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EXHIBIT 10.1
CONFORMED COPY
$100,000,000
SECOND AMENDED AND RESTATED
CREDIT AND REIMBURSEMENT AGREEMENT
dated as of
August 5, 1997
among
Orbital Sciences Corporation
and Magellan Corporation,
as Borrowers and Guarantors
The Banks Listed Herein
and
Morgan Guaranty Trust Company of New York,
as Administrative Agent and as Collateral Agent
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TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS
SECTION 1.01. Definitions........................................... 2
SECTION 1.02. Accounting Terms and Determinations................... 27
SECTION 1.03. Classes and Types of Loans and Borrowings............. 27
ARTICLE 2 THE CREDITS
SECTION 2.01. Commitments to Lend................................... 28
SECTION 2.02. Method of Borrowing................................... 28
SECTION 2.03. Letters of Credit..................................... 29
SECTION 2.04. Notes................................................. 33
SECTION 2.05. Maturity of Loans; Mandatory Prepayments.............. 34
SECTION 2.06. Interest Rates........................................ 35
SECTION 2.07. Commitment Fees....................................... 37
SECTION 2.08. Participation Fees.................................... 37
SECTION 2.09. Optional Termination of the Revolver Commitments...... 37
SECTION 2.10. Mandatory Termination of Commitments.................. 38
SECTION 2.11. Optional Prepayments.................................. 38
SECTION 2.12. General Provisions as to Payments..................... 38
SECTION 2.13. Funding Losses........................................ 39
SECTION 2.14. Computation of Interest and Fees...................... 39
SECTION 2.15. Deficiencies in the Borrowing Base.................... 39
SECTION 2.16. Withholding Tax Exemption............................. 40
SECTION 2.17. Method of Electing Interest Rates..................... 40
ARTICLE 3 CONDITIONS
SECTION 3.01. Effectiveness......................................... 42
SECTION 3.02. Transitional Provisions............................... 44
SECTION 3.03. All Credit Events..................................... 45
SECTION 3.04. First Borrowing by Each Borrower Subsidiary........... 46
ARTICLE 4REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES
SECTION 4.01. Corporate Existence and Power........................ 47
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SECTION 4.02. Corporate and Governmental Authorization No
Contravention............................................... 47
SECTION 4.03. Binding Effect....................................... 47
SECTION 4.04. Lien Enforceable..................................... 47
SECTION 4.05. Assignments Valid.................................... 47
SECTION 4.06. Financial Information................................ 48
SECTION 4.07. Litigation........................................... 48
SECTION 4.08. Compliance with ERISA................................ 49
SECTION 4.09. Environmental Matters................................ 49
SECTION 4.10. Taxes................................................ 49
SECTION 4.11. Subsidiaries......................................... 49
SECTION 4.12. Full Disclosure...................................... 50
ARTICLE 5 COVENANTS
SECTION 5.01. Information.......................................... 50
SECTION 5.02. Payment of Obligations............................... 53
SECTION 5.03. Maintenance of Property; Insurance................... 54
SECTION 5.04. Conduct of Business and Maintenance of Existence..... 56
SECTION 5.05. Compliance with Laws................................. 56
SECTION 5.06. Inspection of Property, Books and Records............ 56
SECTION 5.07. Investments.......................................... 56
SECTION 5.08. Minimum Consolidated Tangible Net Worth.............. 58
SECTION 5.09. Leverage............................................. 58
SECTION 5.10. Consolidated Fixed Charge Ratio...................... 58
SECTION 5.11. Consolidated Loss Ratio.............................. 58
SECTION 5.12. Consolidated Delinquency Ratio....................... 58
SECTION 5.13. Consolidated DSO Ratio............................... 58
SECTION 5.14. Negative Pledge...................................... 58
SECTION 5.15. Consolidations, Mergers and Sales of Assets.......... 60
SECTION 5.16. Use of Proceeds...................................... 60
SECTION 5.17. Subsidiary Debt...................................... 61
SECTION 5.18. Restricted Payments.................................. 61
ARTICLE 6 DEFAULTS
SECTION 6.01. Events of Default.................................... 61
SECTION 6.02. Notice of Default.................................... 64
ARTICLE 7 THE AGENTS
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SECTION 7.01. Appointment and Authorization........................ 65
SECTION 7.02. Agents and Affiliates................................ 65
SECTION 7.03. Action by Agents..................................... 65
SECTION 7.04. Consultation with Experts............................ 65
SECTION 7.05. Liability of Agents.................................. 65
SECTION 7.06. Indemnification...................................... 66
SECTION 7.07. Credit Decision...................................... 66
SECTION 7.08. Successor Agents..................................... 66
ARTICLE 8 CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair........................................ 67
SECTION 8.02. Illegality........................................... 67
SECTION 8.03. Increased Cost and Reduced Return.................... 68
SECTION 8.04. Base Rate Loans Substituted for Affected
Euro-Dollar Loans 70
ARTICLE 9 GUARANTY
SECTION 9.01. The Guaranty......................................... 70
SECTION 9.02. Guaranty Unconditional............................... 70
SECTION 9.03. Discharge Only upon Payment in Full; Reinstatement... 71
SECTION 9.04. Waiver by the Guarantor.............................. 72
SECTION 9.05. Limit of Liability................................... 72
SECTION 9.06. Subrogation.......................................... 72
SECTION 9.07. Stay of Acceleration................................. 72
ARTICLE 10 MISCELLANEOUS
SECTION 10.01. Notices............................................. 72
SECTION 10.02. No Waiver........................................... 73
SECTION 10.03. Expenses; Documentary Taxes; Indemnification........ 73
SECTION 10.04. Sharing of Set-Offs................................. 74
SECTION 10.05. Amendments and Waivers.............................. 74
SECTION 10.06. Successors and Assigns.............................. 75
SECTION 10.07. Collateral.......................................... 76
SECTION 10.08. Proprietary Information............................. 76
SECTION 10.09. Governing Law; Submission to Jurisdiction........... 77
SECTION 10.10. Counterparts; Integration........................... 77
SECTION 10.11. Severability........................................ 77
SECTION 10.12. Termination of Bridge Agreement..................... 77
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SECTION 10.13. WAIVER OF JURY TRIAL................................ 78
PRICING SCHEDULE
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 Hogan & Hartson LLP, Special Counsel
for the Borrowers
EXHIBIT C - Opinion of Davis Polk & Wardwell, 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 - Company Security Agreement
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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SECOND AMENDED AND RESTATED
CREDIT AND REIMBURSEMENT AGREEMENT
AGREEMENT dated as of August 5, 1997 among ORBITAL SCIENCES CORPORATION
and MAGELLAN CORPORATION, as Borrowers and Guarantors, the BANKS listed on the
signature pages hereof and MORGAN 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
"BANKS"), Morgan Guaranty Trust Company of New York, as Administrative Agent
(the "ADMINISTRATIVE AGENT") and J.P. Morgan 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 prior to the
Effective Date (as defined below), the "ORIGINAL CREDIT AGREEMENT"); and
WHEREAS, pursuant to a Security Agreement dated as of June 30, 1992
between the Company and the Collateral Agent (as amended from time to time, the
"COMPANY SECURITY Agreement"), the obligations of the Company under the
Financing Documents (as defined in the Original Credit Agreement) are secured by
Liens (as so defined) on the Collateral (as so defined); and
WHEREAS, Fairchild Space and Defense Corporation, a Delaware
corporation, has been merged with and into the Company; and
WHEREAS, the Borrower Subsidiaries (as defined below) are each a
Wholly-Owned Subsidiary (as so defined) of the Company; and
WHEREAS, the Company and the Banks wish to restructure the Financing
Documents by, among other things, adding Magellan as a "Borrower" and
"Guarantor" thereunder, changing the interest rate applicable to the loans
outstanding or to be made thereunder and amending the definition of Borrowing
Base contained therein;
NOW, THEREFORE, the parties hereto hereby agree that, on and as of the
Effective Date, the Original Credit Agreement is hereby amended and restated in
its entirety as follows:
ARTICLE 1
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DEFINITIONS
SECTION 1.1 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 Morgan 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 Original Credit Agreement as amended and restated
by the Second Amended Credit Agreement and as the same may be further amended or
restated from time to time in accordance with the terms hereof.
"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.
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"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 lesser of (i) the excess (if any) of
$15,000,000 over the aggregate Letter of Credit Liabilities of all other
Borrowers on such date and (ii) the excess (if any) of such Borrower's Borrowing
Base over the aggregate outstanding principal amount of Revolver Loans to such
Borrower 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 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.
"BORROWERS" means the Company and each of the Borrower Subsidiaries,
and "BORROWER" means any one of them.
"BORROWER SUBSIDIARIES" means Magellan or 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.
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"BORROWING BASE" means, with respect to each Borrower, as of the date
of the most recent Borrowing Base Certificate delivered to the Collateral Agent
by or on behalf of such Borrower, an amount equal to the sum of (i) 90% of the
outstanding balance of Eligible DD250 Government Receivables; (ii) 90% of the
outstanding balance of Eligible Milestone Government Receivables; (iii) 60% of
the sum of Eligible Retained Government Receivables; (iv) 85% of the outstanding
balance of Other Eligible Government Receivables; (v) 60% of the sum of Eligible
Non-Billed Government Receivables, (vi) 90% of the outstanding balance of
Eligible State Commercial Receivables, (vii) 85% of the outstanding balance of
Eligible Commercial Receivables and (viii) 45% of the amount of Eligible
Non-Billed Commercial Receivables; provided that the sum of the amounts in
clauses (iii), (v) and (viii) above for all Borrowers shall not exceed 40% of
the sum of the Borrowing Bases of all Borrowers; and provided further that (A)
with respect to the Company, at least 90% of the aggregate amount of the portion
of Eligible Receivables included in its Borrowing Base pursuant to clauses (i),
(ii), or (iv) and the portion of the payment obligation included in the
Borrowing Base pursuant to clauses (iii) or (v) above must be created pursuant
to an Eligible Assigned Government Contract and (B) solely with respect to any
Borrower Subsidiary, (1) as of any date after two months after the first date on
which such Borrower becomes a Borrower Subsidiary hereunder, at least 80% of the
aggregate amount of the portion of Eligible Receivables included in its
Borrowing Base pursuant to clauses (i), (ii), or (iv) and the portion of the
payment obligation included in its Borrowing Base pursuant to clauses (iii) or
(v) above must be created pursuant to an Eligible Assigned Government Contract
and (2) as of any date after four months after the first date on which such
Borrower becomes a Borrower Subsidiary hereunder, at least 90% of aggregate
amount of the portion of Eligible Receivables included in its Borrowing Base
pursuant to clauses (i), (ii), or (iv) and the portion of the payment obligation
included in its Borrowing Base pursuant to clauses (iii) or (v) above must be
created pursuant to an Eligible Assigned Government Contract .
"BORROWING BASE CERTIFICATE" means a certificate of a Borrower,
executed by the chief financial officer, treasurer or the controller of the
Company, in a form mutually agreed to by the Company and the Administrative
Agent.
"BRIDGE AGREEMENT" means the Credit Agreement dated as of April 25,
1997 among the Company, the banks party thereto and Morgan Guaranty Trust
Company of New York, as Administrative Agent.
"CLASS" has the meaning set forth in Section 1.03.
"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.
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"COLLATERAL ACCOUNT" has the meaning set forth in each Security
Agreement.
"COLLATERAL AGENT" means Morgan Guaranty Trust Company of New York (as
successor by merger to J.P. Morgan 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 a Term Commitment or a Revolver Commitment.
"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 1996 FORM 10-K" means the Company's annual report on Form
10-K for the fiscal year ended December 31, 1996, as filed with the 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.
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"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 Tangible Net Worth at the last
day of the fiscal quarter most recently ended.
"CONSOLIDATED LOSS RATIO" means, for any calendar month, the percentage
equivalent of a fraction (i) the numerator of which is the gross credit 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 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, the consolidated
stockholders' equity of the Company and its Consolidated Subsidiaries less their
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.
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"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 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 ELIGIBLE COMMERCIAL CONTRACTOR" means, at any time, any of
The Boeing Company, Lockheed Martin Corporation, Johns Hopkins University,
McDonnell Douglas Corporation. Rockwell International Corporation and TRW, Inc.,
if at such time, such Person is an Eligible Commercial Contractor.
"DESIGNATED INSURANCE POLICIES" has the meaning set forth in Section
5.03(c).
"DESIGNATED STATE" means the government of any State of the United
States of America or of any city located in any such State, and any agency or
instrumentality of the foregoing, so long as the senior unsecured long term debt
of any such government is rated at least AA- by S&P or Aa3 by Moody's.
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"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), 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 Second Amended Credit 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.
"ELIGIBLE ASSIGNED GOVERNMENT CONTRACT" means an Eligible Government
Contract for which the Government has received and has delivered to the
Collateral Agent an acknowledgment of receipt of a notice of assignment
substantially in the form of Exhibit G-3.
"ELIGIBLE COMMERCIAL CONTRACT" means any contract between a Borrower
and an Eligible Commercial Contractor, which contract does not include a
provision prohibiting assignment of amounts due under such contract that has not
been effectively waived, in writing, by such Eligible Commercial Contractor.
"ELIGIBLE COMMERCIAL CONTRACTOR" means (i) with respect to Receivables
of Magellan or the Pomona operations, any Person and (ii) with respect to all
other Receivables, a Person set forth in Exhibit H or any supplement to Exhibit
H delivered by the Company on behalf of a Borrower to the Collateral Agent;
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provided that such Person must be approved by the Collateral Agent, acting in
its reasonable discretion, which approval may be revoked by the Collateral
Agent, acting in its reasonable discretion, at any time, and provided further
that the Collateral Agent may, in its reasonable discretion, approve such Person
only with respect to a portion (determined by the Collateral Agent in its
reasonable discretion) of any Eligible Receivable created pursuant to an
Eligible Commercial Contract to which such Person is a party.
"ELIGIBLE COMMERCIAL RECEIVABLE" means, at any date of determination
thereof, any Eligible Receivable created pursuant to an Eligible Commercial
Contract (other than an Eligible Commercial Contract with an Eligible Commercial
Contractor which is a Designated State).
"ELIGIBLE DD250 GOVERNMENT RECEIVABLE" means, as at any date of
determination thereof, any Eligible Receivable created pursuant to an Eligible
Government Contract for which Eligible Receivable the Government has issued a
Form DD250.
"ELIGIBLE GOVERNMENT CONTRACT" means a contract between any Borrower
and the Government, which contract:
(a) is set forth in Exhibit G-1 hereto (or in a supplement to
Exhibit G-1 delivered by the Company on behalf of a Borrower to the
Collateral Agent on behalf of the Banks not less than three (3)
Domestic Business Days prior to any delivery of a Borrowing Base
Certificate in which such contract is sought to be included);
(b) does not include a provision, substantially to the effect
of Federal Acquisition Regulation 52.232-24, prohibiting assignment of
amounts due from the Government under such contract; and
(c) is the subject of an instrument of assignment duly
completed and executed by the Borrower party to such contract
substantially in the form of Exhibit G-2 and a notice of assignment
duly completed and executed by the Collateral Agent, substantially in
the form of Exhibit G-3, in each case and for each such notice,
delivered either (i) to the Government for acknowledgment by the
Government, not less than three (3) Domestic Business Days prior to any
delivery of a Borrowing Base Certificate in which such contract is
sought to be included or (ii) to the Collateral Agent, not less than
three (3) Domestic Business Days prior to any delivery of a Borrowing
Base Certificate in which such contract is sought to be included, to be
held by the Collateral Agent (x) to be delivered to the Borrower, at
the request of the Borrower, for delivery to the Government and
acknowledgment by the Government or (y) so long as a Security Event has
occurred and is continuing, for delivery to the Government and
acknowledgment by the Government at the sole
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discretion of the Collateral Agent. Each such instrument and each such
notice shall contain such modifications as the Collateral Agent shall
reasonably determine to be necessary or advisable in order to comply
with any law applicable to transactions with the related Obligor.
"ELIGIBLE MILESTONE GOVERNMENT RECEIVABLE" means, at any date of
determination thereof, any Eligible Receivable created pursuant to an Eligible
Government Contract for which Eligible Receivable the Government has issued a
written acknowledgment of its obligations regarding payment thereof (other than
a Form DD250).
"ELIGIBLE NON-BILLED COMMERCIAL RECEIVABLES" means, at any date of
determination thereof, any unpaid portion of an obligation which but for the
fact that it has not yet been invoiced and that a portion of the goods to be
delivered, services to be rendered or other contractual milestone to be achieved
by the Borrower to give rise to such obligation has not yet been delivered,
rendered or achieved, as the case may be, would be an Eligible Commercial
Receivable; provided that any such obligation shall be invoiced and all such
goods shall be delivered, all such services shall be rendered or all such other
contractual milestones shall be achieved, as the case may be, by the Borrower
within ninety (90) days of the inclusion of such obligation within the Borrowing
Base; provided further that any such obligation shall not be an Eligible
Non-Billed Commercial Receivable if, at the relevant date of determination, (i)
(A) the Obligor of such obligation is an Eligible Commercial Contractor (other
than any Designated Eligible Commercial Contractor or ORBCOMM Global (if at the
relevant date of determination ORBCOMM Global is an Eligible Commercial
Contractor)) and the aggregate amount of all such obligations the Obligor of
which is such Eligible Commercial Contractor at such date exceeds 5% of the
aggregate amount of all Non-Billed Receivables at such date, (B) the Obligor of
such obligation is a Designated Eligible Commercial Contractor and the aggregate
amount all such obligations the Obligor of which is such Designated Commercial
Contractor at such date exceeds 15% of the aggregate amount of all Non-Billed
Receivables at such date or (C) (x) ORBCOMM Global is an Eligible Commercial
Contractor on such date and (y) the Obligor of such obligation is ORBCOMM Global
and the aggregate amount of all such obligations the Obligor of which is ORBCOMM
Global (or portion thereof with respect to which ORBCOMM Global constitutes an
Eligible Commercial Contractor) exceeds 7.5% of the aggregate amount of all
Non-Billed Receivables at such date and (ii) the Required Banks have not
specifically consented to the inclusion of such obligation as an Eligible
Non-Billed Commercial Receivable.
"ELIGIBLE NON-BILLED GOVERNMENT RECEIVABLES" means, at any date of
determination thereof, any unpaid portion of an obligation which but for the
fact that it has not yet been invoiced and that a portion of the goods to be
delivered, services to be rendered or other contractual milestone to be achieved
by the
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Borrower to give rise to such obligation has not yet been delivered, rendered or
achieved, as the case may be, would be an Eligible DD250 Government Receivable,
an Eligible Milestone Government Receivable or an Other Eligible Government
Receivable; provided that any such obligation shall be invoiced and all such
goods shall be delivered, all such services shall be rendered or all such other
contractual milestones shall be achieved, as the case may be, by the Borrower
within ninety (90) days of the inclusion of such obligation within the Borrowing
Base.
"ELIGIBLE RECEIVABLE" means, at any date of determination thereof, any
Receivable that arises under an Eligible Government Contract or an Eligible
Commercial Contract and as to which the Obligor is the Government or an Eligible
Commercial Contractor, other than the following:
(a) any Receivable for which all necessary government
funding has not been appropriated at the time such Receivable
is invoiced;
(b) any Domestic Receivable that is not invoiced and
payable by the Obligor in United States dollars;
(c) any Foreign Receivable unless (i) such Receivable
is invoiced to and payable from an office of the Obligor with
respect thereto located within the United States of America
and is invoiced and payable in United States dollars or (ii)
the payment in full of such Foreign Receivable by its Obligor
is backed by (x) one or more letters of credit issued by a
bank whose senior unsecured long term debt is rated at least A
by S&P or A2 by Moody's and such letters of credit are subject
to a perfected first priority Lien in favor of the Collateral
Agent for the benefit of the Secured Parties or (y) other
forms of credit enhancement satisfactory to the Collateral
Agent as to which security arrangements satisfactory to the
Collateral Agent have been made;
(d) any Receivable that does not comply with all
applicable legal requirements, including, without limitation,
all laws, rules, regulations and orders of any governmental or
judicial authority;
(e) any Receivable in respect of which there is any
unresolved known dispute with the Obligor but only to the
extent of such dispute;
(f) any Receivable whose original due date is more
than 90 days after the later of (i) the date of the original
issuance of the invoice therefor and (ii) the date of the
determination of the eligibility thereof;
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(g) any Receivable as to which the Obligor is an
Eligible Commercial Contractor that remains unpaid for more
than 60 days from the original due date specified at the time
of the original issuance of the invoice therefor;
(h) any Receivable as to which the Obligor is the
Government that remains unpaid for more than 90 days from the
original due date specified at the time of the original
issuance of the invoice therefor;
(i) any Receivable arising outside the ordinary
course of business of the Borrower (including any Receivable
not generated in accordance with the Borrower's normal credit
policies and procedures);
(j) any Receivable the Obligor of which is any
Eligible Commercial Contractor (other than any Designated
Eligible Commercial Contractor or ORBCOMM Global (if at the
relevant date of determination ORBCOMM Global is an Eligible
Commercial Contractor)) to the extent the aggregate amount of
all Receivables of all Borrowers the Obligor of which is such
Eligible Commercial Contractor at such date exceeds 5% of the
aggregate amount of all Receivables at such date, unless the
Required Banks shall have specifically consented to the
inclusion of such Receivable as an Eligible Receivable;
(k) any Receivable the Obligor of which is any
Designated Eligible Commercial Contractor to the extent the
aggregate amount of all Receivables of all Borrowers the
Obligor of which is such Designated Eligible Commercial
Contractor at such date exceeds 15% of the aggregate amount of
all Receivables at such date, unless the Required Banks shall
have specifically consented to the inclusion of such
Receivable as an Eligible Receivable;
(l) if at the relevant date of determination ORBCOMM
Global is an Eligible Commercial Contractor, any Receivable
the Obligor of which is ORBCOMM Global to the extent the
aggregate amount of all Receivables the Obligor of which is
ORBCOMM Global at such date (or portion thereof with respect
to which ORBCOMM Global constitutes an Eligible Commercial
Contractor) exceeds 7.5% of the aggregate amount of all
Receivables at such date, unless the Required Banks shall have
specifically consented to the inclusion of such Receivable as
an Eligible Receivable;
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(m) any Receivable evidenced by an "instrument" (as
defined in the UCC) not in the possession of the Collateral
Agent;
(n) any Receivable that is payable by the Obligor
more than 90 days after the Termination Date;
(o) any Receivable that is not an "account" as
defined in the UCC;
(p) any Receivable as to which the Borrower does not
have good title, free and clear of all Liens other than
Permitted Liens;
(q) any Receivable that is not at all times the legal
and valid payment obligation of the Obligor thereon,
enforceable against such Obligor in accordance with its terms,
subject to the effect of any applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally;
(r) any Receivable which is subject to any asserted
offset, counterclaim or other defense but only to the extent
of such asserted offset, counterclaim or other defense; and
(s) any Receivable from an Obligor that to the
Borrower's knowledge is the subject of a bankruptcy,
insolvency or similar proceeding.
A Receivable which is an Eligible Receivable, but which subsequently
fails to meet any of the foregoing requirements shall immediately cease to be an
Eligible Receivable.
"ELIGIBLE RETAINED GOVERNMENT RECEIVABLE" means, at any date of
determination thereof, any unpaid portion of an obligation that but for the fact
that it has not yet been invoiced by the Borrower would be an Eligible DD250
Government Receivable, an Eligible Milestone Government Receivable or an Other
Eligible Government Receivable (it being understood that all goods to be
delivered, services to be rendered or other contractual milestone to be achieved
by the Borrower to give rise to such obligation have been delivered, rendered or
achieved, as the case may be); provided that any such obligation shall be
invoiced by the Borrower within ninety (90) days of its inclusion within the
Borrowing Base.
"ELIGIBLE STATE COMMERCIAL RECEIVABLE" means, at any date of
determination thereof, any Eligible Receivable created pursuant to an Eligible
Commercial Contract with an Eligible Commercial Contractor which is a Designated
State.
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"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.
"EURO-DOLLAR LOAN" means a Loan 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
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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).
"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 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 Morgan 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.
"FOREIGN RECEIVABLE" means any Receivable that is not a Domestic
Receivable.
"GOVERNMENT" means the federal government of the United States of
America or any agency or instrumentality thereof.
"GROUP OF LOANS" means, at any time, a group of Loans of the same Class
consisting of (i) all such Loans which are Base Rate Loans at such time or (ii)
all Euro-Dollar Loans 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.
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"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:
(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 (d) below, end on the last Euro-Dollar
Business Day of a calendar month; and
(c) if any Interest Period with respect to any Term
Euro-Dollar Loan includes a date on which a scheduled payment
of principal of such Term Loan is required to be made under
Section 2.05(b) but does not end on such date, then (i) the
principal amount of each Term Euro-Dollar Loan required to be
repaid on such date shall have an Interest Period ending on
such date and (ii) the
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remainder (if any) of each such Euro-Dollar Term Loan shall
have an Interest Period determined as set forth above; and
(d) 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 Signet Bank/Virginia 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 Revolver Bank and in respect
of any Borrower, at any one time, an amount equal to such Bank's Revolving
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.
"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.
"MAJOR CASUALTY PROCEEDS" means (i) the aggregate insurance proceeds
received in connection with one or more related events by the Company or any of
its Subsidiaries under any insurance policy maintained by the Company or any of
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its Subsidiaries covering losses with respect to tangible real or personal
property or improvements or losses from business interruption or (ii) any award
or other compensation with respect to any condemnation of property (or any
transfer or disposition of property in lieu of condemnation) received by the
Company or any of its Subsidiaries, if the amount of such aggregate proceeds or
award or other compensation exceeds $5,000,000.
"MAGELLAN" means Magellan Corporation, a Delaware corporation, and its
successors.
"MAGELLAN AGREEMENT" means the Credit Agreement dated as of December 2,
1990 between Magellan and Silicon Valley Bank, as amended to the Effective Date.
"MATERIAL DEBT" means Debt in an aggregate principal amount exceeding
$5,000,000 (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 MacDonald, Dettwiler and Associates Ltd, a Canadian
corporation, and its successors.
"MOODY'S" means Moody's 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.
"NET CASH PROCEEDS" means, with respect to any Prepayment Event, an
amount equal to the cash proceeds received by the Company or any of its
Subsidiaries from or in respect of such Prepayment Event (including any cash
proceeds received as income or as other proceeds of any noncash proceeds of any
Asset Sale), less the sum of (x) any expenses reasonably incurred by such Person
in respect of such Prepayment Event and (y) if such Prepayment Event is an Asset
Sale, (I) the amount of any Debt (including prepayment penalties and interest
breakage fees) secured by a Lien on any asset disposed of in such Asset Sale and
discharged from the proceeds thereof and (II) any taxes actually paid or to be
payable by such Person (as estimated by a senior financial or accounting officer
of
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such Person giving effect to the overall tax position of such Person) in respect
of such Asset Sale.
"NON-BILLED RECEIVABLES" means, at any date of determination thereof,
the sum of (i) the aggregate amount of unpaid portions of obligations which but
for the fact that they have not yet been invoiced and that a portion of the
goods to be delivered, services to be rendered or other contractual milestone to
be achieved by the Borrower to give rise to any such obligation has not yet been
delivered, rendered or achieved, as the case may be, would be an Eligible
Commercial Receivable on such date and (ii) the aggregate amount of unpaid
portions of obligations which but for the fact that they have not yet been
invoiced and that a portion of the goods to be delivered, services to be
rendered or other contractual milestone to be achieved by the Borrower to give
rise to any such obligation has not yet been delivered, rendered or achieved, as
the case may be, would be an Eligible DD250 Government Receivable, an Eligible
Milestone Government Receivable or an Other Eligible Government Receivable on
such date.
"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
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
2.17.
"OBLIGOR" means, with respect to any Receivable, the Person or Persons
obligated to make payments with respect to such Receivable, including any
guarantor thereof.
"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 Orbital Communications Corporation 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 and the Partners' Contingent
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Commitment Letter from the Company to ORBCOMM Global dated August 7, 1996.
"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.
"OTHER ELIGIBLE GOVERNMENT RECEIVABLE" means, as at any date of
determination thereof, any Eligible Receivable created pursuant to an Eligible
Government Contract other than an Eligible DD250 Government Receivable, an
Eligible Milestone Government Receivable, an Eligible Non-Billed Government
Receivable or an Eligible Retained Government Receivable.
"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.
"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.
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"PREPAYMENT EVENT" means (i) the incurrence of any Debt by any Company
or any of its Subsidiaries on any date (other than (A) Debt incurred for the
purpose of financing all or any part of the cost of acquiring any asset,
including, without limitation, Debt of the Company in an amount not to exceed
$5,800,000 for the construction, expansion and purchase of equipment for the
high bay engineering facility located at 21830 Atlantic Blvd., Dulles, VA 20122,
(B) the Loans, (C) any Debt incurred by any of the Partnerships, (D) Debt
incurred by the Company under the working capital credit facility between the
Company and Deutsche Bank AG, dated as of July 8, 1996, as in existence on the
date hereof and (E) Debt incurred by MDA, MacDonald, Dettwiler Technologies
Limited and Earth Observation Sciences Ltd. under their credit facilities with
Royal Bank of Canada, dated as of September 16, 1996 and, other than with
respect to Earth Observation Sciences Ltd., ABN AMRO Bank Canada, dated as of
February 27, 1996, in each case as in existence on the date hereof, (ii) the
issuance of any equity securities by the Company or any of its Subsidiaries on
any date (other than any equity securities issued (A) in connection with stock
option or other employee benefit plans or (B) to the Company or any of its
Subsidiaries), (iii) any Asset Sale consummated on any date in any fiscal year
if (and solely to the extent that) the aggregate Net Cash Proceeds therefrom,
when combined with the aggregate Net Cash Proceeds from all other Asset Sales
consummated on or prior to such date in such fiscal year, exceeds $5,000,000
unless, within 5 Domestic Business Days after receipt by the Company or such
Subsidiary of any Net Cash Proceeds from such Asset Sale, the Company shall have
delivered to the Administrative Agent a certificate (an "ASSET SALE
CERTIFICATE") of the chief financial officer or the treasurer of the Company,
certifying as to (x) the aggregate amount of such Net Cash Proceeds, and (y) the
fact that the Company shall invest such Net Cash Proceeds in itself or in any of
its Subsidiaries within 90 days after receipt thereof, provided that if, on any
date, any fact included in such Asset Sale Certificate and required to be set
forth therein pursuant to clause (y) above shall cease to be true, such Asset
Sale shall be considered a Prepayment Event for purposes of this Agreement on
and as of such date and (iv) receipt of Major Casualty Proceeds, unless, within
5 Domestic Business Days after receipt by the Company or such Subsidiary
thereof, the Company shall have delivered to the Administrative Agent a
certificate (a "MAJOR CASUALTY PROCEEDS CERTIFICATE") of the chief financial
officer or the treasurer of the Company, certifying as to (x) the aggregate
amount of such Major Casualty Proceeds, and (y) the fact that the Company shall
invest such Major Casualty Proceeds to repair or replace affected assets within
90 days after receipt thereof, provided that if, on any date, any fact included
in such Major Casualty Proceeds Certificate and required to set forth therein
pursuant to clause (y) above shall cease to be true, the receipt of such Major
Casualty Proceeds shall be considered a Prepayment Event for purposes of this
Agreement on and as of such date. The description of any transaction as falling
within the above definition does not affect any limitation on such transaction
imposed by Article 5 of this Agreement.
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"PREPAYMENT PERCENTAGE" means, (i) in respect of an incurrence of Debt,
100%, (ii) in respect of the issuance of equity securities not constituting
Debt, 50% and (iii) in respect of Asset Sales or receipt of Major Casualty
Proceeds, 75%.
"PRICING SCHEDULE" means the Schedule attached hereto and identified as
such.
"PRIME RATE" means the rate of interest publicly announced by Morgan
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 The Bank of
Tokyo, Ltd., The Bank of Nova Scotia and Morgan 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
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
sum of (i) the aggregate amount of the Revolver Commitments or, if the Revolver
Commitments shall have been terminated, having at least 66 2/3% of the aggregate
Revolver Exposures at such time plus (ii) the aggregate outstanding amount of
the Term Loans at such time or, if no Term Loans are then outstanding, the Term
Commitments 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,
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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.
"REVOLVER BANK" means each Bank identified as a Revolver Bank on the
signature pages hereof, each Assignee which becomes a Revolver Bank pursuant to
Section 10.06(c), and their respective successors.
"REVOLVER COMMITMENT" means, (i) with respect to each Revolver Bank
listed on the signature pages hereof, the amount set forth opposite the name of
such Revolver Bank on the signature pages hereof under the heading "Revolver
Commitments" and (ii) with respect to each Assignee that becomes a Revolver Bank
pursuant to Section 10.06(c), the amount of the Revolver 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.
"REVOLVER EXPOSURE" means, with respect to each Revolver Bank and in
respect of any Borrower, at any time, an amount equal to the sum of (i) the
aggregate principal amount of the Revolving Loans of such Revolver Bank to such
Borrower outstanding at such time and (ii) such Revolver Bank's LC Exposure at
such time with respect to such Borrower.
"REVOLVING LOAN" means a loan made by a Revolver Bank pursuant to
Section 2.01(b).
"REVOLVING PERCENTAGE" means, with respect to each Revolver Bank, at
any time, the percentage that such Revolver Bank's Revolver Commitment
constitutes of the aggregate amount of the Revolver Commitments at such time.
"SECOND AMENDED CREDIT AGREEMENT" means this Second Amended and
Restated Credit Agreement dated as of August 5, 1997 among the Borrowers, the
Banks and the Agents.
"SECURED PARTY" has the meaning set forth in any Security Agreement.
"SECURITY AGREEMENTS" means, collectively, the Company Security
Agreement and the Subsidiary Security Agreements, 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
McGraw-Hill Companies, Inc., or any successor to its business of rating debt
securities.
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"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 and the
Collateral Agent, 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,
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.
"TERM BANK" means each Bank identified as a Term Bank on the signature
pages hereof, each Assignee which becomes a Term Bank pursuant to Section
10.06(c), and their respective successors.
"TERM COMMITMENT" means, with respect to each Term Bank listed on the
signature pages hereof, the amount set forth opposite the name of such Term Bank
on the signature pages hereof under the heading "Term Commitments".
"TERM LOAN" means a loan made by a Term Bank pursuant to Section
2.01(a).
"TERMINATION DATE" means August 5, 2001, or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
"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
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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 (i) directors'
qualifying shares and (ii) solely with respect to Magellan, up to 10,000,000
shares of its common stock which are held or may hereafter be held by employees
of Magellan or the Company and have been or will be acquired pursuant to the
Magellan Corporation 1996 Stock Option Plan) 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 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.
SECTION 1.3. Classes and Types of Loans and 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 Class and Type (subject to Article 8) and, except in the case of Base Rate
Loans, have the same initial Interest Period. Loans hereunder are distinguished
by "Class" and by "Type". The "Class" of a Loan (or of a Commitment to make such
a Loan or of a Borrowing comprised of such Loans or of a Group of such Loans)
refers to the determination whether such Loan is a Term Loan or a Revolving
Loan, each of which constitutes a Class. The "Type" of a Loan refers to the
determination whether such Loan is a Euro-Dollar Loan or a Base Rate Loan.
Identification of a Loan (or a Borrowing or Group) by both Class and Type
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(e.g., a "Term Euro-Dollar Loan") indicates that such Loan is both a Term Loan
and a Euro-Dollar Loan (or that such Borrowing or Group of Loans is comprised of
such Loans).
ARTICLE 2
THE CREDITS
SECTION 2.1. Commitments to Lend. (a) Term Loans. Each Term Bank
severally agrees, on the terms and conditions set forth in this Agreement, to
make a Term Loan to the Company on the Effective Date in an aggregate principal
amount not to exceed such Term Bank's Term Commitment. The Borrowing pursuant to
this subsection shall be made from the several Term Banks ratably in proportion
to their respective Term Commitments. Loans made pursuant to this subsection are
not revolving in nature and amounts of such loans repaid or prepaid may not be
reborrowed.
(b) Revolving Loans. Each Revolver Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make Revolving Loans to any
Borrower from time to time prior to the Termination Date in amounts such that
the Revolver Exposure of such Revolver Bank at such time shall not exceed the
amount of its Revolver Commitment at such time. Each Borrowing under this
subsection 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 3.04(d)) and shall be made from the several
Revolver Banks ratably in proportion to their respective Revolver Commitments.
Within the foregoing limits, the Borrower may borrow under this subsection,
prepay Revolving Loans to the extent permitted by Section 2.10 and reborrow at
any time under this subsection.
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 Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) the Type and Class of such Borrowing, and
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(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, 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 Revolver Bank, and each Revolver Bank
shall be deemed, without further action by any party hereto, to have purchased
from the LC Bank, a
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participation in such Letter of Credit and the related Letter of Credit
Liabilities equal to each Revolver Bank's Revolving 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 Revolver 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 Revolver
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
Revolver 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 Revolver Bank's Revolving 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 Revolver 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 Revolver Bank 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 Revolver Bank made payment to the LC Bank until the
date the LC Bank repays such amount in full.
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(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 Revolver 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 Revolver Bank ratably in accordance with its Revolver Commitment all
amounts (including interest) received from the Borrower for application in
payment, in whole or in part, of the Reimbursement Obligation in respect of any
Letter of Credit, but only to the extent such Revolver 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 Revolver Bank and Agent from and against any and all claims and
damages, losses, liabilities, costs or expenses which such Revolver 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 Revolver 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 Revolver Bank); provided that the Borrower shall
not be required to indemnify any Revolver 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 Revolver 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 Revolver 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. 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 Revolver Banks, the
LC Bank
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and their respective officers and directors shall not be liable or responsible
for, and the obligations of each Revolver 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 Revolver 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 Revolver 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 Revolver Bank shall, ratably in accordance with its Revolver 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 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 Revolver Bank, ratably in
proportion to the Revolving 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
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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 Revolver 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 or Class 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 or Class. 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(c), 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.
SECTION 2.5. Maturity of Loans; Mandatory Prepayments. (a) Maturity of
Loans. Each Loan of each Class shall mature, and the outstanding principal
amount thereof shall be due and payable (together with accrued interest
thereon), on the Termination Date.
(b) Scheduled Amortization of Term Loans. In addition, the Borrowers
shall repay, and there shall become due and payable, on each date set forth
below, an aggregate principal amount of the Term Loans equal to the amount set
forth below opposite such date (as such amount may be reduced from time to time
pursuant to subsection (d)(ii) and Section 2.11(c)):
Date Amount
---- ------
12/31/97 $1,250,000
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3/31/98 $1,250,000
6/30/98 $1,250,000
9/30/98 $1,250,000
12/31/98 $2,000,000
3/31/99 $2,000,000
6/30/99 $2,000,000
9/30/99 $2,000,000
12/31/99 $2,500,000
3/31/00 $2,500,000
6/30/00 $2,500,000
9/30/00 $2,500,000
12/31/00 $3,000,000
3/31/01 $3,000,000
6/30/01 $6,000,000
(c) Mandatory Prepayments. In addition, in the event that the Company
or any of its Subsidiaries shall receive any Net Cash Proceeds as a result of
any Prepayment Event, the Company shall prepay the Term Loans, on the date upon
which the Company or such Subsidiary, as the case may be, shall have received
such Net Cash Proceeds, in an amount equal to the Prepayment Percentage
applicable to such Net Cash Proceeds; provided that (i) if the Prepayment
Percentage of the Net Cash Proceeds in respect of any Prepayment Event results
in an amount of less than $1,000,000, such prepayment shall be required to be
made on the date on which the Company or any of its Subsidiaries shall receive
Net Cash Proceeds which, together with all other Net Cash Proceeds from
Prepayment Events not previously applied, are equal to at least $1,000,000, (ii)
such prepayment shall be made on or before the fifth (5th) Domestic Business Day
following the consummation of any Asset Sale constituting a Prepayment Event,
(iii) no prepayment shall be required under this Section 2.05(c) unless and
until the aggregate amount of Net Cash Proceeds received by the Company and its
Subsidiaries in respect of Prepayment Events which have occurred after the
Effective Date exceeds $75,000,000, (iv) no prepayments shall be required under
this Section 2.05(c) on any date if and to the extent the aggregate principal
amount of Term Loans outstanding on such date does not exceed $25,000,000 and
(v) at the election of the Borrowers, if the amount of any such prepayment to be
made exceeds the amount of Term Loans then outstanding having an Interest Period
ending on the date of such prepayment, such excess amount shall be deposited in
the Collateral Account under the Company Security Agreement, and such excess
shall not be required to be prepaid until the last day of the Interest Periods
relating to such outstanding Term Loans in an aggregate principal amount equal
to or greater than such excess amount, unless an Event of Default has occurred
and is continuing or the Required Banks otherwise determine in their sole
discretion and so notify the Company. The Borrowers shall give the
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Administrative Agent at least one Domestic Business Day's notice of each
mandatory prepayment of the Terms Loans pursuant to this subsection (c).
(d) Application of Prepayments. (i) Each prepayment of Loans made by
the Borrowers pursuant to this Section shall be applied to such Group or Groups
of Term Loans as the Company may designate in the applicable notice of
prepayment (or, failing such designation, as determined by the Administrative
Agent), and shall be applied to repay ratably the Loans of the several Banks
included in such Group or Groups.
(ii) The amount of any prepayment of the Term Loans made by the
Borrowers pursuant to subsection (c) shall be applied to reduce the amount of
subsequent scheduled repayments of the Term Loans pursuant to subsection (b) in
inverse order of maturity.
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
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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
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 Revolver Bank a commitment fee at
the Commitment Fee Rate (determined in accordance with the Pricing Schedule) on
the daily amount by which such Revolver Bank's Revolver Commitment exceeds such
Revolver Bank's Revolver 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 Revolver Commitments in their entirety.
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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 Second Amended Credit Agreement,
which participation fee shall be payable to the Banks ratably in proportion to
their respective Commitments.
SECTION 2.9. Optional Termination of the Revolver Commitments. The
Company may, upon at least three Domestic Business Days' notice to the
Administrative Agent, terminate the Revolver Commitments at any time, if no
Revolving Loans and no Letters of Credit are outstanding at such time. If the
Revolver 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. (a) The Term
Commitments shall terminate at the close of business (New York City time) on the
Effective Date.
(b) The Revolver 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.
(c) Each prepayment of the Term Loans made by the Company pursuant to
this Section shall be applied to reduce pro-rata by amount the amount of the
subsequent scheduled repayments of the Term Loans to be made pursuant to Section
2.05(b).
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)
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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 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 2.17 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.
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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. Deficiencies in the Borrowing Base. If at any time the
aggregate Revolver Exposure of all Revolver Banks with respect to any Borrower
shall exceed the sum of such Borrower's Borrowing Base and any amounts deposited
in such Borrower's Collateral Account, such Borrower shall within one Domestic
Business Day, prepay its Revolving Loans (together with accrued interest
thereon) in such aggregate amount as shall be necessary to reduce the amount of
such excess to zero.
SECTION 2.16. 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
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 2.17. 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:
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(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
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.
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(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
CONDITIONS
SECTION 3.1. Effectiveness. This Second Amended Credit Agreement shall
become effective on and as of the date when the Administrative Agent shall have
received all of the following:
(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 counterparts of an Amended and Restated
Company Security Agreement substantially in the form of Exhibit I (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);
(c) 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;
(d) counterparts of each Subsidiary Security Agreement to
which Magellan is a party, duly executed by the parties thereto;
(e) evidence satisfactory to it that the security interest
created by each Subsidiary Security Agreement constitutes a perfected
first priority Lien under the Uniform Commercial Code to the extent
such a Lien may be perfected thereunder;
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(f) a duly executed Perfection Certificate (as defined in the
Company Security Agreement), together with evidence satisfactory to the
Collateral Agent that the Lien created under the Company Security
Agreement constitutes a perfected first priority Lien to the extent a
Lien may be perfected thereunder;
(g) a duly executed Perfection Certificate (as defined in the
Subsidiary Security Agreement to which Magellan is a party), together
with evidence satisfactory to the Collateral Agent that the Lien
created under such Subsidiary Security Agreement constitutes a
perfected first priority Lien to the extent a Lien may be perfected
thereunder;
(h) the most recent Borrowing Base Certificate of each
Borrower required to be delivered by the Company pursuant to Section
5.01(c);
(i) an opinion of Hogan & Hartson LLP, 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;
(j) an opinion of Davis Polk & Wardwell, 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;
(k) certificates of insurance reasonably satisfactory to it
evidencing compliance with Section 5.03;
(l) evidence satisfactory to it that (x) the commitments under
the Bridge Agreement shall have been terminated and (y) all loans
outstanding thereunder, together with interest accrued thereon to but
excluding the Effective Date, all accrued fees and all other amounts
due and payable thereunder (including without limitation expenses
payable pursuant to Section 9.03 thereof) shall have been paid in full;
(m) evidence satisfactory to it that (x) the commitments under
the Magellan Agreement shall have been terminated and (y) all loans
outstanding thereunder, together with interest accrued thereon to but
excluding the Effective Date, all accrued fees and all other amounts
due and payable thereunder (including without limitation expenses
payable thereunder) shall have been paid in full; and
(n) all documents it may reasonably request relating to the
existence of the Borrowers, the corporate authority for and the
validity of
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the Financing Documents, and any other matters reasonably relevant
hereto, all in form and substance reasonably satisfactory to the
Administrative Agent;
provided that this Agreement shall not become effective or be binding on any
party hereto unless the foregoing conditions are satisfied not later than August
15, 1997. On the Effective Date the Original Credit 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 Second Amended Credit 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 Original
Credit 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
Second Amended Credit Agreement. The Notes delivered to each Bank under the
Original Credit Agreement shall become void on the Effective Date and, upon
receiving its new Notes delivered pursuant to subsection (c), 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 Second Amended Credit Agreement, and such notice
shall be conclusive and binding on all parties hereto.
SECTION 3.2. Transitional Provisions. (a) Each Loan outstanding under
the Original Credit Agreement on the Effective Date shall mature on the
Termination Date.
(b) The interest rates determined in accordance with Section 2.06 of
this Second Amended Credit 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 Second Amended Credit 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 Original
Credit 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 Revolver 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.
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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 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;
(d) solely if such Credit Event is the making of a Revolving
Loan to or the issuance of a Letter of Credit for the account of any
Borrower, the fact that, immediately after such Credit Event (i), the
aggregate Revolver Exposure of all Banks in respect of such Borrower
will not exceed its Borrowing Base and (ii) the aggregate Revolver
Exposures of all Revolver Banks in respect of all Borrowers will not
exceed the aggregate amount of the Revolver Commitments; and
(e) solely if such Credit Event is the making of a Revolving
Loan to or the issuance of a Letter of Credit for the account of any
Borrower, receipt by the Administrative Agent of the most recent
Borrowing Base Certificate of such Borrower as required to be delivered
by the Company pursuant to Section 5.01(c) (without giving effect, for
purposes of this clause, to the proviso contained in such Section) or
Section 5.01(d), as the case may be.
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 3.04(b), 3.04(c) and, if applicable, 3.04(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 (other than Magellan) is subject to the satisfaction of
the following further conditions:
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(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 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
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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 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) the
Subsidiary Security Agreements and the Notes, when executed and delivered in
accordance with this Agreement will constitute and (iii) the Company Security
Agreement constitutes and, when amended and restated in accordance with this
Amended Credit Agreement will continue to constitute, 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. (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.
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 Eligible 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, 1996 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 March 31, 1997 and the related unaudited
consolidated statements of operations and cash flows for the three months then
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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 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 March 31, 1997 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
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with the terms and conditions of all such permits, licenses and authorizations,
and 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) not later than twenty (20) days after the end of each
calendar month, a Borrowing Base Certificate setting forth the
calculation of each Borrower's Borrowing Base as of the tenth (10th)
day after the end of such month; provided that, the Company need not
deliver such Certificate pursuant to this Section with respect to any
Borrower (other than the Company) if the aggregate Revolver Exposure of
all Revolver Banks with respect to such Borrower at all times during
the one month-period ending as of such day is zero;
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(d) as soon as possible and in any event within three (3)
Domestic Business Days after the Administrative Agent shall have
requested, at the request of any Bank in its sole discretion, with
respect to any Borrower, a Borrowing Base Certificate setting forth the
calculation of such Borrower's Borrowing Base as of the date of the
most recent Borrowing Base Certificate of such Borrower (delivered
pursuant to Section 3.03(e) or Section 5.01(c)) adjusted to reflect the
deduction of the aggregate amount of Eligible Receivables included in
such calculation that have since such calculation ceased to be Eligible
Receivables (other than as a result of payment thereon to the
Collateral Account);
(e) within 20 days after the end of each calendar month,
reasonably detailed information on Eligible Receivables, the scope and
format of which shall be to the reasonable satisfaction of the
Collateral Agent and which shall include (but not necessarily be
limited to) (i) a monthly aged listing by account debtor of accounts
receivable and accounts payable, (ii) detailed monthly information
reconciling account receivable balances at the beginning and end of
each month, (iii) statements outlining collections, write-offs and
delinquencies and a monthly calculation of the Consolidated Loss Ratio,
the Consolidated Delinquency Ratio and the Consolidated DSO Ratio, (iv)
a listing of each Eligible Government Contract or Eligible Commercial
Contract with a value in excess of $5,000,000 (as of the date
immediately preceding termination or cancellation) which has been
terminated or canceled during such calendar month, and (v) such other
information that the Collateral Agent may reasonably request;
(f) 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 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;
(g) 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
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the requirements of Sections 5.07 through 5.13, inclusive, and Section
5.17 on the date of such financial statements;
(h) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports and
proxy statements so mailed;
(i) 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;
(j) 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);
(k) 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 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
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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
(l) from time to time such additional information regarding
the financial position or business of the Company and its Subsidiaries,
or the calculation of any Borrowing Base, 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 respective 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;
(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
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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 Agreement (other than any notice of
increase in the amount of any such coverage from the amount in effect on the
date of this 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 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
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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 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 respective 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 or acquire any Investment in any Person other than:
(a) Investments in any Borrower;
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(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
$75,250,000, 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) 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 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; and
(j) any Investment (other than any Investment in direct or
indirect Subsidiaries of the Company immediately after such Investment
is
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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 (j) does not exceed 12% of Consolidated Tangible Net Worth.
SECTION 5.8. Minimum Consolidated Tangible Net Worth. Consolidated
Tangible Net Worth at the last day of any fiscal quarter will not be less than
(i) $210,000,000 plus (ii) 50% of Consolidated Net Income for each fiscal
quarter of the Company ended after March 31, 1997 and on or prior to such date
and for 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 Tangible Net Worth
shall have been increased by reason of the issuance and sale after the Effective
Date 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 the Effective Date and on or prior to such date.
SECTION 5.9. Leverage. The Consolidated Leverage Ratio will at no time
exceed 1.25 to 1.0.
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 (i) for any fiscal quarter ending on
or before September 30, 1999, 1.10 to 1 and (ii) for any fiscal quarter ending
on or after December 31, 1999, 1.25 to 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;
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(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;
(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), 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
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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;
(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); and
(q) 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.
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 working capital purposes and the funding
of acquisitions and, to the extent such funds are not required by the Borrowers
for 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
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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; provided that in no event shall the Exchangeable
Non-Voting Shares or the Class B Preferred Shares of MacDonald, Dettwiler
Holdings Inc. be included in the "Debt" of MacDonald, Dettwiler Holdings Inc.
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 2.15, 5.01(c), 5.01(d), 5.01(j) 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
prove to have been incorrect in any material respect when made (or
deemed made);
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(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 $5,000,000 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
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
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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
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,
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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 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
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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 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
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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
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
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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 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
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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 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,
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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 Euro-Dollar 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
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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;
(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
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(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.
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.
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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 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.
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(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 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
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principal of or interest on any Loan or any fees hereunder or for termination of
any Commitment, (iv) amend the definition of Borrowing Base, (v) amend Section
2.15 hereof, (vi) amend any provision of Article 9 hereof, or (vii) 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
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), (iv), (v) or (vi) of
Section 10.05 without the consent of the Participant. An assignment or other
transfer which is not permitted by subsection 10.06(c) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection.
(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 Term Commitment (if any), its Term
Loans (if any) and its Revolver Commitment (and corresponding Revolving 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, (ii) any
such assignment shall be in respect of pro-rata portions of the transferor
Bank's Term Commitment or Term
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Loans, as applicable at the relevant time, and Revolver Commitment and (iii)
immediately after giving effect to any such assignment, (x) the sum of (A) the
transferor Bank's Term Commitment or aggregate outstanding principal amount of
Term Loans, as applicable at the relevant time and (B) the transferor Bank's
Revolver Commitment is equal to either $0 or at least $3,000,000 and (y) the sum
of (A) the Assignee's Term Commitment or aggregate outstanding principal amount
of Term Loans, as applicable at the relevant time and (B) the Assignee's
Revolver 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 $2,000. 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 withholding of any United States
federal income taxes in accordance with Section 2.16.
(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
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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 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. Termination of Bridge Agreement. The Company and each of
the Banks that is also a "Bank" party to the Bridge Agreement agrees that the
"Commitments" as defined in the Bridge Agreement shall be terminated in their
entirety on the Effective Date. Each of such Banks waives (a) any requirement of
notice of such termination pursuant to Section 2.07 of the Bridge Agreement and
(b) any claim to any commitment fees or other fees under the Bridge Agreement
for any day on or after the Effective Date. The Company (i) represents and
warrants that (x) after giving effect to the preceding sentences of this
Section, the commitments under the Bridge Agreement will be terminated effective
not later than the Effective Date, (y) as of the Effective Date, no loans will
be outstanding under the Bridge Agreement and (ii) covenants that all
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accrued and unpaid commitment fees and any other amounts due and payable under
the Bridge Agreement (including without limitation expenses payable pursuant to
Section 9.03 thereof) shall have been paid on or prior to the Effective Date.
SECTION 10.13. 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/ Jeffrey V. Pirone
--------------------------------------
Title: Chief Financial Officer
21700 Atlantic Boulevard
Dulles, Virginia 20166
Facsimile number: (703) 406-3502
Attention:
MAGELLAN CORPORATION
By /s/ Kenneth H. Sunshine
--------------------------------------
Title: Vice President & Assistant
Treasurer
960 Overland Court
San Dimas, CA 91773
Facsimile number:
Attention:
TERM COMMITMENTS
Term Banks
AGENT:
$7,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ James E. London
--------------------------------------
Title: Vice President
CO-AGENTS:
$6,125,000 THE BANK OF NOVA SCOTIA
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By /s/ John Hopmans
--------------------------------------
Title: Senior Relationship Manager
$6,125,000 NATIONSBANK, N.A.
By /s/ James W. Gaittens
--------------------------------------
Title: Vice President
PARTICIPANTS:
$5,250,000 BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By /s/ Catherine Moeser
--------------------------------------
Title: Assistant Vice President
$5,250,000 SIGNET BANK
By /s/ Sushil K. Clarence
--------------------------------------
Title: Vice President
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$5,250,000 THE SUMITOMO BANK, LIMITED
By /s/ Barry P. Maddams
--------------------------------------
Title: Co-General Manager
By /s/ James L. Hogan
--------------------------------------
Title: Vice President & Manager
Total Term Commitments
$35,000,000
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REVOLVER COMMITMENTS
Revolver Banks
AGENT:
$13,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ James E. London
--------------------------------------
Title: Vice President
CO-AGENTS:
$11,375,000 THE BANK OF NOVA SCOTIA
By /s/ John Hopmans
--------------------------------------
Title: Senior Relationship Manager
$11,375,000 NATIONSBANK, N.A.
By /s/ James W. Gaittens
--------------------------------------
Title: Vice President
PARTICIPANTS:
$9,750,000 BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By /s/ Catherine Moeser
--------------------------------------
Title: Assistant Vice President
$9,750,000 SIGNET BANK
By /s/ Sushil K. Clarence
--------------------------------------
Title: Vice President
$9,750,000 THE SUMITOMO BANK, LIMITED
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By /s/ Barry P. Maddams
--------------------------------------
Title: Co-General Manager
By /s/ James L. Hogan
--------------------------------------
Title: Vice President & Manager
Total Revolver Commitments
$65,000,000
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MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
and as Collateral Agent
By /s/ James E. Condon
--------------------------------------
Title: Vice President
60 Wall Street
New York, New York 10260
Facsimile number: 212-648-5018
Attention:
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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 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 Level Level Level Level
I II III IV
- --------------------------------------------------------------------
Commitment Fee .3125% .375% .50% .50%
Rate
- --------------------------------------------------------------------
Euro-Dollar 1.00% 1.50% 2.00% 2.50%
Margin
- --------------------------------------------------------------------
Base Margin 0% .50% 1.00% 1.50%
Letter of Credit 1.00% 1.50% 2.00% 2.50%
Commission Rate
- --------------------------------------------------------------------
For purposes of this Schedule, the following terms have the following
meanings:
"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 Ba2 or higher
by Moody's.
"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 and Ba3
or higher by Moody's and (ii) Level I Pricing does not apply.
"Level III 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 Moody's and (ii) neither Level I Pricing nor Level II Pricing applies.
"Level IV Pricing" applies for any day if no other Pricing Level
applies for such day.
"Pricing Level" refers to the determination of which of Level I, Level
II, Level III, or Level IV applies for any day.
The credit ratings to be utilized for purposes of this Schedule 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 ratings in effect for any
day are those in effect at the close of business on such day.
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Notwithstanding the foregoing, until such time as the senior unsecured
long-term debt securities of the Company are rated by Moody's, the Pricing Level
shall be determined solely with reference to the rating by S&P, provided that in
no event may Level I Pricing apply unless the required ratings from both S&P and
Moody's are in effect.
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SCHEDULE I
Investment Policies of the Company
Purpose
To establish a policy for the investment of surplus cash.
Definition
Surplus Cash -- cash resources in excess of the needs of the corporation to
conduct its business.
All surplus cash will be under the control of the Chief Financial Officer. No
surplus cash beyond minor petty cash balances are permissible elsewhere within
the corporation.
Policy
1. Surplus cash will be invested in a manner which minimizes risk of
principal, provides sufficient liquidity and, within these constraints,
maximizes yield.
2. Investments will only be placed in debt instruments from entities that
have "investment grade" credit ratings or better at the time such
investments are made:
Commercial Paper A1/P1
Corporate Debt Securities A or above
State and Local Obligations A
3. Investments will be made only in securities denominated in the U.S.
Dollar or foreign currency obligations fully hedged.
4. Investments will be made in instruments that will possess high
liquidity or instruments that can be converted to cash in a short
period of time. Accordingly, investments are restricted to instruments
with maturities of 2 years or less.
5. Not more than $5 million will be invested in the security instrument
from any single debtor other than the United States Government.
6. Within these guidelines, the Chief Financial Officer will have the
flexibility to invest surplus cash in the following debt instruments:
U.S. Treasury Bills
Overnight Repurchase Agreements of U.S.
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Government Securities
Eurodollar Obligations
Commercial Paper
Master Notes
Certificates of Deposit
Bankers Acceptances
Municipal Obligations
Corporate Bond Issues
7. Approvals for specific investment decisions are not required as long as
they meet the standards noted above.
8. Any investment which meets all the foregoing criteria at the time it is
made but subsequently ceases to do so shall be liquidated within a
reasonable time.
Accounting Control Requirements/Procedures
The Controller is responsible for ensuring that the Company's investment
portfolio is properly accounted for at all times. This process will include:
A. The establishment and maintenance of files for all accounts with
investment brokers and related confirmation documentation.
B. The preparation of journal entries on a monthly basis to accrue
investment income earned on investments, amortization of premiums or
discounts, cash receipts and fund transfers.
C. The preparation and maintenance of an investment schedule of all trades
for audit review. Quarterly policy compliance schedules will also be
maintained measuring quarterly investment activity against the
Company's written investment policy.
D. The preparation of weekly investment activity reports for management
review.
E. The reconciliation of all monthly interest statements received from the
organizations investing the Company's cash to the General Ledger.
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EXHIBIT A
NOTE
New York, New York
_____________, 199_
For value received, [NAME OF BORROWER], a Delaware corporation, (the
"Borrower"), promises to pay to the order of [NAME OF BANK] (the "Bank"), for
the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the maturity date provided for in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of each such
Loan on the dates and at the rate or rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at the office of
Morgan Guaranty Trust Company of New York, 60 Wall Street, New York, New York.
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding shall be endorsed by
the Bank on the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that the failure of the Bank to
make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Second Amended and
Restated Credit and Reimbursement Agreement dated as of August 5, 1997 among
[Orbital Sciences Corporation] [Magellan Corporation] and the Borrower, as
Borrowers and Guarantors, the banks listed on the signature pages thereof,
Morgan Guaranty Trust Company of New York, as Administrative Agent and as
Collateral Agent (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof, the acceleration of the maturity hereof and the basis upon
which this Note is secured.
The Guarantors have, pursuant to the provisions of the Credit
Agreement, unconditionally guaranteed the payment in full of the principal of
and interest on this Note.
[NAME OF BORROWER]
90
By
Name:
Title:
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Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
- --------------------------------------------------------------------------------
Date Amount of Type of Class of Loan Amount of Notation
Loan Loan Principal Made By
Repaid
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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