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Exhibit 10.1
CONFORMED COPY
$200,000,000
THIRD AMENDED AND RESTATED
CREDIT AND REIMBURSEMENT AGREEMENT
dated as of
December 21, 1998
among
Orbital Sciences Corporation
The Banks Listed Herein
and
▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Administrative Agent and as Collateral Agent
----------------------------------------------
The Bank of Nova Scotia
and
NationsBank, N.A.,
Co-Syndication Agents
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TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.....................................................2
SECTION 1.02. Accounting Terms and Determinations............................17
SECTION 1.03. Types of Borrowings............................................17
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend............................................18
SECTION 2.02. Method of Borrowing............................................18
SECTION 2.03. Letters of Credit..............................................19
SECTION 2.04. Notes..........................................................22
SECTION 2.05. Maturity of Loans..............................................23
SECTION 2.06. Interest Rates.................................................23
SECTION 2.07. Commitment Fees................................................25
SECTION 2.08. Participation Fees.............................................25
SECTION 2.09. Optional Termination of the Commitments........................25
SECTION 2.10. Mandatory Termination of Commitments...........................25
SECTION 2.11. Optional Prepayments...........................................25
SECTION 2.12. General Provisions as to Payments..............................26
SECTION 2.13. Funding Losses.................................................26
SECTION 2.14. Computation of Interest and Fees...............................27
SECTION 2.15. Withholding Tax Exemption......................................27
SECTION 2.16. Method of Electing Interest Rates..............................28
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness..................................................29
SECTION 3.02. Transitional Provisions........................................31
SECTION 3.03. All Credit Events..............................................31
SECTION 3.04. First Borrowing by Each Borrower Subsidiary....................32
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES
SECTION 4.01. Corporate Existence and Power..................................33
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SECTION 4.02. Corporate and Governmental Authorization No Contravention......33
SECTION 4.03. Binding Effect.................................................33
SECTION 4.04. Lien Enforceable...............................................33
SECTION 4.05. Assignments Valid..............................................34
SECTION 4.06. Financial Information..........................................34
SECTION 4.07. Litigation.....................................................34
SECTION 4.08. Compliance with ERISA..........................................35
SECTION 4.09. Environmental Matters..........................................35
SECTION 4.10. Taxes..........................................................35
SECTION 4.11. Subsidiaries...................................................36
SECTION 4.12. Full Disclosure................................................36
ARTICLE 5
COVENANTS
SECTION 5.01. Information....................................................36
SECTION 5.02. Payment of Obligations.........................................39
SECTION 5.03. Maintenance of Property; Insurance.............................39
SECTION 5.04. Conduct of Business and Maintenance of Existence...............41
SECTION 5.05. Compliance with Laws...........................................41
SECTION 5.06. Inspection of Property, Books and Records......................41
SECTION 5.07. Investments....................................................41
SECTION 5.08. Minimum Consolidated Net Worth.................................44
SECTION 5.09. Leverage.......................................................44
SECTION 5.10. Consolidated Fixed Charge Ratio................................44
SECTION 5.11. Consolidated Loss Ratio........................................44
SECTION 5.12. Consolidated Delinquency Ratio.................................45
SECTION 5.13. Consolidated DSO Ratio.........................................45
SECTION 5.14. Negative Pledge................................................45
SECTION 5.15. Consolidations, Mergers and Sales of Assets....................47
SECTION 5.16. Use of Proceeds................................................47
SECTION 5.17. Subsidiary Debt................................................47
SECTION 5.18. Restricted Payments............................................47
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default..............................................48
SECTION 6.02. Notice of Default..............................................51
ARTICLE 7
THE AGENTS
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SECTION 7.01. Appointment and Authorization..................................51
SECTION 7.02. Agents and Affiliates..........................................51
SECTION 7.03. Action by Agents...............................................51
SECTION 7.04. Consultation with Experts......................................52
SECTION 7.05. Liability of Agents............................................52
SECTION 7.06. Indemnification................................................52
SECTION 7.07. Credit Decision................................................52
SECTION 7.08. Successor Agents...............................................53
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.......53
SECTION 8.02. Illegality.....................................................54
SECTION 8.03. Increased Cost and Reduced Return..............................54
SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar Loans.....56
ARTICLE 9
GUARANTY
SECTION 9.01. The Guaranty...................................................57
SECTION 9.02. Guaranty Unconditional.........................................57
SECTION 9.03. Discharge Only upon Payment in Full; Reinstatement.............58
SECTION 9.04. Waiver by the Guarantor........................................58
SECTION 9.05. Limit of Liability.............................................58
SECTION 9.06. Subrogation....................................................58
SECTION 9.07. Stay of Acceleration...........................................58
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices.......................................................59
SECTION 10.02. No Waiver.....................................................59
SECTION 10.03. Expenses; Documentary Taxes; Indemnification..................59
SECTION 10.04. Sharing of Set-Offs...........................................60
SECTION 10.05. Amendments and Waivers........................................61
SECTION 10.06. Successors and Assigns........................................61
SECTION 10.07. Collateral....................................................62
SECTION 10.08. Proprietary Information.......................................62
SECTION 10.09. Governing Law; Submission to Jurisdiction.....................63
SECTION 10.10. Counterparts; Integration.....................................63
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SECTION 10.11. Severability..................................................63
SECTION 10.12. WAIVER OF JURY TRIAL..........................................63
PRICING SCHEDULE.............................................................69
SCHEDULE I - Investment Policies of the Company
SCHEDULE II - Liens Existing on and as of the Effective Date
SCHEDULE III - MDA Investments
EXHIBIT A - Note
EXHIBIT B - Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., Special Counsel for the
Borrowers
EXHIBIT C - Opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, Special Counsel for the
Administrative Agent and the Collateral Agent
EXHIBIT D - Form of Subsidiary Security Agreement
EXHIBIT E - [Intentionally Omitted]
EXHIBIT F - Form of Assignment and Assumption Agreement
EXHIBIT G-1 - Government Contracts
EXHIBIT G-2 - Form of Assignment
EXHIBIT G-3 - Form of Notice of Assignment
EXHIBIT H - Commercial Contractors
EXHIBIT I - [Intentionally Omitted]
EXHIBIT J - Form of Election to Participate
EXHIBIT K - Form of Election to Terminate
EXHIBIT L - Form of Opinion of Counsel for each Borrower Subsidiary
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THIRD AMENDED AND RESTATED
CREDIT AND REIMBURSEMENT AGREEMENT
AGREEMENT dated as of December 21, 1998 among ORBITAL SCIENCES
CORPORATION, as Borrower and Guarantor, the BANKS listed on the signature pages
hereof, and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent
and as Collateral Agent.
W I T N E S S E T H :
WHEREAS, Orbital Sciences Corporation, a Delaware corporation (together
with its successors, the "COMPANY"), as Borrower, the banks party thereto (the
"ORIGINAL BANKS"), ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Administrative
Agent (the "ADMINISTRATIVE AGENT") and ▇.▇. ▇▇▇▇▇▇ Delaware, as Collateral Agent
(the "COLLATERAL AGENT"), are parties to an Amended and Restated Credit and
Reimbursement Agreement dated as of September 27, 1994 (as amended, the
"ORIGINAL CREDIT AGREEMENT"); and
WHEREAS, pursuant to an Amended and Restated Security Agreement dated
as of June 30, 1992 and amended and restated as of August 5, 1997 among the
Company, the Collateral Agent and NationsBank, N.A., as Designated Lockbox Bank
(as amended from time to time, the "COMPANY SECURITY AGREEMENT"), the
obligations of the Company under the Financing Documents (as defined in the
Existing Agreement (as defined below)) are secured by Liens (as defined below)
on the Collateral (as defined below);
WHEREAS, the Company, Magellan Corporation, the Original Banks, the
Administrative Agent, and the Collateral Agent are parties to a Second Amended
and Restated Credit and Reimbursement Agreement dated as of August 5, 1997 (as
amended prior to the Effective Date (as defined below), the "EXISTING
AGREEMENT") amending and restating the Original Credit Agreement and the other
Financing Documents;
WHEREAS, pursuant to that certain Amendment No. 1 to the Existing
Agreement dated as of December 19, 1997 among the Company, the Original Banks,
the Administrative Agent and the Collateral Agent, Magellan Corporation was
released from its obligations as a borrower and a guarantor under the Financing
Documents; and
WHEREAS, the Company and the Banks wish to amend and restate the
Existing Agreement as set forth herein;
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NOW, THEREFORE, the parties hereto hereby agree that, on and as of the
Effective Date, the Existing Agreement is hereby amended and restated in its
entirety as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein, have the
following meanings:
"ADJUSTED LONDON INTERBANK OFFERED RATE" has the meaning set forth in
Section 2.06(b).
"ADMINISTRATIVE AGENT" means ▇▇▇▇▇▇ Guaranty Trust Company of New York
in its capacity as administrative agent for the Banks hereunder, and its
successors in such capacity.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Company) duly
completed by such Bank.
"AFFILIATE" means, with respect to any Person (i) any Person that
directly, or indirectly through one or more intermediaries, controls such Person
(a "CONTROLLING PERSON") or (ii) any Person (other than a Subsidiary of such
Person) which is controlled by or is under common control with a Controlling
Person. As used herein, the term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"AGENT" means the Administrative Agent or the Collateral Agent, as the
context may require, and "AGENTS" means both of them.
"AGGREGATE LC AMOUNT" has the meaning set forth in Section 6.01.
"AGREEMENT" means the Existing Agreement as amended and restated by the
Amended Agreement and as the same may be further amended or restated from time
to time in accordance with the terms hereof.
"AMENDED AGREEMENT" means this Third Amended and Restated Credit and
Reimbursement Agreement.
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"APPLICABLE LENDING OFFICE" means, with respect to any Bank, (i) in the
case of its Base Rate Loans, its Domestic Lending Office and (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"ASSET SALE" means any sale, lease (as lessor) or other disposition
(including any such transaction effected by way of merger or consolidation or
any sale-leaseback transaction) by the Company or any of its Subsidiaries of any
asset, but excluding (i) dispositions of inventory, cash, cash equivalents and
other cash management investments and obsolete, unused or unnecessary equipment
and undeveloped real estate, in each case in the ordinary course of business and
(ii) dispositions to the Company or any Subsidiary.
"ASSIGNEE" has the meaning set forth in Section 10.06(c).
"ASSIGNMENT OF CLAIMS ACT" means the Assignment of Claims Act of 1940,
as amended, or any successor statute.
"AVAILABLE LC AMOUNT" means, on any date, with respect to each
Borrower, an amount equal to the excess (if any) of $15,000,000 over the
aggregate Letter of Credit Liabilities of all other Borrowers on such date.
"BANK" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 10.06(c), and their respective
successors.
"BASE RATE" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal
Funds Rate for such day.
"BASE RATE LOAN" means a loan made by a Bank pursuant to Section 2.01
which bears interest at the Base Rate plus the Base Rate Margin pursuant to the
applicable Notice of Borrowing or Notice of Interest Rate Election or the
provisions of Article 8.
"BASE RATE MARGIN" means a rate per annum determined daily in
accordance with the Pricing Schedule.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA that is not a Plan or a Multiemployer Plan
and that is maintained or otherwise contributed to by any member of the ERISA
Group.
"BORROWER LC AMOUNT" has the meaning set forth in Section 6.01.
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"BORROWERS" means the Company and each of the Borrower Subsidiaries,
and "BORROWER" means any one of them.
"BORROWER SUBSIDIARIES" means any Wholly-Owned Subsidiary of the
Company as to which an Election to Participate shall have been delivered to the
Administrative Agent and as to which an Election to Terminate shall not have
been delivered to the Administrative Agent. Each such Election to Participate
and Election to Terminate shall be duly executed on behalf of such Wholly-Owned
Subsidiary and the Company in such number of copies as the Administrative Agent
may request. The delivery of an Election to Terminate shall not affect any
obligation of a Borrower Subsidiary theretofore incurred. The Administrative
Agent shall promptly give notice to the Banks of the receipt of any Election to
Participate or Election to Terminate.
"COLLATERAL" means all of the collateral in which a security interest
is granted to the Collateral Agent on behalf of the Banks in the Security
Agreements.
"COLLATERAL ACCOUNT" has the meaning set forth in each Security
Agreement.
"COLLATERAL AGENT" means ▇▇▇▇▇▇ Guaranty Trust Company of New York (as
successor by merger to ▇.▇. ▇▇▇▇▇▇ Delaware) in its capacity as collateral agent
for the Secured Parties hereunder and under each Security Agreement and its
successors in such capacity.
"COMMITMENT" means (i) with respect to each Bank listed on the
signature pages hereof, the amount set forth opposite the name of such Bank on
the signature pages hereof and (ii) with respect to each Assignee that becomes a
Bank pursuant to Section 10.06(c), the amount of the Commitment thereby assumed
by it, in each case as such amount may be increased or reduced from time to time
pursuant to Section 10.06(c) or reduced from time to time pursuant to Section
2.09.
"COMMITMENT FEE RATE" means a rate per annum determined in accordance
with the Pricing Schedule.
"COMPANY" has the meaning set forth in the first WHEREAS clause.
"COMPANY SECURITY AGREEMENT" has the meaning set forth in the second
WHEREAS clause.
"COMPANY'S 1997 FORM 10-K" means the Company's annual report on Form
10-K for the fiscal year ended December 31, 1997, as filed with the
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Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended.
"CONSOLIDATED DEBT" means at any date, without duplication, the sum of
(i) the Debt of the Company and its Consolidated Subsidiaries determined on a
consolidated basis plus (ii) the portion of the Debt (other than Excluded
ORBCOMM Debt) of any Person accounted for by the Company on the equity method
properly allocable to the direct or indirect interest of the Company in such
Person, all determined as of such date.
"CONSOLIDATED DELINQUENCY RATIO" means, for any period, the percentage
equivalent of a fraction (i) the numerator of which is the average amount of
Receivables of all the Borrowers as of the last day of each calendar month
during such period that have remained unpaid for more than 60 days from the
original due date specified at the time of the original issuance of the invoice
therefor and (ii) the denominator of which is the average amount of Receivables
of all the Borrowers outstanding as of the last day of each calendar month
during such period.
"CONSOLIDATED DSO RATIO" means, for any period, a fraction (i) the
numerator of which is the average amount of Receivables of all the Borrowers as
of the last day of each calendar month during such period and (ii) the
denominator of which is the average daily revenues of all the Borrowers for the
preceding twelve month period ending on the last day of such period.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net Income
for such period plus, to the extent deducted in determining such Consolidated
Net Income, the aggregate amount of (i) consolidated interest expense, (ii)
income tax expense and (iii) depreciation, amortization and other similar
non-cash charges.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum, without
duplication, of (i) interest accrued on all Debt of the Company and its
Consolidated Subsidiaries (other than Debt owing to the Company or a
Consolidated Subsidiary) during such period, whether expensed or capitalized and
(ii) rental expense of the Company and its Consolidated Subsidiaries for such
period under operating leases of real or personal property.
"CONSOLIDATED LEVERAGE RATIO" means on any date the ratio of
Consolidated Debt on such date to Consolidated EBITDA for the period of four
consecutive fiscal quarters most recently ended on or prior to such date.
"CONSOLIDATED LOSS RATIO" means, for any calendar month, the percentage
equivalent of a fraction (i) the numerator of which is the gross credit
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write offs of Receivables by all the Borrowers during such month and (ii) the
denominator of which is the amount of Receivables of all the Borrowers
outstanding at the end of such month.
"CONSOLIDATED NET INCOME" means, for any period, the consolidated net
income of the Company and its Consolidated Subsidiaries for such period.
"CONSOLIDATED NET WORTH" means, at any date, the consolidated
stockholders' equity of the Company and its Consolidated Subsidiaries as of such
date.
"CONSOLIDATED SUBSIDIARY" means, at any date with respect to any
Person, any Subsidiary or other entity the accounts of which would be
consolidated with those of such Person in its consolidated financial statements
if such statements were prepared as of such date; provided that in no event
shall Orbital Imaging be a "Consolidated Subsidiary" of the Company.
"CONSOLIDATED TANGIBLE NET WORTH" means, at any date, Consolidated Net
Worth less consolidated Intangible Assets, all determined as of such date. For
purposes of this definition "INTANGIBLE ASSETS" means the amount (to the extent
reflected in determining such consolidated stockholders' equity) of (i) all
write-ups (other than write-ups resulting from foreign currency translations and
write-ups of assets of a going concern business made within twelve months after
the acquisition of such business) subsequent to December 31, 1996 in the book
value of any asset owned by the Company or a Consolidated Subsidiary, and (ii)
all goodwill, patents, trademarks, service marks, trade names, anticipated
future benefit of tax loss carry-forwards not fully reserved, copyrights,
organization or developmental expenses and other intangible assets.
"CONTROLLING PERSON" has the meaning assigned to such term in the
definition of "Affiliate".
"CREDIT EVENT" means the making of a Loan or the issuance of a Letter
of Credit.
"DEBT" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all obligations of
such Person (whether fixed or contingent) to reimburse any bank or other Person
in respect of amounts paid or payable under a letter of credit or similar
instrument, (vi) all Debt
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of others secured by a Lien on any asset of such Person, whether or not such
Debt is assumed by such Person (such Debt to have a principal amount, for
purposes of determinations under this Agreement, not exceeding the greater of
(x) the net unencumbered carrying value of such asset under generally accepted
accounting principles and (y) the fair market value of such asset as of the date
the principal amount of such Debt is determined), and (vii) all Debt of others
Guaranteed by such Person; provided that Excluded ORBCOMM Debt shall not
constitute Debt of the Company or any of its Consolidated Subsidiaries.
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DERIVATIVES OBLIGATIONS" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"DESIGNATED INSURANCE POLICIES" has the meaning set forth in Section
5.03(c).
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to close.
"DOMESTIC LENDING OFFICE" means, as to each Bank, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Company and the Administrative Agent.
"DOMESTIC RECEIVABLE" means any Receivable due from an Obligor that is
both domiciled in the United States of America and (if not a natural person)
organized under the laws of the United States of America or any State thereof.
"EARNINGS AVAILABLE FOR FIXED CHARGES" means, for any period,
Consolidated Net Income for such period (excluding therefrom (i) any
extraordinary items of gain or loss and (ii) any gain or loss of any other
Person accounted for pursuant to the equity method, except in the case of gain
to the extent of cash distributions received from such Person during the
relevant period),
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plus the aggregate amounts deducted in determining Consolidated Net Income for
such period in respect of (i) interest and rental expense and (ii) income taxes.
"EFFECTIVE DATE" means the date this Amended Agreement becomes
effective in accordance with Section 3.01.
"ELECTION TO PARTICIPATE" means an Election to Participate
substantially in the form of Exhibit J hereto.
"ELECTION TO TERMINATE" means an Election to Terminate substantially in
the form of Exhibit K hereto.
"ENVIRONMENTAL LAWS" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA GROUP" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company, or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"EURO-DOLLAR BUSINESS DAY" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"EURO-DOLLAR LENDING OFFICE" means, as to each Bank, its office, branch
or Affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or Affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Company and the Administrative Agent.
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"EURO-DOLLAR LOAN" means a loan made by a Bank pursuant to Section 2.01
which bears interest at a Euro-Dollar Rate plus the Euro-Dollar Margin pursuant
to the applicable Notice of Borrowing or Notice of Interest Rate Election.
"EURO-DOLLAR MARGIN" means a rate per annum determined daily in
accordance with the Pricing Schedule.
"EURO-DOLLAR RATE" means a rate of interest determined pursuant to
Section 2.06(b) on the basis of an Adjusted London Interbank Offered Rate.
"EVENTS OF DEFAULT" has the meaning set forth in Section 6.01.
"EXCLUDED ORBCOMM DEBT" means, at any date, (i) any Debt of ORBCOMM
Global which is not Guaranteed by the Borrower or any Consolidated Subsidiary
(other than OCC and ORBCOMM USA) and (ii) the ORBCOMM Global Guaranty and any
other Guarantee by OCC or ORBCOMM USA of any Debt of ORBCOMM Global so long as
at such date (A) the only assets owned or otherwise held by OCC are the Federal
Communications Commission's licenses and authorizations to construct, launch and
operate 34 satellites for the ORBCOMM low-earth satellite system and to operate
related gateway earth stations and subscriber communications, as such licenses
and authorizations may be amended or modified, contracts between OCC and the
Partnerships related to the construction or operation of the ORBCOMM low-earth
satellite system and OCC's investments in ORBCOMM Global and ORBCOMM USA, (B)
OCC conducts no business activities other than holding such assets and (C) such
Guarantee is non-recourse to, and is not otherwise supported by the credit of,
the Company or any of its Consolidated Subsidiaries (other than OCC and ORBCOMM
USA).
"EXISTING AGREEMENT" has the meaning set forth in the third WHEREAS
clause.
"EXPOSURE" means, with respect to each Bank and in respect of any
Borrower, at any time, an amount equal to the sum of (i) the aggregate principal
amount of the Loans of such Bank to such Borrower outstanding at such time and
(ii) such Bank's LC Exposure at such time with respect to such Borrower.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day; provided that (i) if such day is not a Domestic
Business
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Day, the Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Domestic Business Day as so published on the next
succeeding Domestic Business Day, and (ii) if no such rate is so published on
such next succeeding Domestic Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to ▇▇▇▇▇▇ Guaranty Trust Company of New York on
such day on such transactions as determined by the Administrative Agent.
"FINANCING DOCUMENTS" means this Agreement, the Security Agreements and
the Notes, and "FINANCING DOCUMENT" means any one of them.
"GROUP OF LOANS" means, at any time, a group of Loans consisting of (i)
all Loans to a single Borrower which are Base Rate Loans at such time or (ii)
all Euro-Dollar Loans to a single Borrower having the same Interest Period at
such time, provided that, if a Loan of any particular Bank is converted to or
made as a Base Rate Loan pursuant to Article 8, such Loan shall be included in
the same Group or Groups of Loans from time to time as it would have been in if
it had not been so converted or made.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part); provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"GUARANTOR" means, with respect to each Borrower, the other Borrowers.
"INSURANCE ACCOUNT" has the meaning set forth in each Security
Agreement.
"INTEREST PERIOD" means, with respect to each Euro-Dollar Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in an applicable Notice of Interest Rate
Election and ending one, two or three months thereafter as the Borrower may
elect in such notice; provided that:
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(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"INVESTMENT" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, time deposit or otherwise.
"LC BANK" means First Union National Bank, First Union National Bank of
Virginia or First Union National Bank through First Union National Bank of North
Carolina in its capacity as LC Bank under the letter of credit facility
described in Section 2.03, and its successors in such capacity.
"LC EXPOSURE" means, with respect to each Bank and in respect of any
Borrower, at any one time, an amount equal to such Bank's Percentage of the
aggregate amount of Letter of Credit Liabilities at such time in respect of all
Letters of Credit issued upon the request of such Borrower.
"LETTER OF CREDIT COMMISSION RATE" means a rate per annum determined in
accordance with the Pricing Schedule.
"LETTER OF CREDIT LIABILITIES" means, on any date and in respect of any
Letter of Credit, the sum, without duplication, of (i) the amount available for
drawing under such Letter of Credit on such date plus (ii) the aggregate amount
outstanding on such date of all Reimbursement Obligations in respect of such
Letter of Credit.
"LETTERS OF CREDIT" has the meaning set forth in Section 2.03(a), and
"LETTER OF CREDIT" means any one of them.
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"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Company or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"LOAN" means a Base Rate Loan or a Euro-Dollar Loan and "LOANS" means
Base Rate Loans or Euro-Dollar Loans or both.
"MAGELLAN" means Magellan Corporation, a Delaware corporation, and its
successors.
"MAGELLAN FINANCING" means one or more credit agreements to which
Magellan is or may become a party providing for loans thereunder to be used by
Magellan for working capital purposes; provided that the aggregate principal
amount of Debt that may be incurred under such credit agreements shall not
exceed $20,000,000.
"MATERIAL DEBT" means Debt in an aggregate principal amount exceeding
$10,000,000 (other than the Loans and the Reimbursement Obligations) of the
Company and/or one of more of its Subsidiaries arising in one or more related or
unrelated transactions.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $5,000,000.
"MDA" means ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and Associates Ltd, a Canadian
corporation, and its successors.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor to
such corporation's business of rating debt securities.
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"NOTES" means promissory notes of a Borrower, substantially in the form
of Exhibit A hereto, evidencing the obligation of such Borrower to repay the
Loans made to it, together with any modifications, substitutions, extensions or
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renewals of such promissory notes, and "NOTE" means any one of such promissory
notes issued hereunder.
"NOTICE OF BORROWING" has the meaning set forth in Section 2.02.
"NOTICE OF INTEREST RATE ELECTION" has the meaning set forth in
Section 2.16.
"OCC" means Orbital Communications Corporation, a Delaware corporation,
and its successors.
"ORBCOMM GLOBAL" means ORBCOMM Global L.P., a Delaware limited
partnership, and its successors.
"ORBCOMM GLOBAL GUARANTY" means the non-recourse guaranty dated August
7, 1996, by OCC and ORBCOMM USA of the $170,000,000 14% Senior Notes Due 2004
issued by ORBCOMM Global and ORBCOMM Global Capital Corp., contained in the
Indenture dated as of August 7, 1996, issued by ORBCOMM Global and ORBCOMM
Global Capital Corp. in favor of Marine Midland Bank as Trustee, the proceeds of
which Notes are to be applied to develop the ORBCOMM system.
"ORBCOMM USA" means ORBCOMM USA L.P., a Delaware limited partnership,
and its successors.
"ORBITAL IMAGING" means Orbital Imaging Corporation, a Delaware
corporation, and its successors.
"ORIGINAL CREDIT AGREEMENT" has the meaning set forth in the first
WHEREAS clause.
"PARENT" means, with respect to any Bank, any Controlling Person
of such Bank.
"PARTNERSHIPS" means ORBCOMM Global, ORBCOMM USA and ORBCOMM
International Partners L.P.
"PARTICIPANT" has the meaning set forth in Section 10.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERCENTAGE" means, with respect to each Bank, at any time, the
percentage that such Bank's Commitment constitutes of the aggregate amount of
the Commitments at such time.
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"PERMITTED LIEN" has the meaning set forth in Section 5.14.
"PERSON" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof (including,
without limitation, the Government).
"PLAN" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) that is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person that
was at such time a member of the ERISA Group for employees of any Person that
was at such time a member of the ERISA Group.
"PRICING SCHEDULE" means the Schedule attached hereto and identified
as such.
"PRIME RATE" means the rate of interest publicly announced by ▇▇▇▇▇▇
Guaranty Trust Company of New York from time to time as its Prime Rate.
"QUARTERLY PAYMENT DATE" means each March 31, June 30, September 30 and
December 31.
"RECEIVABLE" means, at any date of determination thereof, the amount of
the unpaid portion of an obligation, as stated in the invoice to a customer of
any Borrower which such Borrower has issued with respect thereto, in respect of
goods delivered, services rendered or the achievement of other contractual
milestones in the ordinary course of business, which amount has been earned by
performance under the terms of the contract between the Borrower and such
customer relating to such goods, services or other contractual milestones, as
the case may be, net of any credits, rebates or offsets owed to the customer.
"REFERENCE BANKS" means the principal London offices of First Union
National Bank, The Bank of Nova Scotia and ▇▇▇▇▇▇ Guaranty Trust Company of New
York.
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REIMBURSEMENT OBLIGATIONS" means at any date, with respect to any
Borrower, the obligations of such Borrower pursuant to Section 2.03 to reimburse
the LC Bank for any amount, outstanding as of such date, paid by the LC Bank in
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respect of a drawing under a Letter of Credit issued upon request of such
Borrower.
"REQUIRED BANKS" means at any time Banks having at least 66 2/3% of the
aggregate amount of the Commitments or, if theCommitments shall have been
terminated, having at least 66 2/3% of the aggregate Exposures at such time.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution on
any shares of the Company's capital stock (except dividends payable solely in
shares of its capital stock) or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of (a) any shares of the Company's capital
stock or (b) any option, warrant or other right to acquire shares of the
Company's capital stock.
"SECURED PARTY" has the meaning set forth in any Security Agreement.
"SECURITY AGREEMENTS" means, collectively, the Company Security
Agreement and any Subsidiary Security Agreements executed after the Effective
Date, and "SECURITY AGREEMENT" means any one of them.
"SECURITY EVENT" has the meaning set forth in any of the Security
Agreements.
"S&P" means Standard and Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor to its business of rating debt
securities.
"SUBSIDIARY" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Company (or if such term is used with
reference to any other Person, by such other Person); provided that in no event
shall Orbital Imaging or ORBCOMM USA be a "Subsidiary" of the Company.
"SUBSIDIARY SECURITY AGREEMENTS" means security agreements
substantially in the form of Exhibit D, among each Borrower Subsidiary, the
Collateral Agent and NationsBank, N.A., as the Designated Lockbox Bank, as
amended from time to time, and "SUBSIDIARY SECURITY AGREEMENT" means any one of
them.
"TEMPORARY CASH INVESTMENT" means any Investment in (i) direct
obligations of the United States or Canada or any agency thereof, or obligations
guaranteed by the United States or Canada or any agency thereof, (ii) commercial
paper rated at least A-1 by S&P and P-1 by Moody's, (iii) time deposits with,
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including certificates of deposit issued by, any office located in the United
States or Canada of any Bank or any bank or trust company which is organized
under the laws of the United States or any state thereof or Canada or any
province thereof, has capital, surplus and undivided profits aggregating at
least $100,000,000 and the unsecured long-term debt of which is rated at least
investment grade by each nationally recognized statistical rating organization
that rates such debt, (iv) money market funds that invest only in securities
described in clause (i), (ii) or (iii) above, (v) Investments made in accordance
with the investment policies set forth on Schedule I, or (vi) repurchase
agreements with respect to securities described in clause (i) above entered into
with an office of a bank or trust company meeting the criteria specified in
clause (iii) above; provided in each case that such Investment matures within
two years from the date of acquisition thereof by the Company or a Subsidiary.
"TERMINATION DATE" means December 21, 2002, or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
"TYPE" has the meaning set forth in Section 1.03.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (i) the present value of all benefits under such Plan
exceeds (ii) the fair market value of all Plan assets allocable to such benefits
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"WHOLLY-OWNED SUBSIDIARY" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Company
(or if such term is used with reference to any other Person, by such other
Person).
SECTION 1.2. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes in accordance with generally accepted
accounting principles) with the most recent audited consolidated financial
statements of the Company and its Consolidated Subsidiaries delivered to the
Banks provided that, if the Company notifies the Administrative Agent that the
Company wishes to amend any covenant in Article 5 to eliminate the effect of any
change in generally accepted accounting principles on the operation of such
covenant (or if the Administrative Agent notifies the Company that the Required
Banks wish to
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amend Article 5 for such purpose), then the Company's compliance with such
covenant shall be determined on the basis of generally accepted accounting
principles in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Company
and the Required Banks. For purposes of Sections 5.08, 5.09, 5.10, and 5.17 and
related definitions, only the percentage of Debt, net income, interest expense,
rental expense, income taxes, Intangible Assets and equity of Magellan equal to
the percentage of the equity of Magellan held directly or indirectly by the
Company at the relevant time shall be included in such computations.
SECTION 1.3. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to a Borrower pursuant to
Article 2 on the same date, all of which Loans are of the same Type (subject to
Article 8) and, except in the case of Base Rate Loans, have the same initial
Interest Period. The "Type" of a Loan refers to the determination whether such
Loan is a Euro-Dollar Loan or a Base Rate Loan.
ARTICLE 2
THE CREDITS
SECTION 2.1. Commitments to Lend. Each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make Loans to any Borrower
from time to time prior to the Termination Date in amounts such that the
Exposure of such Bank at such time shall not exceed the amount of its Commitment
at such time. Each Borrowing under this Section shall be in an aggregate
principal amount of $1,000,000 or any larger multiple thereof (except that any
such Borrowing may be in the aggregate amount available in accordance with
Section 3.03(d)) and shall be made from the several Banks ratably in proportion
to their respective Commitments. Within the foregoing limits, the Borrower may
borrow under this Section, prepay Loans to the extent permitted by Section 2.10
and reborrow at any time under this Section.
SECTION 2.2. Method of Borrowing. (a) The Borrower shall give the
Administrative Agent notice (a "NOTICE OF BORROWING") not later than Noon (New
York City time) on (x) the date of each Base Rate Borrowing and (y) the third
Euro-Dollar Business Day before each Euro-Dollar Borrowing; specifying:
(i the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar
Business Day in the case of a ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇
▇▇
(▇▇ the aggregate amount of such Borrowing,
(iii the Type of such Borrowing, and
(iv in the case of a Euro-Dollar Borrowing, the duration of
the initial Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period.
(b Upon receipt (or deemed receipt) of a Notice of Borrowing, the
Administrative Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share of such Borrowing and such Notice of Borrowing
shall not thereafter be revocable by the Borrower.
(c Not later than 1:00 P.M. (New York City time) on the date of each
Borrowing, each Bank shall make available its ratable share of such Borrowing,
in Federal or other immediately available funds, to the Administrative Agent at
its address specified in or pursuant to Section 10.01. Unless the Administrative
Agent determines that any applicable condition specified in Article 3 has not
been satisfied, the Administrative Agent will make the funds so received from
the Banks available to the Borrower at the Administrative Agent's aforesaid
address.
(d Unless the Administrative Agent shall have received notice from a
Bank prior to the date of any Borrowing that such Bank will not make available
to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of such Borrowing in accordance with
subsection 2.02(c) and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Bank shall not have so made such share available
to the Administrative Agent, such Bank and the Borrower severally agree to repay
to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent, at the Federal Funds Rate. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for purposes of this
Agreement.
SECTION 2.3. Letters of Credit. (a The LC Bank agrees, subject to the
terms and conditions hereof, to issue sight letters of credit hereunder from
time to time upon the request of any Borrower (such letters of credit issued,
the "LETTERS OF CREDIT"); provided that, immediately after each such Letter of
Credit is issued,
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the Letter of Credit Liabilities of such Borrower shall not exceed its
Available LC Amount. Each Letter of Credit shall be issued in an amount equal to
or greater than $100,000. Upon the date of issuance by the LC Bank of a Letter
of Credit, the LC Bank shall be deemed, without further action by any party
hereto, to have sold to each Bank, and each Bank shall be deemed, without
further action by any party hereto, to have purchased from the LC Bank, a
participation in such Letter of Credit and the related Letter of Credit
Liabilities equal to such Bank's Percentage. The Borrower shall pay to the LC
Bank issuance fees in the amounts and at the times as agreed between the
Borrower and the LC Bank.
(b Notice of Issuance. The Borrower shall give the LC Bank at least
three Domestic Business Days' prior notice (effective upon receipt) specifying
the date each Letter of Credit is to be issued, and describing the proposed
terms of such Letter of Credit and the nature of the transactions proposed to be
supported thereby. Upon receipt of such notice the LC Bank shall promptly notify
the Administrative Agent, and the Administrative Agent shall promptly notify
each Bank, of the contents thereof and of the amount of such Bank's
participation in such proposed Letter of Credit (determined in accordance with
Section 2.03(a)). The issuance by the LC Bank of each Letter of Credit shall, in
addition to the conditions precedent set forth in Article 3, be subject to the
conditions precedent that such Letter of Credit shall be in such form and
contain such terms as shall be reasonably satisfactory to the LC Bank and that
the Borrower shall have executed and delivered such other instruments and
agreements relating to such Letter of Credit as the LC Bank shall have
reasonably requested. No Letter of Credit shall have a term extending beyond the
fifth Domestic Business Day prior to the Termination Date.
(c Reimbursement of Payments. Upon receipt from the beneficiary of
any Letter of Credit of any demand for payment or other drawing under such
Letter of Credit, the LC Bank shall notify the Administrative Agent and the
Administrative Agent shall promptly notify the Borrower and each other Bank as
to the amount to be paid as a result of such demand or drawing and the payment
date. If at any time the LC Bank shall make a payment to a beneficiary of a
Letter of Credit in respect of a drawing under such Letter of Credit, each Bank
will pay to the Administrative Agent, for the account of the LC Bank,
immediately upon the LC Bank's demand at any time during the period commencing
after such payment until reimbursement therefor in full by the Borrower, an
amount equal to such Bank's Percentage multiplied by the amount of such payment,
together with interest on such amount for each day from the date of the LC
Bank's demand for such payment (or, if such demand is made after 3:00 P.M. (New
York City time) on such date, from the next succeeding Domestic Business Day) to
the date of payment by such Bank of such amount at a rate of interest per annum
equal to the Federal Funds Rate for such period. The LC Bank shall reimburse
each Bank
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for any such payments made for a draw honored under the Letter of Credit as a
result of the LC Bank's willful misconduct or gross negligence in honoring a
draw which does not conform to the terms of the Letter of Credit together with
interest thereon at a rate of interest per annum equal to the Federal Funds Rate
for each day from the date on which the Bank made payment to the LC Bank until
the date the LC Bank repays such amount in full.
(d Reimbursement Unconditional. The Borrower shall be irrevocably and
unconditionally obligated forthwith to reimburse the LC Bank for any amounts
paid by the LC Bank upon any drawing under any Letter of Credit on the date of
such payment by the LC Bank, without presentment, demand, protest or other
formalities of any kind; provided that the Borrower shall not hereby be
precluded from asserting any claim for direct (but not consequential) damages
suffered by the Borrower to the extent, but only to the extent, caused by (i)
the willful misconduct or gross negligence of such LC Bank in determining
whether a request presented under any Letter of Credit complied with the terms
of such Letter of Credit or (ii) such Bank's failure to pay under any Letter of
Credit after the presentation to it of a request strictly complying with the
terms and conditions of the Letter of Credit. All such amounts paid by the LC
Bank and remaining unpaid by the Borrower shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 2% plus
the rate applicable to Base Rate Loans for such day. The LC Bank will pay to
each Bank ratably in accordance with its Commitment all amounts (including
interest) received from the Borrower for application in payment, in whole or in
part, of the Reimbursement Obligations in respect of any Letter of Credit, but
only to the extent such Bank has made payment to the LC Bank in respect of such
Letter of Credit pursuant to Section 2.03(c).
(e Indemnification. The Borrower hereby indemnifies and holds
harmless each Bank and Agent from and against any and all claims and damages,
losses, liabilities, costs or expenses which such Bank or Agent may incur by
reason of or in connection with the execution and delivery or transfer of or
payment or failure to pay under any Letter of Credit, including, without
limitation, any claims, damages, losses, liabilities, costs or expenses which
the LC Bank may incur by reason of or in connection with the failure of any
other Bank to fulfill or comply with its obligations to the LC Bank hereunder
(but nothing herein contained shall affect any rights the Borrower may have
against such defaulting Bank); provided that the Borrower shall not be required
to indemnify any Bank or Agent for any claims, damages, losses, liabilities,
costs or expenses to the extent, but only to the extent, caused by (i) the
willful misconduct or gross negligence of such Bank or Agent in determining
whether a request presented under any Letter of Credit complied with the terms
of such Letter of Credit or (ii) such Bank's failure to pay under any Letter of
Credit after the presentation to
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it of a request strictly complying with the terms and conditions of the Letter
of Credit. Nothing in this Section is intended to limit the obligations of the
Borrower under any other provision of this Agreement.
(f Limited Liability of the LC Bank. The Borrower assumes all risks
of the acts or omissions of any beneficiary and any transferee of any Letter of
Credit with respect to its use of such Letter of Credit. The Banks, the LC Bank
and their respective officers and directors shall not be liable or responsible
for, and the obligations of each Bank to make payments, and of the Borrower to
reimburse the LC Bank for payments, pursuant to this Section shall not be
excused by, any action or inaction of any Bank or the LC Bank related to: (i)
the use which may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (ii) the validity,
sufficiency or genuineness of documents presented under any Letter of Credit, or
of any endorsements thereon, even if such documents should in fact prove to be
in any or all respects invalid, insufficient, fraudulent or forged; (iii)
payment by the LC Bank against presentation of documents to the LC Bank which do
not comply with the terms of any Letter of Credit, including failure of any
documents to bear any reference or adequate reference to such Letter of Credit;
or (iv) any other circumstances whatsoever in making or failing to make or
notifying or failing to notify the LC Bank that it is required to make any
payment under any Letter of Credit. Notwithstanding the foregoing, the Borrower
shall have a claim against the LC Bank and the LC Bank shall be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential, damages suffered by the Borrower which were caused by (i) the LC
Bank's willful misconduct or gross negligence in determining whether documents
presented under any Letter of Credit comply with the terms thereof or (ii) the
LC Bank's willful failure to pay, or to notify any Bank that it is required to
pay, under any Letter of Credit after the presentation to the LC Bank by any
beneficiary (or a successor beneficiary to whom such Letter of Credit has been
transferred in accordance with its terms) of documents strictly complying with
the terms and conditions of such Letter of Credit. Subject to the preceding
sentence, the LC Bank may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary unless any beneficiary (or a successor
beneficiary to whom such Letter of Credit has been transferred in accordance
with its terms) and the Borrower shall have notified the LC Bank that such
documents do not comply with the terms and conditions of such Letter of Credit.
Each Bank shall, ratably in accordance with its Commitment, indemnify the LC
Bank (to the extent not reimbursed by the Borrower) against any cost, expense
(including counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from the LC Bank's gross negligence or willful
misconduct) that the LC Bank may suffer or incur in
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connection with this Agreement or any action taken or omitted by the LC Bank
hereunder.
(g Letter of Credit Commission. The Borrower agrees to pay to the
Administrative Agent for the account of each Bank, ratably in proportion to the
Percentage of such Bank, a letter of credit commission with respect to each
Letter of Credit, computed for each day from and including the date of issuance
of such Letter of Credit up to but excluding the last day a drawing is available
under such Letter of Credit, at the Letter of Credit Commission Rate on the
undrawn amount of such Letter of Credit on such day. Such commission shall be
payable quarterly in arrears on each Quarterly Payment Date and on the
Termination Date or, if earlier, the date of effectiveness of the termination of
the Commitments in their entirety.
SECTION 2.4. Notes. (a The Loans of each Bank to each Borrower shall be
evidenced by a single Note of such Borrower payable to the order of such Bank
for the account of its Applicable Lending Office in an amount equal to the
aggregate unpaid principal amount of such Bank's Loans to such Borrower.
(b Each Bank may, by notice to a Borrower and the Administrative
Agent, request that its Loans of a particular Type to such Borrower be evidenced
by a separate Note in an amount equal to the aggregate unpaid principal amount
of such Loans. Each such Note shall be in substantially the form of Exhibit A
hereto with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant Type. Each reference in this Agreement to a "Note"
or the "Notes" of such Bank shall be deemed to refer to and include any or all
of such Notes, as the context may require.
(c Upon receipt of each Bank's Note pursuant to Section 3.01(b), the
Administrative Agent shall mail such Note to such Bank. Each Bank shall record
the date and amount of each Loan made by it to each Borrower and the date and
amount of each payment of principal made with respect thereto, and prior to any
transfer of its Note of any Borrower, shall endorse on the schedule forming a
part thereof appropriate notations to evidence the foregoing information with
respect to each such Loan to such Borrower then outstanding; provided that the
failure of any Bank to make any such recordation or endorsement shall not affect
the obligations of the Borrowers hereunder or under the Notes or any other
Financing Documents. Each Bank is hereby irrevocably authorized by each Borrower
so to endorse its Note and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
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SECTION 2.5. Maturity of Loans. Each Loan shall mature, and the
outstanding principal amount thereof shall be due and payable (together with
accrued interest thereon), on the Termination Date.
SECTION 2.6. Interest Rates. (a Each Base Rate Loan shall bear interest
on the outstanding principal amount thereof, for each day from the date such
Loan is made until it becomes due, at a rate per annum equal to the sum of the
Base Rate Margin plus the Base Rate, in each case for such day. Such interest
shall be payable quarterly in arrears on each Quarterly Payment Date and, with
respect to the principal amount of any Base Rate Loan converted to a Euro-Dollar
Loan, on the date such amount is so converted. Any overdue principal of or
interest on any Base Rate Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of 2% plus the rate
otherwise applicable to Base Rate Loans for such day.
(b Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for such
day plus the Adjusted London Interbank Offered Rate applicable to such Interest
Period. Such interest shall be payable for each Interest Period on the last day
thereof.
The "ADJUSTED LONDON INTERBANK OFFERED RATE" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (i) the applicable London
Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
The "LONDON INTERBANK OFFERED RATE" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next highest 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Reference Banks in the London Interbank market at approximately
11:00 A.M. (London time) two Euro-Dollar Business Days before the first day of
such Interest Period in an amount approximately equal to the principal amount of
the Euro-Dollar Loan of such Euro-Dollar Reference Bank to which such Interest
Period is to apply and for a period of time comparable to such Interest Period.
"EURO-DOLLAR RESERVE PERCENTAGE" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve system in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
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liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(c Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the higher of (i) the sum of the
Euro-Dollar Margin for such day plus the Adjusted London Interbank Offered Rate
applicable to such Loan on the day before such payment was due and (ii) the
Euro-Dollar Margin for such day plus the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (x) the average (rounded
upward, if necessary, to the next higher 1/16 of 1%) of the respective rates per
annum at which one day (or, if such amount due remains unpaid more than three
Euro-Dollar Business Days, then for such other period of time not longer than
six months as the Administrative Agent may select) deposits in dollars in an
amount approximately equal to such overdue payment due to each of the
Euro-Dollar Reference Banks are offered to such Euro-Dollar Reference Bank in
the London interbank market for the applicable period determined as provided
above by (y) 1.00 minus the Euro-Dollar Reserve Percentage (or, if the
circumstances described in clause 8.01(a) or 8.01(b) shall exist, at a rate per
annum equal to the sum of 2% plus the rate applicable to Base Rate Loans for
such day).
SECTION 2.7. Commitment Fees. The Company shall pay to the
Administrative Agent for the account of each Bank a commitment fee at the
Commitment Fee Rate (determined in accordance with the Pricing Schedule) on the
daily amount by which such Bank's Commitment exceeds such Bank's Exposure to all
Borrowers. Such commitment fee shall accrue from and including the Effective
Date to but excluding the Termination Date. Such commitment fee shall be payable
quarterly in arrears on each Quarterly Payment Date and on the Termination Date
or, if earlier, the date of effectiveness of the termination of the Commitments
in their entirety.
SECTION 2.8. Participation Fees. The Company shall pay to the
Administrative Agent on the Effective Date for the account of the Banks a
participation fee in an amount equal to .25% of the aggregate amount of the
Commitments in effect on such date under this Amended Agreement, which
participation fee shall be payable to the Banks ratably in proportion to their
respective Commitments as in effect on the Effective Date under this Amended
Agreement.
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SECTION 2.9. Optional Termination of the Commitments. The Company may,
upon at least three Domestic Business Days' notice to the Administrative Agent,
terminate the Commitments at any time, if no Loans and no Letters of Credit are
outstanding at such time. If the Commitments are so terminated, all accrued
commitment fees shall be payable on the effective date of such termination.
Other than as set forth in the first sentence of this Section, at no time may
the Company reduce or terminate any Commitments.
SECTION 2.10. Mandatory Termination of Commitments. The Commitments
shall terminate on the Termination Date.
SECTION 2.11. Optional Prepayments. (a Subject in the case of any
Euro-Dollar Borrowing, to Section 2.13, the Borrower may, upon at least one
Domestic Business Day's notice to the Administrative Agent, prepay any Group of
Base Rate Loans or upon at least three Euro-Dollar Business Days' notice to the
Administrative Agent, prepay any Group of Euro-Dollar Loans, in each case in
whole at any time, or from time to time in part in amounts aggregating
$1,000,000 or any larger multiple thereof by paying the principal amount to be
prepaid together with accrued interest thereon to the date of prepayment. Each
such optional prepayment shall be applied to prepay ratably the Loans of the
several Banks included in such Group of Loans.
(b Upon receipt of a notice of prepayment pursuant to this Section,
the Administrative Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.12. General Provisions as to Payments. (a The Borrowers shall
make each payment of principal of, and interest on, the Loans and of commissions
and fees hereunder, not later than 12:00 Noon (New York City time) on the date
when due, in Federal or other immediately available funds, to the Administrative
Agent at its address referred to in Section 10.01. The Administrative Agent will
promptly distribute to each Bank its ratable share of each such payment received
by the Administrative Agent for the account of the Banks. Whenever any payment
of principal of, or interest on, the Base Rate Loans or fees shall be due on a
day which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment of
principal of, or interest on, the Euro-Dollar Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the date for payment
thereof shall be the next preceding Euro-Dollar Business Day. If
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the date for any payment of principal is extended by operation of law or
otherwise, interest thereon shall be payable for such extended time.
(b Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due from such Borrower to the
Banks hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
such Borrower shall not have so made such payment, each Bank shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If a Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is
converted to a Base Rate Loan (pursuant to Article 2, 6 or 8 or otherwise,
except pursuant to Section 8.02) on any day other than the last day of an
Interest Period applicable thereto, or the end of an applicable period fixed
pursuant to Section 2.06(c), or if the Borrower fails to borrow, prepay, convert
or continue any Euro-Dollar Loans after notice has been given to any Bank in
accordance with Section 2.02(a), 2.05(c), 2.11(b) or 2.16 the Company shall
reimburse each Bank within 15 days after demand for any resulting loss or
expense incurred by it (or by an existing or prospective Participant in the
related Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment or conversion or failure to borrow,
prepay, convert or continue; provided that such Bank shall have delivered to the
Company a certificate as to the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest error.
SECTION 2.14. Computation of Interest and Fees. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and all
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.15. Withholding Tax Exemption. At least five Domestic
Business Days prior to the first date on which interest or any fees are payable
hereunder for the account of any Bank, each Bank that is not incorporated under
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the laws of the United States of America or a state thereof agrees that it will
deliver to each of the Company and the Administrative Agent two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224, certifying
in either case that such Bank is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes. Each Bank which so delivers a Form 1001 or 4224 further
undertakes to deliver to each of the Company and the Administrative Agent two
additional copies of such form (or a successor form) on or before the date that
such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Company or the Administrative Agent, in each case certifying
that such Bank is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in treaty, law
or regulation) has occurred prior to the date in which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Bank from duly completing and delivering any such form with respect
to it and such Bank advises the Company and the Administrative Agent that it is
not capable of receiving payments without any deduction or withholding of United
States federal income tax.
SECTION 2.16. Method of Electing Interest Rates. (a The Loans included
in each Borrowing shall initially be of the Type specified by the Borrower in
the applicable Notice of Borrowing. Thereafter, the Borrower may from time to
time elect to change or continue the Type of Loans in each Group of Loans,
subject in each case to the provisions of Article 8, as follows:
(i if such Loans are Base Rate Loans, the Borrower may,
subject to subsection (d), elect to convert such Loans to Euro-Dollar
Loans as of any Euro-Dollar Business Day; and
(ii if such Loans are Euro-Dollar Loans, the Borrower may
elect to convert such Loans to Base Rate Loans as of any Domestic
Business Day or, subject to subsection (d), to continue such Loans as
Euro-Dollar Loans for an additional Interest Period as of any
Euro-Dollar Business Day, further subject to Section 2.13 in the case
of any such conversion or continuation effective on any day other than
the last day of the then current Interest Period applicable to such
Loans.
Each such election shall be made by delivering a notice (a "NOTICE OF INTEREST
RATE ELECTION") to the Administrative Agent not later than 12:00 Noon (New York
City time) on the third Euro-Dollar Business Day before the conversion or
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continuation selected in such notice is to be effective. A Notice of Interest
Rate Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans; provided that (i) such portion
is allocated ratably among the Loans comprising such Group and (ii) the portion
to which such Notice applies, and the remaining portion to which it does not
apply, are each at least $1,000,000 (unless such portion is comprised of Base
Rate Loans). If no such notice is timely received before the end of an Interest
Period for any Group of Euro-Dollar Loans, the Borrower shall be deemed to have
elected that such Group of Loans be converted to Base Rate Loans at the end of
such Interest Period.
(b Each Notice of Interest Rate Election shall specify:
(i the Group of Loans (or portion thereof) to which such
notice applies;
(ii the date on which the conversion or continuation
selected in such notice is to be effective;
(iii if the Loans comprising such Group are to be converted,
the new Type of Loans and, if the Loans being converted are to be
Euro-Dollar Loans, the duration of the next succeeding Interest Period
applicable thereto; and
(iv if such Loans are to be continued as Euro-Dollar Loans for
an additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent shall
promptly notify each Bank of the contents thereof and such notice shall not
thereafter be revocable by the Borrower.
(d) The Borrower shall not be entitled to elect to convert any Loans
to, or continue any Loans for an additional Interest Period as, Euro-Dollar
Loans if a Default shall have occurred and be continuing when the Borrower
delivers notice of such election to the Administrative Agent.
ARTICLE 3
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CONDITIONS
SECTION 3.1. Effectiveness. This Amended Agreement shall become
effective on and as of the date when the Administrative Agent shall have
received all of the following (except Sections 2.13 and 10.03, which shall
become effective when the Administrative Agent shall have received the documents
specified in paragraph (a) below):
(a counterparts hereof signed by each of the parties hereto
(or, in the case of any party as to which an executed counterpart shall
not have been received, receipt by the Administrative Agent in form
satisfactory to it of telegraphic, telex, facsimile or other written
confirmation from such party of execution of a counterpart hereof by
such party);
(b duly executed Notes of each Borrower for the account of
each Bank dated on or before the Effective Date and complying with the
provisions of Section 2.04;
(c an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., special counsel for
the Borrowers, substantially in the form of Exhibit B hereto and
covering such additional matters relating to the transactions
contemplated by the Financing Documents as the Required Banks may
reasonably request;
(d an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for
the Administrative Agent and the Collateral Agent, substantially in the
form of Exhibit C hereto and covering such additional matters relating
to the transactions contemplated by the Financing Documents as the
Required Banks may reasonably request;
(e certificates of insurance reasonably satisfactory to
it evidencing compliance with Section 5.03;
(f evidence satisfactory to it that all amounts owing by the
Company to Deutsche Bank, AG pursuant to that certain Note dated July
8, 1996 in the principal amount of $25,000,000 shall have been paid in
full and such Note shall have been canceled; and
(g all documents it may reasonably request relating to the
existence of the Borrowers, the corporate authority for and the
validity of the Financing Documents, and any other matters reasonably
relevant hereto, all in form and substance reasonably satisfactory to
the Administrative Agent;
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provided that this Agreement shall not become effective or be binding on any
party hereto unless the foregoing conditions are satisfied not later than
December 31, 1998. On the Effective Date the Existing Agreement will be
automatically amended and restated in its entirety to read as set forth herein.
On and after the Effective Date the rights and obligations of the parties hereto
shall be governed by this Amended Agreement; provided that rights and
obligations of the parties hereto with respect to the period prior to the
Effective Date shall continue to be governed by the provisions of the Existing
Agreement. On the Effective Date the Commitment of each Bank shall be the amount
set forth opposite the name of such Bank on the signature pages of this Amended
Agreement. The Notes delivered to each Bank under the Existing Agreement shall
become void on the Effective Date and, upon receiving its new Notes delivered
pursuant to subsection (b), each Bank will cancel its original Notes and return
them to the Company. No failure of a Bank so to cancel and return its original
Note shall affect the validity of its new Notes. The Administrative Agent shall
promptly notify the Company and the Banks of the effectiveness of this Amended
Agreement, and such notice shall be conclusive and binding on all parties
hereto.
SECTION 3.2. Transitional Provisions. (a Each Loan outstanding under
the Existing Agreement on the Effective Date shall mature on the Termination
Date.
(b The interest rates determined in accordance with Section 2.06 of
this Amended Agreement shall be effective on the Effective Date; provided that,
the interest rate applicable to each Euro-Dollar Loan outstanding on the
Effective Date for each day during the then current Interest Period applicable
thereto shall be the rate per annum equal to the sum of the Euro-Dollar Margin
(as defined in this Amended Agreement) for such day plus the Adjusted London
Interbank Offered Rate applicable to such Loan for such Interest Period (as
determined pursuant to Section 2.06 of the Existing Agreement).
(c On the Effective Date, in the case of any Group of Base Rate Loans
then outstanding, and at the end of the then current Interest Period with
respect thereto in the case of any Group of Euro-Dollar Loans then outstanding,
the Borrower shall prepay such Group in its entirety and, to the extent the
Borrower elects to do so and subject to the conditions specified in this Article
3, the Borrower shall reborrow Loans from the Banks in proportion to their
respective Commitments after giving effect hereto, until such time as all
outstanding Loans are held by the Banks in such proportion.
SECTION 3.3. All Credit Events. The obligation of any Bank to make a
Loan on the occasion of any Borrowing and the obligation of the LC Bank to
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issue a Letter of Credit on the occasion of a request therefor by any Borrower
are each subject to the satisfaction of the following conditions:
(a receipt (or deemed receipt) by the Administrative Agent of
a Notice of Borrowing as required by Section 2.02 or receipt by the LC
Bank of a request for issuance of a Letter of Credit as required by
Section 2.03, as the case may be;
(b the fact that, immediately before and after such
Credit Event, no Default shall have occurred and be continuing;
(c the fact that the representations and warranties of the
Borrowers contained in Article 4 of this Agreement (except, in the case
of any Borrowing subsequent to the Effective Date, the representations
and warranties contained in Sections 4.06(a) and 4.06(b)) and Section 2
of the respective Security Agreements shall be true on and as of the
date of such Credit Event; and
(d the fact that, immediately after such Credit Event, the
aggregate Exposures of all Banks in respect of all Borrowers will not
exceed the aggregate amount of the Commitments.
Each Credit Event hereunder shall be deemed to be a representation and warranty
by the Borrower on the date of such Credit Event as to the facts specified in
clauses 3.03(b), 3.03(c) and 3.03(d).
SECTION 3.4. First Borrowing by Each Borrower Subsidiary. The
obligation of each Bank to make a Loan on the occasion of the first Borrowing by
each Borrower Subsidiary is subject to the satisfaction of the following further
conditions:
(a) receipt by the Agent for the account of each Bank of a
duly executed Note of such Borrower Subsidiary, dated on or before the
date of such Borrowing complying with the provisions of Section 2.04.
(b) receipt by the Agent of an opinion of counsel for such
Borrower Subsidiary acceptable to the Agent, substantially in the form
of Exhibit L hereto and covering such additional matters relating to
the transactions contemplated hereby as the Required Banks may
reasonably request;
(c) receipt by the Agent of counterparts of a Subsidiary
Security Agreement executed by such Borrower Subsidiary and each
Lockbox
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Letter referred to in such Subsidiary Security Agreement duly
executed by the parties thereto;
(d) receipt by the Agent of a duly executed Perfection
Certificate (as defined in the Subsidiary Security Agreement to which
such Borrower Subsidiary is a party) and evidence satisfactory to the
Collateral Agent that the security interest created by such Subsidiary
Security Agreement constitutes a perfected first priority Lien to the
extent a Lien may be created thereunder; and
(e) receipt by the Agent of all documents which it may
reasonably request relating to the existence of such Borrower
Subsidiary, the corporate authority for and the validity of the
Election to Participate of such Eligible Subsidiary, this Agreement,
the Subsidiary Security Agreement and the Notes of such Borrower
Subsidiary, and any of the matters relevant thereto, all in form and
substance satisfactory to the Agent.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES
Each Borrower represents and warrants that:
SECTION 4.1. Corporate Existence and Power. Each Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and each has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 4.2. Corporate and Governmental Authorization No Contravention.
The execution, delivery and performance by each Borrower of the Financing
Documents to which it is a party are within its corporate powers, have been duly
authorized by all necessary corporate action, require no action by or in respect
of (except as contemplated herein) or filing with (except as contemplated herein
or by the Security Agreements), any governmental body, agency or official and do
not contravene, or constitute a default under, any provision of (i) any
applicable law, rule or regulation, (ii) the certificate of incorporation or
by-laws of any Borrower, (iii) any Material Debt instrument binding upon any
Borrower or (iv) any judgment, injunction, order, decree or other material
agreement or instrument binding upon any Borrower or, except as contemplated by
the Security
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Agreements, result in the creation or imposition of any Lien on any asset of any
Borrower or any of their respective Subsidiaries.
SECTION 4.3. Binding Effect. (i) This Agreement constitutes, (ii) each
of the Subsidiary Security Agreements and the Notes, when executed and delivered
in accordance with this Amended Agreement will constitute and (iii) the Company
Security Agreement constitutes a valid and binding agreement or obligation of
each Borrower signatory hereto or thereto, as the case may be, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity.
SECTION 4.4. Lien Enforceable. (a) (i) Each Subsidiary Security
Agreement, when executed and delivered in accordance with this Agreement, will
create and (ii) the Company Security Agreement creates, in favor of the
Collateral Agent for the ratable benefit of the Secured Parties, a valid and
binding first priority Lien on the Collateral referred to therein.
(b) The information set forth in the Perfection Certificate delivered
by the Company as of the date of this Amended Agreement is true and correct as
of the Effective Date.
SECTION 4.5. Assignments Valid. The assignments and notices of
assignment substantially in the form of Exhibits G-2 and G-3, respectively, when
completed by the Borrower and duly acknowledged by each governmental authority
or agency described therein, will constitute valid assignments of the monies due
or to become due under the government contracts described therein under the
Assignment of Claims Act.
SECTION 4.6. Financial Information. (a) The consolidated balance sheet
of the Company and its Consolidated Subsidiaries as of December 31, 1997 and the
related consolidated statements of operations and cash flows for the fiscal year
then ended, reported on by KPMG Peat Marwick LLP, copies of which have been
delivered to each of the Banks, fairly present in all material respects, in
conformity with generally accepted accounting principles, the consolidated
financial position of the Company and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such fiscal
year.
(b) The unaudited consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of September 30, 1998 and the related unaudited
consolidated statements of operations and cash flows for the three months then
ended, copies of which have been delivered to each of the Banks, fairly present
in all material respects, in conformity with generally accepted accounting
principles applied on a basis consistent with the financial statements referred
to in
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subsection (a), the consolidated financial position of the Company and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such three month period (subject to normal
year-end adjustments).
(c) Since September 30, 1998 there has been no material adverse change
in the business, financial position or results of operations of the Company and
its Consolidated Subsidiaries, taken as a whole, and no event has taken place
which is reasonably likely to have a such material adverse effect in the future.
SECTION 4.7. Litigation. Except as to any matter that has been
disclosed prior to the date hereof in writing by the Company to the Banks, there
is no action, suit or proceeding pending against, or to the knowledge of any
Borrower threatened against the Company or any of its Subsidiaries before any
court or arbitrator or any governmental body, agency or official in which there
is a reasonable possibility of an adverse decision which could materially
adversely affect the business, financial position or results of operations of
the Company and its Consolidated Subsidiaries, taken as a whole, or which in any
manner draws into question the validity of any of the Financing Documents.
SECTION 4.8. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multi-employer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of
a bond or other security under ERISA or the Internal Revenue Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA.
SECTION 4.9. Environmental Matters. Except as to any matter that has
been disclosed prior to the date hereof in writing by the Company to the Banks,
(i) the Company and each of its Consolidated Subsidiaries have obtained all
permits, licenses and other authorizations that are required under all
Environmental Laws, except to the extent failure to have any such permit,
license or authorization would not have a material adverse effect on the
business, financial position or results of operations of the Company and its
Consolidated Subsidiaries, taken as a whole and (ii) the Company and its
Consolidated Subsidiaries are in compliance with the terms and conditions of all
such permits, licenses and authorizations, and
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are also in compliance with all other provisions of any applicable Environmental
Law or any order, judgment, injunction, notice or demand letter issued or
entered thereunder, except to the extent failure to comply would not have a
material adverse effect on the business, financial position or results of
operations of the Company and its Consolidated Subsidiaries, taken as a whole.
SECTION 4.10. Taxes. The Company and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Company or any of its
Subsidiaries other than taxes or assessments the validity of which the Company
or the relevant Subsidiary is contesting in good faith by appropriate
proceedings and is maintaining adequate reserves with respect thereto in
accordance with generally accepted accounting principles. The charges, accruals
and reserves on the books of the Company and its Subsidiaries in respect of
taxes or other governmental charges are, in the opinion of the Company,
adequate.
SECTION 4.11. Subsidiaries. (a) Each of the Company's corporate
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
(b) Each Borrower Subsidiary is a Wholly-Owned Subsidiary of the
Company, unless such Borrower Subsidiary has been merged with and into the
Company as permitted by the proviso in Section 5.15.
SECTION 4.12. Full Disclosure. No information heretofore or hereafter
furnished by any Borrower to the Agents or any Bank for purposes of or in
connection with this Agreement, the other Financing Documents or any transaction
contemplated hereby or thereby contains or, taken together with all such
information so furnished, will contain any untrue statement of a material fact
or omits or will omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
ARTICLE 5
COVENANTS
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Each Borrower agrees for itself and each of its Subsidiaries that so
long as any Bank has any Commitment hereunder or any amount payable under any
Financing Document remains unpaid:
SECTION 5.1. Information. The Company will deliver to each of the
Banks:
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, a consolidated balance
sheet of the Company and its Consolidated Subsidiaries as of the end of
such fiscal year and the related consolidated statements of operations
and cash flows for such fiscal year, together with consolidating
balance sheets, statements of operations and operating cash flows for
such fiscal year for each of the Company's Consolidated Subsidiaries in
the form currently prepared by the Company, setting forth in each case
in comparative form the figures for the previous fiscal year, all such
consolidated statements reported on in a manner acceptable to the
Securities and Exchange Commission by KPMG Peat Marwick or other
independent public accountants of nationally recognized standing;
(b) as soon as available and in any event within 45 days
after the end of each of the first three quarters of each fiscal year
of the Company, a consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter and the related
consolidated statements of operations and cash flows for such quarter
and for the portion of the Company's fiscal year ended at the end of
such quarter, together with consolidating balance sheets, statements of
operations and operating cash flows for such quarter and the portion of
the Company's fiscal year ended at the end of such quarter for each of
the Company's Consolidated Subsidiaries in the form currently prepared
by the Company, setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of
the Company's previous fiscal year, all certified (subject to normal
year-end adjustments) as to fairness of presentation in all material
respects and generally accepted accounting principles by the chief
financial officer or the chief accounting officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses 5.01(a) and 5.01(b) above, a
certificate of the chief financial officer or the treasurer of the
Company (i) setting forth in reasonable detail the calculations
required to establish whether the Company and, if applicable, each
other Borrower, is in compliance with the requirements of Sections 5.07
through 5.13, inclusive, and Section 5.17, on the date of such
financial statements and (ii) stating whether any
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Default exists on the date of such certificate and, if any Default then
exists, setting forth the details thereof and the action which the
Borrowers are taking or propose to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause 5.01(a) above, a statement of the firm
of independent public accountants that reported on such statements
whether anything has come to their attention to cause them to believe
the Company or if applicable, any of the other Borrowers, was not in
compliance with the requirements of Sections 5.07 through 5.13,
inclusive, and Section 5.17 on the date of such financial statements;
(e) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports and
proxy statements so mailed;
(f) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) which the Company shall
have filed with the Securities and Exchange Commission;
(g) within five (5) days after any executive officer obtains
knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer or the treasurer of the
Company setting forth the details thereof and the action which the
Borrowers are taking or propose to take with respect thereto (for
purposes of this Section, "executive officer" shall mean any of the
President, Chief Executive Officer, Chief Financial Officer, Chief
Operating Officer, Treasurer, Controller and General Counsel of the
Company and the President of any Borrower);
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan that might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate, impose liability (other
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than for premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard under Section 412
of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA,
a copy of such notice and other information filed with the PBGC; (vi)
gives notice of withdrawal from any Plan pursuant to Section 4063 of
ERISA, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement that has resulted or could result in the imposition of a
Lien or the posting of a bond or other security, a certificate of the
chief financial officer or the chief accounting officer of the Company
setting forth details as to such occurrence and action, if any, which
the Company or applicable member of the ERISA Group is required or
proposed to take; and
(i) from time to time such additional information regarding
the financial position or business of the Company and its Subsidiaries
as the Collateral Agent or the Administrative Agent, at the request of
any Bank, may reasonably request.
SECTION 5.2. Payment of Obligations. Each Borrower will pay and
discharge, and will cause each of its Subsidiaries to pay and discharge, at or
before maturity or in accordance with customary trade practices, all their
respective material obligations and liabilities, including, without limitation,
tax liabilities, except where the same may be contested in good faith by
appropriate proceedings, and will maintain, and will cause each of their
respective Subsidiaries to maintain, in accordance with and to the extent
required by generally accepted accounting principles, appropriate reserves for
the accrual of any of the same.
SECTION 5.3. Maintenance of Property; Insurance. (a) Each Borrower will
keep, and will cause each of its Subsidiaries to keep, all property useful and
necessary in its business in good working order and condition, ordinary wear and
tear excepted.
(b) Each Borrower will maintain, and will cause each of its
Subsidiaries to maintain:
(i) at all times, physical damage insurance on all real and
personal property owned by it on an all risks basis covering the repair
and replacement cost of all such property and consequential loss
coverage for business interruption and extra expense;
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(ii) at all times, public liability insurance (including
products/completed operations liability coverage) in an amount not less
than $10,000,000, and
(c) from time to time, such other insurance coverage in such amounts
and with respect to such risks as it shall have determined in its reasonable
discretion to be necessary or advisable in the conduct of its business.
All such insurance will be provided by financially sound and reputable
insurers. The Company will deliver to the Banks (i) upon request of any Bank
through the Administrative Agent from time to time full information as to the
insurance carried, (ii) within five (5) days of receipt of notice from any
insurer a copy of any notice of cancellation or material change in coverage from
that existing on the date of this Amended Agreement (other than any notice of
increase in the amount of any such coverage from the amount in effect on the
date of this Amended Agreement) and (iii) forthwith, notice of any cancellation
or nonrenewal of coverage by any Borrower or any of its Subsidiaries with
respect to any insurance such Borrower must maintain, and must cause its
Subsidiaries to maintain, pursuant to this subsection.
(d) Prior to the Effective Date, each Borrower has caused the
Collateral Agent to be named as an additional insured party and the loss payee
(to the extent that the insurance policy is of a type that provides for a loss
payee) on each insurance policy (the "DESIGNATED INSURANCE POLICIES") such
Borrower is required to maintain pursuant to this Section and which is in
existence on the Effective Date, other than any such policy, or portion thereof,
solely with respect to equipment. Each Borrower will deliver to the Collateral
Agent, upon request, the insurance policies for each Designated Insurance
Policy. Each Designated Insurance Policy includes and shall include effective
waivers by the insurer of all claims for insurance premiums against the
Collateral Agent or any other Secured Party, provides and will provide that (i)
all insurance proceeds (other than any insurance proceeds with respect to any
mission success insurance policy (a "Mission Success Policy")) in excess of
$1,000,000 per claim for which the Collateral Agent is loss payee shall be
adjusted with and payable to the Collateral Agent, (ii) all insurance proceeds
with respect to any Mission Success Policy in excess of $1,000,000 per claim for
which the Collateral Agent is loss payee shall be payable to the Collateral
Agent and the Collateral Agent shall have the right to attend all meetings
relating to the adjustment of any such claim and shall be provided with all
information relating to such claim provided by the Borrower to the insurance
company with which such claim is being adjusted and any additional information
the Collateral Agent may reasonably request relating to such claim, (iii) the
insurer shall notify the Collateral Agent of any failure by the
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Borrower to pay any premiums or other amounts due on any insurance policy and
(iv) no cancellation or termination of such Designated Insurance Policy shall be
effective until at least thirty (30) days after receipt by the Collateral Agent
of written notice thereof; provided that, solely with respect to any Mission
Success Policy, such Policy may provide that no cancellation or termination of
such Policy shall be effective until at least fifteen (15) days after receipt by
the Collateral Agent of written notice thereof. All insurance proceeds payable
to the Collateral Agent pursuant to this Section shall be deposited in the
Insurance Account. Each Borrower agrees that it will (x) give prior notice to
the Collateral Agent of any meeting referred to in clause (ii) of this
subsection, promptly upon request, provide the Collateral Agent with all
information referred to in clause (ii) of this subsection and (z) not agree to
any adjustment with respect to any claim described in clause (ii) of this
subsection without the prior written consent of the Collateral Agent, which
consent shall not be unreasonably withheld.
(e) Each Borrower will cause the Collateral Agent to be named as an
additional insured party and the loss payee (to the extent that the insurance
policy is of a type that provides for a loss payee) on each Designated Insurance
Policy such Borrower acquires after the Effective Date pursuant to this Section;
provided that, nothing in this subsection shall be construed to require the
Company to cause the Collateral Agent to be named as an additional insured party
and the loss payee on any portion of any mission success insurance being
obtained by the Company or any of its Subsidiaries on behalf of a customer as to
which such customer is named loss payee. Each such insurance policy shall
include each of the waivers and provisions described in Section 5.03(d).
SECTION 5.4. Conduct of Business and Maintenance of Existence. Each
Borrower will continue, and will cause each of its Subsidiaries to continue, to
engage in business of the same general type as now conducted by it, and will
preserve, renew and keep in full force and effect, and will cause each of its
Subsidiaries to preserve, renew and keep in full force and effect its corporate
existence and rights, privileges and franchises necessary or desirable in the
normal conduct of business; provided that nothing contained in this Section
shall prohibit any transaction expressly permitted under Section 5.15.
SECTION 5.5. Compliance with Laws. Each Borrower will comply, and will
cause each of its Subsidiaries to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings.
SECTION 5.6. Inspection of Property, Books and Records. Each Borrower
will keep, and will cause each of its Subsidiaries to keep, proper books of
record
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and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each of its Subsidiaries to permit, representatives of
any Agent or any Bank, at such Agent's or Bank's expense, to visit and inspect
any of their respective properties, to examine and make abstracts from any of
their respective books and records and to discuss their respective affairs,
finances and accounts with their respective officers, employees and independent
public accountants, all at such reasonable times during normal business hours,
upon reasonable notice and as often as may reasonably be desired by such Agent
or such Bank.
SECTION 5.7. Investments. Neither the Company nor any Subsidiary
will make, acquire or hold any Investment in any Person other than:
(a) Investments in any Borrower;
(b) Investments (other than (i) Investments described in
clause (a) above and (ii) the ORBCOMM Global Guaranty)) in an aggregate
principal amount not exceeding $5,000,000 in direct or indirect
Subsidiaries of the Company immediately after such Investment is made
or acquired;
(c) Temporary Cash Investments;
(d) Investments made by the Company, any of its Wholly-Owned
Subsidiaries or OCC in an aggregate principal amount not exceeding
$110,000,000, in any entity or entities through which the Company, any
of its Wholly-Owned Subsidiaries or OCC will develop, construct,
operate and/or market the ORBCOMM low-earth orbit satellite
communications system;
(e) Investments (other than Investments described in clause
(b) above) made or acquired or committed to be made or acquired by MDA
prior to the date MDA was acquired by the Company and listed on
Schedule III;
(f) any payments made pursuant to the ORBCOMM Global Guaranty;
(g) Investments in Orbital Imaging (i) made on or prior to
June 15, 1997; provided that (A) the aggregate amount of such
Investments ("ROLLOVER INVESTMENTS") does not exceed the aggregate
amount of Investments made by the Company in the Orbital Imaging
Project on or prior to December 1, 1996 and (B) neither the Company nor
any of its
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Subsidiaries shall contribute any cash or assets in connection with, or
as consideration for, the making of any such Rollover Investment and
(ii) in an aggregate principal amount not exceeding $80,000,000 (in
addition to Investments described in clause (i));
(h) Investments in an aggregate amount not exceeding
$38,000,000 consisting of capital stock of Engineering Technologies,
Inc. and CTA Commercial Systems Inc. purchased by the Company pursuant
to an Asset Acquisition Agreement dated as of July 11, 1997 between CTA
INCORPORATED and the Company;
(i) Investments by the Company or any of its Subsidiaries
constituting "vendor financing" under contracts entered into in the
ordinary course of business;
(j) Investments (x) made by the Company on or before the
effective date of the Ashtech Merger (as defined in Amendment No. 1 to
the Existing Agreement dated as of December 19, 1997 among the Company,
the Original Banks, the Administrative Agent and the Collateral Agent)
consisting of subordinated unsecured intercompany loans to Magellan in
an aggregate principal amount not in excess of $10,000,000 and (y) made
by the Company after the effective date of the Ashtech Merger
consisting of subordinated unsecured intercompany loans to Magellan in
an aggregate principal amount not in excess of $35,000,000, but in each
case solely if such Investments are evidenced by an intercompany note
issued by Magellan for the account of the Company and in form and
substance satisfactory to the Collateral Agent and such intercompany
note is subject to a perfected first priority Lien in favor of the
Collateral Agent for the benefit of the Banks;
(k) (i) Investments by the Company or any of its Subsidiaries
in an aggregate amount not to exceed $50,000,000 and consisting of
shares of capital stock of CCI International N.V. ("CCI"), a company
formed and existing under the laws of the Netherlands Antilles, made
prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) Investments (other than Investments
permitted pursuant to clause (i)) in an aggregate amount up to
$50,000,000 and consisting of shares of capital stock of CCI made on
any date after March 31, 1999 and on or prior to June 31, 2000;
provided that (1) prior to making any such Investment, the aggregate
amount of Investments permitted pursuant to clause (i) has been made
and (2) on any date (an "INVESTMENT DATE") immediately after giving
effect to any such proposed Investment, the Company is in pro forma
compliance with the covenants set forth in Sections 5.08, 5.09 and
5.10, after giving effect to such proposed
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Investment (and for such purposes, "Consolidated EBITDA" and "Earnings
Available for Fixed Charges" shall be calculated for the period of four
consecutive fiscal quarters most recently ended on or prior to such
Investment Date, adjusted to give effect to such proposed Investment),
(iii) Investments by the Company or any of its Subsidiaries consisting
of warrants exercisable for the capital stock of CCI; provided that (1)
such warrants are acquired contemporaneously with the making of any
Investment permitted by clause (ii), (2) no cash consideration is paid
by the Company or any of its Subsidiaries for the acquisition of any
such warrants and (3) such warrants are substantially on the terms
described by the Company to the Banks prior to June 18, 1998 and (iv)
Investments by the Company or any of its Subsidiaries in CCI
constituting "vendor financing" substantially on the terms described by
the Company to the Banks prior to June 18, 1998; and
(l) any Investment (other than any Investment in direct or
indirect Subsidiaries of the Company immediately after such Investment
is made or acquired) not otherwise permitted by the foregoing clauses
of this Section 5.07 if, immediately after such Investment is made or
acquired, the aggregate net book value of all Investments permitted by
this clause (l) does not exceed 12% of Consolidated Tangible Net Worth.
SECTION 5.8. Minimum Consolidated Net Worth. Consolidated Net Worth at
the last day of any fiscal quarter will not be less than (i) $476,100,000 plus
(ii) 50% of Consolidated Net Income for each fiscal quarter of the Company ended
on or after September 30, 1998, which such Consolidated Net Income is positive
(but with no deduction on account of any fiscal quarter for which Consolidated
Net Income is negative) plus (iii) 100% of the aggregate amount by which
Consolidated Net Worth shall have been increased by reason of the issuance and
sale after September 30, 1998 and on or prior to such date of any capital stock
or the conversion or exchange of any Debt of the Company into or with capital
stock of the Company consummated after September 30, 1998 and on or prior to
such date.
SECTION 5.9. Leverage. The Consolidated Leverage Ratio will at no
time during any period set forth below exceed the ratio set forth below
opposite such period:
PERIOD RATIO
Effective Date-3/30/00 3.75:1
3/31/00 and thereafter 3.50:1
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SECTION 5.10. Consolidated Fixed Charge Ratio. At the last day of any
fiscal quarter, the ratio of Earnings Available for Fixed Charges to
Consolidated Fixed Charges, in each case for the four consecutive fiscal
quarters then ended, will not be less than the ratio set forth below opposite
the period in which such last day falls:
PERIOD RATIO
Effective Date-12/30/98 1.10:1
12/31/98-12/30/99 1.25:1
12/31/99 and thereafter 1.50:1
SECTION 5.11. Consolidated Loss Ratio. The Consolidated Loss Ratio
will not at any time, for the calendar month then most recently ended,
exceed .5%.
SECTION 5.12. Consolidated Delinquency Ratio. The Consolidated
Delinquency Ratio will not at any time, for the two consecutive calendar months
then most recently ended, exceed 35%.
SECTION 5.13. Consolidated DSO Ratio. The Consolidated DSO Ratio will
not at any time, for the three consecutive calendar months then most recently
ended, exceed 80 days.
SECTION 5.14. Negative Pledge. Neither the Company nor any Subsidiary
will create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except the following (each a "PERMITTED LIEN"):
(a) Liens existing or provided for pursuant to a contract
existing as of the Effective Date and listed on Schedule II;
(b) any Lien existing on any asset of any corporation at the
time such corporation becomes a Subsidiary and not created in
contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed
for the purpose of financing all or any part of the cost of acquiring
such asset; provided that such Lien attaches to such asset concurrently
with or within 120 days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the
time such corporation is merged or consolidated with or into the
Company or a Subsidiary and not created in contemplation of such event;
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(e) any Lien existing on any asset prior to the acquisition
thereof by the Company or a Subsidiary and not created in contemplation
of such acquisition;
(f) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing clauses of this Section; provided that such Debt is
not increased and is not secured by any additional assets;
(g) Liens arising in the ordinary course of its business which
do not secure Debt or Derivatives Obligations and do not in the
aggregate materially detract from the value of its assets or materially
impair the use thereof in the operation of its business;
(h) Liens created pursuant to any of the Security
Agreements;
(i) Liens on assets other than the Collateral securing Debt
(other than the Loans and the Letter of Credit Liabilities)(other than
Liens permitted by subsection (t) hereunder), in an aggregate amount
not exceeding $75,000,000;
(j) Liens imposed by any governmental authority for taxes,
assessments, governmental charges, duties or levies not yet due or
which are being contested in good faith and by appropriate proceedings;
provided adequate reserves with respect thereto are maintained on the
books of the Company and its Consolidated Subsidiaries in accordance
with generally accepted accounting principles;
(k) carriers', warehousemen's, mechanics', transporters,
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business; provided any such Lien is either (A) discharged
within five (5) days of the date when payment of the obligation secured
by such Lien is due or (B) is being contested in good faith and by
appropriate proceedings;
(l) Liens securing judgments for an amount not exceeding
$5,000,000 and for a period not resulting in an Event of Default under
Section 6.01(k);
(m) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
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(n) deposits to secure the performance of bids, trade
contracts (other than for Debt), leases, statutory obligations, surety
and appeal bonds, performance bonds and other similar obligations
incurred in the ordinary course of business;
(o) Liens on any such asset imposed under the Federal
Acquisition Regulations to secure advance payments made by the
Government under contracts;
(p) Liens existing or provided for pursuant to a contract to
which any Borrower becomes a party as a result of a novation of a
contract described in clause 5.14(a);
(q) Liens on assets of Magellan securing Debt and other
obligations of Magellan under the Magellan Financing;
(r) solely until the first anniversary of the effective date
of the Ashtech Merger, Liens on shares of capital stock of Magellan
held by the Company to secure contingent indemnity obligations of the
Company under the Agreement and Plan of Merger dated as of November 28,
1997 among the Company, Ashtech Inc. and Magellan; provided that the
aggregate value (determined in accordance with the Escrow Agreement
attached as Exhibit C to such Merger Agreement) of such shares subject
to such Liens shall not exceed at any time $1,500,000;
(s) Liens on cash and cash equivalents securing Derivatives
Obligations; provided that the aggregate amount of cash and cash
equivalents subject to such Liens may at no time exceed $3,000,000; and
(t) Liens on the Dulles highbay facility located at ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, owned by the Company
securing Debt in an aggregate amount not exceeding $15,000,000.
SECTION 5.15. Consolidations, Mergers and Sales of Assets. The Company
will not (a) consolidate or merge with or into any other Person or (b) sell,
lease or otherwise transfer, directly or indirectly, all or any substantial part
of the assets of the Company and its Subsidiaries, taken as a whole, to any
other Person; provided that nothing contained herein shall prohibit the Company
from merging any of its Subsidiaries with and into the Company.
SECTION 5.16. Use of Proceeds. The proceeds of the Loans made and the
Letters of Credit issued under this Agreement will be used by the Borrowers for
general corporate purposes, including refinancing of existing Debt, working
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capital purposes and the funding of acquisitions and, to the extent such funds
are not required by the Borrowers for refinancing of existing Debt, working
capital purposes or the funding of any such acquisitions, for advances to the
Company, its Subsidiaries and any entity that is a Subsidiary on the date
hereof.
SECTION 5.17. Subsidiary Debt. Total Debt of all of the Company's
Subsidiaries (excluding (i) Loans and Letter of Credit Liabilities hereunder
and, (ii) Debt of a Subsidiary to the Company or to a Wholly-Owned Subsidiary of
the Company) will at no time exceed 50% of Consolidated Tangible Net Worth. For
purposes of this Section, any preferred stock of a Subsidiary held by a Person
other than the Company or a Wholly-Owned Subsidiary of the Company shall be
included, at the higher of its voluntary or involuntary liquidation value, in
the "Debt" of such Subsidiary.
SECTION 5.18. Restricted Payments. Neither the Company nor any
Subsidiary will declare or make any Restricted Payment.
ARTICLE 6
DEFAULTS
SECTION 6.1. Events of Default. If one or more of the following
events ("EVENTS OF DEFAULT") shall have occurred and be continuing:
(a) any principal of any Loan or any Reimbursement Obligation
shall not be paid when due;
(b) any interest on any Loan, any fees or commissions or any
other amount payable under any Financing Document, shall not be paid
within one (1) Domestic Business Day after the due date thereof;
(c) any Borrower shall fail to observe or perform any covenant
or agreement contained in Sections 5.01(g) and 5.07 to 5.18 inclusive;
(d) any Borrower shall fail to observe or perform any covenant
or agreement contained in any Financing Document (other than those
covered by clauses 6.01(a), 6.01(b) or 6.01(c) above) for thirty (30)
days after written notice thereof has been given to the Company by the
Administrative Agent at the request of any Bank;
(e) any representation, warranty, certification or statement
made by any Borrower in any Financing Document, or in any certificate,
financial statement or other document delivered pursuant thereto shall
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prove to have been incorrect in any material respect when made (or
deemed made);
(f) any Borrower or any of its Subsidiaries shall fail to make
any payment in respect of any Material Debt beyond any notice, grace or
cure period applicable with respect thereto;
(g) any event or condition (other than an event or condition
described in Section 6.01(f)) shall occur which results in the
acceleration of the maturity of any Material Debt or the accelerated
termination of binding commitments to lend monies or extend credit in
any other form to the Borrower or any Subsidiary in an aggregate amount
in excess of $10,000,000 or enables (or, with the giving of notice or
lapse of time or both, would enable) the holder of such Debt or the
maker of any such commitment, as the case may be, or any Person acting
on such holder's or maker's behalf, to accelerate the maturity of such
Debt or terminate any such commitment prior to the scheduled
termination thereof;
(h) the Company or any Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as
they become due, or shall take any corporate action to authorize any of
the foregoing;
(i) an involuntary case or other proceeding shall be commenced
against the Company or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered against the Company or any Subsidiary under
the federal bankruptcy laws as now or hereafter in effect;
(j) any member of the ERISA Group shall fail to pay when due
an amount or amounts aggregating in excess of $5,000,000 which it shall
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have become liable to pay under Title IV of ERISA; or notice of intent
to terminate a Material Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer any Material Plan; or a condition
shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there
shall occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one or
more Multiemployer Plans which could cause one or more members of the
ERISA Group to incur a current payment obligation in excess of
$5,000,000;
(k) a judgment or order for the payment of money in excess of
$5,000,000 shall be rendered by a court of competent jurisdiction
against the Company and/or any of its Subsidiaries and the same shall
not be discharged (or provision shall not be made for such discharge),
or a stay of execution thereof shall not be procured, within 30 days
from the date of entry thereof and the Company or the relevant
Subsidiary shall not, within said period of 30 days, or such longer
period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during
such appeal;
(l) any Person or group of Persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said
Act) of 30% or more of the outstanding shares of common stock of the
Company; or, during any period of 12 consecutive calendar months,
individuals who were directors of the Company on the first day of such
period shall cease to constitute a majority of the board of directors
of the Company; or, except as permitted by the proviso in Section 5.15,
any Borrower Subsidiary shall cease to be a Wholly-Owned Subsidiary of
the Company; or
(m) the Lien created by any Security Agreement shall at any
time and for any reason not constitute a valid and perfected Lien on
the Collateral referred to therein subject to no prior or equal Lien
other than a Permitted Lien;
then, and in every such event, the Administrative Agent shall (i) if requested
by Banks having more than 50% in aggregate amount of the Commitments, by notice
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to the Company terminate the Commitments and they shall thereupon terminate,
(ii) if requested by Banks holding Notes evidencing more than 50% in aggregate
principal amount of the Loans, by notice to the Company declare the Notes of any
or all of the Borrowers (together with accrued interest thereon) to be, and such
Notes shall thereupon become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
each Borrower and (iii) if requested by Banks having more than 50% in aggregate
amount of the LC Exposures, by notice to the Company declare an amount (the
"AGGREGATE LC AMOUNT") equal to the sum of the maximum amount which may at any
time be drawn under all Letters of Credit at the time outstanding issued upon
request of each Borrower (the "BORROWER LC AMOUNT") (whether or not a
beneficiary shall have presented, or shall be entitled at such time to present,
the drafts or other documents required to draw under any such Letter of Credit)
to be, and the Aggregate LC Amount shall thereupon become, immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by each Borrower; provided that in the case of any of
the Events of Default specified in clause 6.01(h) or 6.01(i) above with respect
to any Borrower, without any notice to any Borrower or any other act by any
Agent or Bank, the Commitments shall thereupon terminate, and the Notes of all
Borrowers (together with accrued interest thereon) and the Aggregate LC Amount
shall become immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by each Borrower.
Each Borrower LC Amount, when received by the Administrative Agent,
shall be deposited in the Borrower's Collateral Account, as cash collateral for
the Reimbursement Obligations of the Borrower in the event of any drawing under
any Letter of Credit issued upon request of such Borrower. Upon any drawing
under any such Letter of Credit, the Collateral Agent shall apply such amounts
held in the Collateral Account to such Reimbursement Obligations.
SECTION 6.2. Notice of Default. The Administrative Agent shall give
notice to the Company under Section 6.01(d) promptly upon being requested to do
so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE 7
THE AGENTS
SECTION 7.1. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers under the Financing Documents as are delegated to
such
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Agent by the terms thereof, together with all such powers as are reasonably
incidental thereto.
SECTION 7.2. Agents and Affiliates. Each of the Agents in its
individual capacity shall have the same rights and powers under the Financing
Documents as any other Bank and may exercise or refrain from exercising the same
as though it were not an Agent and each of the Agents in its individual capacity
and their respective Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Company or any Subsidiary or
Affiliate of the Company as if it were not an Agent.
SECTION 7.3. Action by Agents. The obligations of each Agent under the
Financing Documents are only those expressly set forth therein. Without limiting
the generality of the foregoing, no Agent shall be required to take any action
with respect to any Default, except, in the case of the Administrative Agent, as
expressly provided in Article 6 and in the case of the Collateral Agent, as
expressly provided for in the Security Agreements.
SECTION 7.4. Consultation with Experts. Each Agent may consult with
legal counsel (who may be counsel for a Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.5. Liability of Agents. None of the Agents, their respective
Affiliates nor any of their respective directors, officers, agents, or employees
shall be liable to any Bank or any other Agent for any action taken or not taken
by it in connection with the Financing Documents (i) with the consent or at the
request of the Required Banks (or such greater number as may be required by
Section 10.05) or (ii) in the absence of its own gross negligence or willful
misconduct. None of the Agents, their respective Affiliates nor any of their
respective directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into or verify (i) any statement, warranty
or representation made in connection with the Financing Documents or any
borrowing or the issuance of any letter of credit hereunder; (ii) the
performance or observance of any of the covenants or agreements of any Borrower,
(iii) the satisfaction of any condition specified in Article 3 hereof, except,
in the case of the Administrative Agent, receipt of items required to be
delivered to the Administrative Agent; (iv) the validity, effectiveness or
genuineness of the Financing Documents or any other instrument or writing
furnished in connection therewith or (v) the existence or sufficiency of the
Collateral. No Agent shall incur any liability by acting in reliance upon any
notice, consent, certificate, statement, or other writing (which
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may be a bank wire, telex, facsimile or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
SECTION 7.6. Indemnification. Each Bank shall, ratably in accordance
with its Commitment, indemnify each Agent, their respective Affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitee's gross negligence or willful misconduct) that such
indemnitee may suffer or incur in connection with the Financing Documents or any
action taken or omitted by such indemnitee thereunder.
SECTION 7.7. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon any Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon any Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.8. Successor Agents. Any Agent may resign at any time by
giving written notice thereof to the Banks and the Company. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Required Banks,
and shall have accepted such appointment, within 30 days after the retiring
Agent gives notice of resignation, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $50,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
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SECTION 8.1. Basis for Determining Interest Rate Inadequate or Unfair.
If prior to the first day of any Interest Period for any Euro-Dollar Loan:
(a) the Administrative Agent is advised by the Reference Banks
that deposits in dollars (in the applicable amounts) are not being
offered to the Reference Banks in the London interbank market for such
Interest Period, or
(b) Banks holding 50% or more of the aggregate amount of the
affected Euro-Dollar Loans advise the Administrative Agent that the
Adjusted London Interbank Offered Rate as determined by the
Administrative Agent will not adequately and fairly reflect the cost to
such Banks of funding such Euro-Dollar Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Company and
the Banks, whereupon until the Administrative Agent notifies the Company that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Banks to make Euro-Dollar Loans or to continue or convert
outstanding Loans as or into Euro-Dollar Loans, shall be suspended and (ii) each
outstanding Euro-Dollar Loan, shall be converted into a Base Rate Loan on the
last day of the then current Interest Period applicable thereto. Unless the
Borrower notifies the Administrative Agent at least one Domestic Business Day
before the date of any Euro-Dollar Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such Borrowing
shall instead be made as a Base Rate Borrowing.
SECTION 8.2. Illegality. If, on or after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Euro-Dollar Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency shall
make it unlawful or impossible for any Bank (or its Euro-Dollar Lending Office)
to make, maintain or fund its Euro-Dollar Loans to any Borrower and such Bank
shall so notify the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Banks and the Company, whereupon
until such Bank notifies the Company and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Bank to make Euro-Dollar Loans, or to continue or convert outstanding Loans
as or into Euro-Dollar Loans shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section, such Bank shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need for
giving such notice and
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will not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. If such notice is given, each Euro-Dollar Loan of such Bank then
outstanding shall be converted to a Base Rate Loan either (a) on the last day of
the then current Interest Period applicable to such Euro-Dollar Loan if such
Bank may lawfully continue to maintain and fund such Loan as a Euro-Dollar Loan
to such day or (b) immediately if such Bank shall determine that it may not
lawfully continue to maintain and fund such Loan as a Euro-Dollar Loan to such
day.
SECTION 8.3. Increased Cost and Reduced Return. (a) If on or after the
date hereof, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Euro-Dollar Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency:
(i) shall subject any Bank (or its Euro-Dollar Lending Office)
to any tax, duty or other charge with respect to its Euro-Dollar Loans,
its Notes or its obligation to make Euro-Dollar Loans, its letters of
credit or its obligation to issue or participate in any letters of
credit, or shall change the basis of taxation of payments to any Bank
(or its Euro-Dollar Lending Office) of the principal of or interest on
its Euro-Dollar Loans or any other amounts due under this Agreement in
respect of its Euro-Dollar Loans or its obligation to make Euro-Dollar
Loans or its letters of credit or its obligation to issue or
participate in any letters of credit, (except for changes in the rate
of tax on the overall net income of such Bank or its Euro-Dollar
Lending Office imposed by the jurisdiction in which such Bank's
principal executive office or Euro-Dollar Lending Office is located);
or
(ii) shall impose, modify or deem applicable any reserve,
special deposit, insurance assessment or similar requirement
(including, without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System but excluding any such
requirement included in an applicable Euro-Dollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Euro-Dollar Lending Office) or shall
impose on any Bank (or its Euro-Dollar Lending Office) or the London
interbank market any other condition affecting its Euro-Dollar Loans,
its Notes or its obligation to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Euro-Dollar Lending Office) of making or maintaining its Euro-Dollar Loans
or
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issuing or participating in any Letters of Credit, or to reduce the amount of
any sum received or receivable by such Bank (or its Euro-Dollar Lending Office)
under this Agreement or under its Note with respect thereto, by an amount deemed
by such Bank to be material, then, within 15 days after demand by such Bank
which demand shall set forth in reasonable detail the basis for such request
(with a copy to the Administrative Agent), the Company shall pay to such Bank
such additional amount or amounts as will compensate such Bank for such
increased cost or reduction.
(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency (other than as contemplated by
Section 8.03(a)), has or would have the effect of reducing the rate of return on
capital of such Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after demand
by such Bank which demand shall set forth in reasonable detail the basis for
such request (with a copy to the Administrative Agent), the Company shall pay to
such Bank such additional amount or amounts as will compensate such Bank (or its
Parent) for such reduction.
(c) Each Bank will promptly notify the Company and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate
of any Bank claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
SECTION 8.4. Base Rate Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Bank to make, or to continue or convert
outstanding Loans as or to, Euro-Dollar Loans to any Borrower has been suspended
pursuant to Section 8.02 or (ii) any Bank has demanded compensation under
Section 8.03(a) and the Borrower shall, by at least five ▇▇▇▇-▇▇▇▇▇▇
▇▇
▇▇
Business Days' prior notice to such Bank through the Administrative Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Company that the circumstances giving
rise to such suspension or demand for compensation no longer apply all Loans
which would otherwise be made by such Bank as (or continued as or converted to)
Euro-Dollar Loans shall instead be Base Rate Loans (on which interest and
principal shall be payable contemporaneously with the related Euro-Dollar Loans
of the other Banks). If such Bank notifies the Company that the circumstances
giving rise to such suspension or demand for compensation no longer exist, the
principal amount of each such Base Rate Loan shall be converted into Euro-Dollar
Loan on the first day of the next succeeding Interest Period applicable to the
related Euro-Dollar Loans of the other Banks.
ARTICLE 9
GUARANTY
SECTION 9.1. The Guaranty. Each Guarantor hereby jointly, severally and
unconditionally guarantees the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the principal of and interest on
each Note issued by any Borrower pursuant to this Agreement, and the full and
punctual payment of all other amounts payable by any Borrower under any
Financing Document to which such Borrower is a party. Upon failure by any
Borrower to pay punctually any such amount, each Guarantor shall forthwith on
demand pay the amount not so paid at the place and in the manner specified in
this Agreement and the Banks need not proceed to first preserve, utilize or
exhaust any right or remedy against any Borrower or any other Guarantor or any
security for any obligation of any Borrower under any Financing Document held by
the Banks.
SECTION 9.2. Guaranty Unconditional. Subject to Section 9.05, the joint
and several obligations of each Guarantor hereunder shall be unconditional and
absolute and, without limiting the generality of the foregoing, each Guarantor
shall not be released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of any other Borrower under any
Financing Document, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to any
Financing Document;
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(iii) any release, non-perfection or invalidity of any direct or
indirect security for any obligation of any other Borrower under any
Financing Document;
(iv) any change in the corporate existence, structure or
ownership of any other Borrower or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any other Borrower
or its assets or any resulting release or discharge of any obligation
of any other Borrower contained in any Financing Document;
(v) the existence of any claim, defense, set-off or other
rights which such Guarantor may have at any time against any other
Borrower, any Agent, any Bank or any other Person, whether in
connection herewith or any unrelated transactions; provided that
nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim; or
(vi) any other act or omission to act or delay of any kind by
any other Borrower, any Agent, any Bank or any other Person or any
other circumstance whatsoever which might, but for the provisions of
this paragraph, constitute a legal or equitable discharge of such
Guarantor's obligations hereunder.
SECTION 9.3. Discharge Only upon Payment in Full; Reinstatement . Each
Guarantor's obligations hereunder shall remain in full force and effect until
the Commitments shall have terminated, all Letters of Credit shall have expired,
the principal of and interest on the Notes, the Reimbursement Obligations, and
all other amounts payable by any Borrower under this Agreement or any other
Financing Document shall have been paid in full. If at any time any payment of
the principal of or interest on any Note or any other amount payable by any
Borrower under this Agreement or any other Financing Document is rescinded or
must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of such Borrower or otherwise, each Guarantor's obligations
hereunder with respect to such payment shall be reinstated at such time as
though such payment had been due but not made at such time.
SECTION 9.4. Waiver by the Guarantor. Each Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against any other Borrower or any other Person.
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SECTION 9.5. Limit of Liability. The obligations of each Borrower
Subsidiary as a Guarantor hereunder shall be limited to an aggregate amount
equal to the largest amount that would not render its obligations hereunder
subject to avoidance under Section 548 of the United States Bankruptcy Code or
any comparable provisions of any applicable state law.
SECTION 9.6. Subrogation. Upon making any payment with respect to any
Borrower hereunder, the Guarantor making such payment shall be subrogated to the
rights of the payee against the Borrower with respect to such payment; provided
that such Guarantor shall not enforce or accept any payment by way of
subrogation until all amounts of principal of and interest on the Notes and all
other amounts payable by all Borrowers under the Financing Documents have been
paid in full.
SECTION 9.7. Stay of Acceleration. In the event that acceleration of
the time for payment of any amount payable by any Borrower under any Financing
Document to which such Borrower is a party is stayed upon insolvency, bankruptcy
or reorganization of such Borrower, all such amounts otherwise subject to
acceleration under the terms of this Agreement shall nonetheless be payable by
each Guarantor hereunder forthwith on demand by the Administrative Agent made at
the request of the Required Banks.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of any Borrower or Agent, at its address or facsimile number set
forth on the signature pages hereof, (y) in the case of any Bank, at its address
or telex or facsimile number set forth in its Administrative Questionnaire or
(z) in the case of any party, such other address or telex or facsimile number as
such party may hereafter specify for the purpose by notice to the Administrative
Agent and the Company. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to the telex
number specified in or pursuant to this Section and the appropriate answerback
is received, (ii) if given by reputable overnight courier, one (1) Domestic
Business Day after being delivered to such courier, (iii) if given by certified
mail (return receipt requested), three (3) Domestic Business Days after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by
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any other means, when received at the address specified in this Section;
provided that notices to the Administrative Agent under Article 2 or Article 8
and notices to the LC Bank under Section 2.03(b) shall not be effective until
received.
SECTION 10.2. No Waiver. No failure or delay by any Agent or any Bank
in exercising any right, power or privilege under any of the Financing Documents
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies therein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 10.3. Expenses; Documentary Taxes; Indemnification. (a) The
Company shall pay (i) all reasonable out-of-pocket expenses of the Agents,
including reasonable fees and disbursements of special counsel for the Agents
and any local counsel for the Agents, in connection with (x) the preparation of
the Financing Documents, (y) any waiver or consent under the Financing Documents
or (z) any amendment of the Financing Documents or any Default or alleged
Default thereunder and (ii) if an Event of Default occurs, all reasonable
out-of-pocket expenses incurred by any Agent or Bank, including reasonable fees
and disbursements of counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom. The Company shall indemnify each Bank against any transfer taxes,
documentary taxes, assessments or charges made by any governmental authority by
reason of the execution and delivery of the Financing Documents.
(b) The Company agrees to indemnify each Bank and hold each Bank
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by any Bank (or by any Agent in
connection with its actions as Agent) in connection with any investigative,
administrative or judicial proceeding (whether or not such Bank shall be
designated a party thereto) relating to or arising out of the Financing
Documents, the Collateral or any transaction relating thereto; provided that no
Bank shall have the right to be indemnified hereunder for its own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction.
SECTION 10.4. Sharing of Set-Offs. Each Bank agrees that if it shall,
by exercising any right of set-off or counterclaim or otherwise, receive payment
of a proportion of the aggregate amount of principal and interest due with
respect to the Note of any Borrower held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to the Note of such Borrower held by
such other Bank, the Bank receiving such proportionately greater payment shall
purchase such participations
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in the Notes of such Borrower held by the other Banks, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes of such Borrower held by the
Banks shall be shared by the Banks pro rata; provided that if the Bank
purchasing such participations (the "SHARING BANK") should subsequently be
required to refund such payment to such Borrower, then each Bank from whom a
participation was purchased shall pay to the Sharing Bank its pro rata share of
the participations purchased together with its pro rata share of interest on
such amount if and to the extent the Sharing Bank is required to pay interest on
any refunded amount; provided further that nothing in this Section shall impair
the right of any Bank to exercise any right of set-off or counterclaim it may
have and to apply the amount subject to such exercise to the payment of
indebtedness of a Borrower other than its indebtedness hereunder. Each Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note in respect of which it is an
obligor acquired pursuant to the foregoing arrangements, may exercise rights of
set-off or counterclaim and other rights with respect to such participation as
fully as if such holder of a participation were a direct creditor of such
Borrower in the amount of such participation.
SECTION 10.5. Amendments and Waivers. Any provision of this Agreement
or the Notes may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Borrowers and the Required Banks (and, if the
rights or duties of the LC Bank or either Agent are affected thereby, by it);
provided that no such amendment or waiver shall, unless signed by all the Banks,
(i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder or for termination of any Commitment,
(iv) amend any provision of Article 9 hereof, or (v) change the percentage of
the Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Banks, which shall be required for the Banks or any of them to take
any action under this Section or any other provision of this Agreement or the
Notes.
SECTION 10.6. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that no Borrower may assign
or otherwise transfer any of its rights under this Agreement without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "PARTICIPANT") participating interests in its Commitment or
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any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrowers and the Administrative Agent, such Bank shall remain responsible for
the performance of its obligations hereunder, and the Borrowers and the
Administrative Agent shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrowers hereunder including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such participation agreement may
provide that such Bank will not agree to any modification, amendment or waiver
of this Agreement described in clauses (i), (ii), (iii) or (iv) of Section 10.05
without the consent of the Participant.
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "ASSIGNEE") all, or a proportionate part of all, of its
rights and obligations with respect to its Commitment (and corresponding Loans
and Letter of Credit Liabilities), and such Assignee shall assume such rights
and obligations, pursuant to an Assignment and Assumption Agreement in
substantially the form of Exhibit F hereto executed by such Assignee and such
transferor Bank, with (and subject to) the subscribed consent of the Company,
the LC Bank and the Administrative Agent (which consents shall not be
unreasonably withheld); provided that (i) if an Assignee is another Bank or an
Affiliate of such transferor Bank, no such consent shall be required, and (ii)
immediately after giving effect to any such assignment, (x) the transferor
Bank's Commitment is equal to either $0 or at least $3,000,000 and (y) the
Assignee's Commitment is at least equal to $3,000,000. Upon execution and
delivery of such instrument and payment by such Assignee to such transferor Bank
of an amount equal to the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this Agreement and shall
have all the rights and obligations of a Bank with a Commitment as set forth in
such instrument of assumption, and the transferor Bank shall be released from
its obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection, the transferor Bank, the Administrative Agent and
the Borrowers shall make appropriate arrangements so that, if required, new
Notes are issued to the Assignee. In connection with any such assignment, the
transferor Bank shall pay to the Administrative Agent an administrative fee for
processing such assignment in the amount of $3,000. If the Assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall, prior to the first date on which interest or fees are payable
hereunder for its account, deliver to the Company and the Administrative Agent
certification as to exemption from deduction or
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withholding of any United States federal income taxes in accordance with
Section 2.15.
(d) Any Bank may at any time assign all or any portion of its rights
under the Financing Documents to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
SECTION 10.7. Collateral. Each of the Banks represents to each Agent
and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 10.8. Proprietary Information. The Administrative Agent and
each Bank shall keep confidential any information provided by or on behalf of
any Borrower or any of their respective Subsidiaries and marked as confidential
or proprietary; provided, that nothing herein shall prevent the Administrative
Agent or any Bank from disclosing such information (i) to its officers,
directors, employees, agents, attorneys and accountants in accordance with
customary banking practices, (ii) upon the order of a court or administrative
agency, (iii) upon the request or demand of any regulatory agency or authority
having jurisdiction over such party, (iv) that has become publicly available
without breach of any agreement between the parties hereto, (v) as necessary for
the exercise of any remedy under any Financing Document or (vi) subject to
provisions similar to those contained in this Section, to any prospective
Participant or Assignee.
SECTION 10.9. Governing Law; Submission to Jurisdiction. Except as
otherwise provided for in the Security Agreements, each of the Financing
Documents shall be governed by and construed in accordance with the laws of the
State of New York. Each Borrower hereby submits to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
any New York State court sitting in New York City for purposes of all legal
proceedings arising out of or relating to this Agreement, any other Financing
Document or the transactions contemplated hereby or thereby. Each Borrower
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
SECTION 10.10. Counterparts; Integration. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement and the other Financing Documents constitute the entire
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agreement and understanding among the parties hereto and supersede any and all
prior agreements and understandings, oral or written, relating to the subject
matter hereof.
SECTION 10.11. Severability. If any provision hereof is invalid or
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Agents and the
Banks in order to carry out the intentions of the parties hereto as nearly as
may be possible, and (ii) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or enforceability of
such provision in any other jurisdiction.
SECTION 10.12. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE AGENTS
AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER
FINANCING DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
ORBITAL SCIENCES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. Sunshine
------------------------------------------
Title: Vice President & Treasurer
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment:
AGENT:
$29,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: Vice President
CO-SYNDICATION AGENTS:
$29,000,000 THE BANK OF NOVA SCOTIA, New York
Agency
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Title: Senior Relationship Manager
$29,000,000 NATIONSBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Title: Vice President
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OTHER BANKS:
$28,000,000 FIRST UNION COMMERCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
$25,000,000 DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Title: Associate
$20,000,000 KEYBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Title: Vice President
$15,000,000 BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Title: Vice President
$15,000,000 WACHOVIA BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ A. Bass
------------------------------------------
Title: Vice President
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$10,000,000 CHEVY CHASE BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------
Title: Vice President
---------------------
Total Commitments
---------------------
$200,000,000
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▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: Vice President
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
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PRICING SCHEDULE
Each of "Commitment Fee Rate", "Euro-Dollar Margin", "Base Margin" and
"Letter of Credit Commission Rate" means, for any day, the rate per annum set
forth below in the row opposite such term and in the column corresponding to the
Pricing Level that applies for such day:
Pricing Level ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇ II III IV V
Commitment Fee Rate 0.375% 0.375% 0.375% 0.50% 0.50% 0.750%
Euro-Dollar 1.50% 1.75% 2.00% 2.50% 3.00% 3.25%
Margin
Base 0.50% 0.75% 1.00% 1.50% 2.00% 2.25%
Margin
Letter of Credit 1.50% 1.75% 2.00% 2.50% 3.00% 3.25%
Commission Rate
For purposes of this Schedule, the following terms have the following
meanings, subject to the last sentence of this Pricing Schedule:
"Level IA Pricing" applies for any day if (i) such day falls on or
after June 21, 1999 and (ii) on such day, the Loans are rated BB+ or higher by
S&P and Ba1 or higher by ▇▇▇▇▇'▇. "Level IA Pricing" shall apply (and shall be
the only Pricing Level that applies) on any day on which the conditions set
forth in the immediately preceding sentence are satisfied, regardless of whether
any other Pricing Level would otherwise apply on such day.
"Level I Pricing" applies for any day if, on such day, the Company's
senior unsecured long-term debt is rated BB+ or higher by S&P and Ba1 or higher
by ▇▇▇▇▇'▇.
"Level II Pricing" applies for any day if, on such day, (i) the
Company's senior unsecured long-term debt is rated BB or higher by S&P or Ba2 or
higher by ▇▇▇▇▇'▇ and (ii) Level I Pricing does not apply.
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"Level III Pricing" applies for any day if, on such day, (i) the
Company's senior unsecured long-term debt is rated BB- or higher by S&P and Ba3
or higher by ▇▇▇▇▇'▇ and (ii) neither Level I Pricing nor Level II Pricing
applies.
"Level IV Pricing" applies for any day if, on such day, (i) the
Company's senior unsecured long-term debt is rated B+ or higher by S&P and B1 or
higher by ▇▇▇▇▇'▇ and (ii) none of Level I Pricing, Level II Pricing or Level
III Pricing applies.
"Level V Pricing" applies for any day if no other Pricing Level applies
for such day.
"Pricing Level" refers to the determination of which of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇
▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, Level IV, or Level V applies for any day.
The credit ratings to be utilized for purposes of this Schedule (other
than with respect to Pricing Level 1A) are those assigned to the senior
unsecured long-term debt securities of the Company without third-party credit
enhancement, and any rating assigned to any other debt security of the Company
shall be disregarded. The credit ratings to be utilized for purposes of Pricing
▇▇▇▇▇ ▇▇ are those assigned to the Loans, and any rating assigned to any other
senior secured long-term debt securities of the Company shall be disregarded;
provided that an "implied rating" of the Loans may be utilized for purposes of
determining Pricing ▇▇▇▇▇ ▇▇, so long as the Company shall have delivered to the
Administrative Agent on or prior to the first date on which such implied rating
is to be utilized a letter from each of ▇▇▇▇▇'▇ and S&P duly executed by each of
them, setting forth the implied rating of the Loans assigned by such rating
agency and stating that such rating is an "implied rating". The ratings in
effect for any day are those in effect at the close of business on such day.
Notwithstanding the foregoing until such time as the senior unsecured
long-term debt securities of the Company are rated by ▇▇▇▇▇'▇, the Pricing Level
that exists on any day shall be determined solely with reference to the rating
by S&P, provided that in no event may Level IA Pricing or Level I Pricing apply
unless the required ratings from both S&P and ▇▇▇▇▇'▇ are in effect.
2