------- --------------------- ----------------------- --------------------- ---------------------
TOTAL                           $ 71,217,105.25         $115,000,000.00         $136,666,666.66       $68,333,333.33
- ------------------------------- --------------------- ----------------------- --------------------- ---------------------





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